Unnatural Selection

A jaundiced critic once referred to American political science as "neither politics nor science." Similarly, the late judge Henry Friendly observed that too often social science involves "counters who can’t think or thinkers who can’t count." This book, though not without some merits, falls into the first of Judge Friendly’s categories.

Ms. Binder, an associate professor at George Washington University, is the author or co-author of two earlier works on Congress—one on the party system and one on Senate filibusters. Her current work, a study of congressional gridlock, proceeds by compiling an inventory of significant political proposals that attracted the editorial attention of the New York Times between 1947 and 2000. Ms. Binder then categorizes the reasons for the demise of the failed proposals and discovers that, contrary to legend, divided party control of government (between the president and Congress) and the use of the presidential veto are ordinarily less significant causes of gridlock than are institutional differences between the two Houses, irrespective of party control.

The reason for this, in her view, is found in the interstices of legislative rules: "The procedural tendencies of the Senate require party leaders to actively seek bipartisan solutions . . . The procedural tendencies of the House, in contrast, relieve party leaders of the task of seeking bipartisan compromise." Thus the greater internal homogeneity of both the Republican and Democratic parties in recent years has not fostered greater legislative productivity, even when the two chambers are under the control of the same party. On the contrary, the tendency toward gridlock is enhanced because the House is inherently partisan and the Senate inherently bipartisan.

This is a shrewd enough insight, as far as it goes, though one can cavil at the elaborate machinery (complete with numerous charts and regression analyses) used to produce it. In general, one leaves the book with the impression that Ms. Binder has it right as to the immediate sources of deadlock, but one is also reminded of the pejorative comment of social theorist C. Wright Mills, reproving scholars who "by the costly rigor of their methods . . . succeed in trivializing men and society and in the process their own minds as well."

The defects of the book, and of its blinkered approach, become clearer when Ms. Binder proceeds to a discussion of remedies. Having explained, not altogether convincingly, that "gridlock" is a problem that should concern conservatives as well as liberals (because legislation restricting the realm of government is as subject to obstruction as is legislation expanding it), she offers two remedies.

First, she proposes the use of neutral, outside mediators to facilitate consensus at the committee level, a course occasionally utilized in a few of our more rustic state legislatures. One cannot easily visualize either house of Congress, let alone a conference committee, accepting such a device. If it were to be accepted, the pressure by a mediator would be toward agreement for agreement’s sake. This generally involves covering disputed issues with fog by couching the legislation in ambiguous wording and thereby transferring the resolution of disputed issues first to executive-branch regulators and then to the judiciary. Congress would not be strengthened by such a development.

Second, she urges the use of "fast-track" devices, such as those applied to recent trade negotiations and military base closings, to bypass procedural obstacles such as the Senate filibuster rule. But rather than transfer the "fast-track" power to the executive, she recommends that urgent issues be referred to joint committees or task forces of legislators, whose recommendations would be voted up or down in toto. It is hard to see this suggestion as having much appeal to the Senate, the body whose obstructions would thus be bypassed. The Senate members of her proposed joint committees would not have the bargaining power that the Senate members of conference committees now enjoy, for the very reasons she outlines in her book.

Ms. Binder’s joint-committee proposal does have appeal in other contexts, though, notably in promoting better use of congressional investigatory powers. Most of the more memorable congressional investigations have been conducted by select committees, whose members enjoy special respect from their fellows. One may instance the Russell Committee that examined the firing of General MacArthur, the Watkins Committee that recommended the censure of Senator McCarthy, the Kefauver and McClellan Committees on organized crime, and the Truman Committee on war contracts.

Not everyone will agree with Ms. Binder’s assertion that "[w]ith the events of September 11, ensuring that legislators can readily reach agreement on vexing issues becomes even more important." The late Nobel Prize-winning economist Friedrich Hayek, and others schooled in early twentieth-century Europe, vividly warned us of the perils of such "emergency" legislation. Consensus can usually be found where emergencies are truly authentic, and such consensus frequently takes the form of legislation that is time-limited or "sunsetted." That approach was recommended in historian Clinton Rossiter’s study Constitutional Dictatorship (1948); it was partially followed in the amendments appropriately added by Democrats to the so-called Patriot Act in 2001. People today also forget that the Roosevelt administration’s National Recovery Act would have soon expired of its own force had it not been declared unconstitutional in 1935.

Although few can find satisfaction in the way Congress has dealt with many problems in recent years, including health care and federal-state fiscal relations, the legislature’s failings cannot be blamed on "gridlock" or on Ms. Binder’s bLte noire, the Senate filibuster rule. She points out that the rule was adopted largely by inadvertence in 1806 and that the Constitution contemplated action by majorities in each House save where it specified other rules—as with impeachment, veto overrides, and treaty ratification—as has been pointed out by the late Philip Kurland and other constitutional scholars. But we have had the rule for two hundred years; it has done as much to force compromise as to prevent it, and it usually bends before an idea whose time has come. In any event, it was the purpose of the Constitution, as Justice Brandeis reminded us, "not to promote efficiency but to preclude the exercise of arbitrary power."

I would suggest that the recent problems Ms. Binder perceives have three main causes, none of which is identified in this book.

The first cause is found in the conspicuous failure of most occupants of the House speakership, with the notable exceptions of Henry Clay, Thomas Reed, and Newt Gingrich, to exploit fully the potential of their office. Students of the speakership, including Woodrow Wilson in his Congressional Government (1886) and Mary Parker Follett in her The Speaker of the House of Representatives (1895), located the source of the Speaker’s power in his ability to ignore seniority in making committee assignments, in his ability to control the flow of business, and, most of all, in his ability to declare a platform for his party in advance of a congressional election (and thereby secure a mandate for it that would also influence his party’s senators). The Speaker, in this view, is in ordinary times the domestic-issues leader of the country. Except for Gingrich, however, few modern Speakers or minority leaders have departed from the seniority rule, and none have declared a truly comprehensive program that could be said to reflect a consensus of his party. (Gingrich’s so-called Contract with America, which had as its principal achievements welfare reform and the enactment of a modest family tax credit, was silent on more controversial issues such as abortion and gun control.)

The second cause of congressional stalemate is found in the polarization of the House of Representatives, resulting from absurdly strict equal-population standards and the partisan gerrymandering and "packing" of minority-party voters to which they give rise. This has created a House in which nearly all members hold safe seats and therefore have no decent respect for the opinions of mankind. It is instructive to contrast the laudable demeanor of both sides of the House Judiciary Committee during the Nixon impeachment with that which prevailed at the Clinton impeachment twenty-five years later.

The third cause of deadlock is found in the malign effects on the Senate of the post-Watergate campaign finance legislation as revised by the Supreme Court in Buckley v. Valeo (1976). The effect of the $1,000 limit on direct individual contributions was to make all candidates extremely dependent on the "bundling" of individual contributions by political action committees. In this way, the Democratic leadership in the House was effectively corrupted by the savings and loan industry, and Republican congressmen face tremendous pressure from corporate tax lobbyists. Whereas once any qualified person with two or three well-heeled friends could run for the Senate, today no candidate of modest means, who is not an already established politician or an entertainment or sports celebrity, can present a serious candidacy.

The Buckley decision had an additional major effect: the exception it carved out for candidates spending their own funds caused the Senate to become the millionaire’s club it was said to have been before adoption of the Sixteenth Amendment (which allowed for the federal income tax). The Senators of the "robber baron" era, however, were at least self-made men who had experience of business affairs and were vetted by their state legislatures (before the Seventeenth Amendment established popular election of senators). By contrast, many recently chosen senators are empty suits, if well-tailored ones. It should hardly surprise us that a body thus composed does not always function responsibly. The 1968 insurgent presidential candidacy of Eugene McCarthy, sustained by a single wealthy backer, Stewart Mott—who would scarcely have been a plausible candidate himself—well illustrates the operation of the old system, just as the successful 2000 Senate candidacy of New Jersey millionaire Jon Corzine exemplifies the brave new world we have entered.

Professor Binder does not like that new world. Neither do I, but her cures are neither plausible nor likely to be effective. Appraisals of the effectiveness of legislative bodies cannot be divorced from the assessment of the human types that inhabit them, and a regime of unnatural selection now prevails in the composition of both Houses.

George W. Liebmann is an attorney in Baltimore and the author of several books, including Six Lost Leaders: Prophets of Civil Society (Rowman & Littlefield, 2001), and Solving Problems Without Large Government: Devolution, Fairness and Equality (Praeger, 2000).