Dysfunctional Legislatingby Senator Sheldon Whitehouse
Posted on 2013-01-23
WHITEHOUSE. Mr. President, we all know in the Senate and in the
House of Representatives about the low grades Congress receives in
public opinion polling. Everybody knows what the public reports:
Congress is partisan. Congress is divided. Congress is dysfunctional.
One recent survey that got a lot of media attention reported that Congress is less popular than a root canal. Across the country, people are fed up with Congress. Indeed, Members of Congress are fed up with Congress.
Americans want a Congress that can take on the tough challenges of today. But another recent poll by USA Today and Gallup showed that 77 percent of Americans feel ``the way politics works in Washington these days is causing serious harm to the United States.'' [[Page S206]] Americans think Congress has a problem. Indeed, Americans think Congress is a problem. Well, if we want to fix a problem, we ought to be specific about it. A doctor wouldn't try to fix a patient without a precise understanding of the patient's problem. An engineer wouldn't try to fix a system without a precise understanding of the system's problem. A mechanic wouldn't try to fix your car without a precise understanding of your car's problem. So if we are going to fix what is wrong with Congress, we better have a precise understanding of what Congress' problem is.
Let's start with the Senate. We do have our share of dysfunction in the Senate, I will confess. Undoubtedly, the filibuster is being abused. Certainly, nominees awaiting confirmation are unjustifiably delayed. Indeed, they are held hostage. So everything is not all roses in the Senate.
But we did pass a highway bill, a bipartisan highway bill, that passed the Senate with 74 votes. We did pass a farm bill, a bipartisan farm bill. Although I did not support that particular measure, it was a bipartisan measure that passed the Senate with 64 votes.
We passed the Hurricane Sandy emergency relief bill, also in bipartisan fashion, with 62 votes. We had open debate, we had discussions, we had amendments, and we passed legislation.
Particularly, we passed, by a powerful bipartisan vote of 89 to 8, a bill that avoided tax increases for 99 percent of Americans and extended emergency unemployment benefits for another year and protected us from the fiscal cliff. When it comes to legislating, the Senate actually has a pretty strong bipartisan record.
How did those Senate bills do on the House side? Well, the House couldn't pass its own highway bill. Congress has been doing highway bills since the Eisenhower years. This isn't rocket science. The House couldn't do one. The best the House of Representatives could do was to pass a short-term extension that allowed some of their Members to get to conference on the Senate bill, but they took no bill into conference because they couldn't pass one. Even then, they delayed the conference negotiations, putting thousands of jobs in jeopardy before they finally came around and passed an amended version of the Senate bipartisan highway bill. So their record on the highway bill is nothing to be proud of.
The House also couldn't pass a farm bill. Farm bills are pretty ordinary legislative business too. We do them all the time, but the House has passed no farm bill. We passed a strong bipartisan Senate farm bill. They can't even agree to call up the bipartisan Senate farm bill and pass it. With 80 percent of the agricultural land of the country in drought, there is no farm bill. It is trapped in the sinkhole of the House.
The House almost couldn't pass a disaster bill. If you go back to Hurricane Katrina, when Katrina hit back in 2005, the House of Representatives then had emergency aid on its way to the 850,000 damaged or destroyed homes of the gulf coast in 11 days. In 11 days aid was on its way. This time, with this House of Representatives, the House balked at the bipartisan Senate disaster bill and, finally, it took them 78 days after the landfall of Hurricane Sandy to send help to the half million homes and businesses damaged or destroyed by that storm.
The condemnation of the House of Republicans was bipartisan. The Republican Governor of New Jersey blamed, and I quote, ``the toxic internal politics,'' the toxic internal politics, of the House Republicans for this fiasco. ``This,'' he said, and I will quote again, ``is why the American people hate Congress.'' Is there a problem over in the House? You bet there is, to the point where one departing House Republican Member compared the Speaker of the House to the manager of an asylum and the Speaker's House Republican colleagues to the asylum inmates. That is pretty strong criticism from within the Republican Party.
The reason I give this speech is to try to be precise about what the problem is that has driven Congress's approval into the cellar, and what exactly is that problem? Well, I think the House votes on the so- called fiscal cliff bill and on the emergency Hurricane Sandy aid illustrate what the problem is. Those bills passed the House for one reason and one reason only: The Speaker of the House of Representatives waived what is called the Hastert rule.
What is the Hastert rule? The Hastert rule is probably the most significant contributor to dysfunction in Washington right now. It is not even really a rule, it is a policy, a political policy of Republican Speakers. It began under former Republican Speaker Hastert, hence its common name as the Hastert rule. The rule is that the Speaker will bring no bill to the floor of the House of Representatives without a majority of his own party supporting the bill. It doesn't matter about a majority of Congress; Democratic votes don't count. It is only when the Speaker has a majority of Republican votes supporting it that the Speaker will allow legislation to come to the floor.
It has actually gotten a little bit harder under Speaker Boehner, who has said, I don't feel comfortable scheduling any controversial legislation unless I know we have the votes on our side first, which sounds like he is saying he has to be able to produce a majority of the House out of just the Republican caucus before bringing a bill. But whether it is the original Hastert rule requiring a majority of the majority before they will even bring a bill to the floor or what appears to be the Boehner rule, that they have to have the votes on ``our side first,'' it is a rule of obstruction.
There are somewhere between 50 and 60 Members of the House Republican tea party caucus and a whole bunch more House Republicans who are scared of the tea party and scared of what might happen to them if they get a tea party primary challenger. So getting a majority of his party together for anything reasonable is a challenge for Speaker Boehner.
House Republicans could not get a majority of their conference to support a highway bill. So the Hastert rule kicked in and there was no House highway bill, none--they couldn't do one at all because they couldn't get it through their conference under the Hastert rule. That is why there was no highway bill.
The House Republicans could not get a majority of their conference to support a farm bill, so under the Hastert rule there is no House farm bill. The Speaker won't bring up the stalled bipartisan Senate farm bill, because under the Hastert rule he can't get a majority of his party to support even the bipartisan Senate farm bill.
We were headed for the exact same result on the fiscal cliff--we were headed for the exact same result on the fiscal cliff. Speaker Boehner could not get his party to support protecting America from the fiscal cliff. So, with literally minutes left to spare, and with the House Republican Conference ready, willing, and about to pitch the country off the fiscal cliff, Speaker Boehner did what? He ignored the Hastert rule. He ignored the Hastert rule, and he let the fiscal cliff bill come to the floor of the House without having the votes on ``our side first,'' to use the Speaker's language. Two-thirds of House Republicans actually voted to roll America off the fiscal cliff. Here is the vote count. Republican ``yes'' votes on the fiscal cliff legislation were only 85. Republican ``no'' votes on the fiscal cliff legislation were 151. He wasn't even close to making the Hastert rule.
That fiscal cliff bill passed the House 257 to 167 because the Democrats came out and voted for it, 172 to 16; 172 Democratic ``yes'' votes, 16 Democratic ``no'' votes. Two-thirds of the ``yes'' votes that put the fiscal cliff bill across and saved America from a 100-percent tax increase and protected our economy from the fiscal cliff--two- thirds of those votes came from Democrats. If the Speaker had enforced the Hastert rule, we would be over the fiscal cliff today.
What happened on Sandy? After nearly 3 months of stalling, while my State, while the Presiding Officer's State of New York, while the States of New York and New Jersey, struck by Sandy, were waiting urgently for the relief that we got to the coast within 11 days, they stalled and they stalled because they could not get a majority of the Republican caucus to support Federal relief for our hurricane-ravaged States. Under the Hastert rule, they [[Page S207]] couldn't get that bill to the floor. So Speaker Boehner once again decided to forgo the Hastert rule. That is how they got the Sandy emergency aid bill passed. Look again at the votes. Republican ``yes'' votes for the disaster bill, 49; Republican ``no'' votes for that bill, 179. That bill was dead on arrival under the Hastert rule. The Republican caucus couldn't support it, wouldn't support it, and we would be without any help now if they had followed the Hastert rule.
On the Democratic side, what was the vote on the Hurricane Sandy bill--192 ``yes'' votes to 1 ``no'' vote. The final count was 241 ayes, 180 nays. The bill passed, but about three-quarters of the support came from Democratic votes.
If the Speaker had imposed the Hastert rule, not only would we be off the fiscal cliff, but we would have failed at providing disaster relief for Hurricane Sandy. The only reason these critical pieces of legislation avoided the fate of the highway bill and of the farm bill is that the Speaker didn't follow the Hastert rule. He couldn't follow the Hastert rule because he wouldn't have been able to pass legislation. If his tea party caucus had forced America off the fiscal cliff, he knew there would have been hell to pay, so he waived the Hastert rule.
Now, of course, House Republicans are all in a fuss about having waived the Hastert rule. One tea party lawmaker admitted that the New Year's Day tax vote left a lot of his fellow Republicans with a very bad taste in their mouth. So it is probably back to Hastert rule business as usual on the House side, with death by tea party to any major bipartisan Senate legislation.
The tea party over on the House side wanted to vote for extreme things, such as voting to repeal or defund ObamaCare over 30 times-- over 30 times--or voting to turn Medicare into a voucher program. If it is extreme enough, then they will vote for it. But those are actions which are not supported by the American people, and they can't pass the Senate.
For the regular business of government, for the regular business of passing Senate bipartisan legislation, the tea party-Hastert rule combination is deadly.
So back to where I began. If you are concerned about dysfunction in Congress, if you are wondering why we are less popular than a root canal, if you are wondering why 77 percent of Americans look at Congress and think we are actually doing more harm than good, and if you want an explanation of the dysfunction, take a look at the Hastert rule. If you look at this problem the way a doctor would look at a patient, the way an engineer would look at a system, the way a car mechanic would look at an automobile, and you look for what is broken, be specific; it is the application by the Speaker of the Hastert rule that prevents strong, bipartisan Senate legislation from going forward. When something moves, it is because the Hastert rule has been waived.
So if you want to see what is wrong, that quest takes you straight to the House of Representatives, and there it leads you straight to the House Republican conference, and there it leads you to that toxic combination of the tea party and the Hastert rule.
When you understand the problem, the cure is obvious: The House should ditch the Hastert rule. Call things up for a vote. Let everybody's vote count. Don't refuse to proceed unless only your own party will let you. It is the obvious and only solution. The fiscal cliff bill and the Sandy bill and the votes on those bills prove it.
With those tea party extremists dominating the House Republican conference and ready to pitch the country over the fiscal cliff and leave hurricane victims high and dry, the Speaker had to ditch the Hastert rule. The only way the House can do bipartisan business on major issues is to ditch the Hastert rule.
As we saw, the Senate has its problems, but we are actually doing OK, just as our legislative record shows. Over and over, we pass real, significant, bipartisan legislation after a real process on the floor of argument and amendment. As the House's legislative record shows, the problem is over there. More precisely, the problem is within the House Republican conference. Still more precisely, again, the problem is that toxic combination of the tea party and the Hastert rule.
If we want Congress to function effectively, if we want to succeed at doing the work of the American people, such as the fiscal cliff bill and the hurricane relief bill, and if we don't want to see more important legislation, such as highway bills and farm bills, fail in the House, unable to pass in the House, blocked in the House, the solution for the problem is clear: We have to ditch the Hastert rule and let the House as a body work its will, just as the American people elected it to do.