Opinion | The Root Causes of Congressional Dysfunction

It was a fitting end to a profoundly unproductive session that Congress headed home for the holidays without resolving three pressing issues:

• Additional military aid to Israel, which enjoys support from lopsided majorities of both parties in both houses
• Additional military aid for Ukraine, which is backed by nearly all Democrats and a sizeable number of Republicans in both chambers
• Staunching the flow of refugees across the southern border, the top priority for Republicans that an increasing number of Democrats, including President Joe Biden, acknowledge is necessary

Given the urgency of the issues and those bipartisan majorities — and given that little else was clogging the legislative agenda during the final months of the year — you might wonder why nothing was done. Certainly in decades past, the relevant committees would have held substantive hearings to look into the separate issues and reported bills to the full House and Senate. And the House and Senate might have taken a week to debate and vote on each bill and dozens of amendments.
In this instance, almost none of that happened.

Instead, the Democratic majority in the Senate refused to take up aid to Israel unless it was packaged with aid to Ukraine, which by itself might not have enough Republican votes to overcome a filibuster. In response, House Republicans announced they would refuse to fund aid to Ukraine unless Democrats agree to stronger border enforcement and tougher criteria for refugees. In response, progressives warned fellow Democrats never to agree to tougher immigration laws unless Republicans agree to a pathway to citizenship for millions who are already here illegally.

And now we hear that the only way to do anything about Israel, Ukraine and the border is to fold it into a sweeping appropriations bill needed to avoid a partial government shutdown when funding runs out in January.

The root cause of all this dysfunction — the reluctance to vote, the holding of one issue hostage to another, the brinkmanship and the refusal to compromise — is the sorting of the country and the Congress into two ideologically consistent parties that have adopted the same tactics and now fought each other to a draw.

Thirty years ago, parties were largely irrelevant to the legislative process. Because parties were ideologically diverse, with lots of liberal Republicans, conservative Democrats and moderates of both parties, there was no party position on most issues. Every issue was decided by a different bipartisan majority reflecting the ideological, regional and political needs of individual members of both parties. “Regular order” — committee hearings and markups followed by debate and amendments and votes by the full House and Senate — was the process that that allowed those bipartisan compromises and bipartisan majorities to emerge. Through regular order, Congress was able to resolve most issues without resorting to filibusters, hostage taking and brinkmanship.

But in today’s Congress, party is everything. The way most members see it, what’s best for the country is what’s best for their party, and what’s best for their party is whatever beats the other party and helps win the next election. By this logic, bipartisan compromise is anathema and doing nothing the second best outcome.

Desperate to break through this partisan gridlock, members now resort to holding up an urgent, must-pass bill or nomination until the other side agrees to take up and make concessions on another. By linking one issue to another, legislating becomes a process akin to solving a Rubick’s cube: the majority for one thing has to line up perfectly with the majority willing to do something else. In a closely divided Congress, that becomes nearly impossible.

Unfortunately, hostage taking has become the go-to strategy for far-right Republicans who understand it’s the only way they can win given the deep unpopularity of their policy preferences. No raising of the debt ceiling without deep cuts in popular domestic programs. No aid to Israel without cutting back IRS tax enforcement on billionaires. No increase in the federal minimum wage without cuts to payroll taxes. No subsidies for clean energy without unrestricted drilling for oil and gas on federal lands.

Democrats rightly complain about Republican hostage-taking, but they aren’t above trying it themselves. Two years ago, House progressives threatened to withhold votes for a bipartisan infrastructure bill until moderate Democrats agreed to an even bigger spending package including universal pre-K, extension of the child tax credit and subsidies for green energy, along with big tax increases to pay for them. Linking military aid to Israel with money for Ukraine is another example.

In the Senate, meanwhile, it is now common for members in both parties to put a “hold” on all the nominations in a department — or in one case, the promotion of every military officer — until the department gives in to the senator’s demand for some unrelated policy change. Nothing in the Constitution or Senate rules gives one senator such power — it’s simply an unwritten tradition that, until recently, was rarely invoked. But it tells you everything you need to know that senators are willing to leave scores of important ambassadorships and top executive positions vacant for months or even years, and drive from public service a generation of talented people who refuse to subject themselves to such abuse, just to preserve their petty prerogative.

Then again, you can hardly blame senators, given that such prerogatives are the only power they have left, having turned most of it over to party leaders and party caucuses. In both the House and Senate, the days are long gone when individual members feel free to vote their districts or their conscience, or cut their own deals, or try to force their priorities onto the legislative calendar. The committees, on which they once developed some expertise and through which they once exercised some influence, have become largely irrelevant. These days, all important legislation is hammered out behind the scenes by party leaders, powerful interest groups and the White House.

Moreover, party leaders are loathe to put any legislation before the full House and Senate — or allow any amendments when they do — unless they can be absolutely sure of the outcome in advance, and confident that it won’t divide the party caucus, alienate base voters or large contributors, or force vulnerable members to take tough votes that might cost them the next election. Because few issues can meet all those criteria, few are taken up.

There is an inherent asymmetry to the dynamic of congressional dysfunction. Distaste for and distrust of government has become so ingrained in the Republican Party that doing nothing is not only acceptable, but often viewed as an accomplishment. Increasingly, however, even activist Democrats favor inaction if the only alternative is making any concessions to a Republican party they view as having trampled every norm of civilized political behavior.

For many members of Congress, in other words, refusing to compromise with the other party has become a moral imperative. But for party leaders it is more than that — it is also a political imperative. As leaders see it, any bipartisan compromise will inevitably cause division within the party caucus, eroding the unity that is the source of their own power and crucial to winning the long game. If you doubt it, just ask Rep. Kevin McCarthy, whose willingness to compromise with Democrats to keep the government open and avoid a default on Treasury roiled the House Republican caucus and led to his ouster as speaker and exit from Congress.

For all those reasons, it no longer even occurs to anyone — not the leaders and members, not the staff or the press corps — that the way to resolve urgent and contentious issues, the way to discover what the country needs and wants and is willing to accept, might be to put them before the House and Senate and see what happens. This lack of seriousness about legislating has been going on for so long now that few members, or staff, or reporters can imagine anything different. It’s now baked into the culture of the Capitol and reinforced by a legislative calendar that requires members to be in Washington three days a week — and then only two of every three weeks. Failure to act is now the accepted and expected outcome, which everyone reflexively blames on the constraints of the legislative calendar and the obstinacy of the other party.

At the center of this dysfunction is a lack of trust. Trust in a legislative process grounded in expert opinion and serious debate. Trust in colleagues to tell the truth, act in good faith and stick to their word. Trust in voters and the media to reward members for getting important things done. Most of all, trust in majority rule, even if it means not getting everything you want.

The solution to this latest partisan stalemate is as simple as it is radical: Give legislators the political space to legislate. Separate the issues, put each before the House and Senate and let members freely debate and amend and vote, not as Republicans or Democrats but as the country’s elected representatives, until a bipartisan majority emerges.