The final days of any Congress are never pretty, as lawmakers scramble to finish a string of bills while getting out of town as early as possible to hit the campaign trail. After 37 years in Washington — 18 elections — we are pretty well inured to these shenanigans. But even those of us with strong stomachs are getting indigestion from the farcical end of the 109th Congress, slated for early Saturday.
This Congress hit the ground stumbling and has not lifted itself into an upright position. With few accomplishments and an overloaded agenda, it is set to finish its tenure with the fewest number of days in session in our lifetimes, falling well below 100 days this year.
This new modern record is even more staggering when one realizes that more than 25 of those days had no votes scheduled before 6:30 p.m., making them half- or quarter-days at best. The typical workweek in Congress (when there is a week spent in Washington) starts late Tuesday evening and finishes by noon Thursday. No wonder satirist Mark Russell closes many of his shows by telling his audiences what members of Congress tell their colleagues every Wednesday: "Have a nice weekend."
This part-time Congress has other parallels to the famous "Do-Nothing 80th Congress" that Harry Truman ran against successfully in 1948. The output of the 109th is pathetic measured against its predecessors and considering its priorities, which included a comprehensive immigration bill, tax reform and the research and development tax credit, lobbying and ethics reform, healthcare costs and insurance coverage, trade agreements, procedures for the detention and trial of suspected terrorists, and regulations for the oversight of domestic wiretaps, among many others. With just days to go before Congress adjourns and the fiscal year begins, not a single one of the 11 appropriations bills that make up the range of government programs has been enacted into law.
But the big problem with this Congress is not what it didn't do, it is what it did, and did badly. As of Tuesday, there were three must-pass pieces of legislation pending: defense and homeland security appropriations and the annual Department of Defense authorization. Each year, when the few must-pass bills move forward, there is a major temptation to throw on all kinds of extraneous provisions; when lawmakers can identify a train that is both leaving the station and sure to reach its destination, everyone has baggage they try to toss on board. Each year, responsible party leaders resist most of these measures, to preserve the integrity of the process and to keep shoddy bills with no vetting and no broad support from either being railroaded or inserted surreptitiously.
This year, Senate Armed Services Committee Chairman John W. Warner (R-Va.) has vowed to protect the defense authorization bill — but House Speaker J. Dennis Hastert (R-Ill.) has other ideas. Hastert says he will kill the bill, doing damage to the Department of Defense and conceivably to troops in the field, unless Warner and his fellow senators cave and tack on an entire federal court security bill and another House anti-immigration bill.
The anti-immigration bill would allow indefinite detention of illegal immigrants protected under political asylum provisions, and it would deny court access to many. Hastert and his fellow House Republicans have refused to say exactly what they will include in the 300-page court security bill, but by most insider accounts, it will include not just commendable, bipartisan provisions to protect judges and law enforcement officials from threats but provisions to federalize the death penalty for murders of law enforcement officials, judicial employees or state and local employees, bypassing the law in states that have no death penalty.
It also reportedly would sharply restrict habeas corpus by, for the first time, singling out a special class of victims (judges and police officers); bypass hearings for juveniles charged with gang-related offenses and automatically have them tried as adults; and allow judges and prosecutors to carry concealed weapons, even where banned by state law.
Most of these measures have had no hearings — or cursory ones — much less debate or votes by the full House or Senate. Many are sharply opposed by states, which complain about the federal government trampling their laws and sovereignty.
If this were one isolated instance of a Congress pushing through sloppy and ill-considered legislation to score political points before an election, we would wince but move on. But this breach of the normal legislative process is all too typical of today's Congress. Over the last five years, Congress has abandoned the web of rules and norms that have long governed how a bill is considered, how votes take place and how outcomes are decided. The infamous three-hour vote to pass the Medicare prescription drug bill two years ago — a vote supposed to last 15 minutes — stretched from 3 a.m. to 6 a.m. It was held open until the leaders could squeeze out enough votes to make a majority and resulted in several members, including then-House Majority Leader Tom DeLay, being rebuked by the Ethics Committee. But the truth is, rigging the rules for partisan advantage has become routine.
To be sure, efforts to close off debate and play hardball when votes are tight is not new; Democrats played these games when they were in the majority in the 1980s and early 1990s. But abuses of the regular order that used to be occasional and average — a six on a scale from one to 10 — are now chronic and sometimes hit 11.
The framers wanted Congress to move slowly and deliberately. But today, it is common to spring on the House and Senate a 1,000-page bill that has not been through any vetting process. With little notice and no time for anyone to read the bill, much less absorb or analyze it, with no amendments allowed, the leadership demands a party-line, up-or-down vote. This is a formula for poor oversight and worse law.
This November, will the public demand more from Congress, the first branch of government and the linchpin of American democracy?