Article

The Broken Branch: How Congress Is Failing America and How to Get It Back on Track

Norman Ornstein and Thomas E. Mann

Excerpts From The Broken Branch: How Congress Is Failing America and How to Get It Back on Track

Permission to reprint granted from Roll Call

On Aug. 1, Oxford University Press will release “The Broken Branch: How Congress Is Failing America and How to Get It Back on Track” (part of the Institutions of American Democracy Series), written by Thomas Mann of the Brookings Institution and the American Enterprise Institute’s Norman Ornstein (a contributing writer for Roll Call). What follows are excerpts from the book, printed with permission from the publisher.

The Decline in Institutional Identity

When he wrote his pathbreaking book on the U.S. Senate in 1960, Donald Matthews examined the norms prevalent in the institution; high among them was “institutional patriotism.” Senators were intensely loyal to the Senate as an institution; they identified first as senators rather than as partisans or through their ideology, and they were fiercely protective of their prerogatives vis-à-vis the president or the House of Representatives. The rules and procedures of the Senate were a key to its unique role as the world’s greatest deliberative body; and even those who were frustrated by them and by their application, especially when an intense minority thwarted the will of the majority, were respectful of their centrality to the Senate itself.

Norms are not laws. Many individual senators in the 1950s and 1960s, such as Paul Douglas and Wayne Morse, took on the institution, thumbing their noses at what they saw as outdated concepts that upheld an unacceptable status quo. Their successors in the body included such liberals as Jim Abourezk and Howard Metzenbaum and conservatives James Allen and Jesse Helms. But it was obvious to us from the moment we each entered the Senate’s environs in 1969 that these kinds of senators were the exception, not the rule. Most senators wore their pride in being in the Senate on their sleeves. Nothing short of a challenge to the primacy and integrity of the body itself could unite them across all conceivable lines.

Moreover, most House members had a heavy dose of institutional patriotism, often accompanied by a contempt, borne in part by jealousy, for the Senate as the so-called upper body. House members and leaders took immense pride in their status as the people’s chamber, the first of our constitutional institutions mentioned in Article 1 of the Constitution, and in their legislative craftsmanship and expertise.

Senators, in their view, were dilettantes, even if many of their House colleagues yearned to make the move to the other side of the Capitol – only one senator in modern times, Claude Pepper of Florida, had made the reverse move, and that not out of choice but driven by his Senate defeat. When an average member of the House was elected to the Senate, the typical line used by his former colleagues was that the move had increased the IQ in both chambers.

During the 1970s and 1980s, we participated regularly in orientations for newly elected members of Congress, put on by our two institutions and the Congressional Research Service of the Library of Congress as well as the Harvard University Institute of Politics. Successive classes of freshmen would come in and prepare to take office; their incredible pride at joining the House or Senate, being part of history as an exclusive and small group of people ever to have served, was palpable. During much of that era, Rep. Bill Frenzel (R-Minn.), a first-rate lawmaker and member of the House Ways and Means Committee, would join with his wife, Ruthie, to address the new members and their spouses. He would urge them to move their families to Washington; he believed their time in the House would be the greatest experience of their lives and was something they should share with their families.

By the early 1990s, that appeal fell increasingly on deaf ears. Many members shrank from the idea of moving families to Washington, and not only because the anti-Washington political climate of the period made it politically unattractive. Our conversations with the new members revealed a different mindset. Many viewed Washington as an insidious place and were fearful that the more time they spent there, the greater the likelihood that they would catch the virus that caused Potomac Fever. The pride that members of both houses had in their institutions gave way to a skepticism. New and returning members increasingly saw their service in Congress not as a great and joyful time of their lives but as an unpleasant duty, like taking castor oil or serving in the trenches in France in World War I – something to endure, not savor, for the greater good of achieving a policy revolution in the country or winning the tribal war against the enemy in the other party. A number had run on a pledge of limiting their own terms to avoid the fever and to convey their distaste for Washington and congressional careerism.

The reaction of new members has been matched by the growing indifference of committee and party leaders to the history and independent role of their own institutions and by a widespread acceptance by congressional leaders that the ends justify the means.

One small but meaningful example of this is the House Historian. The historian’s office was created in 1983 and was ably filled by historian Ray Smock until January 1995, when he was fired by incoming Speaker Newt Gingrich. Gingrich then moved to appoint Christina Jeffrey, a political scientist from Kennesaw State College in Georgia. Jeffrey lasted a few days – when controversial comments she had made several years earlier caused enough of an outcry that Gingrich fired her. He did not replace her, and the post of House Historian stood vacant for a full decade, with neither Gingrich nor his successor, Speaker Dennis Hastert, interested enough to fill the job or energize the office. Finally, in 2005, Hastert appointed the veteran historian and author Robert Remini from his home state of Illinois to fill the position. But the decade-long indifference to the importance of the history of the House underscored the decline in institutional identity in the House.

Indifference to Reform

There were other signs as well. Our experiences in and around Congress have been wrapped up in a variety of reform movements – attempts by members and leaders to improve committee systems, ethics processes, campaigns and elections, congressional support agencies, congressional-executive relations, and so on. From our first efforts, in the late 1960s, through our involvement with the joint committee on congressional reform in the early 1990s, it was clear that many rank-and-file members, senior lawmakers, and party leaders understood the need for periodic reform and tried to convince their colleagues that the upheaval that would result from institutional reform was worth the cost. They often failed, but they regularly tried.

In the past ten years, after a real sense in the first year of the Gingrich-led Republican Congress that they would clear the decks and implement sweeping change in the way Congress did business, there has been a complete expunging of any sense of need or desire for congressional reform – and worse. The modest movement in 1995, led by David Dreier, to implement the committee-system reforms recommended by the joint committee, was largely quashed by entrenched committee interests. That was the end of any effort to examine the committee system, reorganize jurisdictions, or streamline bloated assignments – such as a House Appropriations Committee with sixty-six members, an Armed Services Committee with sixty-two, or, most egregious, a Transportation and Infrastructure Committee with, count ’em, seventy-five members.

In neither house of Congress has there been anything like the efforts of the Bolling and Stevenson committees in the 1970s, the Quayle committee in the 1980s, and the joint committee exercise in the 1990s. The current leaders have expressed zero interest in reform – which means no interest in institutional well-being, maintenance, or renewal. Where there has been action, it has either been defensive or negative. In the defensive category, consider the reaction of the Speaker and the Senate Majority Leader to the new Department of Homeland Security (DHS). At first, neither leader suggested any reorganization within the House or Senate. After months of criticism, the Speaker moved to create a select committee on homeland security – one with a credible chair, Chris Cox of California, but with no substantive jurisdiction and stacked with the powerful chairs of committees, such as Judiciary and Transportation, whose only role on the committee was to protect their own turf from encroachment by the new panel. The Senate did nothing. Grudgingly, the House and then the Senate finally created subcommittees on homeland security to coordinate appropriations for the behemoth.

Belatedly, after the heralded 9/11 Commission recommended much more serious changes in the committee system, the two leaders acted – limply and inadequately. The House committee was made permanent, but with severe limits on its jurisdiction and the continuing presence of turf-conscious chairs from competing panels. The Senate renamed its Government Affairs Committee the Homeland Security and Governmental Affairs Committee and gave overall authorization jurisdiction over DHS to the panel – but left jurisdiction over key areas, such as the Coast Guard, in other committees, consigning the HSGA committee at best to secondary status. Also responding to the 9/11 Commission, Congress in late 2004 changed the intelligence structure within the executive branch and created a new overall director of intelligence. At the same time, both houses addressed their own inadequacies in oversight of intelligence – but barely, falling far short of the constructive recommendations of the 9/11 Commission.

Disappearance of Oversight

In October 2005, John Dingell of Michigan reached the fifty-year mark for service in the House. We have known Dingell since we came to Washington – and suffered his wrath in the early 1990s when we proposed taking sizable chunks of jurisdiction away from his Energy and Commerce Committee. But we also watched Dingell operate through seven presidents, Democrats and Republicans, mostly as chairman of the committee, often as chair of its vaunted Oversight and Investigations subcommittee. There were times when we winced as he grilled bureaucrats mercilessly and excessively. But what we saw consistently was a man of the House who viewed his role, regardless of the occupant of the White House, as overseeing the executive branch and making sure that the laws were faithfully executed without bias or malfeasance. He made Democratic and Republican presidents alike uncomfortable, but the result was better execution of policy in a host of areas.

John Dingell is a unique figure on Capitol Hill. But during the 1980s and into the 1990s, he was not alone. Serious oversight was done by the Appropriations Committees in both houses and by a number of authorizing committees. When the Republicans took control of Congress, there was substantial aggressive oversight – for the period when Bill Clinton was president, that is – although the oversight of policy was accompanied by a near-obsession with investigation of scandal and allegations of scandal. But when George Bush became president, oversight largely disappeared. From homeland security to the conduct of the war in Iraq, from the torture issue uncovered by the Abu Ghraib revelations to the performance of the IRS, Congress has mostly ignored its responsibilities. The exceptions – for example, the bipartisan efforts in several areas by House Government Reform Committee Chair Tom Davis with his ranking member Henry Waxman – glaringly prove the rule.

Consider homeland security. To any student of organizational behavior, governmental or otherwise, and especially to students of mergers and reorganizations, it comes as no shock that, since its inception, the Department of Homeland Security has been beset by a series of management problems, a lack of consistent focus, and a failure to sort out its numerous responsibilities. This was evident long before the scathing White House report on the institutional failures surrounding Hurricane Katrina.

The department has had a near-revolving door in its top management team, major problems integrating agencies, and less-than-stellar success creating an integrated and functional information management system for the department, much less coordinating its computers with others in such places as the FBI.

The failures in oversight here are particularly crushing. No one other than Congress can ride herd over a massive new department like DHS, prodding the nascent conglomeration to make sure that when mad cow disease looms or self-initiated “Minutemen” patrol the border that the Animal and Plant Inspection Service and the Immigration and Naturalization Service, both now part of the new department and charged with their new priority of homeland security, can concurrently handle the responsibilities in the old areas for which they still have the burden. The same, of course, is true of the Federal Emergency Management Agency (FEMA), which lost its robust independent status when it was subsumed into DHS and had mass confusion about its role in dealing with domestic emergencies as well as preparing for a catastrophe precipitated by a terrorist attack.

However, for three years after the creation of the department, there was no significant oversight – nothing to make sure that all the preexisting functions of the twenty-two components of the new department were maintained while the new functions were added. The House committee, under Chris Cox, tried at times to assume that job. Knowing the relative powerlessness of the House select committee, which had no legislative jurisdiction and no control over the budget or actions of the department, top officials at DHS treated it with indifference or contempt or a combination thereof. The lack of a committee in the Senate – or any entity committed to general oversight of the area or specific authorization of DHS – meant there was no serious oversight of the department. The problem was perversely compounded by the incessant demands of a gaggle of committees and subcommittees (as many as eighty-eight of them) to grab a piece of homeland security jurisdiction and political cachet and cover by demanding that the DHS Secretary or other top official testify before them. The top management of the agency had to spend huge chunks of time at Congress but almost no time participating in a serious examination of the department’s functions and performance.

One result, tragically, was the abject failure of DHS and its emergency management unit, FEMA, after the catastrophe of Hurricane Katrina. Ornstein wrote soon afterward:

The performance of the federal government in the Hurricane Katrina disaster – the policy wing of the federal government, not the dedicated employees – has been abysmal. Sen. David Vitter (R-La.) was right: The grade should be an F. But the failures … are a symptom of the bigger fiasco, one that should leave all of us furious – and nervous. And in that fiasco, Congress stands front and center in the line of miscreants.

On 9/11, the inability of firefighters and police in New York to work their radios contributed to the loss of many lives. At the Pentagon, the inability of emergency workers from Montgomery and Prince George’s counties in Maryland and Fairfax and Arlington counties in Virginia to communicate with each other made the response there much more difficult.

Now, four years have passed. A few metropolitan areas, on their own and without adequate federal assistance, have acted to make their own radio systems interoperable. The broader problems? They’re the same, in essence, as they were before and during 9/11.

On 9/11, it became obvious that the resources and training available to the nation’s first responders – fire, police, emergency medical technicians, public health clinics and so on – were woefully inadequate to deal with the new threats, not to mention larger natural disasters. No capability for dealing with chemical or biological threats, not enough gas masks (or appropriate ones), no training to deal with the collapse of large buildings. Four years later, regrettably, we can say the same thing. Instead of allocating the resources necessary to deal with these problems, we have in fact cut them in many areas.

On 9/11, a new set of broad threats emerged: the international network of terrorists out to kill as many of us as it could. The threat had existed beforehand, but suddenly it took on a new magnitude. The Hart-Rudman Commission, understanding this threat, had recommended prior to 9/11 the creation of a new Department of Homeland Security to bring together agencies and bureaus with other missions to incorporate the new missions of combating the terrorist threats and responding to a disaster that terrorists could bring – disasters of a different form and magnitude than a natural catastrophe, but with many similar characteristics.

Four years after 9/11, we have a DHS, and it’s much larger than the Hart-Rudman Commission had envisioned. Its bureaucracy is still reeling from the task of integrating more than twenty separate entities into one – the largest reorganization in federal government history. When Katrina struck, DHS was not the centerpiece of federal response that its outside framers had foreseen, but rather a bloated bureaucracy that was unable for days to figure out what to do, and which produced a leaderless response that only compounded the tragedy.

The idea of creating such a department was a solid one; the magnitude and form of such a department was more debatable. But it was never debated. After vehemently resisting the idea of a department for almost nine months, the president turned around virtually overnight and embraced it, unveiling a plan much more sweeping than the original, and which had been hatched in secrecy by several key administration aides working in the situation room to ensure confidentiality. The normal debate and deliberative process that would have questioned the sweep of the reorganization plan and its breakneck pace was absent. Absent, too, was the notion of starting with a new Department of Border Security and moving in increments to something grander.

When the Department of Homeland Security bill came to Congress, it ended up facing one and only one serious area of controversy and deliberation: the question of sweeping civil service changes to eliminate many of the regular protections for the 70,000 DHS employees. That issue became a political tool – a major campaign point in the 2002 elections – even as the larger and important questions of what kind of department, and how to fulfill all the real and serious government functions, were ignored.

Much of the failure to implement the changes needed over the past four years can be laid at the feet of Congress and its leaders.

Why? The most logical explanation, reinforced by the comments made to us by many members of Congress, is that lack of institutional identity. Members of the majority party, including the leaders of Congress, see themselves as field lieutenants in the president’s army far more than they do as members of a separate and independent branch of government. Serious oversight almost inevitably means criticism of performance – and this Congress has shied away from anything that would criticize its own administration.

One result has been that executive agencies that once viewed Congress with at least some trepidation because of its oversight activities now tend to view Congress with contempt. Consider the Senate Armed Services Committee hearing in May 2004 on torture in the Abu Ghraib prison. During Senator John McCain’s tough questioning, Secretary of Defense Donald Rumsfeld said that the military brass with him had prepared a thorough chart. When one of the generals said they had forgotten to bring it, Rumsfeld said, “Oh my.” As Ornstein wrote in Roll Call at the time:

Could anything more clearly demonstrate the contempt this department has for Congress? This was not a routine authorization hearing – this was a hearing testing the very core reputation of the Defense Department and the military. And they forgot the key chart!

How could this happen? I think the answer is rooted in a larger problem, and it is fundamentally a problem of and for Congress. The White House, the Defense Department, and a whole lot of other departments and agencies have no fear of Congress, because Congress has shown no appetite to do any serious or tough oversight, to use the power of the purse or the power of pointed public hearings to put the fear of God into them. …

The House and Senate Armed Services committees have held a lot of hearings since we prepared to go into Iraq and since we went in. How many have dealt with the military takeover and occupation of Iraq? Less than a handful. … How many were tough and tough-minded, pushing Rumsfeld, Deputy Secretary Paul Wolfowitz, Joint Chiefs Chairman Richard Myers or other military and Defense Department figures to justify their actions or inactions? Even fewer.

It is hard not to like and admire Senate Armed Forces Chairman John Warner (R-Va.). He is smart, decent, and a true patriot. But he has seen his role far more in terms of defending and explaining the administration than in providing penetrating public criticism. The larger problem of this Congress, which to be sure is far more true in the House than in the Senate, is that the Republican majority has gone out of its way to avoid serious criticism or tough challenges to its own administration. The idea of public hearings to really dig into policy and administrative failures is abhorrent to Congressional leaders and most committee chairmen. They are doing it now only reluctantly, only out of necessity, and bending over backwards to minimize the damage.

The administration, for its part, knows its Congressional party well. It has demanded fealty, ignored Congress when it can get away with it, and when challenged by Congress, usually offers the back of its hand. Sen. Dick Lugar (R-Ind.) and the Foreign Relations Committee have tried to explore the key foreign policy issues in depth and have found neither cooperation nor openness from the White House, but rather attempts to marginalize the panel. It is so interesting that the two most prominent administration figures with Congressional backgrounds – Vice President Cheney, who was his party’s Whip, and Secretary Rumsfeld, a key Congressional reformer in his greener days – have little if any sympathy for an independent and critical role for Congress.

The two Appropriations committees have shown a little more appetite for searching questions and tough oversight, fitting their long traditions and pedigrees, but they are better than other panels only by comparison. Appropriators have only become exorcised when it became clear to them that Defense officials were putting together tons of military construction projects that had not been appropriated by them and were a direct challenge to their core responsibilities.

To be sure, the failure to ask tough questions of the military, or to challenge decisions made during wartime, is not new to Congress and not limited to Republicans. Richard Russell, a legend in the Senate (and a Democrat), never used the gavel of the Armed Services Committee to raise any of the tough issues about Vietnam that he did in private. Had he done so, we might have conducted that war in a much better fashion.

The Democrats who ran the Senate in 2001-2002 did not exactly distinguish themselves with penetrating oversight on Iraq and defense. But the lack of any strong sense of independent legislative authority, and the pervasive sense of Congress as a subsidiary body to the presidency, is much stronger in this Republican Congress than I have seen it in three and a half decades, and unusual in American history.

These examples are illustrative of the pattern that has developed in recent years. Initially, a centralization of political control in the Congress, and the marginalization of committees, contributed to a sharp reduction in congressional oversight of the executive. UCLA political scientist Joel Aberbach reports that the number of oversight hearings – excluding the appropriations committees – dropped from 782 during the first six months of 1983 to 287 during a comparable period in 1997. The falloff in the Senate between 1983 and 1997 was just as striking: from 429 to 175.

That decline was then reinforced and exacerbated with the return of unified party government. The Republican Congress had even less incentive to oversee an executive controlled by its own party.

The problem in the Senate goes beyond obsequiousness to the executive to maddening passive deference to the House. Anyone who hung around the Senate through the past several decades would have seen its members’ intense pride in the heritage and trappings of the body almost as part of its institutional DNA. Thus, to watch the Senate disregard that heritage and its honor over the past few years has been particularly jarring. The attitude in the body during debate on bankruptcy – bowing to the take-it-or-leave-it demands of the House to pass the bill the House wanted without change – has been more typical than not; the Senate has frequently bent to threats from the House, and on such key issues as the Medicare prescription drug bill and the energy bill even cast aside its own rules to allow the House to bar elected Senate members of the conference committees from full participation.

Tolerance of Executive Secrecy

The passivity and indifference of Congress and its leaders to their independent and assertive role fit perfectly with the Bush administration’s assertive and protective attitude toward executive power and its aversion to sharing information with Congress and the public. Two months after Bush took office, White House Counsel Alberto Gonzales blocked the release of 68,000 pages of records from the Reagan presidency, which were scheduled to be made public under terms set by the Presidential Records Act of 1978 (PRA). Later that year the president issued an executive order that granted former presidents, vice presidents, or their representatives designated by family members, the right to block the release of documents “reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President’s advisors.” The order also directed the Justice Department to litigate on behalf of any such claims.

Early on the administration also revealed its hand with respect to the Federal Advisory Committee Act, which established openness requirements for advisory bodies to the executive, and the Freedom of Information Act, which provides for public access to government documents. The administration rebuffed attempts by several members of Congress to use the Federal Advisory Committee Act to force Vice President Cheney to divulge information about his energy task force, a working group of industry lobbyists and government officials to formulate national energy policy. Bush officials argued that the Federal Advisory Committee Act was unconstitutional in that it authorized “extreme interference” and “unwarranted intrusion” into executive responsibility.

The Government Accountability Office (GAO) sued the Vice President on behalf of Congress – on its own, and not with any imprimatur from the Speaker or Senate Majority Leader – for access to the information, but the administration prevailed in the courts. It also successfully defended its position in related suits brought by the Sierra Club and Judicial Watch. Exemptions from the Federal Advisory Committee Act were written into the Homeland Security Act, the Medicare prescription drug law, the FY2004 Defense authorization bill, the President’s Commission to Strengthen Social Security, and the President’s Commission on Intelligence on Weapons of Mass Destruction. In 2003 the Office of Management and Budget issued a ruling that agencies could avoid the requirements of the Federal Advisory Committee Act if they hired contractors to manage advisory committees.

The Bush administration also found inappropriately burdensome requests for information under the Freedom of Information Act. In an October 2001 directive planned well before September 11, Attorney General John Ashcroft announced a new policy for handling these requests. The Clinton administration had established a “foreseeable harm” standard for the release of Freedom of Information Act documents – agencies would have to make records public whenever possible as long as no foreseeable harm existed for their release. Ashcroft changed this standard to one of a “sound legal basis” so that agencies could withhold information so long as there was any legal basis to do so. The attorney general directed agencies to release information only after “full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated.” The memo also stated that “you can be assured that the Department of Justice will defend your decisions [in court].”

In addition to resisting congressional and public access to information under the Presidential Records Act, the Federal Advisory Committee Act, and the Freedom of Information Act, the administration substantially increased, relative to previous presidencies, the number of documents it classified (while decreasing the number it declassified); blocked the release of documents and briefs requested as part of congressional investigations of the terrorist attacks; refused a House committee request for numbers adjusted for undercounting in the 2000 census; invoked executive privilege in denying Congress access to information concerning the FBI misuse of organized crime informants in Boston; was unwilling to share information on missile defense systems with the Senate subcommittee that oversees the project; delayed sending to Congress full cost estimates of the Medicare drug bill before it was signed into law; denied the Senate Governmental Affairs Committee information about undisclosed meetings between Enron executives and top administration officials; and restricted access by Congress to environmental records. And the administration engaged in many battles – with Congress and in the courts – over what information it had to release concerning the handling of terrorist detainees and enemy combatants.

While this behavior by the Bush administration justly earned it a reputation for secrecy, it was entirely consistent with its view of executive prerogatives. At times it was difficult to discern its motivations for denying information to Congress, the 9/11 Commission, and the public. Surely avoiding political embarrassment factored in to some of its decisions. And the net effect of its actions to avoid transparency in executive decision making, as former Senator Daniel Patrick Moynihan argued in attacking secrecy in government, may well have done more harm than good to the country. But at least President Bush defended his branch of government and acted in a way he thought would leave a stronger institution for his successors.

Sadly, the same cannot be said of Congress during Bush’s tenure in the White House. What we were struck by during this period was how supine the first branch of government was i