I have been a close observer of Congress since 1971 when I started my first Hill job with Senator Jacob Javits from New York, a liberal Republican. Yes, they had them then; several in fact; almost a third of the Republican Senate caucus. Ultimately, I worked on Capitol Hill for 31 years, including a stint at the Government Accountability Office. Uniquely, according the Senate Disbursing Office records, I spent two years working simultaneously for a Republican and a Democratic Senator on their personal staffs. With this background and now as a recently re-registered Independent, I can claim more non-partisanship than most.
A couple of decades ago, I complained to a Hill colleague, “It (Congress) can’t get any worse than this.” How wrong I was.
Based on my experience and outlook, I offer the following observations.
There has evolved a highly centralized, autocratic system in the House and Senate that tolerates meaningful dissent from independently minded legislators in only the rarest and most unique circumstances. Nancy Pelosi and Newt Gingrich led the way in the House. Each extracted compliance from the members of their respective caucuses, Pelosi much more effectively and lastingly than Gingrich. Their demands – their entire strategy – have had one unifying theme: success in the next elections, an effective enticement to re-election hungry members. From selecting a new healthcare system to deciding if it is — or is not — time to impeach a President (remember, in addition to the lunges against Trump, the 2006 diktat against impeaching George W. Bush for starting the second Iraq War on false pretenses), there has been no decision in the Democrat caucus until Speaker Pelosi decided. Under Mitch McConnell, the tactics and goals are profoundly similar, just the positions are different and a little better articulated to the public. But also, of course, the reverses of past positions of declared principle are more than a little gob-smacking.
However, there are some activities that span the party divide: opposition to lifting the national debt ceiling when the other party has the White House, delaying appropriations until well after the start of the new fiscal year no matter who controls what, parceling out scores of billions of dollars for pork especially for compliant caucus members, and using the filibuster to kill any particular bill from the other side in the Senate.
Pelosi and McConnell disallow unapproved legislative alternatives with parliamentary tricks: they allow a vote only if the provision is harmless, sure to support their own position or guaranteed to fail if it is problematic. A controversial vote with an unknown, if not unapproved, outcome is extremely rare. Policy diktats are seldom altered, once decided. Determined nonconformists are isolated from positions of influence, have their pork requests vetoed, are denied party controlled campaign funding, and/or get “primary-ed.” In all cases, the point is to make examples and suppress dissent. The compliant will get goodies (a repaired bridge in the state, a legal loophole for a fundraiser’s profession outside the state, a big check from a formerly unhelpful PAC, or an invite to the White House — or for the Trump boot lickers Mar-a-Lago); whatever it takes to help the leader’s agenda.
The autocracy has been under stress lately. Sen. Joe Manchin (D-WV), with Kirsten Sinema (D-AZ) tagging along, has made himself a one man show by shrinking the $3.5 trillion Biden/Progressive Build Back Better bill into about half, assuming Manchin allows any deal. In the House, Pramila Jayapal (D-WA) has made herself a major power center: just as Manchin holds the margin in the Senate, so does she in the House with her close progressive allies. Speaker Pelosi is anything but irrelevant, but that could change if the Speaker retires in 2022.
Senate Minority Leader Mitch McConnell has all the command over his caucus in the Senate as Pelosi —perhaps more. But he does sometimes need to allow a few, even himself, to stray – as long as nothing unwanted results. The tiny number of moderate, some-time dissenters, like Susan Collins (R-ME) and Lisa Murkowski (R-AK) seem to stray only when doing so makes no real difference – unlike Jayapal. But also note that Collins’ and Murkowski’s moderate male party caucus compatriots are even more timid.
Then there are the not-autocrats. Senate Majority Leader Schumer (D-NY) does not exercise the command in the Senate that Pelosi does in the House. He is more an apparatchik (who talks too much) than a major power center. Note how unimportant he is in resolving the tough issues in the Build Back Better bill – a criticism he would deny at great length in a speech using staff written notes, bringing in others – at his request – to back him up. Weak Senators do that sort of thing. The Republican leader in the House – his name is Kevin McCarthy in case you forgot – operates under the delusion that simply because he holds high office he should command serious authority and be listened to closely and obeyed. Even Donald Trump knows he’s a nobody. Conveniently, the strength and weakness at the top of the party caucuses in the House and Senate are symmetrical: Pelosi and McConnell keep their respective parties under control. But the challenge that Manchin and Jayapal present from opposite sides of the spectrum may have long term consequences for the Democrats, especially if Pelosi does indeed retire next year.
The legislative process is a sham.
Even if Pelosi and Jayapal manage to wrestle through the remaining shrunken part of their “transformational” multi-trillion dollar agenda, getting there has exposed just how broken the legislative system is.
Bills that emerge from the current process frequently consist of hundreds, sometimes thousands, of pages; the final versions are released by central command to be voted on before read by most House Members and Senators, even staff. A meaningfully informing summary rarely shows up in time (or at all), which means that anyone in or out of Congress trying to tease out the real meaning has to parse through hundreds, if not thousands, of pages of legal mumbo-gumbo taking not days, but weeks. Sometimes there are short pseudo explanatory summaries written by compliant staff, without revealing the real cost, let alone what lurks in the details. Rules preventing such things are waived. This bothers very few, if any, in Congress. Note, for example, the irritation of the Democratic Progressives at the idea of waiting for the Congressional Budget Office (CBO) to generate an independent estimate of what the remnants of their Build Back Better agenda will cost. Note also their exploitation of the known CBO counting rules – pretending that a program they fully intend to be permanent will be enacted for just a few years and therefore only a fraction of the cost is score-able by CBO. The Progressives are hardly alone with these antics; they are de rigueur for both parties, all factions.
Specific examples of the sham process abound. Let’s take the brand new $1.2 trillion “BIF,” or Bipartisan Infrastructure bill, signed into law by President Biden on November 15. As described at Congress’ official website for documentation on all bills, the final version runs 1,039 pages. Want a detailed explanation and meaningful analysis of what is actually in the thousand pages of legalese gobbledy-gook? Good luck. There was an almost 1,500 page analytical report, but it was written in June for an early version of the bill in the House. When the bill got to the Senate in August, it went through massive changes based on several score amendments and other alterations, but there was never the typically required “Joint Explanatory Statement” (JES) where the differences in the Senate and House versions and the impact of the final language are assessed and explained in readable English. The Democratic leadership used a parliamentary gimmick to obviate the potentially revealing and therefore troublesome JES. The final version sent to the White House for President Biden’s signature never had a meaningful explanation and analysis. The White House did release a useless four page “fact sheet” – actually a press release. It’s an exercise in blind man’s bluff.
It didn’t get any better with the as yet unfinished Build Back Better agenda, variously estimated to cost something between $1.75 trillion and $2.4 trillion (CBO eventually said $2.2 trillion), the bill was originally 2,468 pages but “slimmed down” to 2,100. There is, indeed, real analysis: 2,466 pages of it, even with the views of the minority included. But this analysis was written for the early, longer version of the bill, back in September. There was a release of a document showing the differences made throughout the text of the bill as of November, but there was no English language explanation of the changes: why they were made, the altered impact; who wins; who loses. Moreover, the House rule that commanded how it would be debated stated that there were to be no amendments and all points of order against violations of House or Budget rules were waived. Plus, the entire debate was to be a grand total of two hours. However, when the November 18 debate actually occurred, Republican Leader McCarty used his privilege to stop time and take eight and a half hours of real time in lieu of the one minute technically allotted to him: a privilege ignore the rule allotted to him and Speaker Pelosi. (Congress’ rules for itself are like this.) After passing the House 220 to 213 on November 19, the bill went to the Senate for changes, probably major ones imposed by Manchin and others. It will then come back to the House but – you can bet the ranch — without any authoritative Senate or joint explanation on the contents of the final version. It will then go to the White House and signed into law – if it makes it that far.
That’s over 3,000 pages of statutory text costing over $3 trillion in the two bills; language that probably no Member of Congress has read, certainly not the majority. Only a handful of staff will have fully read it; fewer still will really understand it. It’s all mystery meat for most in Congress and especially everyone beyond.
There are some organizations that try to explain the unknown to the public. CBO does of course try its best with those bothersome cost reports. The Congressional Research Service writes bill summaries, and GAO can be tasked to perform analysis. Importantly, there are non-government organizations, like Taxpayers for Common Sense and others, who get their hands on the available documents and write explanations and analyses, some of them quite excellent, unbiased and helpful. The problem is that these all come out either very late in the process or days, weeks – sometimes months — after enactment into law. They don’t solve the mystery meat problem before the voting, but they do eventually get to the public – and of course the previously oblivious majority of Congress and its staff.
The mainstream press is clueless
As the monster bills move through Congress, if you think the mainstream press is going to rescue you by parsing through it all and explaining it, you’re wrong. The vast majority, especially TV media and the major daily newspapers, will certainly cover the endless back and forth palaver, but for the basic content you’re mostly getting fluff based on self-interested personal sources or simplistic, incomplete press releases. These human and paper “informed sources” tell the talking heads and deadline writers what the sources want the media to know, nothing more. Many times the sources themselves will be mostly ignorant of the real contents, having only read the press releases and skinny “fact sheets” or relying on word of mouth from other ill-informed or self-interested sources. It becomes an endless circle of bad information.
The good reporters say, “Here’s what they are telling us.” The really good ones say, “Here’s what they’re not telling us.” But doing that too often can get a journalist relegated to blog writing, weekend news talking, or basically banished. Those self-interested sources for the mainstreamers don’t like being made into fools; neither do their selected talking heads. In any case, in the current media culture of rushing to release something to be on air or the internet, reporters are not allowed the time to hunt down the relevant documents and to read them — or even hearing a briefing with meaningful detail from those few who are first hand, informed sources – if they are talking. It’s much more important to be first to break breaking news.
The next time you hear or read a commentator fulminating about what these new laws do or do not mean, wonder if they actually know what they are talking about. More likely they have read little of the key documents, are just passing on what they have seen on the internet, or heard from biased or poorly informed sources. Don’t rule out third hand hearsay. Many of them certainly sound like it.
A few days, weeks or months hence, analysis will come out of the Congressional Research Service, GAO and the few worthwhile analytical public interest organizations and some apolitical bloggers. Some of the mainstream media might even pick some of it up if they feel it meets their criteria for breaking news or the occasional dive into a few details deemed newsworthy. But don’t rule out still more biased, ill-informed baloney in some of these after the fact “deep dives.” If you want to understand what’s actually in those thousands of pages of new law, you will have to go out and find it yourself and spend some number of hours reading about it. Good luck.