Welcome Jasmine Farrier, and Host Gregory Koger., author of Filibustering.

[As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread.  - bev]

Congressional Ambivalence: The Political Burdens of Constitutional Authority

Gregory Koger, Host:

Jasmine Farrier’s Congressional Ambivalence tackles a subject that is both classic and timely: delegation of policy choices to the President and the executive branch. Farrier analyzes delegation to the executive on military base closures, trade policy (“fast track”), and the “War on Terror”—the PATRIOT ACT, Iraq policy, Guantanamo, and surveillance wiretaps. She finds a recurring theme of ambivalence: expressions of reluctance before Congress cedes power, expressions of regret after the fact. But Farrier suggests that Congress nonetheless rarely reclaims power once it has been ceded to the executive, a point illustrated perfectly by the PATRIOT act.

Political scientists have long studied the subject of delegation, suggesting that Congress grants decision-making power to agencies or Presidents to either a) gain the benefits of policy expertise or b) avoid responsibility for policies that are in the national interest but impose costs on some constituents. Farrier stresses that this process is not “clean”—it is hotly contested as legislators debate the need to sacrifice autonomy—and that a single law delegating power to the executive branch often begins a cycle of investigative hearings, attempts to undermine or rescind the law, and contests over whether the law should be extended.

Farrier’s policy narratives, including a short narrative on the first Troubled Asset Relief Program (TARP), lead up to the end of the Bush Administration. But Congressional ambivalence is alive and well. Congress is still reacting to President-driven policy decisions regarding Iraq and Afghanistan policy and Gitmo detainees. On top of that, the 111th Congress has delegated new powers to the Obama administration on (for example) how and when the February 2009 stimulus funds will be spend, and on health care savings. Perhaps the strangest case of “delegation” occurred when the Senate defeated a proposal to establish a deficit commission, so President Obama created his own commission by executive order. Despite this end run around them, members of Congress treat this outcome as de facto delegation since leaders of both parties have signaled that they will act on the recommendations of the commission. Farrier’s book, therefore, is quite timely.

61 Responses to “FDL Book Salon Welcomes Jasmine Farrier, Congressional Ambivalence: The Political Burdens of Constitutional Authority”

Gregory Koger September 25th, 2010 at 2:00 pm

Jasmine, let’s start with a basic question: why does Congress delegate control over major policies like base closures or trade policy?

BevW September 25th, 2010 at 2:00 pm

Jasmine, Welcome to the Lake.

Greg, Welcome back to the Lake and for Hosting today’s Book Salon.

egregious September 25th, 2010 at 2:01 pm

Welcome to Firedoglake – so glad you could join us today!

Jasmine Farrier September 25th, 2010 at 2:02 pm

Hello, Gregory. It is nice to meet you virtually. Thank you for your introduction. I’m looking forward to a lively salon.

Jasmine

dakine01 September 25th, 2010 at 2:03 pm

Good afternoon Jasmine and Greg and welcome to FDL this afternoon.

Jasmine, I have not had an opportunity to read your book but do have a question and forgive me if you address it in the book.

How do we force the Congress to start doing their jobs? Apparently, they have to spend so much time and money getting elected, they feel they can’t do what they are getting elected to do.

I recall they admitted that the Base Re-Alignment And Closure Commission was implemented precisely because they could not agree within the Congress on what was needed and what was not, so they gave the power away.

Apparently it worked so well for them that they’re using the model for the Sovereign Default Commission ongoing right now (aka the Cat Food commission)

Jasmine Farrier September 25th, 2010 at 2:03 pm
In response to Gregory Koger @ 1

Congress delegates for a variety of reasons that include short term political and electoral gain as well as longer term institutional problems with making certain kinds of hard choices.

Jasmine Farrier September 25th, 2010 at 2:04 pm
In response to egregious @ 3

Thank you — I’m having fun already!

Jasmine Farrier September 25th, 2010 at 2:06 pm
In response to dakine01 @ 5

There are many reasons why Congress does not ‘do its job.’ For starters, we the voters are of many minds on policy. For example, we want deficit reduction in the abstract, but have little stomach for tax increases and spending reductions that will hit us at home.

Jasmine Farrier September 25th, 2010 at 2:10 pm

Back to the deficit commission idea, it is interesting for members of Congress to want to take the heat off of themselves, but I argue in the book that we should beware of BRAC-style commissions because they ultimately make decisions that are indeed political. So I argue that the cycle of giving up power, followed by regret, followed by more delegation down the road would predict that the deficit commission’s work will indeed be labeled “political” later as members try to undo it.

Gregory Koger September 25th, 2010 at 2:10 pm
In response to Jasmine Farrier @ 8

So, is it fair to say that Congress likes to make fun choices (“who wants some tax cuts with their pork?”) but when there are difficult tradeoffs–e.g. between a national interest and diverse local interests, legislators often prefer to transfer authority to some other actor (Presidents, courts) who will make the “hard choices”?

Gregory Koger September 25th, 2010 at 2:15 pm

Jasmine, of all the cases you survey, the reauthorization of the PATRIOT Act surprised me the most. At the time, it seemed that the level of “ambivalence” was very high with the general public AND in Congress. How would you explain the decision to extend the controversial portions of the Act?

Jasmine Farrier September 25th, 2010 at 2:15 pm

Yes, exactly, but my book argues that members and majorities are not consistent with their diagnoses of the problems. For example, members may argue that Congress shouldn’t meddle with trade legislation and that using the legislative process to alter trade agreements makes the country look bad. So beginning in the 1970s, Congress passed “fast track,” which promises a quick vote on certain types of trade agreement legislation. Then, down the road, members might be horrified that the trade deals were not popular in those districts, so then they have to scramble back power, with limited success.

But the notion that the president likes to make (or is good at) hard choices is interesting too. When the executive branch uses its authority it’s usually not for hard choices, but for things the president wants to do, but with the national interest rhetoric that comes with the office.

Jasmine Farrier September 25th, 2010 at 2:19 pm
In response to Gregory Koger @ 11

The PATRIOT Act is indeed an interesting case study: the first round of the act seemed to sail through Congress in a matter of weeks after 9/11, but the legislative history showed a fierce debate about the policies themselves, as well as the unconventional legislative process. But, as is often the case in difficult issues, Congress gave the law a 5-year sunset for 16 of the most controversial parts.

Then, in 2005-2006, members begin to revisit the act, and as you say, it’s now widely unpopular. Yet Congress used a much longer legislative process to give President Bush most of what he wanted (again).

So perhaps when the Democrats take over it’s a different story? Not really. The FISA reform debate from 2007-2008 again gave the President his preferred policy changes for surveillance.

Dearie September 25th, 2010 at 2:24 pm

Is Congress simply too dysfunctional to ever regain a foothold in governance? I watch them stumble around and make one ridiculous decision after another…..and then get their teevee time for future ads and just despair. How do we kick them into action…..or do we just kick them out? And, in this day and age, why would anyone want to be a part of this insanity anyway?

Jasmine Farrier September 25th, 2010 at 2:24 pm
In response to Gregory Koger @ 11

To continue on the PATRIOT ACT, my explanation of Congress’s willingness to give President Bush what he wanted centers on longstanding self-diagnosis of institutional insecurity. Even as President Bush is becoming unpopular and his branch somewhat discredited, Congress as an institution does not think that it can handle foreign affairs and intelligence. Structurally, there are obvious advantages for the executive branch on these issues, but even after intelligence problems surfaced about the war, Congress still ceded power because it believed the executive branch needs a lot of power to combat threats.

powwow September 25th, 2010 at 2:26 pm

It’s so nice to have a book focusing in-depth on (what should be) the seat of our government, for a change. Thank you, Jasmine (and Gregory).

Having only learned about your book here in the last 24 hours, I obviously haven’t read it either (I love the cover, by the way), but the subject is very important on multiple levels, as I see it.

In what Congressional era did you begin your research?

Did you come to any hard and fast conclusions about the practice of delegating by Congress – how court intervention has, or hasn’t, impacted its operation, whether it’s remained relatively steady, or steadily increased over time, etc.?

Gregory Koger September 25th, 2010 at 2:27 pm

Let me return to dakine01′s question. It seems that your book has something to say about the institutional capacity of Congress. Legislators delegate decisions that they COULD make, and perhaps ought to make. And when they do, they feel guilty about it–they acknowledge that full Congressional debate on an issue will NOT lead to good policy choices, and after the fact they may try to undo their delegation decisions. Are there institutional changes (dakine01 implicitly suggests campaign finance reform) that could be made to help Congress to govern without delegation?

Jasmine Farrier September 25th, 2010 at 2:29 pm
In response to Dearie @ 14

These are all good questions, Dearie. There are many dysfunctions in Congress, both institutionally and politically.

Institutionally, the Constitution set it up to be really two branches — the House and Senate were not built to think alike and those differences have grown over time with rules and culture (Greg might be the authority on this question). In addition, elections are always lurking around the corner and you’re right: a 30 second (or shorter) ad cannot help us appreciate the push and pull of legislative compromise.

Politically, everyone who gets to Congress won an election and those in the minority party still have the right to use their powers to represent their district and party as they see fit.

So for both of these reasons the executive branch looks more coherent from a distance because it is a unitary structure. However, we have to remember that despite the differences, the president (any president) was still elected largely by one set of people and ideas and his unitary action is really no different politically than Congress. The difference is that he has the vast reach to claim that it is less political…

powwow September 25th, 2010 at 2:33 pm
In response to Gregory Koger @ 10

This certainly rings very true (Jasmine’s “Yes, exactly” comment @ 12 is in response to it, I think).

Statesmanship – like honor and ethics in corporate governance – seems to belong on the Endangered Species List in America today.

bigbrother September 25th, 2010 at 2:33 pm

Hi Jasmine (one of my favorite teas and flowers). Can you see a parallel in USA global colonialism today, implemented by wars and destabilizing unfriendly regimes, and the attempt by fascist Germany and Italy who used similar techniques as did USSR. And why is congress supporting these policies? The Patriot Act and other legislation seems to legitimize surpression. The constitutional balance of powers seems to be lost, that may have stopped the control of oligarchist over populism.

Jasmine Farrier September 25th, 2010 at 2:35 pm
In response to powwow @ 16

Thank you, Powwow (is my etiquette OK on calling people by handles??).

This book was started about 10 years ago when I wrote my dissertation on the ways Congress gave up power for deficit control in the 1980s and 1990s. You all probably remember Gramm-Rudman-Hollings, the Line-Item Veto, the movement for a balanced budget amendment, etc. It’s kind of deja vue on all this right now. Anyway, in 2000, you might also recall that the budget was not only balanced, but in surplus. So when I went to conferences to discuss my dissertation on budget reform and delegation of power, it really wasn’t as relevant. But people asked me whether it would be relevant to base closure commissions and fast-track trade rules, and I started to look into those policies. Then, a year later, was 9/11 and I saw Congress’s already-low institutional confidence plummet further. So the book began…

The Supreme Court is very interesting in these issues, so I’m glad you raised it. The Court has not had a consistent view of separation of powers and sometimes let delegation of power get the OK stamp (base closure commissions) and other times says no (line item veto).

ubetchaiam September 25th, 2010 at 2:39 pm

Welcome Jasmine and thanks for your book; hope it gets read widely. At ‘the Seminal’,Elliott introduced your ‘coming here; by writing “Farrier demonstrates that Congress is caught between abdication and ambition and that this ambivalence affects numerous facets of the legislative process.”.

What role do you think the fact that the same number of Representatives as existed at the end of WWII exist despite the population being 3 times larger? And would the failure of a President to use his authority granted by the SCOTUS to tell the House of Reps to increase it’s representation be but another example of the Exxecutive seeking to retain as much power as it can?

Jasmine Farrier September 25th, 2010 at 2:40 pm
In response to Gregory Koger @ 17

The question of how to strengthen Congress’s institutional capacity is very important, and of course difficult to answer. Congress has toyed with institutional reform repeatedly in the 20th Century, and pushed back against the presidency effectively in the late 1940s and early 1970s. However, institutional will has to come from within. Do members of Congress understand their long-term institutional place? Senators like Robert Byrd are rare. Before his death he was (for decades) the person who used his office both to enrich his state and push back against presidential encroachment of power. Then again, even he voted for the PATRIOT Act (the first time)!

powwow September 25th, 2010 at 2:41 pm

So for both of these reasons the executive branch looks more coherent from a distance because it is a unitary structure.

A unitary, hierarchical structure – very unlike Congress, which is (intended to be) a group of people representing their constituents with equal weight and voice on an individual basis. However, I’d contend that the Parties (in large part, I assume, because of the exorbitant modern costs of TV campaign advertising) have increasingly corrupted Congress into a similarly-hierarchical organization, to the detriment of the Legislative Branch, the average Member of Congress, and thus our self-government.

Gregory Koger September 25th, 2010 at 2:44 pm

Let me add that when Congress is functioning well it is still slow and confusing to watch. That’s just the nature of the legislative process–there are often multiple ideas about what should be done, multiple frames for thinking about a problem, and it’s all wrapped up in parliamentary jargon.

But, the question is, is Congress acting in a timely fashion to make the important decisions that need to be made? My work has stressed the increasing role of filibustering in slowing down the Senate, but Jasmine’s book gets at another side of the issue: the reluctance of legislators to make policy decisions that impose costs on their constituents and/or allies.

Jasmine Farrier September 25th, 2010 at 2:44 pm
In response to powwow @ 19

Yes, statesmen can come from any branch. But Congress is unwieldy at 535 members all jockeying for agenda time and credit. So as a nation we have come to the default idea that the president is the best mouthpiece for our country, except when we disagree with him, which is almost all the time. So should party leaders step up to the statesman mantle? Again, that is hard to do as the Speaker (any speaker) is an institutional powerhouse but predominantly a party boss. As some of you may know, in the 19th Century, the speaker often was the center of political power and ideas, not the president. But the 20th Century changed the tide to default permanent presidential dominance.

Jasmine Farrier September 25th, 2010 at 2:48 pm
In response to bigbrother @ 20

Well, here’s the difference between our regime and others: we have elections where majorities can say the members and the president made mistakes. The P. Act was considered a terrible violation but many, but were the members who supported it kicked out at the next opportunity in 2002, 2004, 2006, or 2008? President Bush won re-election in 2004 despite outcries on US policy at home and abroad. For better or worse, delegation of power and even “bad policy” gets at least one big day in the public court.

Jasmine Farrier September 25th, 2010 at 2:50 pm
In response to ubetchaiam @ 22

This is a complex topic, but I suppose the consensus is that 435 House members is already huge and population shifts (not growth) are accounted for by the census-related reapportionment every 10 years. For example, Kentucky may lose a seat in the House soon and be down to 5 members, not 6. So even as the total number remains the same, the proportion of California to Alaska remains, at least in theory.

powwow September 25th, 2010 at 2:52 pm

Thank you, Powwow (is my etiquette OK on calling people by handles??).

Absolutely correct etiquette.

The Supreme Court is very interesting in these issues, so I’m glad you raised it. The Court has not had a consistent view of separation of powers and sometimes let delegation of power get the OK stamp (base closure commissions) and other times says no (line item veto).

An unfortunate and unhelpful inconsistency, given how rarely cases probably reach them on the merits, and how profound the implications of this buck-passing can be. Think of the Congressional delegation of the authority to decide whether or not to take this nation into war against Iraq, via the 2002 AUMF… Very few have standing to challenge that delegation in court, and, of course, those few can’t be bothered, or would be challenging their own decision(s) and thus have incentive not to do so.

And then there was federal District Judge Vaughn Walker’s recent decision in the main EFF case to let stand as Constitutional the Congressional delegation of authority to the Attorney General to (secretly) decide whether or not to invoke blanket, preemptive immunity for corporate actors accused of violating the law(s) against spying on Americans… It looked to me as though Judge Walker ducked the hard, but correct, decision on that one.

Jasmine Farrier September 25th, 2010 at 2:57 pm
In response to Gregory Koger @ 25

Yes, I’m very glad you raised filibustering. Thought it would come up! The idea that stopping the legislative train is a legitimate form of political and institutional power is controversial in US politics. It strains the patience of the public (and the president) that a small group or even a lone individual can get disproportionate weight on an issue. But I would argue that yes, Congress is often more functional than people think. Or the ideas raised by outvoted individuals is more accurate than shown in the media. In other words, the old saw about legislative sausage is true, but the outcomes are perhaps preferable. Here are some examples:

Budget deficit increases in the 1980s and 2000s were largely (not totally) the result of presidential-led policies. Even though Congress budgets in a complex way, the result of those budgets is often more fiscally responsible.

Base closure commissions have worked, but defense spending has increased.

Fast track trade rules have been in effect over the past 30+ years when the trade deficit has skyrocketed.

Gregory Koger September 25th, 2010 at 2:59 pm

There is a tradeoff here: the larger the House, the better the “fit” between legislators and districts. If House members had fewer constituents, they would probably know their districts better, and campaign money would hopefully play a smaller role in their reelection (smaller districts –> less money needed for a campaign + increased importance of personal reputation and personal door-to-door campaigning). However, a larger House is also a more dysfunctional House. As the Federalist Papers warn, a large legislature tends to delegate a great deal of power to its leaders so they can manage the chaos. Now, party leaders already have great power in the U.S. House, so maybe we have little deliberation to lose. Nonetheless, for almost a hundred years the House has stayed at 435 as a reasonable balance between representation and deliberation.

Jasmine Farrier September 25th, 2010 at 3:02 pm
In response to powwow @ 24

I’m not sure the party leaders would see themselves as hierarchical when members threaten to bolt, or do. There is a lot of political science scholarship on these issues — perhaps for another salon. But if US citizens understand the differences between the parties, do we understand the differences in the institutions? For all the talk of going back to the Constitution for an examination of power and rights, there is very little understanding of the structural backbone of the three branches and why they were made so differently to deliberate, clash, and compromise on almost all matters of importance.

Gregory Koger September 25th, 2010 at 3:08 pm

Jasmine, are there other policy areas where you currently see legislators exhibiting ambivalence about prior delegation choices?

Jasmine Farrier September 25th, 2010 at 3:08 pm
In response to powwow @ 29

The standing issue is interesting. The federal courts demand that the person suing have an “injury.” A theoretical policy or institutional injury would require a political response. An actual injury could trigger a case. For example, members of Congress tried to get the federal court to throw out the line-item veto for constitutional reasons, but the Supreme Court said that wasn’t sufficient cause. Then, when a bunch of interests get their appropriation held back by Pres. Clinton, they had standing and the case progressed all the way. The same is true for war and intelligence policy, absent a direct connection to life, liberty, and property harm the fight needs to be in political and electoral arenas.

bigbrother September 25th, 2010 at 3:09 pm

Well said and the Military Commissions Act takes citizens rights away such as how does that play in the face of Habeus Corpus based on the Magna Carta )”No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.) Electronic Surveillance, covert ops and other assaults against the Bill of Rights, which has made us a model of fair governance to the rest of the world, seems in a terrible demise. Freedom of Speech, right to Public Assembly and increased Corporate power could be controlled by congress if they were not elected by corporate funds. So public funding of election might change much of that?

Jasmine Farrier September 25th, 2010 at 3:12 pm
In response to Gregory Koger @ 31

On the issue of House size, Gregory’s point is very important. The House is usually more polarized than the Senate because its smaller districts are more internally unified, so less need for compromise. So the smaller the districts, the more homogeneous they will be so even more partisan wrangling can result. In a few decades, each House district will have about 900,000 people. Now it’s about 650,000 and at the first Constitution around 30,000. Maybe larger is more diverse and members could become more Senate-like (at least in theory) if there is differing opinions within the districts.

powwow September 25th, 2010 at 3:15 pm

Budget deficit increases in the 1980s and 2000s were largely (not totally) the result of presidential-led policies. Even though Congress budgets in a complex way, the result of those budgets is often more fiscally responsible.

Base closure commissions have worked, but defense spending has increased.

Fast track trade rules have been in effect over the past 30+ years when the trade deficit has skyrocketed.

Those are important lessons.

You’re getting into my wheelhouse here – as far as the value of public debate, and of careful deliberation of legislative policy by the widest number of participants, where the best outcome is the objective (and good government is best served), rather than political expediency. Something that backroom deals and top-down Party hierarchies in Congress working to serve a President, not the people, sacrifice on the altar of power and PR.

It seems to me that public debate in Congress is disappearing – in the House, certainly, floor debates are but a momentary interlude of partisan finger-pointing, for the most part, before the pre-determined outcome is executed.

In the Senate, I’m on about the “pretend quorum call,” which is being used – to little public notice or comment, because it’s become part of the wallpaper, though it’s only a practice of modern times – to suspend (without recess or adjournment) the business of the Senate in order to allow backroom deals to be worked on in the absence of debate (which would otherwise require the putting of the pending question by the Presiding Officer). Sure, Senators are granted (by unanimous consent), as a matter of routine, the right to lift the non-quorum quorum call to make their speeches, if and when they wander into the empty Chamber – but otherwise the observed ‘custom’ honored by all Senators is to let the Party bosses in the back rooms call the shots, at the expense of the individual agency of the Senators themselves.

From my perspective, the loss of public debate and Senator-directed action in the Senate today is far more of a problem, and much more in need of reform, than any problem(s) caused by the almost-extinct practice of real (physically-taxing) filibusters (real, debating-filibusters whose absence, of course, helps illustrate the scarcity of publicly-accountable floor debate in the Senate today).

Jasmine Farrier September 25th, 2010 at 3:15 pm
In response to Gregory Koger @ 33

Good question. Politically, it is toxic right now to have voted in favor of TARP, other industry bailouts, and the stimulus. These issues cross the Bush-Obama transition so Republicans and Democrats had different reasons for supporting these presidents or opposing them, as well as the policy issue. Every member who voted for these policies (which were delegations of power to the executive branch to fill in the details) who is in a competitive election might regret it. Plenty of TARP and stimulus “reform” bills followed those votes, often sponsored by members who voted for them!

ubetchaiam September 25th, 2010 at 3:16 pm

Allow me to suggest that since ,”Congress is unwieldy at 535 members” and “the consensus is that 435 House members is already huge”, that what you touch on about ‘statesman’ may be the primal factor in the results you have documented.

The fact remains that a single person cannot effectively represent a heterogeneous group of over 600,000 people.

That the Congress and Executive branch can’t think of anything better than the current modus operandi -given just the technology available and the intent of the founding fathers- says both a lot about the people in place and the institutions.

Jasmine Farrier September 25th, 2010 at 3:19 pm
In response to bigbrother @ 35

I’m certainly not implying we know everything we need to know about what the government is doing and that elections are perfect, open spaces to ponder all these issues. Government is flawed, and elections are flawed. But as a society, we have (ironically) little stomach for too much government control of elections and of course, money fills that void.

bigbrother September 25th, 2010 at 3:22 pm

Congressional Ambivalence:..seems to be a very important book in airing out the grid lock and disconnect between the intent of the Constitution and the implementation. Complexity that Emptywheel (Marcy) has posted on exetensively and would be nice to have her comments now. These lawyerly subjects are hard to put in lay terms. Were you able to do that? I find Obama’s brand of Constitutional Law interpretation very narrow.

Jasmine Farrier September 25th, 2010 at 3:26 pm
In response to ubetchaiam @ 39

Yes, you’re hitting on an institutional strength of Congress, even if you’re not trying to go in this direction…as I said earlier, unlike a typical proportional representation system we have only winners populating the House and Senate. Where do the people who voted for the other person/party get representation? I might suggest that they get it in the other members of their preferred party in Congress. Not that all the local ideas would get through, but all the different corners of the US get a say and Congress does represent both parties well (although differently in the House and Senate) and the executive branch doesn’t. So like it or not, when Congress is fighting tooth and nail over a bill we don’t like representation in action.

The fact that we damn Congress when it’s doing its job to counteract the one-party executive branch often leads to delegation of power pressures.

Gregory Koger September 25th, 2010 at 3:31 pm
In response to powwow @ 37

Re: limited House debate, this is especially glaring when the House passes its most important bills. Both health care AND financial reform passed on a Saturday night, when many people were watching college football (I flipped back and forth!). The standard practice for landmark bills is a debate of six-ten hours, at night, with zero or one votes on amendments. And then House members are confused why citizens are skeptical about the bills they have passed.

Re: the Senate, I have also noticed the ample time spent in quorum calls. There was always SOME down time in the Senate, but if you have been watching C-SPAN2 it seems like actual debate is the exception rather than the norm. According to Senate Democrats, this is due to the overall GOP strategy of slowing down the chamber. When 60 senators vote to invoke cloture, they are imposing a 30-hour limit on debate. In the past, the losing side would usually be gracious and waive the full debate period…but nowadays the Republicans insist on the RIGHT to 30 hours debate. Of course, this doesn’t mean 30 hours of actual talking; much of the time is spent in quorum calls, which count toward the time limit. This tactic slows the Senate down considerably. Sen. Lautenberg has proposed that the rules be changed to end this practice; if cloture has been invoked and no one is speaking, then the “debate” period is terminated.

Jasmine Farrier September 25th, 2010 at 3:32 pm
In response to powwow @ 37

Everything you say has merit, but in many ways, I would trace the problems to us. We want to see a clear difference between the parties and then we get upset when the members act too partisan and don’t want to compromise. We want to see legislative action but then wonder if the process left all stones unturned. We want to see deliberation but then wonder why policy windows close unsuccessfully.

In essence, not to be too glib, but democracy in action is very, very hard…for all participants.

Gregory Koger September 25th, 2010 at 3:36 pm

Jasmine, in two of your cases (bases and trade) Congress does eventually revoke its delegation by refusing to authorize more BRAC rounds or more fast-track authority. But once Congress reclaims control, there is no more policy change—no more bases closed, no more trade deals of major or medium importance. Can you imagine that Congress would pass a law on its own that closed (or shrank) a specified list of bases?

bigbrother September 25th, 2010 at 3:37 pm

Representative government is sold to the biggest funders/lobbyist and the “Process” is way to complicated for an even well informed participants as I consider myself to be. I am an activist here and at the local community level. Still my understanding falls far short of effective. Still a wonderful discussion and that I do appreciate whether I agree philisohpically or not. So thank you for being so succinct and open. If only the process was transparent sentiments would change.

Jasmine Farrier September 25th, 2010 at 3:37 pm
In response to Gregory Koger @ 43

This point brings up something from earlier…what is Congressional reform and whom does it serve? Senators who are at a disadvantage in the status quo of norms and rules are afraid to change too much, lest these powers slip away from them if/when their party switches power positions.

I implied earlier that the filibuster and other forms of process obstacles are good uses of institutional power, at least in the abstract, because they allow senators and House members to hold the cards BEFORE THE BILL passes. After a bill passes, it is much harder to get back power and start again. If anything, members can nibble back a little and scold in oversight hearings but ambivalence can be avoided if the “bad” decisions aren’t rushed through in the first place.

dakine01 September 25th, 2010 at 3:38 pm

Uh, you have stumbled into one of the places where folks would prefer to see more partisanship and more differentiation between the parties. Many of us who are represented by Republicans or Blue Dogs have attempted to contact other supposedly Dem MoC asking them to stand up and have been foiled through being ignored in our phone calls, being unable to send emails thru web sites as most MoC limit emails to only from their districts and so on.

BevW September 25th, 2010 at 3:41 pm

Last Monday night there was a discussion about a new film about Gerrymandering. Jasmine, Greg, what are your thoughts about Gerrymandering.

powwow September 25th, 2010 at 3:42 pm

So like it or not, when Congress is fighting tooth and nail over a bill we don’t like, it’s representation in action.

The fact that we damn Congress when it’s doing its job to counteract the one-party executive branch often leads to delegation of power pressures.

[Filling in the missing word there, I believe.]

As for presidency-centric thinking putting pressure on Congress, surely having key legislators publicly make the point you just made could only help:

[A]ll the different corners of the US get a say and Congress does represent both parties well (although differently in the House and Senate) and the executive branch doesn’t.

But for that, our representatives would need some institutional pride, independence, and self-respect, which seems woefully lacking in the present incumbents – while the nation’s “Washington” media hover like moths around the presidential flame night and day, turning to “the Hill” only when the President turns in that direction for one reason or another.

I agree that Gregory’s point @ 31 is a key point about House reform:

If House members had fewer constituents, they would probably know their districts better, and campaign money would hopefully play a smaller role in their reelection (smaller districts –> less money needed for a campaign + increased importance of personal reputation and personal door-to-door campaigning). However, a larger House is also a more dysfunctional House. As the Federalist Papers warn, a large legislature tends to delegate a great deal of power to its leaders so they can manage the chaos. Now, party leaders already have great power in the U.S. House, so maybe we have little deliberation to lose. Nonetheless, for almost a hundred years the House has stayed at 435 as a reasonable balance between representation and deliberation.

As things stand, I would definitely argue that “we have little deliberation to lose” in today’s House as a result of expanding its membership, based on current Party practice. I really don’t see how that can realistically be contested (one floor amendment from each Party allowed to be heard on the “historic” health reform bill, from among 435 Members…?, etc., etc.).

Jasmine Farrier September 25th, 2010 at 3:44 pm
In response to Gregory Koger @ 45

Yes, that’s the rub…the base closing process was passed in 1988 because Congress had stonewalled the Defense Dept for over a decade when NOT ONE base was closed. However, the base closure commission did do what was intended so you’re right that there is policy success there. However, where did the saved money go? It went to other presidential priorities that are not necessarily any more clearly tied to “national interests” than old bases that prop up local economies. So my point is not that Congress should hoard power for pork reasons, but that members juggle their hats (local rep, policy maker, partisan, institutional defender) in awkward and inconsistent ways. Presidents and members of the Court do not usually shy away from defending their institution for policy gain. When Congress does it, even for the good reason you mention, it leaves an odd impression that members think their institution stinks on certain issues, so it probably does…that hurts members and leaders down the road when they actually want to combat presidential power.

Jasmine Farrier September 25th, 2010 at 3:53 pm

To bring the whole thread together, I would turn to the new Republican “Pledge” unveiled this week. As much as it indicts Congress and calls for “reform” of the budget process, it didn’t include the line-item veto and balanced budget amendment proposals many people in the Tea movement want — and that were included in the Contract in 1994. And it called for members to examine the Constitution for authority to act. It might be obvious that many Republicans would be loathe to give power to Pres. Obama but I was a bit surprised that there wasn’t more institutional self-flagellation. Gingrich’s original Contract showed a more ambivalent statement of disliking the president’s priorities, but disliking Congress almost as much.

Gregory Koger September 25th, 2010 at 3:56 pm
In response to BevW @ 49

I have not yet had a chance to see Gerrymandering (the movie). But I know a bit about Gerrymandering (the practice). After all, I live in one of the most gerrymandered states in the country: Florida, and I used to live in California, another hyper-gerrymandered state.

So, I do have to start by saying that I am NOT convinced that gerrymandering contributes to the partisan polarization of Congress. The Senate’s “districts” are constant, but as a chamber it has polarized at about the same pace as the Senate.

On the other hand, Congress has long suffered from a deficit of public trust, and over the last two years that image problem has increased. It is not helpful that Congressional mapmakers can draw district lines that are obviously political and intended to aid a party or incumbent. The bizarre districts that often result may be easier for an incumbent to win, but they are harder to campaign in and represent (e.g. if they stretch across a state), so Congress as an institution suffers from gerrymandered districts.

Jasmine Farrier September 25th, 2010 at 3:56 pm

As we wind down, I want to thank Beverly, Gregory, and everyone who asked such smart questions. A book project is never really “done” even after it rolls off the presses…I will digest and use the lingering questions, doubts, suggestions, and criticisms for the next project. I can’t get away from separation of powers and will now look at these issues from the Supreme Court’s perspective. You’ve all given me a lot to chew on as I continue my adventures in this aspect of constitutional, institutional, and political development. Thank you! Jasmine

BevW September 25th, 2010 at 3:56 pm

As we come to the end of this Book Salon,

Jasmine, Thank you for stopping by the Lake and spending the afternoon with is discussing your new book and Congress.

Greg, Thank you very much for coming back and for Hosting this great Book Salon.

Everyone, if you would like more information:
Jasmine’s website, book
Greg’s website, book

Thanks all,
Have a great evening!

bigbrother September 25th, 2010 at 3:57 pm

Today Obama: The Obama administration on Saturday invoked the state secrets privilege which would kill a lawsuit on behalf of U.S.-born cleric Anwar al-Awlaki, Precedents for abuse of Habeus. What is one willing to give up for defense in sacrifice of domestic rights?

Gregory Koger September 25th, 2010 at 4:00 pm

It has been a pleasure to come back to Book Salon, and to talk about Jasmine’s book!

bigbrother September 25th, 2010 at 4:03 pm

Thanks all for a needed debate. Was stimulating and interesting although we still are far from a process that serves the “Will of the People”.

TheLurkingMod September 25th, 2010 at 4:07 pm
powwow September 25th, 2010 at 4:08 pm
In response to Gregory Koger @ 43

Re: limited House debate, this is especially glaring when the House passes its most important bills. Both health care AND financial reform passed on a Saturday night, when many people were watching college football (I flipped back and forth!). The standard practice for landmark bills is a debate of six-ten hours, at night, with zero or one votes on amendments. And then House members are confused why citizens are skeptical about the bills they have passed.

Exactly. [The only real House debate on the health reform bill took place, by chance, in a Rules Committee meeting covered by C-SPAN, also by chance, for twelve hours or so the day/night before the bill went to the House floor - all to no effect, because that Committee does not act independently of the Speaker and let through only the 2-3 amendments/motions she finally directed, after her long backroom negotiations had concluded.]

There was always SOME down time in the Senate, but if you have been watching C-SPAN2 it seems like actual debate is the exception rather than the norm.

You can say that again…

When 60 senators vote to invoke cloture, they are imposing a 30-hour limit on debate. In the past, the losing side would usually be gracious and waive the full debate period…but nowadays the Republicans insist on the RIGHT to 30 hours debate.

Well, the majority has to offer the cloture motion (with all its inherent delays) before anyone can vote on it, and the lack of debate seems to be a constant, pre-cloture or post-cloture – perhaps most so while Party leaders are still trying to work out a ‘deal’ to avoid another cloture motion (since both Parties seem disinclined to resurrect real filibusters any time soon), and thus to establish which business will next be formally before the Senate.

Regarding the 30-hour issue, I watched carefully during the Senate health care debate in December to see whether the Republicans would really pull out all the post-cloture delays to which they were entitled – and they did not. Again, regular, unanimous-consent Senate custom is for the overnight adjournment of the Senate to count toward the 30 hours of post-cloture debate time, and, sure enough, every Republican (and Democrat) repeatedly gave their consent to toll those hours against the total in the midst of the contentious consideration of that bill. If they hadn’t, the Republicans could easily have delayed final passage of the bill in the Senate past Christmas Day, and probably past New Year’s as well.

It’s telling that every “solution” that Senate incumbents seem to come up with to address the problems caused by their misuse and disuse of the legislative body in which they are privileged to serve, somehow includes ‘new and improved’ ways to avoid or limit (already scarce) public debate, and the accountability that goes with it…

powwow September 25th, 2010 at 4:33 pm

Great to hear that you’re in it for the long haul, Jasmine. These topics, the separation of powers foremost among them, need all the help they can get…

Thank you, and Gregory, and Bev for this important discussion.

Your comment @ 44 is a reminder that we should probably all keep handy, to help combat the instant-gratification culture that surrounds us:

In essence, not to be too glib, but democracy in action is very, very hard…for all participants.

Yet if we value the rewards that democratic self-government brings and the liberties it protects, as I think we’re learning the hard way, failure is not an option.

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