Out of Order

At least that’s how Bush and Vice President Dick Cheney appear to see things. Cheney in particular has long felt that presidential power was allowed to ebb dangerously during the ’70s-era backlash against Richard Nixon’s imperial presidency, and he came to office determined to reverse that course. To help him, he brought along two experienced bureaucratic warriors: Lewis “Scooter” Libby, his chief of staff until he was indicted in the Valerie Plame case last year, and David Addington, the pit bull lawyer who replaced Libby.

The fight to increase presidential power started early. A few weeks after taking office, Bush first postponed the scheduled release of presidential papers from previous administrations and then issued an executive order giving himself the power to restrict their release indefinitely. Later that year, the Department of Justice issued new rules limiting the use of Freedom of Information Act requests. And Cheney’s determined efforts to keep the proceedings of his Energy Task Force secret are legendary.

But that was just a warmup; it was 9/11 that sent Bush’s effort into high gear. At Addington’s urging, Bush has appended “signing statements” to over 750 bills, essentially asserting his right to ignore the will of Congress if, in his opinion, it impinges on his presidential prerogatives. He has claimed the sole right to determine how enemy combatants are treated. He has vastly increased the number of documents classified “Secret” and “Top Secret” and has even authorized the reclassification of formerly public documents. He has denied habeus corpus for years to Jose Padilla, an American citizen, along the way doing everything he could to prevent the Supreme Court from ruling on the constitutionality of his actions. And he has authorized domestic surveillance programs by the National Security Agency that were never approved by either Congress or the courts.

On a dizzyingly broad array of fronts, in other words, he has pretty much asserted the authority to do anything he wants and to do it without any pesky oversight. The courts have–so far–not pushed back very hard against this, and that’s not too surprising: Courts tend to work slowly, they’re historically deferential to presidential power in national-security areas, and they can only rule on cases brought before them. They are reactive, not proactive.

But what about Congress? What excuse does it have for being so supine? The easy answer, of course, is also the most obvious one: Both Congress and the presidency are in the hands of the same party right now. Members of Congress don’t normally challenge presidents of their own party, and congressional leaders traditionally take their cues from the White House when one of their own inhabits the Oval Office.

However, as veteran Congress-watchers Thomas Mann and Norman Ornstein argue in The Broken Branch, it’s not nearly that simple. The Truman Committee famously uncovered waste and fraud in defense spending during FDR’s administration. Jimmy Carter presided over a notoriously fractious Democratic Congress, as did Bill Clinton, who was able to pass his first economic plan only because his vice president cast a tiebreaking vote. Republicans helped investigate both Richard Nixon and Ronald Reagan.

So why has the current Republican Congress proven to be such a lapdog for President Bush? The same Republicans who spent 140 hours investigating Bill Clinton’s Christmas card list can now barely be bothered to investigate even genuinely serious issues like Abu Ghraib, intelligence manipulation before the Iraq war, or the NSA spying affair–all of which have gotten no more than desultory attention. (Though they did manage to bestir themselves to produce a surprisingly harsh indictment of the Bush administration’s response to Hurricane Katrina.)

A partisanship verging on tribalism explains some of this, but Mann and Ornstein track the real problem to a deeper, and wonkier, source: the breakdown of “regular order,” the combination of rules, traditions, and common folkways that until recently governed the operation of the House and Senate. These traditions started breaking down in the 1980s, declined even more steeply in the post-Gingrich 1990s, and then fell off a cliff following the election of George W. Bush.

Mann and Ornstein provide some useful history here, especially for Bush-era readers who are sometimes inclined to think that political history began in 1994. But it didn’t, and they make clear that although firebrand Republicans exaggerated the problems of regular order in the 1980s, there really were problems. After 40 years in the majority, Democrats had grown a little too accustomed to power–and woefully insensitive to the seething anger that their casual exercise of it inspired even in many moderate Republicans.

The most famous example was Democratic Speaker Jim Wright’s infamous violation of the “15-minute” rule. By custom, votes in the House last for 15 minutes, after which voting is closed and the tally is announced. But in 1987, still short by one vote on an important budget bill after 15 minutes were up, Wright held the vote open for an extra ten minutes in a frantic effort to find someone to change his vote. Republicans exploded, with no less an eminence than Dick Cheney blasting Wright as “a heavy-handed son of a bitch.”

But by today’s standards Wright was a piker: He did this only once and only for ten minutes. Recent Republican congresses have made it standard operating procedure. Votes have been held open at least a dozen times in recent years, culminating in an extraordinary three-hour vote at 3 a.m. to pass the Medicare prescription drug bill in 2003. That session featured an unprecedented orgy of arm-twistbers, including pressure so extreme that it caused one Republican member to accuse his leadership of trying to bribe him on the House floor in order to get his vote.

If that were all, though, it would be a mild problem, not a crisis. But it’s only the tip of the iceberg, and Mann and Ornstein document a litany of abuses so excruciating that their reaction to the impeachment debacle of 1998 is this: “We didn’t think they could sink any lower. We were wrong.”

Examples abound. Minority Democrats are routinely given only hours to read the text of thousand-page bills before they’re brought up for a vote. Conference committees are stacked exclusively with friendly members. Oversight committees lie dormant and cabinet secretaries treat congressional inquiries with open contempt. Lobbying and pork-barrel spending are at record highs. In the Senate, Republican leaders frustrated with Democratic filibusters have threatened to simply end them by parliamentary fiat. Votes in the House are increasingly held under closed rules that allow no amendments and virtually no debate. (The number of closed rules has increased from 18 percent during the last Democratic Congress to 49 percent in the most recent Congress.) The late 1990s “ethics truce” provides cover for all but the most blatant misconduct. Congress is nowadays held in session for only three days a week, and most members of Congress are barely willing to stick around in Washington even that long. Partly as a result, late evening and early morning “emergency” votes are now routine.

Mann and Ornstein believe that the worst result of this “anything goes” atmosphere has been a calamitous drop in institutional self-respect. Today, they say, “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.” Because of this, “the uncompromising assertion of executive authority by President Bush and Vice President Cheney was met with a whimper, not a principled fight, by the Republican Congress.” Ironically, the very conservatives who argue that lack of respect for society’s traditions inevitably leads to weakness and cultural decline, have discovered at least one case where this is undeniably true: right in their own backyard. This in turn has left congressional Republicans too spent to assert their own constitutional prerogatives.

The key question this raises is why this has happened. Mann and Ornstein admit that modern-day hyperpartisanship can’t entirely explain it, but it turns out that one of their case studies provides the most likely answer–though they themselves don’t quite seem to realize it. After spending several pages describing the breakdown of regular order in the passage of last year’s bankruptcy bill, they note acerbically that one of the bill’s problems was “atrocious drafting.” But problems with regular order don’t explain this. Even if you exclude the minority and ram your agenda through with brute force, there’s no reason not to draft a bill decently. So why not do it?

The underlying answer is that no one cared. All political parties have distinctive traits, and one of the clearest in the modern Republican Party is its lack of concern–in fact, its outright contempt–for serious policymaking. You can see it in Congress in the dismantling of the Office of Technology Assessment or the politicization of the Congressional Budget Office. In the White House it’s even starker: From the decimation of the CIA to the destruction of FEMA for ideological reasons, George Bush has made it clear that he’s uninterested in facts on the ground. It explains why the State Department’s experts were shut out of postwar Iraq and why his Social Security privatization plan never made economic sense. It’s because today’s Republicans think ideas are all that’s needed to govern. Policy analysis, the grubby, gritty business of making sure that ideas are implemented in a way that actually works, is ignored, and in Congress, this translates into a disdain for regular order. After all, why waste time with pesky legislative traditions designed to produce sober public policy when you don’t really care about policy in the first place?

This explains why the current Republican Congress is uninterested in exerting itself against the current Republican president. It’s not just that they’re from the same party, it’s that they literally have no reason to bother. With no policy debates to divide them, the only time they clash is either when they disagree on fundamental ideas–as they’ve done on immigration reform, for example–or when there are pure political calculations involved–as with the Dubai port deal. But these occasions are rare, and on virtually every other topic both sides care only about broad themes, not policy details. This explains why Congress is so willing to take its lead from the president and why the president has never vetoed a bill delivered by Congress. It’s hardly worth the trouble.

The abandonment of regular order in Congress may be a serious problem, but it’s mainly a symptom of the Republican Party’s abandonment of interest in producing legislation that actually works. Fix the latter, and the former will take care of itself.