Redefining the “Deep State”
2019-06-27 · Guest: Jeffrey Bergner (Author and former Assistant Secretary of State) · 52:09
The Decline of Congressional Power and Article One
Bob Zadek and Jeffrey Bergner discuss the decline of Congressional power and the shift toward an all-powerful executive and administrative state. Bergner argues that members of Congress have voluntarily abdicated their legislative duties to avoid accountability, preferring party loyalty and media notoriety over legislative craftsmanship.
Topics: Congressional power, separation of powers, legislative craftsmanship, administrative state, budget process, immigration policy, Obamacare, Senate reform
Speakers: Bob Zadek, Jeffrey Bergner
The Erosion of Article One [00:00]
Bob Zadek: Hello everyone, welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thank you so much for joining me and my guest, Jeffrey Bergner, this Sunday morning.
I have spoken long and hard, I hope not tediously, about how I yearn for a smaller, less powerful federal government—in fact, smaller and less powerful all governments. And that’s not the trend; government has become, as we all know, more powerful and more intrusive. This morning’s show, I’m going to try a different approach. I am going to mourn the loss of power of at least one branch of government, and the loss of power of the Congress.
When our country was formed, the founders imagined—in fact, they intended—that Congress be the most powerful, the most significant branch of government. They, after all, made laws. Laws are an important noun; a law compels us to do something. Every law, or most laws, take away incrementally our freedom. And therefore, Congress is the branch that has the power to take away our freedom or to protect it. A pretty heady task. And yet, the power of Congress has been eroding.
This morning’s show, we mourn the loss of the power of Congress. We try to learn why Congress has lost power, what has happened to cause it to lose power, and how are we all worse off because of the loss of power of what was supposed to be the most important branch of government. I never could figure out, as I studied the operation of Congress, how this power was lost. Finally, after wandering the streets of America, I have found just the man to supply the answer.
I’m happy to welcome to my show Jeffrey Bergner. Jeffrey has just written an important, easy-to-read, joyous-to-read book called The Vanishing Congress. And yes, Congress is vanishing—not tangibly, but in terms of its power and importance. Jeff was an Assistant Secretary of State for Legislative Affairs from 2005 to 2008. He’s a president and managing financial partner of Bergner Bockorny, Inc., a lobbying group in Washington, and he’s also an adjunct professor at the National Security Studies Program at Georgetown. He was a policy director for Senator Lugar when Lugar was in Congress. He was a staff director on the Senate Committee on Foreign Relations. In short, Jeff has sacrificed his life laboring in what must have been one of the more frustrating jobs, at least some of the time, laboring in and walking the halls of Congress. So, Jeff has accumulated a wealth of experience as inside the Beltway as one can be, and he will share with us his highly informed views as to what the heck happened to Congress. Where did they go? At least where did the power go? How are we worse off because of that? And what can we do to get it back? Jeff, welcome to the show this morning.
Jeffrey Bergner: Thank you very much, Bob. It’s a pleasure to be with you.
Bob Zadek: Now, Jeff, you and I have kind of a similar political orientation, and yet both of us are concerned about, of all things, the loss of governmental power. Has Congress lost its power and importance? And if so, why? How did it happen? These folks in Congress are pretty jealous of their prerogative, and they’re ambitious, and they sort of like—they took the job because they want to affect people’s lives. How did their power erode, and over what period of time?
Jeffrey Bergner: Well, let me begin by saying that it might seem a little incongruous for someone to advocate that a branch of government be stronger, not weaker. And I would say to all of my libertarian friends, if Congress were the only institution in the federal government, a do-nothing Congress might very well be the best answer. But it’s not. And in fact, when Congress doesn’t act, it simply cedes the field to the President, to the executive branch, to the independent regulatory agencies, and recently, in some ways worst of all, to the courts.
And so, it’s not as if a stronger Congress is necessarily going to strengthen the overall power of the federal government, but it’s going to redistribute it, I think, back into the place where it should be, where the framers intended it to be, and that is with the Article One branch of government, the very core, the key institution of our government. I would be much more fearful of loss of liberties that come incrementally from the President, from the executive branch and their thousands and thousands of pages of annual regulations, as well as the independent regulatory agencies and even the courts. So, an argument for strengthening Congress is not an argument for strengthening the overall power of the federal government, but rather redistributing it in a way which I think would be healthy.
Bob Zadek: And I should also remind our listeners that the Bill of Rights, the first ten amendments to the Constitution, which enunciate specific, not exclusive, but a specific list of rights that are promised and are assured to every American and in some cases even non-Americans, people who happen to be in the country—the Bill of Rights often uses the phrase prohibiting Congress from doing, Congress from depriving us freedom of speech, freedom of assembly, freedom of the press. Congress, Congress, Congress. And the Bill of Rights does not specifically limit the President or the courts. So, we want the power to reside in Congress where they are specifically limited by the Bill of Rights, as opposed to the other branches which are not specifically limited by the Bill of Rights and the Constitution itself.
Jeffrey Bergner: Right. I think that’s an excellent point. And let me just take as an example concerns some people have about restrictions on their freedom of religion. Congress has not passed any laws restricting freedom of religion. Where these restrictions come that people feel are troublesome are from the executive branch or from the courts. And this is a classic case in point, I think. I’m not sure Congress would ever have the votes to do the kinds of things which either the executive branch or the courts have done with regard to freedom of religion, but beyond that, all kinds of other freedoms as well. And so again, I would say that returning power to the Congress is a way to return it in some measure at least to the people, and it makes it more likely, I think, that our liberties will be not jeopardized than they are currently with the executive branch and the courts.
The Death of Legislative Craftsmanship [08:31]
Bob Zadek: So, we start with a Constitution that bestowed upon Congress, as the founders envisioned, the most important and most powerful branch of the three branches of government. Power to make laws that affect us within the limitations of the Constitution. So, I opened the show by bemoaning the erosion—although it’s not really erosion, that suggests an existential force. It wasn’t existential; it was within Congress.
So, we have a Congress which is comprised of 535 individuals who were probably in grade school always the most bossy people in the class, and they kept their bossiness and clawed their way into Congress somehow. So, how did all these bossy people give up voluntarily give up all their bossiness? After all, that’s why they got there. Or is it?
Jeffrey Bergner: It’s a very key question. Let me say this: that over history, the relative power of the executive branch and the Congress has varied, and sometimes the Congress has been a bit stronger and sometimes a bit weaker. But I think, and I would date this especially since the 1970s, I think Congress has become hopelessly inefficient and ineffective, and has not only watched as Presidents and the executive branch have taken powers from the Congress, but in some cases has simply voluntarily abdicated these powers, abdicated their role.
There is in the Constitution a notion of non-delegation. It’s the Congress that is supposed to be responsible for passing all legislation, or all things that govern us, all things that affect us, all things that have a penalty if we don’t follow them. And this has long since ceased to be the case. And so, I think, Bob, it’s a very fair question to ask why has this happened.
And one could point to a number of things. But for one thing, the job of being a member of Congress has changed substantially over the years. There was a period of time when legislative craftsmanship was valued, when people who could write legislation that was thoughtful, that was not extreme, that had a prospect of getting majorities in both houses and being signed by the President—that this was considered to be a virtue. That time is gone. I think there’s almost no one in either house who today, I think, would be thought of as a capable legislative craftsman.
To the contrary, the coin of the realm has changed, and what members of Congress now seem to seek is not praise for being legislative craftsmen, but for being able to successfully present 30-second or 60-second soundbites. They’re people who see their notoriety with the press as really the reward for serving in Congress, rather more than passing legislation. You can look, for example, at AOC from New York. She really is in some ways as well known, maybe better known, than any other House member now. A thorn in the side of Nancy Pelosi, for sure. But she has no interest really in crafting legislative provisions that are thoughtful, that are careful, that are possible to pass, but to the contrary, to making news. And this, in a microcosm, is pretty much the same dynamic that operates for most all members of the House and Senate now.
Bob Zadek: So, and also when people—when a whole campaign of being elected to the House or to the Senate, and the same is true probably but just not as dramatic in state legislature—but the whole campaign, nobody campaigns because they are a good wordsmith. Nobody campaigns because they have a grasp of the issues. And in reality, individual elected officials—and I’d like you to speak to this, Jeff—when they get elected, their job in the Senate or the House is just to be a party member and an obedient party member. They’re not joining a group because they add intellectual heft to the group and make the work product, legislation, to be better. That’s not even why they’re there. So, if you could help us understand—and maybe I’m overstating it and you’ll correct me if I am—how fairly insignificant an individual House and maybe not Senator so much, but let’s focus on the House, how insignificant a House member is as compared with the power of the leadership. And if you can tell us how the power works out in the House. What difference an individual member can make.
Jeffrey Bergner: Sure. Let me go back in history a little bit to the writing of the Constitution. And if you look at some of the documents that surround it, the notes on the Constitutional Convention, the Federalist Papers, you see there that the framers of the Constitution thought not only that representation was a good thing in and of itself—they were no fans of direct democracy—but they also thought that the representatives that we chose would be better than we are on the whole, better than the average member of the electorate. That they would be smarter, that they would be wealthier, that they would be better connected, and that they would have a better sense of what it is that’s good for the country. They would refine and enlarge, in the views of the framers, the opinions and the tastes, the emotions of the American population.
Now, is this true? If it was ever true, is it still true today? I think in some technical ways it’s true. Members of Congress do have slightly higher formalized educational backgrounds. They’re certainly far wealthier than most Americans, and they are probably better connected as well. But as to the question of whether they possess more capability to understand exactly what the country needs at this point, or how to go about it, or whether they have the virtue to attempt to achieve that, that I’m very doubtful about. Based on a long time both being in Congress and working with it, by the side of it, against it, I have never seen any case that members of Congress have any superior virtue these days vis-a-vis any other American. They seem to me to have all the same shortcomings, foibles, and other limitations that Americans have, and that they are not particularly well qualified, nor is it really even their intent to think through what is the best long-term good of the country.
The Consolidation of Leadership Power [16:01]
Jeffrey Bergner: What happens instead really is, again, based in part on these kinds of attractive soundbite issues, one party or another will attempt to advance some particular ideological notion of what should happen, and the expectation is that party members should fall in line. And pretty much for the most part, that’s what happens. And so what you have seen really is a very substantial consolidation of power in the leadership in the House and the Senate in a way that was really not so much the case in our past history. We’ve had strong leaders in the House and Senate off and on, for sure, but institutionally these days, the leadership really commands the entire system, the entire structure in a way that it never really has before.
In particular, if you look at issues of spending—and this is a real concern of mine—the budget is after all the key thing that the Congress is supposed to do each year, is to make decisions about what things we as a country are going to spend money on and what we’re not, how much, how little. And this whole budget process is absolutely screwed up to a fare-thee-well. And we’ve got a situation in which it simply doesn’t work. And what happens then is at the end of each session, the power falls to the leadership to try to cobble together and make pass something that will extend the budget, perhaps for another year, but perhaps only for partial years. And the leadership doesn’t really mind this at all. They have power which comes to them almost by default from the structure that’s in place for how the Congress is supposed to pass budgets.
Bob Zadek: So, it seems to me since there’s been, I guess, an erosion of—a devolution of power up from the membership to the leadership, actually from the membership to the chairs and now the chairs are not that important, and from the chairs to the leadership. Since there’s been this devolution of power, the same devolution of power that has happened when power has left the states to go to Washington, starting perhaps with the 17th Amendment but probably even before that. So, with the devolution of power, when you vote for a specific member of Congress, it almost doesn’t matter to a voter who you vote for. You’re simply voting for your guy or the other guy, and it simply—the majority decides which leader in the House gets to run the House. So, it’s almost a party vote and not an individual vote. And the individual, the members of Congress are for the most part plug and play. It could be anybody so long as they’re in the right party because they make so—an individual member makes such a little difference.
Jeffrey Bergner: Yes, I think that’s largely true. And as an example, I live here in the second district in Virginia, which is a fairly closely contested district. It’s been held by Republicans, by Democrats, and by Republicans and now again by a Democrat. And this Democrat promised during her campaign that she of course would not follow slavishly the wishes of Nancy Pelosi, etc., etc. And this was an attempt to distinguish her from simply being another member of the Democratic Party. But so soon as she came to Washington, there have been occasional moments when she will do something a little bit different than the Speaker wants, but never really when it’s important. And for the rest of the time, follows the Speaker. And so people understand, I think, that the electorate doesn’t want people like that, and they will campaign differently from the way they act once they get to Washington. But once they get to Washington, by and large, they do follow along with their party leadership. And the only times in which members seem to take stands against their party are when it simply doesn’t matter, when there are plenty of votes to pass something that either the majority leader or the Speaker want to pass. Then, of course, you can have a little bit of flexibility and you don’t have to compel members all to vote the same way. But on important issues, on the big issues that really matter, these people simply follow the leadership by and large in a very slavish way.
Bob Zadek: The only exception perhaps in the whole Congress is perhaps just one of my idols, Justin Amash, who has no difficulty complaining long and hard about the very power structure you’ve described. And he has been punished by leadership, but it doesn’t deter him from complaining openly and in his district about how dysfunctional Congress is. And he’s maybe—what’s interesting is out of 435 members, he’s probably the only one who does it. So, the only one who even is aware of and objects to the very structure that you’ve described. So, one out of 435.
Jeffrey Bergner: There are a number of other members that fall into that category, maybe not quite so pointedly as he does. But for example, there’s a very young and very capable member from Wisconsin named Mike Gallagher. And he has bucked the leadership on a number of votes, and he also is very much interested in ways to reform the Congress in order to change the realities which we have right now. He and I did a conversation together, as they described it, at Hudson Institute a while back, and he’s very much concerned with this, as are a number of other House members, generally speaking, the younger ones who’ve not been browbeaten for very long and who still have a degree of independence left. And they really, I think, would be wide open to some kinds of changes which empowered the members of Congress and therefore Congress itself to a greater degree than is now the case.
The Case of Immigration and Abdication [22:26]
Bob Zadek: The question I have is, and I guess there’s a phrase in Washington, “institutionalist,” that is those members of Congress who have as part of their motivation a respect, if not—well, I’ll stop at respect—a respect for the institution, for preserving the historical prerogatives of the institution. And they care about the institution of Congress. They care about the erosion. Now, we remember Senator Byrd, who was maybe the last great living institutionalist. Senator Byrd, of course, he was a Democrat, very powerful member of Congress, of the Senate from West Virginia, who was an institutionalist, who cared about the Senate. And I’m going to ask Jeff to help us understand, get us into the head of the typical member of Congress, and what’s in it for them if not preserving the institution? What motivates them?
Jeffrey Bergner: You were correct to mention Senator Byrd from West Virginia. He had a very checkered and unhappy past, of course, as a Klan member and whatnot, but he did care very deeply about the institution in a way in which the framers of the Republic thought all House and Senate members would care, that they would aim to protect the interest of the institution itself because that would in a way protect their own interest.
What I think has happened is two things. First, as we’ve just discussed, the average member of Congress would not really gain much in power if power shifted back away from the President to the Congress, because the power is concentrated in the leadership and there’s no particular gain for them whether it’s the leadership of the House and Senate that’s exercising power or whether it’s the President. And so that’s one thing.
The second thing is even more depressing, I think, and that is that having gotten a little bit of a taste of what it’s like not to exercise power but to be free from the responsibility of exercising power, whereas you have all of the trappings of power, this has become a real problem. And members of Congress don’t really like anymore to take very hard votes. They’d just as soon allow the President to make hard decisions, or a cabinet department, the EPA or somebody, or an executive regulatory agency or the courts, and then come behind them and criticize them when they feel obliged.
And so, I think in a way it’s a very depressing moment in the history of the Congress where again, the coin of the realm is no longer for most members even power, but it’s notoriety. And so they have a very nice job, they’re looked up to, they’re admired, they’re catered to in so many different ways that they have no interest in not being members of Congress, but there’s no particular virtue to plunk back upon them all of the hard issues and the hard questions of the country.
You could take immigration as a perfect example. And here I will make a comment or two that is neither Republican nor Democratic. Immigration is clearly an issue which the Congress is supposed to address. It’s a very complex issue concerning who we want to come here legally, how many people, what kinds of people, how we intend to prevent people who aren’t coming legally from coming here, what to do with the 11 or 20 million people that are here illegally already, and on and on and on. This is not something for one man to decide. This is something for the Congress to decide and to reflect and mirror the sentiments of the country. And what’s happened is they’ve simply shown a complete and utter unwillingness to address the issue, leading in turn Barack Obama to begin to issue executive orders with DACA and the others, and then in turn Donald Trump to issue executive orders, and then in turn for the court to get itself so deeply involved in deciding the viability, the constitutionality of these executive orders in a way in which it has never done before. In a way, Congress has fueled this entire process, and in some ways you could say it’s to their advantage as members because they don’t have to make a hard decision. They don’t have to decide what to do about the southern border, they don’t have to decide what to do about people who are here already, they don’t have to make any hard decision. They will let somebody else do it and simply criticize them when they don’t like it. And so, in a way, I think the whole incentive structure of the Congress has changed a bit, and it is so hard now to pass legislation.
And here I come to the main point of my book. I think the third point is that it’s so hard to pass legislation these days because of the self-imposed rules and requirements and processes that they put upon themselves that it’s almost impossible to imagine them dealing with a very complex and hard issue. And so, in a way, they say what’s the use, somebody else can do it and we’ll in a way make an issue out of it rather than a law about it. And that’s very much what we see not just in immigration policy but also with regard to tariffs. Trade is supposed to be something that Congress has the lead role in under Article One, to regulate commerce with foreign nations. It’s what we see with war powers, with President after President after President engaged under the flimsiest of pretexts in wars which the Congress ought to have spoken to. It’s what we see in a weird way even with Obamacare. You look at Obamacare and you say, well, here’s a situation where Congress actually did work, didn’t it? After all, it passed a law. Well, if you look at the 906 pages of the bill—and it may be a testimony against interest here that I have nothing else to do with my life but I have actually looked at the 906 pages of the bill—and what you see there is on virtually every other page not legislation, but an authorization for the Secretary, meaning the Secretary of HHS, to do whatever he or she pleases to implement Obamacare. And so the net of the Obamacare bill was not really a law in which Congress spoke about things, but a law in which Congress devolved huge amounts of new authority upon the Secretary of HHS, which he never had before. And so that in a way is why Obamacare got as far as it did under Obama, and it’s why also in a certain way Trump has been so easily able to roll back some of the parts of Obamacare because they’re not really in the law itself; they’re simply new powers that have been granted to the Secretary of HHS depending on whoever that may be. So, I think really they’ve gotten so used to a system that it’s so hard for them to do anything that the easier course is simply to sit back and let other agencies and departments and branches of government act and simply come behind them and criticize, and meanwhile to enjoy the trappings of their office.
The Hypocrisy of the Legislative Branch [32:39]
Bob Zadek: And you know, Jeff, I’m glad you picked immigration because that is the textbook. In Harvard B-School, they take case studies of actual corporations that either did good or did bad, and they use that to teach. Well, the case study for everything you have said, Jeff, is immigration. It is classic. It is the case where Congressmen, Senators and members of the House will go down to detention centers on the border and have photo ops and complain about inhumane conditions and no toothpaste and no soap. And they complain, and yet they’re complaining about themselves, because they are the ones who created it. So the hypocrisy of a member of the legislative branch of our government complaining about a situation that requires a legislative fix, and yet they’re complaining and they’re pointing at either the courts or the President.
And what’s really interesting, Jeff, is that President Trump, who of course is no stranger to the exercise of raw power, seems to be complaining that the power is stuck with him. And he is in his somewhat inarticulate way—but this is not about Trump, it’s about Congress—saying, “Darn it, fix it! I don’t want this power. Fix it. But if you don’t fix it, I have to do something. I have to carry out the laws, see that they are faithfully executed. So you stuck me with a bad law and say, ‘You deal with it, President.’ That’s the hand we dealt you.” It’s so hypocritical.
Jeffrey Bergner: Yes, I think that’s exactly right. You know, Trump would do anything and everything he could by executive order, I think, but he comes up to a point where he’s constrained by this asylum law which Congress passed a while back, which suggests that more or less if you can get to the country’s border and get into it, you are guaranteed a review of your case under asylum conditions rather than simply being turned around and deported back. And this is something that Congress is responsible for, and it’s something that Trump can’t do by executive order. And so I think it’s a sign of the times really that if President Trump wants Congress to actually act in some area, that this is a very grim sign about Congress.
It is not only a textbook case in theory, but it’s a textbook case in reality. I teach spring semesters at the University of Virginia, and I did about three years ago one of my senior courses on immigration reform. And I thought, well, this will be the only year I can do that. Well, by the next year Congress had not done anything, so I used immigration reform again. And by the next year Congress had not done anything. I’ve used it three times now, and I suspect if I were of a mind to, I could teach immigration reform for the next 20 years because Congress simply seems unwilling to act.
Bob Zadek: And even when they act, Jeff, when they pass important legislation—Obamacare, as you have pointed out, which is replete with “the Secretary shall,” which is simply a delegation. So they pass legislation with all the specificity of like the 23rd Psalm. I mean, there’s no guidance, or the Ten Commandments. The Ten Commandments are not a bad starting point about how to organize your life, but you need a little detail besides just the Ten Commandments. And so Congress passes this beautifully worded aspirational legislation, they pass goals, positive goals, and they say, “Okay, administrative state, you carry it out. We’re done. And we can now campaign on the basis of this beautiful legislation we passed.” But the legislation doesn’t pass the test of being legislation because it’s only aspirational.
Jeffrey Bergner: Yes, so much of the legislation has a kind of quality to it which sounds like this: “Go and do good.” And you know, in the case of EPA legislation, “Clean up the air.”
Bob Zadek: Or the Endangered Species Act, which is impossible to carry out.
Jeffrey Bergner: How that’s supposed to be done is really left entirely to somebody else.
Proposals for Reform [37:18]
Jeffrey Bergner: But if I might, I’d like to just say one thing about what I think might be done here to help Congress a little bit out of its own self-created problem. They’ve made it so hard for themselves with their procedures that they put in place to protect all the rights they think they have—their rights as a minority, their rights as a member of this committee or that. They’ve made it so hard to do anything that there’s really not much incentive to try to do anything. And so I’ve made four proposals in my book about changes which Congress could and should make. They’re not ones that deal with how you get to Congress, like the 17th Amendment or like term limits, how long you can stay, but they’re really reforms to how Congress actually operates.
One of which is the Budget Act. This has been a disastrous failure since 1974, and it simply ought to be repealed and put in its place a much simpler, much more easily manageable process by which the Congress every year appropriates money. This could be devolved upon many more members than it now is, and we would not necessarily find ourselves in this place where all of the spending is balled up at the end of the year, and therefore you have these threats of a government shutdown. If Congress were to appropriate its bills the way it says it’s supposed to, and then do separate appropriations bills for every area, the whole government would never be in risk of being shut down over one provision like the wall. If only the Transportation Security Administration was at stake, only the transportation bill would be at stake, or the Homeland Security bill. And so the rest would all pass. And so I think a complete overhaul of the budget process and a simplification, taking power out of the hands of the appropriators and the leadership.
I think secondly—and this is a bit of an outlier view, I guess—I would be inclined to reduce substantially the number of staff that exists in the Senate and the House. The staff is really what drives members down into the weeds to be concerned about things that aren’t really significant issues that they either should be or could be legislating about. I think a smaller staff would help direct the members to look at things themselves that are not simply staff creations. If you look at the post-World War II period, you see Congress did all kinds of things in passing the United Nations legislation and passing NATO, the NATO treaty, and in setting up the whole trade regime and a host of other things with the CIA and the Defense Department. And there were just a handful of staff members on the committees at that point. So I think staff has become a part of the problem in an ironic way.
And then finally, the Senate in particular has the need of doing two things. One, I’ve come to the conclusion that the 60-vote requirement is not helpful. I was very much cheered up when I went back and looked at the Federalist Papers and saw that Madison didn’t think it was useful or helpful either. And finally, the way in which they deal with nominees is absolutely ridiculous these days. They waste so much of their time fooling around with this, which should be a relatively simple process. I’ve been very much cheered up immensely by the fact that the Republicans changed the rules concerning nominees. You used to have a rule that after you had committee hearings and then after you had debate on the floor, when the majority leader would file for cloture or to cut off debate, then the minority party could ask for 30 more hours of debate, which is like a death sentence for most nominees. There’s simply not enough time to give every nominee 30 hours of extra debate. And it’s basically part of the so-called resistance, and it is nothing other than a stall tactic. It doesn’t make the nominees that get through any better or worse. And so I’ve been very much cheered up. There, I think, maybe is part of the key. When the system becomes so utterly dysfunctional as the nomination process has, then there’s at least a little bit of hope that Congress might reform itself. And I think maybe we’re coming to that tipping point. I think we came to the tipping point already a couple months ago with nominations, and maybe we will soon at some point with legislation and particularly the Budget Act.
The Death of Deliberation [42:06]
Bob Zadek: The most depressing thought I have as I prepared for this show is I tried to think back, Jeff—and you’ve lived in Congress for so long, perhaps you can help—I was trying to find in my memory the last piece of significant legislation that was the result of—I’ll say a word that probably most members of the House and Senate have never used, which is “deliberation.” When was there House and Senate members who actually thought about an issue, discussed it amongst themselves, and came up with a collaborative work product? All of the recent big legislation—Obamacare, the tax bill, Dodd-Frank before that—it’s all simply the work product of the leadership and perhaps the executive, maybe. But by no means was it the product of deliberation, the very purpose of representative government.
So, we don’t even have a representative government. We simply vote for a party and we’re done. And the party can just pick blue or red and let the party leaders pick who’s going to be the actual member of the House, because it just doesn’t matter. Can you tell us about the process? You know, the House and Senate have been called, or the Senate and somewhat sarcastically, the world’s greatest deliberative body. When was there ever, can you remind us, of actual deliberation? And also, Jeff, when was the time that any member of the House or Senate in that deliberation changed their mind? Has it ever happened? And if there’s no changing of the mind, why are we deliberating? It’s a ritual.
Jeffrey Bergner: The latter is very hard. I would point back to the early 1990s as a case in point when Senator Lugar, for whom I had the privilege to work, and Senator Nunn, who’s a Democrat from Georgia, put together the Nunn-Lugar Act. And they looked at the Soviet Union, they saw it just crumbled, and that there were now four countries over there that had nuclear weapons, not one. And they thought, this is not good. How can we help the Russians to consolidate the nuclear weapons in one place, and how can we then help them to get rid of all the extraneous and extra, overly redundant weapons they had? And this was something that didn’t strike people all at first as very sensitive or thoughtful. The administration didn’t like the fact that they proposed to take a little money out of the defense budget to do this. But gradually, I think they persuaded people that this was the right thing to do. And so that was an instance, I think, where Congress actually did something good.
But it’s been now, I think, 27 years since that happened. Prior to that, back in the late 1970s when Jimmy Carter recognized the PRC and de-recognized the Republic of China on Taiwan and basically left Taiwan on its own, the Congress came behind him and said, “That’s not right. We need to keep our relationship with Taiwan strong. There’s no reason we should saw Taiwan off just because the PRC wants us to.” And so they produced the Taiwan Relations Act, which is a very comprehensive and thoughtful guide to keeping in a way in place our relationship with the island of Taiwan, which after all is a democratic government now and very much unlike the PRC.
And so there have been a couple of cases. I can’t really point you to one very recently which I think has met that criterion. I think you’re absolutely right that the language, the bills you’ve talked about, whether the Consumer Finance Protection Bureau or Dodd-Frank or whether the tax bill or whether Obamacare, were all run through by simply partisan majorities and not at all by people who really accommodated each other in a thoughtful way and put this on the basis of something that would be lasting and that wouldn’t be attempted to be repealed by the very next different government that we have. So it’s been a while, and it’s depressing to say that, but again, I think they’ve now made it so hard for themselves to pass legislation that it’s not surprising that they don’t.
Party Loyalty vs. Institutional Loyalty [46:56]
Bob Zadek: One observation is that clearly the loyalty of the leadership in the House and in the Senate—loyalty to me is a very, very important concept. I’m speaking almost from my heart—I am speaking from my heart. Loyalty is a very important measure of character in my mind. And the loyalty of the leadership is even not to their institution, and certainly not to their country; it’s to their party. And the party is the dominant motivation—what’s good for the party. They schedule votes, they decide what legislation to pass, not based upon what’s good for the country or for the institution, but for the party. And that I find as one of the root causes of the problem. It’s where the loyalty lies, as if preserving the job is the—not job one, it’s the only job once you’re in Congress, is to get to be able to stay there and to stay in power. I wonder if you can comment on that.
Jeffrey Bergner: Yes, it’s a very attractive place to be, especially if you don’t have to make very many hard decisions and you get a lot of credit for whatever you’ve done or not done, as the case may be. I think this kind of loyalty to the President of one’s own party—and here I would refer to both political parties—has really trumped the loyalty to the institution. And again, I think in part that’s true because members have so very little to gain even if Congress were to be stronger, unless they were all emboldened, unless they all had some greater power through the institution of Congress. They don’t care anymore, you know, whether their positions are determined by their own leadership or by the President. It’s not determined by them in any case. And so I think you’ve seen just a very strange and almost unbelievable deference to Presidents where Presidents say, “I’m now going to issue an executive order on DACA which clearly takes away your power,” and you get the Democratic minority at that time in the Senate and House applauding it. And it’s somewhat similar with Republicans and President Trump. And again, I think until we can structure a system in which Congress can pass legislation more easily and in which more members of both houses have a stake in it, we’re not going to really see any significant change.
Bob Zadek: Is there—we have a couple of minutes left, Jeff—is there reason for hope or despair?
Jeffrey Bergner: Well, for an organization ever to reform itself is a very hard thing. Congress has the power to reform and change parts of the office of the Presidency or the executive branch or the courts and so forth. It’s also, unfortunately, the only institution that has the authority to change itself. And for people or institutions to change themselves, as we all know, is often very hard. So I’d stipulate that right up front. But I do think that we are coming to a tipping point where it is so obvious that Congress has now become so utterly dysfunctional that it might well adopt some of these other measures in the same way that it adopted a new approach to confirming nominees that come before the Senate. And so I remain a little bit hopeful that we might be at a place before too long where we might be able to reform the budget process and might be able to reform some of the other procedures of the House and Senate to make it a much more smooth-flowing and efficient organization in which individual members have something at stake that they care about.
Bob Zadek: I would recommend—I would love to see also all Senate and House hearings to be done in closed doors so there cannot be posturing, so then they have no choice but to use the meetings for substantive purposes and not for preening and not for giving long lectures to the witnesses. Jeff, thanks so much for your book. Jeff’s book, The Vanishing Congress, is an easy and must-read. You will get insights into government you cannot get from any other source. Jeff, thank you so much for writing the book and for giving us an hour of your time this Sunday morning. Bob Zadek saying thanks to Jeffrey Bergner and thanks to my friends out there for giving us an hour of your time. I’ll be back again next Sunday. Have a nice weekend.
Jeffrey Bergner: Thank you, Bob.