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Don’t be fooled: Congress still needs fixing. In the months leading up to the health-care-reform vote, there was much talk that Congress is broken and serious reform is necessary. Some would say the bill’s passage is a decisive refutation of that position. They are wrong.

Don’t be fooled: Congress still needs fixing.

In the months leading up to the health-care-reform vote, there was much talk that Congress is broken and serious reform is necessary. Some would say the bill’s passage is a decisive refutation of that position. They are wrong.

What we have learned instead is that even in those rare moments when bold action should be easy, little can be done. Consider the position of the Democrats over the last year: a popular new president, the largest majority either party has held in the Senate since the post-Watergate wave, a 40-seat majority in the House, and a financial crisis. Congress has managed to pass a lot of legislation, and some of it has been historic. But our financial system is not fixed and our health-care problems are not solved. Indeed, when it comes to the toughest decisions Congress must make, our representatives have passed them off to some other body or some future generation.

The architects of the health-care-reform bill, for instance, couldn’t bring themselves to propose the difficult reforms necessary to ensure the solvency of Medicare — and the government. So they created an independent panel of experts to do it for them. The recommendations of the panel would take the fast track through Congress, protected from not just the filibuster but even from revision. In fact, if Congress didn’t vote on them, they’d still become law. This independent commission is a “game changer,” says Peter Orszag, director of the Office of Management and Budget. The game being changed is the legislative process.

Cap-and-trade, meanwhile, is floundering in the Senate. In the event that it dies, the Environmental Protection Agency has been preparing to regulate carbon on its own. Some senators would like to block the EPA from doing so, and may yet succeed. However, those in Congress who want to avert catastrophic climate change, but who don’t believe they can pass legislation to help do so, are counting on the EPA to act in their stead.

Some might argue that the congressional response to the financial meltdown was a model of quick action. TARP had its problems, and the stimulus was too small, but both passed — and quickly. But when it became clear that these measures weren’t sufficient, Congress was unable to muster further action. So the Federal Reserve, in consultation with congressional leaders, took over and released more than a trillion dollars into the marketplace. It was still the American people’s money being spent, but it didn’t need 60 votes in the Senate.

Then there’s the national debt and deficits. Congress was reticent to do more about the financial crisis because of concerns over profligate government spending. But even on this crucial issue, Congress cannot seem to act. Sens. Kent Conrad and Judd Gregg lead the Budget Committee, and they called for a deficit commission to bypass their -committee — and all other committees — in order to operate outside the normal legislative structure. “Some have argued that House and Senate committees with jurisdiction over health, retirement and revenue issues should individually take up legislation to address the imbalance,” they wrote in a joint op-ed in The Hill. “But that path will never work. The inability of the regular legislative process to meaningfully act on this couldn’t be clearer.” They were more right than they knew: their proposal was defeated by a filibuster, and the president formed a deficit commission by executive order instead — a commission that will only be able to recommend solutions, not pass them into law.

This is not a picture of a functioning legislature.

Some might throw up their hands and welcome the arrival of outside cavalries, of rule by commissions and central banks and executive agencies. Others may believe that less action is good action — that gridlock prevents those in power from acting too boldly, and checks the growth and ambitions of government. But what we’ve seen is that congressional inaction does not mean the government backs off; instead, Congress devolves power to others, and at an unsettling cost. Congress is, by constitutional design, an accountable, transparent, and powerful institution. Its substitutes are not. The American public knew much more about the stimulus than the Federal Reserve’s “quantitative easing” program, because Congress is much more accessible and understood by the media. The EPA can impose blunt regulations on polluters, but it can’t put a price on carbon in order to create a real market for cleaner energy.

So how did we get into this mess, and how do we fix it? The simplest answer to the first part of the question is that the country has changed, and Congress has not changed alongside it. One good example is the filibuster, the parliamentary procedure to obstruct a vote. It is easier than at any other point in our history to break a filibuster. Until 1917, there was no way to bring an end to the legislative maneuver, and until 1975, it took 67 votes rather than today’s 60. And yet, the United States Senate had to break more filibusters in 2009 than in the 1950s and 1960s combined.

The rise of the filibuster is evidence that the last 50 years have reshaped our politics more than we like to admit: Democrats used to provide a home to the Southern conservatives known as the Dixiecrats. The GOP used to include a bloc of liberals from the Northeast. With the parties internally divided and different blocs arising in shifting coalitions, it wasn’t possible for one party to pursue a strategy of perpetual obstruction.

But as party heretics lost power or switched sides, Republicans and Democrats found themselves more often in agreement with themselves and less often in agreement with the opposite side. Democrats and Republicans now vote against each other more regularly than at any time since Reconstruction. That has consequences beyond the gridlock in Congress. “When the public sees all Democrats on one side of the issue and all Republicans on the other, it’s a cue,” explains Ron Brownstein, author of The Second Civil War. “And so people’s opinions harden, which in turn hardens the politicians on both sides. Then you have the increasingly politicized media, and the activist groups launching primaries. It’s all a machine where the whole system is working to amplify our differences.”

Senate Republican leader Mitch McConnell said as much last week in an interview with National Journal. “Whether it became the stimulus, the budget, Guantanamo, health care,” he said, “what I tried to do and what John (Boehner) did very skillfully, as well, was to unify our members in opposition to it. Had we not done that, I don’t think the public would have been as appalled as they became.”

Minority obstruction works because voters and the media often blame the majority. If nothing is getting done and the two sides bicker ceaselessly, after all, it’s probably the fault of the people who are running the place. The Republicans succeeded at the polls in 1994 after killing health-care reform. Democrats adopted the tactic a decade later, taking Congress back in 2006 after killing Social Security reform. This year, Republicans were trying to win by, well, killing health-care reform again. That’s what Sen. Jim DeMint had in mind when he promised conservative activists that “if we’re able to stop Obama on this, it will be his Waterloo. It will break him.”

We like to think of American politics in terms of individuals. Candidates promise to bring a businessman’s eye to Congress, or to be an independent voice from Massachusetts. They tell us about their families and their life trials. By the end of most campaigns, we could pick the winner’s golden retriever out of a lineup if we had to. This is a terrible error, because it leads us to think we can solve fundamental problems by changing the individuals in charge, when we need to change the system. Individuals matter very little in Washington. It’s the rules of the game that govern behavior. And perhaps the most pernicious rules are these: the minority wins when the majority fails, and the minority has considerable power to make the majority fail. Since the rules work no matter which party is in the minority, no one can ever govern effectively.

We’ve become so accustomed to this state of affairs that some think it’s central to the functioning of our democracy. “It’s called the filibuster,” Senator Gregg lectured Democrats during the health-care debate. “The Founding Fathers realized when they structured this they wanted checks and balances.” But the filibuster was not, in fact, an invention of the Founding Fathers. It was an accident. The Senate, attempting to clean its rule book in the early 19th century, deleted the section that dealt with moving from “the previous question” to the next order of business. It took decades until someone realized that the absence of that rule meant there was no way to end debate on the previous question. Thus was the filibuster born.

But Gregg is right to emphasize the importance of checks and balances to the system. Democracy can’t function without these contrary and stabilizing forces. But if the minority is always obstructing, then Congress can’t do its job. And when Congress is stymied, the result is not simply inaction. Instead, others are forced to act — and the normal checks and balances no longer function as intended.

Those who do act, however, gain power at the expense of the Congress. The office of the president has grown in stature and authority. Early presidents delivered the State of the Union as a written letter because giving a big, dramatic speech to Congress would have been seen as overstepping the boundaries of the executive office. Modern presidents use the yearly address to set the legislative agenda for Congress’s next session, a development that would have shocked the Founders.

But it makes sense to us. The president is the main character in the media’s retelling of our politics. His approval ratings are more important than the approval ratings of Congress even when we are voting only for congressmen. And it’s getting worse: the political scientist Frances Lee has found that on average, each successive Congress spends a larger percentage of its time on the president’s agenda than did its predecessor. The result is that there’s the president’s party in Congress, which mostly tries to help him out, and the opposition party, which tries to hinder him.

That doesn’t sound like American-style checks and balances, but more like a parliamentary system, where tightly knit teams are organized around the leader of the government. But parliamentary systems expect their opposition parties to oppose, and they set their rules in such a way that the majority can govern without minority help. We don’t. “We are operating in what amounts to a parliamentary system without majority rule,” writes Brownstein. “A formula for futility.”

A recent Gallup poll found that only 18 percent of Americans approve of the job Congress is doing. Compare that with the president’s approval ratings, which hover around 50 percent — despite the fact that Congress is largely just considering his agenda. One of the implications of these numbers: Americans are so disgusted by Congress that they don’t trust it to do anything big. But our problems aren’t politely waiting around until Congress gets over itself.

Beneath the calls for filibuster reform or campaign-finance reform or bipartisanship is a more simple contention. A throwback to an earlier age, even. Congress needs to rediscover its identity as a representative body that gets things done for the American people. It needs to be able to act, and to solve problems, and to stop outsourcing the work of American government in ways the Founders never intended. The irony of the modern Congress is that it’s a rule — making, law — making body that is being slowly strangled by its own rules and bylaws.

For the Congress to resurrect itself, the minority party needs to be able to think beyond the next election. It needs to consider that when it comes to power, it too will want to get things done. The way to achieve this is to reform the rules that Congress works by — and for that to be possible, the new rules should go into force only in six or eight years, when none of us know who will hold the gavel. As for what the rules should say, the technical details should be thrashed out by smart people from both parties. But broadly speaking, the Senate needs to rid itself of the filibuster and its lesser-known friends (holds, unanimous consent to work for longer than two hours at a time, and so on), admitting that they are no longer appropriate given the polarizing realities of our politics.

That may seem like a radical change, but recall that the filibuster is an accident, and there is nothing radical or strange about majority voting: we use it for elections (Scott Brown won with 51 percent of the vote, not 60 percent), Supreme Court decisions, and the House of Representatives. As for a majority using its power unwisely, elections can remedy that. And voters can better judge Washington on what it has done than on what it has been obstructed from doing. We hire legislators to legislate. We need a system that encourages them to do so, not one that forces them to pass the buck to someone else.

(c) 2010, Newsweek Inc. All rights reserved.

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