New Year, New Congress? Not so much.

Image from CNN's Political Ticker

This week, with all the expected pomp and tradition, the newly-elected 114^th Congress convened for the first time. Not only were 13 new Senators and 58 new Representatives sworn in, but both houses of Congress are also in Republican control for the first time since 2006. With a fresh crop of legislators, the Republican Party has the potential to really change things up, set the political agenda for the next two years—and make a case for a Republican president in 2016.

Things started to get interesting prior to January 6^th, and the upcoming vote for House leadership, when a small, but significant group of representatives announced they would not be voting for John Boehner for Speaker of the House. Boehner has held the position of Speaker since 2011, and successfully held off a dozen party defectors in 2013. The list of Republicans joining the “dump Boehner” wagon grew to 25, with representatives taking to Facebook to announce their petition for a new Speaker. Rep. Jeff Duncan (R-S.C.) wrote on Facebook: “A fresh start often requires change, and I believe that change should start with the election of a new Speaker.” Ultimately, however, the conservative scheme failed, with a majority of House Republicans confirming Boehner.

And here we get to the crux of the matter—can a Congress really be “new” if all the leaders are the same? Sure, we have 71 new legislators, but they are all beginners—inexperienced and unlikely to have a lot of influence. Congress’ organization is all about hierarchy. Representatives with the most experience—and time in office—get spots on the most powerful committees and the committee leadership positions. First-time congressmen and women won’t be given the plumb positions because they don’t have the connections and they haven’t proved themselves capable legislators yet.

A fiery member of Congress will probably get amplified by the media and become a maverick favorite, but at the end of the day, leadership positions really do matter. Congressional leaders have a tremendous amount of influence. In the House, Committee heads determine which bills actually make it past the committee to the Rules Committee for a vote. The Rules Committee is the most powerful committee in the House by far. It controls many aspects of how the House runs—from how long representatives have to discuss a bill on the floor, to how many bills can come up for vote each day—and even which bills get voted on at all. The Speaker essentially controls this committee by supporting favorable representatives to fill its slots. Boehner’s power was in full display when he confirmed that the Rules Committee had agreed to vote out two of its members who acted against Boehner—Rep. Daniel Webster (R-Fla.) and Rep. Richard Nugent (R-Fla.).

Although Boehner’s retributive action hasn’t been finalized, things don’t look good for his enemies in the House. And it doesn’t look like we’re going to have a fresh perspective in either house of Congress. Not only was Boehner reconfirmed, but Senator Mitch McConnell (R-KY), who served as Senate Minority Leader from 2007-2015, was also voted in as Senate Majority Leader. On the Democratic side, Senate Minority Leader Harry Reid (D-NV) and House Minority Leader Nancy Pelosi (D-CA) retained their powerful positions as well.

We should feel more than a little worried about leadership stagnation in Congress. Not only has this Congress passed fewer bills than any other Congress in recent history, but friction between members of Congress and President Obama has also led to Congress’ embarrassing approval ratings. Only 14% of Americans approve of Congress—and in August, for the first time, 51% of Americans revealed that they don’t approve of their own members of Congress. Yikes. The only way to reverse these trends is to welcome change and buck the status quo—starting with congressional leadership. Although Congress missed its opportunity to select new leaders, we can only hope that our representatives will commit to some New Years’ Resolutions: tackling the tough issues like Social Security and immigration, and compromising when it will lead to a better outcome for Americans.

A Tale of Four Parties: Can the Congressional Parties Keep it Together After CRomnibus?

The most recent appropriations bill passed on December 13, or the “CRomnibus”, as it was dubbed was a real feat of political gymnastics. As the bill’s nickname suggests, the budget bill was passed as a combination of both an “omnibus”, or traditional funding bill, and a “CR” budget measure, which Congress passes in an emergency situation. In this case, the emergency was to avoid yet another government shutdown as a result of a failed budget negotiation.

Unfortunately, this stopgap-type budget work is becoming a bit of a pattern lately. Last October, the budget finally passed by Congress was a CR measure, frantically pushed through in order to keep the government’s doors open after federal employees were furloughed for about 16 days because there was no money. This year, a government furlough, or “leave of absence”, was avoided because the budget was passed before money ran out.

This story is a familiar one for the federal government—Democrats and Republicans just can’t agree on how federal money gets spent. Although embarrassing for Congress, government shutdowns are not new. In fact, from 1981-1996, there were 11 government shutdowns after the House, Senate and White House were unable to decide on a federal budget. President Ronald Reagan’s administrations were especially prone to funding gaps that led to government shutdowns, with 8 separate shutdowns ranging from 1-3 days. President George H. W. Bush had one government shutdown lasting 5 days. President Bill Clinton had two—but one holds the record for longest shutdown at 21 days.

Data from Wikipedia

This time around, the debate was especially interesting because it exposed rifts in both political parties. President Obama himself advocated for the budget and pressed hard to get it passed in order to avoid a shutdown in January. Meanwhile, leadership in both the Senate and House shoehorned the budget through the system with a few interesting riders—a prohibition on the legalization of marijuana in DC, a pay freeze for Joe Biden, and the inclusion of white potatoes on the list of vegetables covered by WIC. The appropriations bill was so loaded with riders, that it became what lawmakers call a “Christmas tree”—a bill with many, often unrelated, amendments.

To make matter more complicated, outspoken outsiders from both parties took offense with the budget proposal, for very different reasons. Senator Ted Cruz, a conservative from Texas, opposed the bill because it did not cut off funding for Obama’s Deferred Action for Childhood Arrivals program. Cruz and Senator Mike Lee both argued that the CRomnibus was unconstitutional because it did not block Obama’s executive order. Cruz attempted to stall votes on the appropriations bill by forcing the Senate to go through procedural votes on Obama’s nominees before voting on the omnibus. His efforts pushed the budget vote back to Sunday morning. The Senate, however, rejected Cruz’ constitutional objections, and a majority—74 Senators—voted against his point of order against Obama’s immigration actions. The Senate’s rebuke may have come, in part, because Cruz shut down the government in 2013 over funding for Obamacare, which some Republicans argue gave the party a political “black eye”.

Senator Elizabeth Warren, who opposed the law because it reverses a key provision in the Dodd-Frank Wall Street Reform Act, championed the liberal argument against the CRomnibus. The 2010 Dodd Frank financial reform legislation was passed to protect Americans from predatory bank practices. The key provision weakened in the CRomnibus was designed to keep banks from making risking investments with federally guaranteed funds—money ultimately backed by taxpayers. Democrats were especially worried that this first attack against Dodd Frank would lead to others—and leaving Americans vulnerable to the same financial shenanigans that led to the recession in 2008. The White House, however, argued that enough of the law was kept intact to protect Americans, and that Democrats should overlook one line of the bill in order to pass the budget.

In the end, party line Democrats and Republicans worked together to pass the budget, while conservatives and liberals campaigned against it. Despite valiant efforts from Cruz and Warren, the budget was passed—but only because of intense campaigning by Obama, Boehner, Reid and Hoyer—a strange bipartisan coalition that was willing to compromise in order to avoid government shutdown. This vote exposed fascinating rifts in both national parties, a sign that both Democrats and Republicans in Congress need to do a bit of soul-searching. Going forward, this vote leaves us with several questions: Are the liberal and conservative factions associated with Warren and Cruz permanent? Are these factions closer to the will of the people than the more traditional party leadership? And as the balance of power in the Senate shifts to Republican control, we will have to see if these rifts widen, or if Democrats and Republicans can keep it together.

Bypassing Congress? The Executive Order and Immigration Reform

It may come as a surprise to many, but executive orders are almost as old as the Constitution itself. While executive orders are not explicitly mentioned in the Constitution, many presidents, including George Washington, have used them. President Franklin Roosevelt authored the most, with 3,522 over the course of his four terms as president. President Obama, by comparison, has written relatively few—only 168 from the beginning of his presidency until January 2014. While many presidents chose to use executive orders, the numbers vary dramatically.

Original graph here.

The use of executive orders—while not without precedent—has always been controversial. One of the most famous executive orders occurred during the Civil War when President Lincoln suspended the writ of habeus corpus, making it easier for the government to detain prisoners without bringing them before the court. While many argued that detaining enemies of the Union would be vital to the war’s success, his decision to take away a constitutional right was divisive. President Lincoln invited controversy again when he issued the Emancipation Proclamation as an executive order. Although the end of slavery was essential for America’s progression and growth as a nation, President Lincoln’s action to move on such a hot-button issue without Congress writing the actual legislation was bold—and some would say unconstitutional.

Unfortunately for more conservative scholars of the Constitution, the Supreme Court has struck down only two executive orders—ever. The first was in 1952, when President Truman attempted to bring steel mills under federal control so that strikes would not impact the Korean War. The second was in 1995, after President Clinton issued an executive order forbidding the federal government from contracting with companies who hire workers to break strikes. In both of these instances, the Supreme Court ruled that the presidents were attempting to write law rather than clarify or extend an existing law.

Controversy surrounding an executive order has boiled up again regarding President Obama’s recent actions last month to stay the deportations of millions of illegal immigrants. In 2012, citing Congress’ inaction on immigration reform, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program. This program attempts to make it easier for young adults brought here illegally as children to become American citizens. While President Obama’s recent attempt this November to extend the DACA program through another executive action is controversial, it is not without some precedent—of sorts.

During the 1980s, both President Reagan and President George H. W. Bush issued executive orders granting scores of illegal immigrants temporary work visas. Wait—amnesty?  From Republican presidents? Yep—it happened. The last large immigration overhaul, the bipartisan Simpson-Mazzoli Act, was passed in 1986 while Ronald Regan was President. The law essentially had two parts: first, illegal immigrants who had been in the United States continuously since 1982 were awarded temporary work visas as long as they paid a fine; second, funding was provided for enhanced border security to prevent additional immigrants from crossing the border illegally.

Soon after the new law passed, however, issues began to arise. Although funding was provided to secure the border, it wasn’t nearly enough to stop an increasing flow of immigrants. Additionally, certain groups of immigrants weren’t covered by the “amnesty” part of the law—for example, recently married couples where one spouse was covered by the new law while the other wasn’t. As a result of these oversights, both Reagan and Bush issued executive orders that tried to fill in the gaps appearing in the Simpson-Mazzoli Act. Thus, their actions were not independent of Congress, but rather an attempt to further clarify an act of Congress.

So while Bush and Reagan both used executive orders to grant amnesty to certain illegal immigrants, President Obama’s executive action is a different case. Bush and Reagan were acting within their executive right to clarify an act of Congress. The distinction here is that the actual legislation was written by Congress, not by the presidents. So even though the current Congress refuses to act on immigration reform, President Obama doesn’t have the legal authority to go it alone.

In the end, the Constitution only grants legislative power to Congress, and for good reason. Whether or not President Obama’s plan for immigration reform is good policy doesn’t matter. His executive action will be too one-sided. When legislation begins in Congress, no matter how grid-locked and slow-moving the process may be, that legislation is bound to come out influenced, at least a little bit, by both sides. And we need both sides in order to make good policy— and besides, politics could always use a little more moderation.

Congressional Republicans and the Myth of the "Mandate"

Clinton pin from inequality.org

In 1994, after Republicans gained control in the House of Representatives for the first time in 40 years, then House Majority Leader Newt Gingrich called the night the beginning of the “Republican revolution”. When Democrats gained control of both houses of Congress and the Presidency in 2008, many news outlets, such as Forbes, ran articles claiming the victories were a clear “mandate” from voters.

What is a voter mandate? In an article for The Forum, political scientist Hans Noel discusses both the traditional and more fanciful definitions of a political mandate: “In a narrow sense, winning the election gives you a “mandate.” You are now legally empowered to exercise your authority. But after every election, pundits will declare a more complex “mandate.” They will tell you not simply who won, but what that victory means. The winners won because they promised X and voters wanted Y and were afraid of Z.”

In this sense, elections are declared “voter mandates” by the whims of the media. For example, in 2004, when George Bush won his reelection campaign for the presidency with 50.5% of the popular vote and 286 electoral votes, many media representatives called his victory a clear mandate. A USA Today headline on November 4, 2004, for example, read "Clear Mandate Will Boost Bush's Authority, Reach." When Barack Obama won his reelection in 2012 by higher margins, however, media representatives were reluctant to call his victory a mandate. Obama’s 332 electoral votes and 51.1% of the popular vote were not enough to qualify for a mandate. The NPR website, for example, ran an article on November 7, 2012 with the title “For Obama, Vindication, But Not A Mandate”.

Although Republicans have not used the words “mandate” or “revolution” to describe their victory this year, it was easy to sense the excitement. With control of both the House and the Senate, Republicans can effectively dismantle all of Obama’s legislation, including the Affordable Care Act, while introducing ultra-conservative solutions to national debt and immigration reform. But that would be a mistake—especially if Republicans want to capture the White House in 2016.

Republicans should take a few deep breaths before assuming that their congressional victories mean that the country has taken a sharp right turn in the last few years. Far from it. Despite, handing Republicans the Senate, a majority of voters agree with Democrats on several important issues including raising the minimum wage, softer immigration policy, stricter environmental protections, higher taxes for corporations and the rich, legalizing gay marriage, and improving Obamacare rather than repealing it. Republicans in Congress even have lower approval ratings than Democrats. Exit polls showed that voters were dissatisfied with the Obama administration (59%), but an equal number (60%) were dissatisfied with Republican leadership in Congress.

So what is going on? First of all, voters often vote against the incumbent president’s party during midterm elections. In fact, “There have been only three exceptions in the past 80 years: 1934, 1998 and 2002.” Democrats may have been fighting an up-hill battle against a predictable political pattern. The second explanation is that voters don’t often think beyond their own pocketbook. If the economy is bad, voters are mad.

During Bill Clinton’s 1992 presidential campaign, his strategist James Carville coined a variation of the phrase: “It’s the economy, stupid.” That mantra seems more true today than ever before. Voters are fed up with the economy—and blame Obama and the Democrats for how they have handled it. Pollster Gary Langer wrote for ABC News: “Seven long years after the economy tanked, 70 percent of voters Tuesday said it’s still in bad shape. Seventy-eight percent said they’re worried about its direction in the year ahead. Only three in 10 said their own economic situation has improved in the last two years.” The still-struggling economy was given top priority this election and the voter’s discontent was taken out on the President’s party.

So despite an obvious electoral victory, Republicans need to be careful. Their top priority should be fixing the economy. Not only boosting a sluggish economy, but also making sure that Americans feel the benefits of economic recovery. If only 30% of voters feel their economic situation has improved in the last two years, Republicans need to find a way to get money into their pockets. And this may mean focusing on a popular liberal policy—raising the minimum wage. Will Republicans decide to sacrifice conservative ideology in order to have a shot at the White House in two years? We’re about to find out.

Congressional Approval and Midterm Elections

As an astute reader, you may have noticed there hasn’t been a lot of news about Congress recently. One reason: Congressional recess. Not only did Congress take the traditional five-week summer recess, but after an extremely brief 8-day session at the beginning of October, Congress recessed again. This was unusual because the fall session was already cut short so members of Congress could prepare for the midterm election tomorrow—November 4^th. 

House leadership wanted to allow members of Congress more time to campaign, but some representatives have argued that John Boehner may be recessing early to avoid making any difficult policy votes on issues such as immigration reform or health care—until after election time.

Twitter screenshot originally from The Wire.

Approval for Congress has always been low. In the past five years, approval for Congress has always hovered below 40%. In general, the trend of disapproval seems to be continuing downward as the polling numbers sink lower and lower. The percentage of Americans who approve of Congress is currently sitting at 14%, an embarrassing figure.

Original graph and data at Real Clear Politics.

This disapproval, however, was usually not shown towards the voter’s own congressmen and women. Individual representatives were spared the wrath against Congress because voters judged the institution and its members by different standards. While Congress as a whole was expected to fix the nation’s problems quickly and cleanly, individual representatives were judged by their service to their state or district. So even when the average American disapproved of Congress as a whole, they still believed their own member of Congress deserved reelection.

Not anymore. 

It seems that Americans have finally turned on their own representatives. In a Washington Post/ABC News poll out August 3, the numbers reveal that 51% of Americans disapprove of the way their representatives are handling their job. For the first time, a majority of Americans revealed that they were no longer satisfied with their members of Congress.

Data from Washington Post/ABC News poll.

This poll is important for a few reasons:

1. This fall is a midterm election year. That means that every Representative and a third of our Senators are up for reelection. There are a lot of vulnerable members of Congress as Republicans attempt to take control of the Senate while maintaining their advantage in the House.
2. In 2012, data showed that 90% of House members and 91% of Senators seeking reelection were successful. But this year, current members of Congress up for reelection shouldn’t take anything for granted.
3. This particular poll is of voters, not just Americans. This group is more likely to vote this fall. Thus, they are more likely to influence those midterm elections.

Many Americans skip midterm elections—the average is just 40%. Because there aren’t any high-profile races, like for President, Americans stay home. With fewer television commercials during midterm elections, maybe it is just easier to forget that it’s another election season already. But don’t forget to vote! With fewer voters coming out, your vote will have more of an impact. You have the power to change up the power structure in Congress and choose representatives who will hopefully get things done. Let’s get out the vote!

Is Congress Productive?

Polling indicates that most Americans don’t think so…A poll published on August 3, 2014 by NBC News/Wall Street Journal/Marist College found that 74%, nearly three-fourths of voters, think that Congress has been somewhat or very unproductive this year. Basically—Americans don’t think Congress does anything. So how do we define productivity as it relates to Congress?

At a fundraiser on August 6^th President Obama said, "This has become the least productive Congress in modern history…And that's by objective measures, just basic activity." So how would President Obama determine whether or not Congress was productive? One definition of productivity is “the effectiveness of productive effort, especially in industry, as measured in terms of the rate of output per unit of input”. Essentially, in legislative terms, how many laws has Congress passed? In a divided Congress, where Republicans in the House block legislation from the Democratic Senate and vice versa, it is difficult for the parties to compromise and find a version of a bill both houses can pass. So can we simply look at the sheer number of bills passed per session as an accurate measure?

If we calculate productivity by volume of legislation, then yes, the 113^th session of Congress has been particularly unproductive, even by historical standards. Total volume of legislation tends to decrease when Republicans and Democrats both control a house of Congress, but the current divided Congress is particularly gridlocked.

Graph from The Fix by Chris Cillizza

What does the Constitution say?

In Article 8 of the Constitution, the duties of Congress are outlined. These myriad responsibilities include: the power to collect taxes, pay off debts, provide for the common Defence and general Welfare of the United States, borrow money, regulate commerce with foreign nations, establish immigration guidelines, coin money, punish counterfeiters, establish post offices and roads, promote the progress of science and the useful arts, provide patents, punish crimes committed at sea, declare war, raise and support armies, maintain a navy, make rules for the governing of army and naval forces and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States”.

That is a pretty comprehensive list of congressional duties. And making laws is just one of them. To be sure, fulfilling many of these duties requires writing legislation, but is Congress required to make new laws?

How do members of Congress use their time?

In fact, most members of Congress spend their time visiting with constituents and raising money for their next election. A PowerPoint presentation given to new congressmen by the Democratic Congressional Campaign Committee (DCCC) outlines an example daily schedule. First, 4 hours of call time, 1-2 hours of constituent visits, 2 hours of committee meetings, 1 hour of strategic outreach and 1 hour of “recharge time”. This makes for a 10 hour day. New legislation is not necessarily being written during any of this time. Especially for member of the House of Representatives who are up for reelection every two years, the time spent calling may not be an exaggeration. In fact, former Representative Tom Perriello (D-Va.) said that four hours to make fundraising phone calls could be “low-balling the figure so as not to scare the new Members too much.”

Slide from a PowerPoint presentation given by the DCCC to incoming members of Congress.

If members of Congress spend four hours per day raising money for the next election, would voters find that time “productive”? Are fundraising events more productive than establishing immigration guidelines or raising and supporting armies? Doubtful. Although Congress doesn’t necessarily need to pass more laws every year to seem productive, Congress does need to act on issues that matter to voters. The idea of immigration reform, for example, has been tossed around for years, but nothing has been done. But in order for voters to view Congress as productive, decisive action needs to be taken on important issues. Unfortunately, expecting a Democratic Senate and a Republican House to compromise on important issues may just be asking too much.

Beirut to Benghazi: A Timeline of Embassy Attacks

We mourn, but then we must move forward.

The loss of American lives is always a tragedy. When these losses occur overseas, especially in areas of conflict, we get angry and demand answers. Never has this been more true than with the September 2012 attacks on the US Consulate in Benghazi, Libya that left four Americans dead. Since then, Republicans have been on an obsessive hunt for any information that might place blame for the tragedy on the White House. The response has been overwhelming and just a tad excessive. Both former Secretary of State Hillary Clinton and current Secretary John Kerry have been called to testify to Congress. The House of Representatives has conducted more than 13 hearings, written more than 25,000 pages of documents and held more than 50 briefings about the events in Benghazi.

On August 6, 2014, the House Intelligence Committee released yet another report on Benghazi. According to Rep. Dutch Ruppersberger, the senior Democrat on the intelligence panel, "Our investigation found the intelligence community warned about an increased threat environment, but did not have specific tactical warning of an attack before it happened." Essentially, the events were not a result of malicious intentions—only a tragic misread of the available information. This conclusion matches every previous Congressional report and hearing.

Despite these findings, a House Select Committee created in May 2014 will continue to call hearings to examine evidence from the attacks. Apparently, Republicans think there is more to find. It has been almost two years since the Benghazi tragedy, and yet, Congress continues to spend time and taxpayer money rehashing the same information over and over.

But it wasn’t always this way. Unfortunately, attacks on US embassies are not a new phenomenon. The Global Terrorism Database, a service of the University of Maryland, College Park, has compiled information on over 125,000 terrorist attacks across the world. Their data shows that there have been more than 30 deadly attacks on US embassies and consulates since 1970. The timeline below shows attacks that resulted in at least two casualties. Note that the events in Benghazi technically occurred over two days in September 2012.

Timeline includes attacks on US embassies and consulates since 1970 with at least two casualties.

So how have similar situations been handled by Congress? On April 18, 1983, with President Ronald Reagan in office, a suicide bomber drove a truck into the US Embassy in Beirut, Lebanon. The resulting blast killed 63 people, 17 of whom were Americans, including top CIA personnel. This incident is still the most deadly terrorist attack on American diplomatic ground. On October 23, 1983, another bomber drove a truck of explosives into a US Marine compound in Beirut, killing over 240 servicemen. Despite the fact that Congress was controlled by Democrats, the White House was not blamed for the attack. The Democratic Speaker of the House, Tip O’Neill, ordered a hearing and investigation—just one.

The investigation concluded, finding that “very serious errors in judgment were made”, and the document suggested urgent security measures for President Reagan to implement overseas. Just months after the report was written, in March of 1984, another US embassy was bombed in Beirut. The CIA’s station chief, Bill Buckley, was kidnapped, tortured and murdered. In the wake of this third tragedy in Beirut in eighteen months, Congress didn’t hold any hearings. All of the culpability went to the perpetrators, not our government.

There are a lot of lessons here. First, safety measures can always be improved. In both the Beirut and Benghazi bombings, the intelligence community had intercepted information that could have prevented the attack. Unfortunately, in a dangerous world, those particular threats were not given priority. But time cannot go backwards, and we cannot save the four brave Americans we lost in Libya. We should always adapt and advance our security measures, but we must go on.

In the aftermath of the Beirut attacks, Congress was outraged—at the terrorists—at the people who brutally ended the lives of so many. A thorough investigation followed, and the resulting report identified specific weaknesses in our defense. Our security tactics evolved as a result and Americans were safer. And the episode was over. No subpoenas. No endless hearings and briefings. No political cudgel to hold over the opposition party throughout midterm elections. Instead, there was a resolution.

My advice to Congress is this: We mourn, we investigate, we improve; but then we move forward. We must—otherwise our enemies succeed by keeping us stuck in the past.