If you follow politics, you're probably familiar with the idea that reform sometimes backfires. You've probably heard the McCain-Feingold campaign finance reform cited as an example of such unintended consequences. Critics say McCain-Feingold eliminated the one form of political money on which Democrats had an advantage, while increasing the kind of money -- contributions from individuals -- on which the Republicans had the edge, without actually stemming the flow of large contributions.
In fact, McCain-Feingold is not an example of this paradox. Campaign finance reform, together with the polarizing effect of the Bush administration, has forced the Democrats to do what they should have done a long time ago: build an individual donor base instead of relying on corporate interests. And as the party is no longer principally a banker for that corporate money, it can begin to renew itself as a real political party, one that mobilizes citizens, coordinates campaigns, and fosters ideological coherence.
However, there is another kind of reform that at the moment seems to have produced an effect virtually the opposite of what was intended. This is the series of reforms to congressional procedure that began in the 1940s. Ending Senate filibusters, breaking the “committee system” under which conservative southerners determined whether legislation would even be considered, and making roll-call votes public were the principal objectives of reform until campaign finance broke off as a tributary in the early 1970s.
These reforms are the subject of two recent books, though only one is explicitly about the topic. That book, Julian Zelizer's On Capitol Hill: The Struggle to Reform Congress and Its Consequences, 1948-2000 (Cambridge University Press, 2004), appears at first to be a dry monograph but avoids all the apparatus of political science to tell its story in human and engaging terms. (And when the narrative bogs down in the 1970s, a stripper and/or a drunken congressman appear reliably every few pages.) Zelizer avoids the easy caricatures of reformers as noble, frustrated idealists who achieve little except a designation at one time or another as “the conscience of the Senate,” or the pesky anti-politicians who appear in the crowd scenes of Robert Caro's Master of the Senate. His cast includes characters like Rep. Richard Bolling of Missouri, whose intelligence and political savvy was the equal of his opponents and who almost succeeded in completely revamping the House committee structure against the opposition of most of its powerful beneficiaries.
In the 1940s and 1950s, congressional reform was undeniably about more than good government or fair process. It was about civil rights. It was based in a moral claim, not just the ideal of clean government. And the coalition in support of reform was diverse and substantive, reliably anchored by organized labor and the civil rights groups emerging at the time.
If the vision was civil rights, the mission was something different: to break the lock on power of a small southern aristocracy that had rigged the game in its favor. And reformers also had a deeper mission: to allow a president (who they expected to be a liberal Democrat) to set a national agenda and govern from it. Zelizer notes the influence of James McGregor Burns' argument in 1963 that there were really four parties -- Democrats and Republicans each being divided into a congressional party and a presidential party -- and that the Democratic-presidential party favored centralized power and thought in terms of national interests, while its all-powerful congressional counterpart “had a strong ideology of states' rights, white supremacy, and antigovernment conservatism” and its members, openly anti-majoritarian, served the local interests of their single-party districts. In The Deadlock of Democracy, Burns argued that reform was essential to break the dominance of the latter group and bring the Democratic congressional party in line with the presidential.
Today, most of the fights detailed in the first half of Zelizer's book have been won. There are no secret roll call votes. Control of committees rotates. Members who deviate from the ideology of the leadership and the president can be denied chairs, a luxury FDR might have dreamed of. The filibuster remains relevant to certain legislation and to the battles over judicial nominations, but by manipulating the budget process, a narrow majority in both houses can shift a vast number of the biggest decisions that government can make into a zone in which the time for debate and also the amendments that can be offered are strictly proscribed. That means no filibusters, but no real deliberation either.
George W. Bush is the first president to have the freedom to govern under the strong-president process that earlier reformers envisioned. He is the first to exercise complete control of his own congressional party over a sustained period. Clinton had that freedom for perhaps six months, and only after conceding much to his party's right, and he used it for only one thing, the 1993 budget bill. (That's no small thing, though. It not only put the budget on a track that might have made more activist government possible, it also included dozens of new programs, such as the direct student loan program, Empowerment Zones for impoverished urban and rural areas, and expansion of the Earned Income Tax Credit.) Bush has used it to move through three tax bills that give away at least $3 trillion in revenues, as well as many other huge policy changes buried in those undebated bills.
And the beneficiaries of the reform that makes this level of one-party control possible? The very same faction that was in control before: a sectional bloc within a party, with an ideology of states' rights and antigovernment conservatism, whose strongest roots are in the South. Using an entirely different set of rules, that faction can now once again block deliberation on almost any issue. Where it doesn't have the power to block debate, as with the confirmation of judicial nominees, it is preparing to change the rules. What Burns called the Democratic-congressional party is now the Republican Party (albeit with a few exceptions who mostly go along to get along), and its power is as unyielding.
Thus the second book that recalls this paradox: Senator Robert C. Byrd's Losing America (W.W. Norton & Company, 2004). Most on the left have read Byrd's speeches about Bush and his book as a personal story, the impassioned outrage of a mainstream, responsible congressional veteran at the disdain for reason, evidence, openness, or cooperation in the current White House. And it is all that. But its deeper roots are in outrage about the process and the balance of powers. Byrd is the last defender of the committee system, the filibuster, the prerogatives of Congress. He is the only sitting senator who goes back to that era and who stood in opposition to reform. In part, his reasons were typical -- he was a southerner, and did believe in local rights and that representatives served local interests -- but he also had a strong constitutional understanding that a strong president unchecked by Congress would be a dangerous gamble.
His message is unchanged today. When Byrd famously reduced then–Treasury Secretary Paul O'Neill to tears in a Senate hearing, the subject was not O'Neill's management of the economy. Rather, it had to do with O'Neill's implied criticism of “The Byrd Rule,” a bit of procedural arcana. And what is the Byrd Rule? There's a complicated explanation; put simply, it is the last remnant of the old system. It says you can't abuse the budget process simply to evade a filibuster or for provisions that don't belong in a budget, push costs into future years, or affect Social Security. It's the exception to the exception that's become the rule. As arcane as it is, if not for the Byrd Rule, there is little doubt that Social Security would have been privatized by now, all the tax cuts would have been made permanent by narrow votes, and various other provisions that Democrats blocked, such as the change to overtime rules, would have been pushed through.
So we now depend on a senator who opposed opening the system, and on the provision that bears his name, to hold the line against a trend that has limited deliberation and democracy in Congress in ways not seen since the 1950s. Fortunately, this trend will not last. If Kerry is elected, even if Democrats take both houses of Congress, it is unlikely that he or his supporters will be able to exercise power in the same raw way in the other direction. That will make it all the more difficult to reverse some of the poor choices of the Bush era, but a fuller debate and the obligation to seek consensus will be healthier in the long run for democracy.
None of this is to say that reform is always futile or always backfires. The congressional reformers of the 1950s and 1960s were not wrong, and their cause was more than right. But every procedural reform is shaped by the particular configuration of power and culture that it fits into. In the era of Burns's four parties, reform would have helped open up the process for greater deliberation and debate; now, when there is greater ideological coherence in both parties, it has had the opposite effect, giving power to the extreme of one party. This should be a useful lesson to keep in mind the next time you hear someone predict that some reform to legislative or election procedures is certain to lead to particular results.
Mark Schmitt is the director of policy for the U.S. Programs of the Open Society Institute, and a former congressional staffer. His blog is The Decembrist, which can be accessed at http://markschmitt.typepad.com/decembrist .
