Brookings has released a report written by Sarah Binder, Thomas Mann, Norman Ornstein and Molly Reynolds that reviews the performance of the 110th Congress and compares it to recent Republican-led congresses. To compare apples to apples, much of the report concentrates on the performance of the 110th compared to the 104th as both terms mark the ascendancy of a new partisan majority and the establishment of divided government.
The report is negative for the most part. Many of the positives of the 110th are faint praise comparisons with the era of Republican control.
The highlights after the jump.
What remained most striking about activity throughout the 110th Congress especially the House, was the dramatic increase in the amount and scope of its oversight of the executive. (p. 5)
Of course, it is not surprising that the new Democratic majority would crank up hearings on such hot topics as the conduct of the Iraq War and alleged political firing of U.S. attorneys. But the authors make special note of the increased activity related to legislative reauthorizations. There were almost twice as many non-Pentagon related reauthorization hearings in 2007 as there were in 2005. This constitutes good news.
Despite the obstacles created by divided government, the 110th Congress produced more “substantive” legislation than either the 104th or 109th Congresses. But the authors note that this success is due in part to the fact that “the Democrats aimed lower in their legislative promises” than the Republicans did in the Contract for America. To their credit, however, the Democrats were able to avoid major debacles such as the government shutdown that harmed the Republicans in 1995.
Here the news is not so good.
But as the Congress progressed and the agenda became more controversial, opposition tactics in the House and frustrations with the Senate led the House Democratic majority to embrace many of the same unorthodox means (circumventing standing committees, writing closed rules, using the suspension calendar, waiving layover requirements, avoiding the conference process) that Republicans had employed to advance their agenda. The number and percentage of restrictive rules used by Democratic leaders to control debate and amending activity on the House floor exceeded the degree of control and departure from regular order exercised by their Republican predecessors. The Democratic majority in the 110th Congress considered legislation under fewer open rules and many more closed rules than any of their six Republican predecessors. Moreover, the Democrats were at least as willing to forego committee deliberations and bring unreported bills directly to the floor under special rules as their Republican counterparts. A pattern of tighter, more centralized control – which began more than two decades ago under Democratic rule and then intensified under Republican majorities, especially after the 2000 election – continues unabated. (p. 8)
In a table that accompanies the report, the authors report the 110th Congress used restrictive rules for debating and amending legislation 88% of the time while the percentages for 104th and 109th were 45% and 83%. Hard to say what caused what, but in light of these numbers it is not surprising that Republicans began to use the motion to recommit more aggressively.
The 110th Senate set an all-time record for cloture motions (142). This is exactly twice many as were filed in the 109th. Of course, the Democrats blame the Republicans penchant for filibustering and the Republicans blame the Democrats for itching to stifle debate. The authors of the report make two interesting (at least to me) observations. The first is that there may be a direct link in the increase in cloture/filibuster activity and the increasing reluctance to use conference committees to settle House and Senate differences. They note than very few measures that Republican supported in conference were filibustered. Second, the authors note the increasing incorporation of 60-vote thresholds in the unanimous consent agreements under which legislation is brought to the Senate floor. Consequently, 60 votes are required even absent the explicit threat of filibuster.
Although the authors note that the 110th Congress lacked the nuclear pyrotechnics of the previous congress, they report that the confirmation rate of appeals court judges was just 45%, near the record low of 41% set in 2001-2002. This presumably reflects some combination of who President Bush appointed and the strategy of keep appellate seats open for a prospective Democratic president.
Checks and Balances
How well did the 110th do in asserting itself as a co-equal branch of government?
The record is mixed, albeit more positive than negative. The 110th Congress did express its discontent with many of the Bush administration’s actions and the sweeping statements made by the president and vice president about their views of executive power. It held wide-ranging hearings on abuses of power and challenged several of the White House’s positions on sensitive issues. But the bottom line is that any weakness in the presidency that emerged in the final two years of the Bush White House came primarily from the president’s ever-weakening standing with the public and from intervention by the federal courts, not from Congress imposing its own views in sensitive policy areas like surveillance or extracting from the White House testimony from top officials or documents that would shed light on alleged abuses of power, or successfully beating back the uniquely aggressive Bush approach to signing statements. (p. 14)
So the real test will be whether Democratic leaders will hold a popular president of their own party to the same standards.
Ethics and Earmark Reform
Here the 110th Congress gets mixed reviews. While it passed an ethics reform package, it fell short of its promised on reigning in earmarks.
Congress as Crisis Manager
Here, not surprisingly, Congress gets very low marks.
At times — such as in the debacle over rescuing the automakers — legislative gridlock directly contributed to economic declines. Other times – such as in the enactment of the Wall Street bailout – Congress’s institutional and electoral pathologies encouraged excessive deference to the executive branch. Such deference has proven costly to Congress’s ability to compel the administration to address critical issues at the heart of the financial crisis. Moreover, we read the steep market declines – despite the billions committed by Congress, the administration and the Federal Reserve to unfreeze financial markets – as prima facie evidence of the markets’ lack of confidence in the federal government’s problem-solving capacity. (p. 27)
In summary, the Brookings report clearly highlights that there was less progress towards rebuilding Congress as an institution than many of us had hoped. There were a few encouraging signs, however, and we must remember that it took 30 years of partisanship and polarization to get Congress to where it is today. So turning it around is a long term project.