Washington

Contrary to what we were taught, there are not, as of now, three equal branches of government. The Congress has become substantially, and perhaps dangerously, less effective than the executive branch. It lumbers its way through the national agenda, to the extent that it moves at all. And whoever wins the presidential election, with whatever mandate for change, will be faced with the awesome obstacles to change that the Congress has erected.

The two most important questions about Congress are, first, why it does not do more, and second, how much it can be expected to do. Congressional reform has always been a subject for the earnest ones—the province, by default, of the political scientists, the liberals, the outsiders, the losers. But now the connections between the way our political system is organized and the substantive results are becoming more widely recognized.

The performance of the Congress derives both from its own institutional arrangements and from less explicit factors such as mood, atmosphere, historical context, peer pressures, and human nature. And in considering why Congress does not do more, some perspective is in order. A substantial proportion of the members of the Senate and the House of Representatives do not see that there is anything to do. They do not believe that there is much that is wrong in our current national arrangements and activities. Moreover, as one congressman put it, “The axiom around here is that the service you do for constituents, the non-issue stuff, is what gets you elected.” Like most institutions, Congress thinks more about its own preservation than about the job to be done. The Navy does the same thing, and so do university faculties. Politicians become intoxicated with the trappings of power: discounts on automobiles and stereo sets; bathrooms in their offices; elevators that take them straight to their floor, disregarding other passengers; being treated like very important people. The rituals, the perquisites, the preservation of power take on magnetic force. There are thus established institutional arrangements which reinforce the status quo.

Outweighed, outwaited

At its most energetic, the Congress is essentially a reactive institution. The most important movements of the past decade—civil rights, women’s rights, opposition to the war, environment—originated outside the Congress.

Its major achievements in recent years, as recounted by a number of senators, congressmen, and their aides, have been to reject two Supreme Court nominations, bar the President from using American ground troops in Laos and Cambodia, and raise questions about military spending. It has initiated significant legislation in only a few areas: child care, higher education, nutrition. It has moved sluggishly, or not at all, on other issues before it: welfare, health policy, organization of government. It is giving a minimum of attention, or no attention at all, to many of the most important questions the country is facing: reconversion of defense and space industries, population growth and distribution, land use, energy policy, consumption of nonrenewable resources, reorganization of political boundaries. It offers no guidance on our future international political and economic arrangements. On questions which have been raised in national political debate—the war, distribution of income and the tax burden, race, individual liberty—the Congress has had difficulty in speaking with any clarity.

To some degree, this is inevitable. The Congress is a legislative body, and legislatures, like political parties, historically and by definition have difficulty with great, divisive issues. Legislatures are collections of people who see their role, to the extent that they look at it, as one of working things out. When issues do not lend themselves to compromise, or provoke sheer rage—as the war and school busing do—legislatures do not work well.

The Congress also finds it difficult to proceed even on issues which are less divisive but on which it does not sense a national disposition. “They want to be in the mainstream,” said a Senate aide. Senators who are not in the mainstream are often without honor in their time, and—their colleagues have noticed—defeated. Senators consider the list of fearless, but former, colleagues: Morse, Gruening, Gore, Clark, Douglas. A senator put it a slightly different way: “On those things on which there is a consensus in the country,” he said, “the Congress is pretty efficient. It can hold hearings and pass the legislation. But with the country divided three to four ways, it can’t come up with the answers.” And then he made another significant point: “It isn’t as if the Congress isn’t working on these problems. It’s just that the problems are so intractable.” There are things about which Congress, like nearly everybody else, does not know what to do.

Recent history has left its marks on our national legislature. The skepticism which has overtaken much of the country, the disillusionment which so many feel, have affected the Congress, too. “We’re just not doing anything, and there’s little interest in doing anything,” said Representative Thomas Foley, Democrat of Washington. “We have lost confidence that we know what to do, and that has had a devastating effect.” “The war has had a debilitating effect,” said another House Democrat, Donald Fraser of Minnesota. “I say that without being able to remember how things were before we had the war. It absorbs our psychic energies. We worry about it, think about it. It affects our attitudes toward everything.” The Senate aide was more explicit as we talked about the Senate’s legislative record: “They are weary old men,” he said. “They have only so much juice in them, and they used it up on the war, the ABM, and fights over nominations.” (One result was that when the President returned from Moscow with a strategic arms limitation agreement which he said would require more arms, the Senate Foreign Relations Committee elected not to hold extensive hearings. It did not want to go through the ordeal of listening to “all those scientists” again.)

The lawmakers drew several conclusions from struggles with the White House over legislation dealing with domestic issues and with the war: the President can outweigh and outwait; he can go on television and say that his plan will work; he can put the burden of proof on his opponents, suggesting that they do not know as much as he does and might not be as concerned as he is about the nation’s well-being. Most politicians will get within range of this sort of pummeling only so often. The President said from time to time that he would “pull the rug out” from under his opponents on the subject of the war, and a number of them were convinced, unto paralysis, that he would do just that.

Not all the reasons for congressional impotence involve the high drama of political confrontation. It is very difficult in any event for the lawmakers to take concerted action. The quality of ego which motivates most men and women into politics is not conducive to collective activity. The nature of the congressional routine diffuses energies and power. One pictures the Congress as a place where politicians are constantly clapping each other on the back, talking, trading stories, secrets, or deals; yet members of both the House and the Senate mentioned lack of fraternization as a factor in their powerlessness. “There is a sense of isolation that most members experience here,” said Congressman Fraser. “They don’t talk to each other, except on little things. An international conference may be the only place we hear a colleague express himself on the larger questions. Otherwise, we’re caught up in mail, the office, constituents’ demands, and so on. All this tends to keep the Congress atomized.”

“Suppose you have the best goddamn idea in the world,” said one senator. “You can’t get people to listen to you. Suppose I got on the phone right now and called every member of the Senate. I would have to be able to explain my amendment in thirty seconds or their eyes would glaze over, and even then they’d say, ‘I appreciate your calling and I’ll think about it.’ So then I would write every senator, and mostly I would get a polite form letter back. If you offer the greatest idea in the world on the Senate floor, sure as hell nobody’s going to hear you give the speech because nobody’s there. Theoretically, they could read your speech in the Congressional Record, but they don’t. Then they file in and ask a staffman ‘What’s this?’ and decide how to vote on your amendment on the basis of who offered it, whether they want to offend a committee chairman who opposes it, and only sometimes what they think about the substance of it, if they know.”

There are other factors which contribute to the built-in inertia of the Congress. One of the most important, and least tangible, is peer group pressure. “The clubby aspects are too overwhelming.” said one Senate man. “There is the fraternal aspect; these are my brothers, my friends. Of course, they aren’t real friendships. Friendships don’t exist in this town. It’s used as an excuse for inactivity.” It is what one senator describes as the “good-old-boy” pressure, and it works. There is also the self-interested obeisance to the elders; the reluctance to offend the senior members who control committee assignments, subcommittee chairmanships, the size of one’s staff.

Despite all of these pressures, some lawmakers—a very few of them—are able to turn in effective performances. This is more possible in the Senate, because of its smaller size, than in the House. Walter Mondale of Minnesota and Philip Hart of Michigan, both Democrats, are perhaps the most widely respected on both sides of the aisle for effectiveness. But most of the congressmen and senators who come to Washington eager to change the world become worn down, tired, discouraged. The most vital members of the House see a possible escape in running for the Senate. Bored senators go out and make speeches, brood in their offices, increase their drinking, run for President.

Press releases vs. power

The practices by which the Congress proceeds skew the substance of its work. However representative of the country the Senate and the House, in the large, may be, and my guess is that they are fairly representative, the rules and customs favor the forces of conservatism. It is not just that the conservatives have seized the machinery but also that the liberals have let it happen. The seniority system is one of the more familiar targets of liberal wrath, yet it survives because a sufficient number of liberals have cooperated in its preservation. The axiom that where a man stands depends on where he sits applies here: many quondam reformers begin to see the merits of seniority as their own years in office accumulate. (The seniority system of the Congress is a custom, not a rule, and it has at least the virtue, such as it is, of singularity. No other parliament, and no state legislature, uses it with such rigidity and grants it such sanctity.) Moreover, the argument of many congressmen that the alternative would be chaos does reflect some selfknowledge. The House and the Senate are collections of manipulative people whose political careers are built upon skill in maneuvering and circuitous operation. The elaborate honoring of a senile committee chairman therefore spares them the unleashing of their own worst impulses. They need a law of the jungle.

The conservative forces have carefully secured control of the processes for making decisions on the issues which, more than any others, define our national life: the ways in which taxes are collected and revenues are appropriated. They dominate the four most important committees in the Congress: the House Ways and Means Committee and the Senate Finance Committee, which deal with taxes, and the Appropriations Committees of the two chambers, which have jurisdiction over the budget. “There is a saying around here,” said one senator, “that the conservatives will allow the liberals to say ‘what’ if the conservatives can say ‘how much.’ ” Now that issues of economic justice are of major national concern, the way in which the Congress decides them deserves scrutiny.

While the conservatives, utilizing their power over committee assignments, have protected these particular pea patches, the liberals have not tried very hard to intrude. “The liberals are always ten years late in figuring out where the power is,” said a Senate aide. The liberals scrambled for seats on committees dealing with issues that seemed more glamorous, such as foreign policy, or of more concern to their constituencies, such as education and labor and housing. When they began to understand the substantive consequences of the committee allocations, and some liberals attained sufficient seniority to seek seats on the tax and revenue committees, many were reluctant to do so. They were loath to surrender the seniority they had attained within their own committees, to move to committees where the work is complex and sometimes heavy going, where they would be outnumbered and outmaneuvered by the conservatives, and where there might be less opportunity for publicity. Many a liberal prefers a press release to power.

“That group,” said a Senate aide about the Finance Committee, “makes Attila the Hun look like Norman Thomas.” His savored overstatement bespoke the widely agreedupon point that the Senate Finance Committee is far more conservative than the Senate as a whole, even more at variance with its collective body than is Ways and Means with the House. The only representative of a major industrial state on the Finance Committee is Robert Griffin, Republican of Michigan, who is not very liberal except by comparison with the rest of the Republican committee membership. Finance and Ways and Means have staked out jurisdiction over not only taxes but also welfare, social security, trade, revenue sharing, and, by a rather tenuous rationale, health. Both operate by rather exceptional procedures, even for the Congress.

War room

One way for a relatively junior member of the Congress to draw attention to an issue and, despite a reluctant committee chairman, to win legislation on it, is to secure chairmanship of a subcommittee. In such a position, he can hire staff, conduct investigations, and hold hearings. The House Ways and Means Committee and the Senate Finance Committee avoid the potential danger of independent functioning on the part of younger members simply by not having subcommittees. The chairmen of these two committees. Representative Wilbur Mills of Arkansas and Senator Russell Long of Louisiana, both Democrats, further increase their own power by other means. Neither permits members of his committee to bring their own staff assistants to meetings, forcing the members to rely on the staffs selected by the chairmen. “Very often,” said a senator who serves on the Finance Committee, “I am voting in the dark.” The Ways and Means Committee operates with a kind of war-room atmosphere. Members are not permitted to remove staff studies from the committee room.

Almost all congressional committees do their most important work—deciding the final details of legislation—in secret; these are called “mark-up” sessions. But Finance and Ways and Means compound the practice of secrecy, with substantial effects. According to recently adopted congressional rules, members’ positions on roll-call votes taken within the committees are supposed to be made public; Finance and Ways and Means avoid this by not taking rollcall votes. Closed committee sessions add to the pressures to compromise, to swap favors, to blur issues. “The pressures for compromise,” said a member of one of these committees, “are nearly overwhelming—the pressures for pleasantness, for comity, for going along. If you offer a strong amendment, they ask you not to press your case. They say, ‘Maybe we can work something out.’ ” Billions of dollars in national treasure, in taxes which all of us must pay, are traded in the secret sessions during which the committees decide the terms of tax bills. On the last day of the Ways and Means consideration of the 1969 tax reform act, one and a half billion dollars in potential annual tax revenues were surrendered. In a series of trades, committee members who watch over the interests of oil, real estate, farms, and tax-free municipal bonds saw to it that potential tax increases on these economic sectors were dropped. The late John Watts, Democrat of Kentucky, was known for his alert attention to the tax burdens on “bourbon, racehorses, and tobacco.” He was ready to support the tax-free status of municipal bonds in exchange for the help of a city representative on the question of horses. Representatives from Michigan work to protect the automobile industry from what they consider burdensome taxes. Care is always taken that representatives of oil-producing states, such as Texas and Louisiana, sit on Finance and Ways and Means to keep watch over the oil depletion allowance.

“I’ve never seen anything like that,” said a member of the Senate Finance Committee of his group’s consideration of tax reform in 1969. “The thing that’s really deadly for the public interest is the closed mark-up session. Enormous fees are made by lawyers and lobbyists for dealing with what look like esoteric questions: for example, what day and hour a change in the tax code becomes effective. It can mean millions to a company. Tax revision can take a month and a half of mark-up, and the tendency in the committee is to go along with the other fellow’s motion. Part of the reason why it works is that it meets in secret, and no roll-call votes are taken. By the time it comes to the Senate floor, even if a senator made it his life’s work, he can’t know what’s going on.”

To ensure that the other representatives do not disturb its arrangements, the Ways and Means Committee brings its bills to the House floor under what is known as a “closed rule,” barring amendments. The rationale is that if tax bills were open to floor amendments, there might be irresponsible tax cuts and log-rolling on a grand scale. The dilemma is that this is true; but the closed rule effectively denies a voice in tax legislation to all but the twenty-live representatives on the Ways and Means Committee. (The closed rule is invoked for other Ways and Means legislation, including, this year, for reasons more obscure, that dealing with revenue sharing.) “I represent a half-million people.” said Morris K. Udall, Democrat of Arizona, “and I am forbidden to have any say in the tax code. Any drunk can stagger out of the Senate cloakroom with a two-hundred-page amendment to the Internal Revenue Code and get a roll-call vote on it.” Senator Long and Congressman Mills, especially Mills, dominate the sessions in which, after each chamber has passed the tax bills, members of their respective committees get together and—in secret, as is the rule with all Senate-House conference committees—work out a compromise. I once asked Russell Long what he thought of the idea of having HouseSenate conferences on bills open to the public. In that case, he said, “they’d probably have a meeting before the meeting.”

The Ways and Means Committee Democrats have still another means of enforcing their will. In a rather bizarre arrangement, they also act as the group that makes the House Democratic committee assignments. “Do not underestimate that,” said Udall. “Not only do the freshmen quail before them and fawn over them but also the brothers are always looking around for openings on better committees. So there isn’t likely to be a challenge to them.”

What all of this adds up to is that those who have more access to the tax-writing committees, particularly Ways and Means, have more voice in what the tax code says, and the access is by no means equally spread among the various elements in our society. “Everyone has a stake in tax reform,” said a member of the Ways and Means Committee, “but the public doesn’t have the focal point that the interests have. Those guys are smart. They come in and explain the equity of their position and tell you how if they didn’t have it there would be massive unemployment, and all that. The Red Cross and the charities are there to tell you about the great works they do. The fifty million-odd people who work in factories and make twelve thousand dollars a year are not represented.” Labor has failed to understand the importance of the tax laws, and to gain access to the processes by which these laws are framed.

Other economic interests cultivate the staff and raise money for the politicians. “They build up a friendship,” says a member of the Finance Committee, “that makes it hard to be against a guy if he has a halfway decent proposition. By and large, the big contributions come from the privileged. They’re not asking for any new privileges. Therefore, a man can say, ‘Sure, I got a lot of money from the oil companies, but they never asked me for a thing.’ That’s because what they want is protection of the status quo. It’s easy for liberals to be against the oil depletion allowance, but not against capital gains. By and large, Wall Street gives you money because you’re against the war, or for health, but you think long and hard before being against capital gains, or depreciation on real estate.”

It is easy, however, to make too much of the role of “the interests.” Essentially, according to many of their colleagues, the politicians who make up the Finance and Ways and Means Committees believe in what they do. Wilbur Mills has proposed a review of the tax code, and has said that the burden of proof will be on those who benefit from the present tax preferences. “I think,” said a member of Ways and Means, “that they will prove it to the satisfaction of the committee.”

Arrangements

If one accepts the view that information is power, the significance of the extensive secrecy with which the Congress proceeds can be appreciated. Not only are all Senate-House conferences to work out final forms of legislation secret, but so are almost all of the sessions in which committees first write the bills. Only the House Education and Labor Committee regularly makes its decisions on legislation in public. The House Appropriations subcommittees hold many of their hearings in secret, not even permitting other congressmen to attend. One reason given for this is that the rooms are too small to permit the presence of outsiders.

The Appropriations Committees tend to hold the bills determining the budget until late in a congressional session, and then rush them through. This provides committee members with leverage for as long as possible over the managers of federal programs who need their funds, and gives other members of Congress, and outsiders, little opportunity to affect the way in which the federal treasure is parceled out.

Other congressional arrangements affect the nature of our national life. Lawmakers may have a personal financial stake in the matters on which they are passing laws. According to Congressional Quarterly, 101 House members have reported that they have holdings in banks and other financial institutions (7 of these are on the Banking and Currency Committee, and 6 on Ways and Means); 11 have reported interests in airlines; 59 in companies dealing substantially in defense contracts (2 of these serve on the Defense Appropriations Subcommittee); 54 in oil or gas companies; 14 in pharmaceuticals; 25 in power and light companies; 20 in radio and television; 9 in railroads; 19 in farms, ranches, or timberland; 16 in real estate. Fifty-eight House members reported that they received income from the practice of law; this practice offers a way to earn a lawmaker’s gratitude by placing business with his firm. The practice of law by legislators violates the American Bar Association Code. More is known about House members’ outside sources of income than about those of senators, who do not require themselves to make such information public.

There are the obligations which lawmakers incur to their campaign contributors. Many of the politicians object to the recently enacted campaign finance reform law, which requires that they reveal the names of their contributors. On their behalf, Wayne Hays, chairman of the House Administration Committee, has initiated moves to make the law more difficult to enforce.

“The members don’t like disclosure,” said a congressman. “In large ways and small, this place is corrupted.” He told me a story to illustrate the point. The franking privilege, by which congressmen use the U.S. mail service without paying for it, was first given to the lawmakers for work in connection with services for their constituents—checking out a complaint about social security, and so on. Over time, the congressmen have adopted it as a privilege to be used at will—for the sending of newsletters and Christmas cards and pictures of the family, for mailing campaign material to their constituents just before elections. This has given incumbents an important advantage over election challengers, one for which we all pay the bill. Not long ago, one member of the House suggested to some of his colleagues that they adopt standards governing the use of the franking privilege. They were amazed and even angered. “We’ve had enough reform around here,” said House Majority Whip Hale Boggs. “The members wouldn’t like it.” And that was the end of the matter.

All of this has given rise to a view, particularly prevalent in Washington, that the Congress cannot essentially change, that its workings are too complex and ingrown, that its voodoo is beyond the ken of outsiders. There is even a certain affection for its quaint ways and outrageous characters. Yet history shows that the Congress is indeed subject to change. Only sixty years ago, senators were chosen by state legislatures. (The senators from Kansas were known as “the Senator from Santa Fe” and “the Senator from Union Pacific.”)

Several reforms have been adopted in recent years, and many more are being considered. There are proposals to reduce the power of committee chairmen, to spread the power to junior lawmakers, to wrest from the House Ways and Means Committee Democrats their right to make committee appointments, to give more authority to party caucuses. The state of Florida has adopted a “sunshine” law which requires that all official meetings in which public business is transacted be open to the public; perhaps there could be a national sunshine law. Federal financing of political campaigns would be the best way of enabling lawmakers who would like to be honest, and unobligated to the interests, to be so. At the instigation of Common Cause, the Democratic Party platform this year calls for the abolition of the seniority system, the end of the closed rule in the House, the opening of all congressional committee meetings and party caucuses and the recording of all votes, public financing of elections, stricter laws on conflict of interest, prohibition of the practice of law by lawmakers, and more disclosure of lobbying activities. It is considered sophisticated to say that platform pledges are made to be broken, but perhaps that, like so much else, is changing.

The Congress is not isolated from the growing feeling in the country that things are not as they should be. People, moreover, are getting wiser about how to press for change. Whatever the results of this year’s presidential election, some fundamental changes will have occurred in our political system.

There is now a very large group of people who know about political organizing: about canvassing and registering and getting out the vote. The eighteen-year-old vote, coupled with intensified participation by those seeking reform, is going to have a profound effect on our politics, one that will grow each election year, as a greater proportion of the electorate is young.

The power of numbers is going to begin to rival the power of money in politics. Incumbents will have more cause for unease. They will find their constituencies changed. The successful primary challenges this year to such senior lawmakers as Senator B. Everett Jordan of North Carolina and Representatives Emanuel Celler of New York and George Miller of California, and the almost successful challenges to Senator John McClellan of Arkansas and Representative John Rooney of New York are only the beginning. If the Congress does not respond by changing the rules of what has become its private ball game, it is going to discover that others have moved the park.

-ELIZABETH DREW