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Congress needs to fix plenty of things, but not the Supreme Court
Sep 29 2020
Rush is a professor of politics and law and director of the center for international education at Washington and Lee University.
<p>The death of Justice Ruth Bader Ginsburg has unleashed calls for institutional overhauls to expand the size of the Supreme Court or limit the time justices can serve — as well as outright threats to pack the bench, depending on who controls the Senate and the White House after November's election. </p>
<p>But the Supreme Court is not the problem.</p>
<p>The fresh cries to "fix the court" are ironic at best and hypocritical at worst. They echo the calls to "impeach Earl Warren" that rang out in the 1950s, after that chief justice wrote the unanimous Brown v. Board of Education decision that declared segregated schools unconstitutional. </p>
<p>Then, as now, the problem was not the nation's high court. It was the septic politics — then of segregation, now of raw partisan division — that infected the country.</p>
<p>Back in the 1960s and 1970s, reactions to septic politics were similar to today's calls to fix the Supreme Court. Instead of ostracizing its members who had perpetuated segregation, Congress reorganized the seniority system and created a multitude of new committees and subcommittees. Instead of taking a stand against segregationist senators and House members — other than rejecting their ideology to enact landmark voting rights and civil rights legislation — Congress replaced a few of the committee fiefdoms they'd controlled with a multitude of new ones. And that made Capitol Hill a much more difficult place to lead or control. So politics remained septic.</p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Similarly, to "fix" the electoral system, Congress enacted campaign spending laws that essentially privatized the election process and set in motion the forces that now make elections extraordinarily expensive, uncompetitive and gerrymandered to perpetuate control by the two major parties. </p>
<p>Instead of bridging political divisions, Congress enacted institutional reforms that simply proliferated the number of divisions and deepened them. The two major parties are as polarized as ever, more internally divided than ever -- and still comfortably ensconced in power thanks to campaign finance laws that discriminate against third parties and independent candidates.</p>
<p>As Jonathan Rauch of the Brookings Institution has written, the nation continues to pay the price for these so-called reforms. They created the political system that enabled Donald Trump to beat the Republicans and then beat the Democrats. It remains possible he could do it again this November. "Fixing" the Supreme Court by limiting tenure or adding seats will do nothing to overcome the political divisions or fix the political machinery that elevated and has sustained the incumbent president.</p>
<p>More likely, any such rushed alterations would have the sort of undesirable and unforeseen consequences that inevitably arise from hastily conceived policies that are driven more by partisan fervor than by wisdom.</p>
<p>So let's leave the Supreme Court alone. Despite the debasement of the confirmation process that began with President Ronald Reagan's failed nomination of Robert Bork 33 years ago, the court still operates collegially and effectively. Despite the complaints about how Republican appointees now dominate the bench, abortion remains a right, the Affordable Care Act has not been struck down, gay marriage is constitutionally protected and employers may not discriminate against people based on gender or sexuality. Perennially, the court receives the highest approval ratings among the branches of the federal government. </p>
<p>Instead of overhauling the Supreme Court, perhaps lawmakers and other aspiring fixers might first give Congress itself some homework. Before turning on the court, perhaps Congress could first demonstrate a capacity to put partisanship aside and pursue an agenda that is unquestionably bipartisan and clearly in the national interest. A better coronavirus testing plan? Perhaps a dollar-a-gallon additional federal tax on gasoline to cut greenhouse emissions and support sustainability research? Maybe a fix for the public schools? </p>
<p>The Supreme Court is not broken. So don't fix it. Instead, Congress should demonstrate that it can choose to fix the politics and policies that need fixing.</p>
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Fixing the House means more staff pay and member budget sway, panel concludes
Sep 24 2020
Its nickname has been the Fix Congress Committee, an unusually bipartisan effort by House members to make their workplace a bit more functional. On Thursday it wrapped up work by endorsing 40 more ideas — including on such politically dicey topics as Capitol Hill's spending on itself and lawmakers steering federal spending toward home.
The panel has been something of a pet project for good-government groups inside the Beltway, who engineered its creation two years ago, pelted it with ideas and prodded it toward consensus.
For these democracy reform advocates, the formula for quelling Washington gridlock and poisoned partisanship includes boosting a legislative branch that's fallen way behind in balance-of-power struggles — and that won't happen until Capitol Hill is a place where politicians and their aides actually want to work for more than a few years and have realistic hope of getting something done.
<p>That's why the recommendations from the panel, formally the Select Committee on the Modernization of Congress, aim to "help the legislative branch reclaim its Article One responsibilities, reform the broken budget and appropriations process and ensure the people's house has the capacity to meet the needs of those we serve," Rep. Derek Kilmer of Washington, the committee's Democratic chairman, said after the meeting.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The proposals were all about the House, because two years ago the Republican-majority Senate declined to get involved in a similar self-assessment.</p><p>The recommendations by the panel, six members from each party, won't take effect until turned into a combination of leadership decisions, House rules changes or enacted legislation — meaning they will fade away unless an array of internal turf battles and partisan spats can be set aside. And, to preserve the panel's rare record of bipartisan accord, the sharpest edges of some of the more provocative proposals were sanded down to vagaries.</p><p>Nonetheless, the committee's final proposals touched on almost all the main problems <a href="https://thefulcrum.us/modernization-committee-extended-one-year" target="_self">lawmakers and experts identify as hobbling</a> Congress.</p><p>To allow a possible revival of a collaborative legislative process in which all members participate, instead of only a handful of the most powerful, the panel would revamp the House calendar to guarantee time for more committee work — and have some staffers work for both parties.</p><p>To stanch the Hill's rapid brain drain, where aides routinely turn just a few years of underpaid experience into lucrative corporate or lobbying work, the panel would increase budgets for member offices while ending staff salary caps and enhancing some health and student loan payment benefits.</p><p>Arguably most importantly, the panel would move to revamp processes for routine budgeting and the allocation of federal funds, which have been almost completely useless for more than a decade pockmarked by government shutdowns and last-minute stopgap spending deals.</p><p>Beyond switching from writing a budget blueprint every year, which no longer happens any time there's divided government, to shooting for one in every Congress, the panel made a gentle but firm proposal for reviving a limited and more publicly transparent version of so-called earmarks, essentially line items in spending bills directing federal cash to parochial pet projects. </p><p>Lawmakers who secured such provisions — which were banned more than a decade ago on the somewhat unfair grounds that they bloated the budget with "pork" — tended to vote for the spending bills on which they caught a ride, one of the main reasons why annual budget bills used to draw solid bipartisan support. Reviving them, the theory goes, would make the budget process smoother and less partisan once more, and give members more buy-in to their "power of the purse" responsibilities.</p><p>Thursday's package was adopted by voice vote, ensuring the panel's record of consensus was preserved to the end, although Republican William Timmons of South Carolina made clear he was no fan of what the panel dubbed a new "Community Focused Grant Program."</p><p>Two earlier sets of recommendations, 57 in total, were largely <a href="https://thefulcrum.us/amp/modernization-of-congress-2645461749" target="_self">embraced by the full House</a> in March but were focused on much less politicized matters — improving technology, modernizing personnel practices, streamlining antiquated bureaucracies and incubating some restoration of a bipartisan culture at the Capitol.</p><p>"You can have very divisive issues and still reach agreement if you take the time to listen and work things out," was the main lesson for Congress from the panel's work, said its top Republican, Tom Graves of Georgia.</p><p>"Our democracy is under incredible strain," added Jason Grumet of the <a data-linked-post="2638978529" href="https://thefulcrum.us/bipartisan-policy-center" target="_blank">Bipartisan Policy Center</a>, one of the think tanks and advocacy groups behind the effort. "The committee's own resilience sets an example for the rest of Congress.</p>
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The proposal unveiled by Speaker Nancy Pelosi and seven committee leaders was assembled without any Republican input.
Democrats unveil plan to rein in the presidency once Trump's gone
Sep 23 2020
House Democrats on Wednesday unveiled a democracy reform plan, focused on a rebalancing of power to bolster Congress at the expense of the presidency, signaling it will be an early priority if their party wins control of both the White House and the entire Capitol this fall.
The legislative outline was compiled without any input from Republicans, underscoring its purpose at least in the short term as a campaign messaging manifesto.
But the plan nonetheless makes clear that Democrats would seek to move swiftly in a Joe Biden administration to reverse many of what they see as a sweeping collection of checks-and-balances abuses by President Trump.
<p>"These reforms are necessary not only because of the abuses of this president, but because the foundation of our democracy is the rule of law and that foundation is deeply at risk," the seven House committee chairmen who assembled the package said in a statement. "Our democracy is not self-effectuating — it takes work and a commitment to guard it against those who would undermine it, whether foreign or domestic."</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The proposals, all of them direct responses to Trump's varied ways of challenging democratic norms over the past four years, include:</p><ul class="ee-ul"><li>Curbing the president's powers to grant pardons and declare national emergencies.</li><li>Tightening ethics rules to prevent federal officials from using their government jobs to enrich themselves.</li><li>Creating a streamlined system for federal courts to referee subpoena disputes between the executive and legislative branches.</li><li>Strengthening protections for government whistleblowers and the supposed-to-be-independent inspectors general at departments and agencies.</li><li>Limiting White House involvement in law enforcement decision-making at the Justice Department.</li><li>Enhancing laws requiring executive branch officials to spend money the way Congress appropriated and barring them from overt political activities.</li><li>Bolstering safeguards against foreign interference in elections, in part by making candidates report such meddling to the FBI.</li><li>Exempting a president's or vice president's time in office from the statute of limitations for any federal crime. </li></ul><p>Democrats said their package is designed as a complement to, and not a replacement for, the sweeping election administration, campaign finance and government ethics legislation the House passed last year. </p><p>Known as HR 1, it would have faced a Trump veto had it not immediately died in the Republican Senate — and this new package would as well, which is why its prospects are entirely reliant not only on Joe Biden winning the presidency but also on his party taking over the Senate by winning at least three seats.</p><p>If that happens, the Democrats would be positioned to advance the most comprehensive set of fix-the-system proposals in the 45 years since Watergate forced the resignation of President Richard Nixon, although probably not without ending the GOP minority's power to block legislation in the Senate.</p><p>The plan was assembled before Justice Ruth Bader Ginsburg died last week and Trump quickly secured almost unified GOP support for rushing her Supreme Court replacement to confirmation this fall — highlighting the way the Senate has all but abandoned its role as a deliberative body in favor of a more parliament-like posture and raising fresh balance-of-power questions about the future of such matters as the legislative filibuster and presidential dominance over the federal courts.</p><p>Progressive good-government groups rushed to embrace the package, while Republicans on Capitol Hill and the more bipartisan democracy reform organizations essentially ignored it.</p><p>It was introduced almost exactly a year after Speaker Nancy Pelosi announced the House would pursue Trump's impeachment, an effort which ended in his acquittal by the Senate — and which has almost no resonance in a presidential campaign that's now largely focused on the administration's management of the coronavirus and an economy crippled by the pandemic.</p><p>Pelosi unveiled the bill along with the seven gavel-holders: California's Adam Schiff of the Intelligence Committee, New York's Jerrold Nadler (Judiciary), New York's Carolyn Maloney (Oversight and Reform), Kentucky's John Yarmuth (Budget), California's Zoe Lofgren (House Administration), New York's Eliot Engel (Foreign Affairs) and Massachusetts' Richard Neal (Ways and Means).</p>
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"The complex reality of force is that its use by our government is sometimes necessary — but sometimes illegitimate and destructive of the just aims of government," write Kelly and Eyre. Above, police engage in standoff with protesters in Portland, Ore.
Citizens must demand the middle ground on the use of domestic force
Sep 23 2020
Kelly is a senior fellow focused on improved governance at Georgetown University's Beeck Center for Social Impact and Innovation. Eyre runs a consulting firm in California focused on helping clients deal with social, organizational and political change. They recently wrote a guide to facilitate civic discourse on use of force issues.
<p>It is time for Americans to confront a fundamental question: Who, ultimately, controls the use of domestic force in our democracy?<br></p><p>Across the political spectrum, our nation has a long history of concerns about government overreach in the use of force against citizens. Recent events in Oregon, Wisconsin and elsewhere have again brought these concerns to broad public consciousness. </p><p>Yet most citizens normally pay little attention to the complex and contentious issues involving the use of force in our democracy. That leaves us ignorant and disempowered. We have relegated this vital matter to the politicians and the professionals at our peril. This lapse in our collective performance of our civic duty has become urgent. We must act now to refresh our collective memory and to reassert citizen control over the use of force by the government. </p><p>We're living in a highly polarized season. Members of the Black Lives Matter movement, and the associated effort to "defund the police," have concluded that an aspect of our current governing system has become so unjustified and destructive that it needs to be fundamentally altered if not abolished. At the same time, millions of other Americans support the more extreme rhetoric of the Trump administration — that it's time to invoke the rarely used Insurrection Act, written two centuries ago to permit presidents to deploy the military to suppress insurrection and rebellion, so the federal government can "dominate the battlespace" and "impose" control on "mobs" in order to pacify what they see as an anarchic threat to democracy. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Many of us feel a deep unease. Could one of today's aggressive, angry flashpoints become a conflagration? What can we do now to prevent escalation? How can we better ensure that the legitimate use of force by our government to prevent injury or wanton destruction doesn't become repression of legitimate protest? </p><p>The coronavirus pandemic has exposed just how fragile our public institutions may be. In order to prevent a terrible outcome, we must build resilience by educating ourselves about use of force and the law, and by making sure our voices are heard by those acting on our behalf. Resilience is the essence of prevention. It is the ability to make competent decisions in the midst of a crisis. </p><p>How can we pivot? Is it possible to transform what looks like confrontation, mayhem and confusion into a positive step forward for American democracy? Can we step back a minute and find a way to re-establish functional and effective citizen control over the use of force by our government, in our name? "We, the people" need to be the central players in this conversation about what's next. </p><p>The complex reality of force is that its use by our government is sometimes necessary — but sometimes illegitimate and destructive of the just aims of government. Protesters say the most emphatic forms of civil disobedience are required to put an agenda for justice in the public eye. Colin Kaepernick's peaceful kneeling protest, they point out, did not generate a national focus on policing practices. The massive and nationwide disruptive protests after George Floyd's death did. </p><p>Our concern, as citizens, is not with those who protest. It is with our collective understanding of, and influence on, the use of force by our government. Protestors speak for themselves and are responsible for their actions. But the use of force by the government — done on our behalf, in our name — is justified only when it preserves and enables the larger democratic rights of the citizenry as a whole. </p><p>Though our views of individual cases of government use of force and violence may be shaped by our political views and loyalties, our rules for the use of force cannot be partisan. We must actively engage in building a common understanding of the limits of angry protest and the limits of state violence against citizens. Civil disobedience cannot be allowed to overwhelm legitimate democratic processes, and government use of force cannot become repression of legitimate voices in a vigorous and loud debate. </p><p>Force, though sometimes necessary, does not "insure domestic tranquility" — one of the reasons for a national government identified in the Preamble of the Constitution. Only genuinely democratic governments can do that. Force is only justified to the degree that it enables peaceful dialogue and protest.</p><p>Continued polarization on this issue will diminish our democracy. We citizens must regain our common understanding and united voice on this vital topic. Traditionally, law enforcement has resisted civilian oversight, claiming that professionalization and bureaucratic accountability is sufficient. But this method has clearly failed us. To be sure, use of force is a citizen's problem and subject to citizen input and oversight. </p><p>This problem is alarming and overcoming it will be a significant challenge. Yet ignoring it will not make it go away. Citizens must engage. We can do so in various forums and formats, and we must include those who use force. </p><p>We call upon a wide range of community groups — protest movements, business associations, ROTC programs, civic organizations, high schools and colleges — <a href="https://docs.google.com/document/d/1Hp6gnqdFpND6i_jyhYgQJvPw1gi-V1Gwae_ZC_obnwU/edit#heading=h.ak9l8pfspch9" target="_blank">to engage.</a> And we call upon police departments, sheriffs offices and National Guard units to accept invitations, and practice the openness and accountability demanded by our democratic ideals. </p><p>These organizations must understand that accountability to citizens is not a threat. And that transparency serves them as well as the rule of law in a democracy. We call upon political leaders — mayors and governors, House members and senators — to use their power to convene meetings, study the topic and to lead this process starting at the local level. We, the people, must reassert our voice on this critical issue. </p><p>Failure to do so will weaken the most fundamental tenet of our democracy: That "we, the people," are the source of power and that in a democracy, the government only succeeds with our consent. </p>
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