Blame the founding fathers

By DOUGLAS COHN
and ELEANOR CLIFT
WASHINGTON — It’s popular to blame Congress for the fiscal cliff fiasco, but its members are operating within the system handed down by the Founding Fathers, and while it is a laudable system, it has flaws, and those flaws are on display.
But the Founding Fathers are not here; Congress is and it has the lowest approval rating in memory. The failure of lawmakers to act in the face of fiscal calamity has further depressed voter confidence in our elected officials, and the public reacted with depressed holiday spending and a stock market sell-off.
Only a few days remain for congressional leaders to cobble together a rescue plan, but before we condemn the whole lot of them for failure to work and play well with others, we should take into account how we got to this point. Article I, Section 5 of the Constitution is the culprit: “Each House may determine the Rules of its Proceedings . . .” And both the House and Senate have taken full advantage of that freedom.
There is no mention of a filibuster in the Constitution, but the Senate has adopted the right of filibuster to the point where it is invoked so routinely that bills are filibustered just to annoy and slow down the majority.
In both bodies, committee chairmen assert near-dictatorial rule, bottling up bills they because the rules let them. In the current debate on gun safety and regulation, the Republican chairman of the House Judiciary Committee has decreed there will be no gun control legislation. And unless he bends to public pressure, he can make good on that pledge.
Speaker Boehner can refuse to bring any bill to the House floor for a vote if it’s not to his liking. The Founding Fathers didn’t foresee that or any of the other partisan shenanigans that drive today’s politics. They didn’t even foresee political parties, which first appeared in the election of 1800, some dozen years after the writing of the Constitution.
The Founding fathers assumed all members would vote on all bills, that there would be compromise, and that reasonable people would come together. What we have today are solid blocs of ideological opposition, particularly in the House where the Tea Party has terrorized Republicans to do its bidding by threatening primary challenges from the right.
The last available path to avert the fiscal cliff before the end of the year rests with the Senate passing legislation to extend the Bush tax cuts along with a couple of sweeteners to attract votes from Democrats as well as Republicans.
The big question is whether Boehner will bring such a bill to the floor for a vote.
Past speakers have not hesitated to bring a bill for a vote even when it did not command majority support within their own party. That changed with former Speaker Denny Hastert who declared that he would not allow a vote unless it could get “the majority of the majority,” in other words majority support within his Republican caucus.
Hastert, a former wrestling coach, saw an opening he could exploit and made his play. If Boehner insists on following the Hastert rule, he could decide to block action in the House. A majority of his majority campaigned against raising taxes, and pledged to oppose any new revenue without equal or greater cuts in spending.
Yet, any bill that makes its way to the House this late in the game has to attract more Democratic votes than Republican votes. A bill that can pass with a majority of the majority of Democrats would be a de facto defeat for the Republicans, but that appears to be the only path they’ve left for themselves, whether by design or miscalculation. It’s hard to tell which is the case. It is time to fix the rules or fix the Constitution.

Published in The Messenger 12.31.12

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