The worst Congress ever

Americans preparing for this year's holiday season got a nasty pre-Christmas present from the U.S. House of Representatives. Inches from the goal line for a balanced deal to avert the fiscal cliff and give a jumpstart to the economy, Speaker John Boehner, R-Ohio, based on signals from his House Republican conference, pulled back from negotiations with the president and offered a "Plan B," an effort presumably intended to gain more traction with the White House by agreeing to a compromise that at least raised the tax rates of millionaires. But then, to his immense embarrassment, he was rebuffed by his own members, who feared primary attacks led by Grover Norquist's Americans for Tax Reform.

The Boehner flameout on Plan B (previously known as "the morning after pill," now known as "the hangover") does not preclude a last-minute deal at the end of December or even a later-than-last-minute deal after Jan. 1, ostensibly following an adverse reaction by stock and bond markets and ratings agencies. But it underscores how seriously dysfunctional the House continues to be. Boehner reverted to a backup plan because he would not craft a compromise that, if brought to the House floor, would require at least as many votes from Democrats as Republicans - instead, acting as if he represented a parliamentary party, Boehner wanted to find a package that would be supported by his own side alone.

Boehner's failure to rally his troops showed another side of the mismatch between our parties and our political system: the driving force in today's Republican Party is its radical rightist fringe, inside and outside Congress. At least 50 and probably more GOPers in the House are largely immune to wider political trends, broader American public opinion or for that matter the overall results of an election. Their districts, partly through redistricting, partly through the broader "Big Sort," are homogeneous echo chambers where the only real challenge can come in a primary. And the primary challenge would be driven by the money coming from the Club for Growth and other right-wing groups, and amplified by the right-wing wind machine led by Rush Limbaugh. Governing in a system where a sizable number of lawmakers are immune from larger electoral and societal forces is a formidable challenge - a challenge that will before long arise with issues well beyond the fiscal cliff, including guns and immigration.

So much for the House. The month of attacks in the Senate on U.N. Ambassador Susan Rice's presumed State Department nomination raise the question "What is up with the Senate?" Six years of almost-nonstop filibusters were followed by presidential and Senate elections in which Republicans were pounded, and the first major prospective Cabinet nomination by the newly elected president was itself pounded into the ground.

The attacks on Rice were both extraordinary and ordinary. They were extraordinary in their intensity, hastiness (she had not even been nominated to be secretary of state), and focus - on Benghazi, where, by any reasonable standard, she played no policy role whatsoever. What made them ordinary? It is not unusual for a president to have at least one high-profile nominee picked off by the Senate, sometimes simply as a way to take the president down a peg, sometimes because of the combativeness of the nominee, sometimes for ulterior motives. Think of Tony Lake, the highly qualified and cerebral national security adviser to President Bill Clinton who was shot down when he was nominated to be director of the CIA, or John Bolton, inserted by George W. Bush on a recess appointment as U.N. ambassador when the Senate refused to confirm him over his alleged extreme views and undiplomatic persona. Indeed, when Republican senators like Lindsey Graham, R-S.C., were pressed about their over-the-top opposition to Rice, John Bolton's name was immediately cited.

Of course, there were other reasons for the opposition to Rice, including the calculation by many Republicans that if Barack Obama were to nominate John Kerry instead of Rice - a scenario that has since come to pass - it would open up an opportunity for Scott Brown to return to the Senate. And there were other reasons for Rice to withdraw her name from consideration, including the growing opposition from some on the left over her support for Rwanda's Paul Kagame. Nonetheless, the decision by some Republican Senators to raise the fight over this most-important post to a level of Defcon 1 was striking.

Now we are having dj vu all over again, this time regarding the future secretary of defense. Once again, the name of a candidate preferred by the president has been floated but not officially nominated. And once again, the name - former Republican Senator Chuck Hagel, Neb. - has been challenged. To be sure, the first intense opposition to Hagel came from outside groups, especially pro-Israel ones. But it did not take long before prominent senators like John Cornyn, R-Tex., announced that they would not vote for Hagel.

It is extraordinary for a newly reelected president to face preliminary promises of major and bitter fights over his floated nominations to two top-tier Cabinet posts. But these challenges should not obscure the larger problem - the Senate is no longer a place that allows presidents to have their own personnel confirmed.

As of a week ago, there were at least 135 presidential nominations to executive posts and 35 nominations to judgeships that were languishing in the Senate, unconfirmed, for more than six months. They included nominations to such key posts as head of the Center for Medicare and Medicaid Services (CMS), administrator of the Federal Aviation Authority, and associate attorney general. After its first year in office, the Obama administration had filled only 64.4 percent of Senate-confirmed executive agency positions, compared to 86.4 percent for Ronald Reagan, 80.1 percent for George H.W. Bush, 73.8 percent for George W. Bush, and 69.8 percent for Bill Clinton. The average length of time that nominees waited in the Senate was considerably longer for Obama than for any of his predecessors.

What is going on here? A good part of the problem is the tribal politics Thomas Mann and I catalogued in "It's Even Worse Than It Looks." This is particularly true with posts like the head of Medicare and Medicaid, the official responsible for implementing the Affordable Care Act (a.k.a. Obamacare), and the head of the Consumer Financial Protection Bureau, a critical part of the Dodd-Frank financial regulatory reform act. When it came to both of these posts, Senate Republicans made it clear that the qualifications of nominees did not matter; they would block any and all appointees to keep these key Obama accomplishments from being implemented effectively. Mann and I called this strategy "The New Nullification," an unprecedented effort to keep policies that have been lawfully enacted from being deployed.

But the problem runs deeper than these and other high-profile posts. Ever since the Obama presidency began, Senate Republicans under Mitch McConnell have pursued an aggressive approach of gumming up the Senate's operations by filibustering, threatening to filibuster, and "holding" bills and nominations from top to bottom, including ones that the chamber ultimately passed unanimously or near unanimously. Bills can and have been filibustered multiple times - on the motion to proceed to consider the bill, on the bill itself, and again at times on the conference report when a bill has passed both houses and differences must be reconciled. Each filibuster consumers hours and hours of the most precious Senate commodity: floor time to get things done.

Holds - which are simply notes written by individual senators to the upper house's leaders indicating that the senator will object to a unanimous consent agreement to bring up a bill or nomination - have mushroomed in recent years and been used by all 100 senators (but lately especially by Republicans against Obama nominees for both executive and judicial posts). Partly because of tradition and partly because challenging the action requires a lot of that precious floor time, a hold is an effective death warrant - or at least an extended jail sentence - for a nominee.

To its credit, the Senate passed a bill last year streamlining some the executive confirmation process, in part by removing a sizable number of nominees from the list requiring Senate confirmation. The remaining headaches of holds and filibusters could largely be ameliorated by filibuster reform, which may be forthcoming. But reforming the filibuster by majority action, as many Democrats want, would invite a new and extended Republican guerilla war against the Democrats that would erect new obstacles to passing legislation and replace one set of migraines with another.

If only that were the sole problem with the Senate. Another issue - one that speaks to the hold the extreme right has on the GOP in the Senate as well as in the House - was on display earlier this month when the upper chamber rejected the U.N. Convention on the Rights of Person with Disabilities, which would apply the hard-fought rights for the disabled in the United States to other countries. Despite the appearance of Bob Dole - a beloved former Republican majority leader and fierce advocate for the treaty - on the Senate floor in his wheelchair, 38 senators voted no because of ardent opposition from fringe groups on the right. The failure to implement the treaty was just the latest in a string of stiff-arms that have cumulatively produced the fewest treaty ratifications in modern times for a president. Ironically, the Senate's inability to find two-thirds support for treaties has resulted in more presidential executive actions, effectively shifting power from the legislative branch to the executive. But that's small comfort for the Obama administration; the big policy actions still require a willing Senate.

Eighteen months ago, I wrote a piece for this magazine titled "Worst. Congress. Ever." There are still a handful of days remaining for this Congress to counter that judgment. Don't bet on it.

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Ornstein is a resident scholar at the American Enterprise Institute, a weekly columnist at Roll Call, and co-author, with Thomas Mann of "It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism."