Joshua M. Javits
May 14 · 5 min read

CONGRESSIONAL DYSFUNCTION

Joshua M. Javits

According to the late Senator Richard Lugar (R-IN), who passed away April 28 and is being honored for his decades of leadership this week, “Polarization deepens cynicism, sharpens political vendettas and depletes the national reserve of goodwill that is critical to our survival in hard times . . . Bipartisanship [is] not simply moderation or willingness to reach compromises but the only sensible way to govern over the long term.” Lugar’s message is a valuable guidepost to overcome current congressional dysfunction.

The Senate’s recent brouhaha about changing its voting process for confirming White House nominations is a vivid demonstration of the upper chamber’s focus on gaining political advantage instead of addressing the substance of the concerns. Instead of squandering such opportunities, Congress should conduct business in a way that enables members to deal with the nation’s problems head on, doing the hard work of crafting legislation and passing laws that benefit the public.

The rule under debate, which would reduce the time between ending debate and holding a floor vote, would make it quicker — and arguably easier — to confirm presidential appointments. The rules for Senate advice and consent of presidential nominees have been changed under each of the past three presidents. It has been a bitter debate each time, with each side accusing the other of changing the rules mid-stream to gain unfair advantage rather than focusing on the merits of the appointees. The debate demonstrates how party wrangling has undermined the legislative process.

Congress has been similarly unable to coherently address any serious national concern. Health care, immigration and infrastructure are policy issues that have bipartisan concern but have been repeatedly derailed by congressional dysfunction.

On health care: The Affordable Care Act was passed under President Obama but had its origins in Republican proposals. Both sides recognize underlying problems with coverage and costs and the need for other changes to the law. On immigration: Remember the 2013 bipartisan “Gang of 8” hard-fought achievement of a joint proposal, which ultimately was rejected for political reasons? The multiple elements of any comprehensive legislation should facilitate a deal. On infrastructure: Both parties recognize infrastructure repair as urgently needed and as a legitimate governmental function, yet infrastructure is not being addressed anywhere near the magnitude the problems demand.

Congress’ dysfunction results from three problems: cycling through rule changes, a refusal to acknowledge even broad goals and suffocating leadership.

Rules. Congress should adhere to fair procedural rules. Even an 8-year-old child would not accept changing the rules of Monopoly in the middle of the game to gain an advantage. To make progress on substantive legislation, the rules of the legislative process should be fair, nonpartisan and predictable. The so-called Hastert Rule denied the minority even the right to have proposed legislation voted on in the House. By squelching the legislative process and repeatedly changing the rules for partisan advantage, the Senate undermines its ability to pass meaningful legislation and engenders needless partisan strife.

As a labor management mediator and arbitrator, I can attest that in virtually every labor-management negotiation, the parties start with what should be the easiest subject matter — the process for resolving disputes. Then they work their way through the harder substantive issues, such as pay, benefits and subcontracting. “Easier” subjects are ones in which both sides have an equal interest in terms of efficiency and fair operation. These “rules of the road” benefit both sides, even though they may advantage one side or the other in any particular circumstance. Congress’ repeated rule reversals exacerbate legislative gridlock over issues both sides have an interest in addressing and create lasting animosity and incentives for payback in the future.

Goals. Congress should establish outcome-based goals enabling members of both parties to work together on policies and programs to achieve those goals. Both parties should enunciate the criteria that for them would define successful legislation. If the ultimate goals keep changing, joint development of legislation becomes impossible. An identified desirable outcome creates the will to get there and the incentive to find the way there.

In Congress the goals keep changing. Without a common idea of what a worthwhile result should look like, nothing will get done; it is simply a game of “I win, you lose” with no resolution. In most cases this leads to no one winning, especially the American people. One side makes a move and the other side instinctively opposes it rather than attempting to improve it or propose an alternative. Common goals must be identified and adhered to.

Leadership. Congress should allow members and committees to move legislation rather than force them to bend to a controlling leadership. Good leadership guides the process rather than stymieing it. Congressional leadership’s partisan-motivated assertion of control over the process has gridlocked the advancement of meaningful legislation. It ensures that the ideas, interests and involvement of most members of Congress will be sidelined.

An individual member with a good idea should be able to gather adherents and develop legislation through discussion, committee deliberation, floor debate and voting. Representatives should focus on achieving a good result rather than just defeating their political opponents.

An important ingredient in enhancing the problem-solving approach in legislating is to address the issues jointly in an open and transparent way. Unless both parties are on the same page regarding the underlying facts, their conclusions will be unpersuasive; this is because the other side will be drawing its own conclusions based on different assumptions. As Senator Patrick Moynihan (D-NY) famously noted, “Everyone is entitled to their own opinions, but they are not entitled to their own facts.” Denial of the facts based on blind ideological prejudice must be exposed for what it is.

In the legislative arena, the hard work of determining the facts occurs at the subcommittee or committee level. Experts are brought in to testify and present information. Members and their expert staffs then review and analyze the information, and legislation is fashioned through discussion and debate. This process is called “regular order” and is far from today’s leadership-controlled legislative process that is imbued with uniform political positions. Today the parties function by keeping their troops — in both houses of Congress — in line through disseminated talking points, access to financial support and are aided by threats of primary challenges from extremist organizations.

While this top-down approach reflects the increased polarization of our culture, true leadership means working through differences to achieve something valuable to society as a whole. Partisanship does not mean inaction. The public understands that it takes compromise — in life as in politics — to get anything done.

Several members of Congress, especially the new freshmen members, are looking to get results and solve problems rather than stand by as the chronic rancorous food fights wage on Capitol Hill. To achieve reform, members should lay the ground rules and operating processes that will produce optimum legislation. By sticking with these rules and processes, Congress can transform its propensity for inaction and propel it toward legislative achievements that benefit all Americans. This is a winning political strategy in an era when the polls show Congress is held in such low esteem.

Joshua M. Javits is the former chair of the National Mediation Board and is a labor management neutral. The Javits Foundation, named for his father, the late Senator Jacob K. Javits (R-NY) presents the Javits Prize annually to legislators who have made a significant legislative achievement through bipartisanship.

Joshua M. Javits

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Joshua M. Javits is a mediator and arbitrator. He is a member of the National Academy of Arbitrators and was Chair of the National Mediation Board.

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