A government divided

 

The dirty little secret about our governing processes is that the only time Congress can bring about real change in the country is when the president's political party controls both houses of Congress.

AS THE FIRST session of the 110th Congress heads into its August recess, opinion polls show Congress' favorability rating even lower than that of President Bush. What the poll numbers do not show are the reasons for public dissatisfaction with their legislators. But common wisdom suggests that it has to do with the lack of legislative accomplishment.

What is unclear is what the public expected.

It is true that about the only significant new piece of legislation enacted so far this year has been the increase in the minimum wage. However, that was accomplished only because enough Republican senators supported the measure to make it veto-proof.

The dirty little secret about our governing processes is that the only time Congress can bring about real change in the country is when the president's political party controls both houses of Congress.

Otherwise, a Senate minority or the presidential veto power makes change highly unlikely.

Under current Senate rules, 41 senators can block any legislative proposals. So the House can send over measure after measure by majority vote, but the Senate remains the legislative graveyard.

And even when the Senate can muster 60 votes to get something done, it takes 67 senators (plus two-thirds of the House) to override a presidential veto.

The current partisan breakdown of the Senate is almost a guarantor of gridlock. There are actually 49 elected Democrats and 49 Republicans, plus two independents who vote with the Democratic caucus in order to organize the body and elect a majority leader. For most of this year, one of the Democrats, Tim Johnson of South Dakota, has been absent because of illness, and one of the independents, Joe Lieberman of Connecticut, actually votes most of the time with the Republicans.

49-49 deadlock

Apparently the only reason Lieberman voted with the Democratic caucus at the start of the session was his promise to Connecticut's Democratic voters after he lost the party primary and ran as an independent with Republican support. So for all intents and purposes, the Senate is deadlocked 49 to 49.

Two other important bills were passed late in the week, just before the summer recess: an ethics-reform package and a homeland security bill, which will implement a number of the recommendations of the Sept. 11 Commission, which was headed by former Gov. Tom Kean.

The latter piece of legislation has had major input from New Jersey's two senators, Robert Menendez and Frank Lautenberg. Both sponsored amendments to beef up port and rail security and to increase the state's share of homeland security funds.

Bills are languishing

Meanwhile, the House has passed numerous bills that are languishing on the Senate side. Among the House-approved legislation are a Fair pay bill, which would overrule a Supreme Court decision in June limiting suits for wage discrimination; the Employee Free Choice Act, which would make it easier for labor unions to obtain recognition from employers; a prescription drug bill, which would require the federal government to negotiate lower prescription drug costs; a bill expanding federal funding for stem cell research; a Hate Crimes Prevention Act, which would expand the ability of state and local governments to prosecute crimes committed against persons because of their race, color, religion, national origin, sexual orientation or disability; and the Crime Background Check Improvement Act, which would prohibit individuals adjudicated to be mentally ill from possessing firearms.

Iraq blowback

It may well be that one of the public's major frustrations with congressional inaction this year results from the war in Iraq. In the 2006 congressional elections, Democrats campaigned vigorously against the handling of the war. But, once in office, they have found it extremely difficult to do much about it. The House passes resolutions to begin troop pullouts, but the Senate has never been able to muster more than 53 votes in favor of similar action, even with several Republican defections.

So there is little chance of actually bringing the issue to a binding vote. And even if seven more Republicans joined the Democrats to try to force a prompt troop withdrawal, it is next to impossible for the legislative branch to micromanage troop movements in the face of an intransigent White House.

So Congress is left with mainly symbolic gestures.

Of course, the ultimate congressional weapon is impeachment. But such a move would not only divide the nation, it would require 67 votes in the Senate to be successful, an unimaginable result.

Another issue on which the public would clearly like to see positive action is health care – but, again, it will require a superhuman effort to craft a bipartisan bill that would also be acceptable to Bush.

One major piece of proposed legislation, which is mainly the handiwork of Rep.Rush Holt, D-Hopewell, involves regulation of electronic voting machines to guarantee against fraud and manipulation of electoral results. For a while it appeared that adoption was possible in time for the 2008 elections, but recent opposition by local election officials fearful that the new rules could not be implemented by next year threatens to derail passage until the 2012 elections.

Some polls suggest that the public actually prefers divided government, in which the White House is controlled by one party and Congress (or at least one branch) by the other. But if that is what the public wants, it will also have to accept a good measure of legislative stalemate.

Frank Askin is professor of law and director of the Constitutional Litigation Clinic, Rutgers Law School, Newark. Send comments to letterstotheeditor@northjersey.com.