Wanted: Lawmakers who shoulder responsibility

Wanted: Lawmakers who shoulder responsibility
© Greg Nash

Washington may have enacted a budget deal early Friday, but bitter divisions laid bare along the way. Now the failure to grapple with how to pay for the increased spending bodes ill for our government’s ability to resolve the multitude of pressing — but still gridlocked — issues.

Both Democrats and Republicans blame each other for the polarization that feeds the gridlock. Yet, the polarization will continue regardless of the party in charge. It began decades ago after elected officials of both parties started taking credit for popular promises but shifting responsibility for unpopular consequences.

Polarization in Congress and among political activists widened in the 1990s, but not so much among “normal people,” according to Stanford University Professor Morris Fiorina. Now, an increasing share of voters are independents.

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Yet, with the parties’ congressional delegations, once with overlapping voting records, now more homogeneous, the party in the majority is apt to go to extremes. It thus, not only infuriates stalwarts of the other party, it irks swing voters and so risks losing its majority. That is why control of the House, Senate, and White House now changes more frequently, as Fiorina also shows.

 

It seems strange that legislators with centrist voting records have all but gone extinct in Congress despite the country now having more swing voters. Prior to 1980 both parties assumed that Democrats had pretty much permanent majorities in the House and Senate, according to University of Maryland Professor Frances Lee. Resigned to minority status, Republicans could at most hope to have a bit of influence on legislation in return for helping the ideologically diverse Democrats get it passed. The upshot was bipartisan legislation.

Now, however, winning and holding majorities is the prime motive of both parties. This came after Republicans surprised themselves by winning a majority in the Senate in 1980 and came to hope for a majority in the House, which they got in 1994.

Whichever party was in the minority no longer wanted to help the majority pass legislation any more than necessary to save face because cooperation would seem to endorse the majority’s policies and thus help it stay on top. The minority, moreover, set out to make it harder to legislate by forcing votes on amendments designed to embarrass the majority rather than to pass. In writing such amendments, the minority could, in Lee’s words, “champion ‘all gain, no pain’ positions.”

Parties can get away with taking “all gain, no pain” positions even though the Constitution was designed to force legislators to openly take responsibility for the unpopular as well as the popular consequences of their votes because both parties found it convenient starting in the late 1960s to develop new ways of legislating that let incumbents promise something for nothing. In the old way of legislating on regulation, for example, legislators could get credit for enacting a regulatory right for some people only if they took the blame for imposing the corresponding regulatory duty on other people. Alternatively, Congress could empower an agency to design the rights and duties, but then it rather than the legislators would get both the credit and the blame.

In the new way of legislating, illustrated by the Clean Air Act of 1970, Congress granted all citizens a supposedly ironclad right to healthy air, but left the job of imposing the duties to an agency. Because no one knew what the duties would be, the agency would get the blame for the unpopular burdens, even though Congress got the credit for the popular right. No wonder almost all Democrats and Republicans voted for the statute. 

Subsequently, Democrats have pushed bills granting more rights to environmental protection, but hiding their responsibility for the costs and Republicans have pushed bills calling for lower regulatory burdens, but hiding their responsibility for increased danger to people. Such “all gain, no pain” positions allow parties to fire up the base while minimizing losses among swing voters. 

Both parties now use “all gain, no pain” legislation in almost every sphere of government. Friday’s budget deal, for instance, increases both military and domestic spending, but shifts the blame for the future tax increases or spending cuts needed to pay for it to future Congresses and presidents.

Precisely because elected officials are often able to escape personal responsibility for unpopular consequences, government produces more of them. So, even though voters don’t know which officials to blame for specific consequences, they know not to trust government and so trust in it has plummeted.

Distrust leads voters to change which party has the majority in the House or Senate and support outsiders for president — from Jimmy Carter in 1976 to Bernie SandersBernard (Bernie) SandersBiden team discussed 2020 run with O'Rourke as VP: report Teen quits job at Walmart over intercom, tears into company over employee treatment O'Rourke doubles support in CNN poll of Dem presidential race MORE and Donald TrumpDonald John TrumpAustralia recognizes West Jerusalem as Israeli capital, won't move embassy Mulvaney will stay on as White House budget chief Trump touts ruling against ObamaCare: ‘Mitch and Nancy’ should pass new health-care law MORE in 2016. The distrust also denies Congress the credibility needed to get voters to accept the compromises needed to resolve tough issues. 

Incumbents have been criticized for their blame-shifting ploys and so have enacted statutes that they promised would stop them. Yet, these promises too are hollow. The supposed reforms have massive loopholes. That’s why I call my proposal the Honest Deal Act. It would temper the polarization and restore the ability to act honorably.

David Schoenbrod is a professor at New York Law School. He is also the author of "DC Confidential: Inside the Five Tricks of Washington" (2017). Follow him on Twitter @DavidSchoenbrod.