Mid-Term Reminder -- What a Properly Functioning Congress Would Look Like

Former Senator Jeff Bingaman’s Breakdown Provides the Answer

To put it mildly, President Biden’s statement in his September 1 address to the country that “these are not normal times” is a massive understatement. The President wasn’t then referring to the top-of-mind subject at this moment – the uncertainty and fear aroused by Russia’s threat to use nuclear weapons in Ukraine – because the war in Ukraine hadn’t reached that point. I have nothing to add on that subject on which many others have weighed in, though I know by just mentioning it, what follows may seem pointless or frivolous. But bear with me -- we all have to continue functioning, and hope that things out of our control will work out for the best.

In that spirit, here goes. Back in September, when he uttered those words, the President was referring to the highly polarized political state of the country, and why our times are anything but normal. What I want to address here, about a month out from the mid-term elections, is one way in we could have some sense of normality: by having a functioning Congress – one that addresses pressing national problems in a timely fashion with all views aired in a civil way and constructive fashion, and with Members in both chambers willing to reach compromise where it is required (as is almost always the case, good politics being the art of the possible).

It’s been a long time since Congress has functioned this way, of course. One who remembers, because he was there, is former Senator Jeff Bingaman, elected to the Senate from the state of New Mexico in 1982. The Senator spent three decades in the upper Chamber, and he has written an unusually thoughtful and important book about Congress, Breakdown (University of New Mexico Press), which you can easily order through Amazon.

Full disclosure: I have long been friends of the Senator and his wife Anne (and worked by Anne’s side in both private law practice in the early 90s and then later at the Antitrust Division at the Department of Justice, which she headed during President Clinton’s first term). But trust me when I say that I’d be recommending this book to those who kindly follow me even if I had never known its author.

Unlike too many political memoirs which tend to be full of war stories, Breakdown is a serious accounting of how the Senate, in particular, functioned and “dyscfunctioned” during the time he was there. Bingaman takes the reader through the high drama of the big budget – government shutdown/debt ceiling – fights triggered by Newt Gingrich’s use of both in the 1990s (which I also remember well, since I was at OMB at the time), as well as some of the more region-specific energy and environmental issues he dealt with as the Senator from a state having deep interests in these issues, as well as from his perspective as a former Chair of the Senate Committee on Energy and Natural Resources.

The book is also “fair and balanced” – not in the Fox News sense – but in the ordinary plain English definition of those terms. While he is strongly (and rightly) critical of Republican efforts that have “normalized” threats of government shutdowns and national debt default – tactics that no properly functioning legislative body should engage in – he also takes his Party (Democratic) to task for occasionally compelling Members to toe the party-line when he didn’t think that was appropriate.

The history lessons Bingaman offers are important reminders of setting the record straight on multiple issues that since become polarized, the conversations evidence-free, and events forgotten. No less important, though, are his suggestions for Congress in the future, some so elemental that when I was in school one would have thought no one would have to repeat them 50 years later, like: quit threatening shutdowns and debt defaults and act on Supreme Court nominations (especially when made almost a year out before an election, and especially when one party recently did so one month before an election).

For individual Members of Congress, again Bingaman’s suggestions come right out of civics textbooks: do what’s best for the country (not always what your party says); deliberate, with evidence, not posture and refuse to engage; be willing to compromise where something is better than nothing; resist special interests where they not aligned with the country’s. More controversially, but certainly consistent with democratic principles, eliminate the Senate filibuster.

I am fairly certain that most readers will agree with all these things, and yet feel a sense of hopelessness that we will ever have a Congress and Members that functions like that. To get there will require, at a minimum, different rules for electing Members and Presidents as well, rules that reward compromise and discourage extremism.

The best rule change I know of is “rank choice” voting, in which voters are asked (but not required) to pick not only their first-place pick, but also their order of preference for other candidates. Some call the system an “instant run off” because if one candidate doesn’t win a majority of the votes when they are initially counted, then votes for the candidate with the fewest votes are automatically reallocated to their second preferences. If that reallocation doesn’t produce a majority winner, then the reallocation proceeds for the next lowest vote receiver, until the process stops with a winner.

Rank choice voting is ideal for primary elections in which there typically are multiple candidates, but it can also work for general elections, where there may also be more than two candidates. Under Alaska’s system, adopted in 2020, for example, the four top vote getters from their “open primary” – where party affiliation of the candidates doesn’t’ matter – proceed to the general.

The virtue of rank choice voting systems is that they tend to produce moderate candidates most acceptable to a majority of voters, even if they are not their number one choice. Those “most acceptable” candidates are likely to be those showing the greatest willingness to compromise rather than those with more extreme positions, favored by minorities of voters, with intensely held views.

There are two objections to rank choice voting. One is that it can be hard for voters to understand. But this objection hasn’t stopped it from being used not only in Alaska, but also in many other places, here and in other parts of the world. Here’s a quick summary, from this source: https://www.nbclosangeles.com/news/politics/what-is-ranked-choice-voting-and-where-is-the-system-used/2623414/

“As of May 2021, 21 counties and towns used ranked-choice voting in the most recent elections, with 52 more projected to use it in upcoming elections…. In Utah, 26 cities have opted-in to use ranked-choice voting in the next municipal election as part of a state-wide pilot program testing the system.

Internationally, it is used by voters in Australia, Ireland, New Zealand, Malta, Northern Ireland and Scotland. “

As more jurisdictions adopt rank choice voting, more voters elsewhere will become exposed to the idea.

The second objection is nakedly political. Candidates at the more extreme ends of the political spectrum in both parties don’t like it because their chances of winning go down. And so, we have the proverbial fox and henhouse problem. Those in charge, whoever they may be, want to remain in charge and won’t vote to adopt a voting system that reduces their chances of staying in charge.

As we head into the mid-terms, with Republicans heavily favored to win back the House, and to have a decent shot at regaining the Senate, it is likely that at least over the next two years while a Democrat is in the White House, we will have divided government. In a political environment where Congress works like the textbook model that Bingaman describes in his book, divided government need not be dysfunctional. Over the broad sweep of US history, there tend to be fewer bills passed when different parties control the two ends of Pennsylvania Avenue. https://maxwellpalmer.com/research/divided_government_and_significant_legislation.pdf. However, there have been some important compromises. Much of the domestic legislation enacted during the Nixon administration, including the creation of the Environmental Protection Agency and the Clean Air Act it administers, as well as our consumer and occupational safety legislation, was enacted when Democrats controlled Congress.

Sad to say, that is not the world we live in today. Should one or both Congressional chambers return to Republican control, not only is it highly unlikely that any major legislation will be enacted, it is virtually certain, as House Republicans have already made clear, that 2023-24 will be marked by grandstanding hearings accusing the Biden Administration of various forms of malfeasance and likely impeachment proceedings (that of course will not be validated by the required 2/3 of the Senate). Ugh Ugh Ugh.

Should all this come to pass, then you could do worse than curl up with Bingaman’s book and at least remember, along with him, how Congress is supposed to function, and unfortunately how it began to unravel while he was there.

PS – I have spared you all the other politically-related nightmares that have been breaking my sleep over the past several years. You can find plenty of other pieces that will do the same, hence no need for me to repeat my nightmares here. It also would have spoiled the good mood I want you to be in when reading about the Senator’s book.

But speaking of good moods, I saw one sign of optimism about our country yesterday while watching the round-the-clock TV coverage of the horror of Hurricane Ian. CNN’s Jim Acosta was interviewing a former Marine somewhere in the Ft. Meyer’s area who not only cleaning up the mess in front of his house, but helping his neighbors do the same. He then said, without prompting, something to the effect that it was sad that it took a tragedy like the hurricane to bring people together (however briefly), given the deep political division in the country. It was one glimpse that deeply divided Americans can still believe “we’re all in this together.” The interview lifted my gloom about the future, just a little bit.