How Harry Reid and Grover Norquist Paralyzed Congress

National Journal
Shane Goldmacher and Matthew Cooper
Add to Briefcase
See more stories about...
Shane Goldmacher and Matthew Cooper
Oct. 2, 2013, 2 a.m.

The gov­ern­ment is closed.

There’s really no bet­ter way to il­lus­trate the per­vas­ive dys­func­tion that for years now has gripped Wash­ing­ton. After years of shut­down threats, debt-ceil­ing stan­doffs, fili­busters, dead-end le­gis­la­tion, and end­less pos­tur­ing — on the floor, on cable news, on talk ra­dio, on Twit­ter — both sides have suc­ceeded, fi­nally, in bring­ing things to a crash­ing halt.

And for many, both in this town and out­side of it, the per­sist­ent, po­lar­ized en­vir­on­ment is ac­cep­ted with a shrug.

But it wasn’t al­ways this way. And it didn’t just hap­pen. A hand­ful of Wash­ing­ton play­ers bear in­or­din­ate re­spons­ib­il­ity for the state we’re in. We’ve asked eight Na­tion­al Journ­al writers to name names — to identi­fy the people who broke Wash­ing­ton. This week, we’re post­ing the res­ults. Dis­agree with the choices? Nom­in­ate your own here.

Harry Re­id: Start­ing the Fili­buster Fire

Let’s not have any false equi­val­ence. This shut­down is Re­pub­lic­an-led or, more ac­cur­ately, led by a fac­tion of Re­pub­lic­ans. The Peter Kings and John Mc­Cains didn’t want to link Obama­care to a con­tinu­ing res­ol­u­tion to fund the gov­ern­ment. House con­ser­vat­ives did.

That doesn’t mean, however, that Demo­crats are en­tirely blame­less. Part of the found­a­tion for today’s para­lyzed Con­gress came dur­ing the George W. Bush years, and it in­volved Harry Re­id, now the Sen­ate ma­jor­ity lead­er. In today’s Wash­ing­ton, Re­id and Sen­ate Demo­crats are apo­plect­ic not only about the shut­down but about the un­pre­ced­en­ted use of the fili­buster be­ing de­ployed by the Re­pub­lic­an minor­ity. (See the stat­ist­ics here on the in­cred­ible surge in fili­buster use.) But back in 2003-05, Sen­ate Demo­crats were in the minor­ity, and they used the fili­buster in ways that pres­aged and cre­ated a path for the Re­pub­lic­an ex­trem­ism. Com­par­ing Re­id’s fili­buster policies when the Demo­crats were in the minor­ity to the cur­rent ob­struc­tion­ism of Mitch Mc­Con­nell, is com­par­ing play­ing with matches to be­ing an ar­son­ist. But ar­son­ists start by play­ing with matches, and it’s worth look­ing at how Re­id took the fili­buster, once a break-glass-in-case-of-emer­gency tool and used it freely in help­ing to build the cul­ture of con­front­a­tion we have now.

(Alex Wong/Getty Im­ages)

After the 2002 elec­tions, Demo­crats lost their Sen­ate ma­jor­ity and were eager to use whatever tools they could to sty­mie Bush’s con­ser­vat­ive ju­di­cial nom­in­a­tions. Fam­ously, since the nom­in­a­tion of Robert Bork to the Su­preme Court in 1987, sen­at­ors had been as­sess­ing a nom­in­ee’s ideo­logy rather than their aca­dem­ic qual­i­fic­a­tions. But in the years af­ter­ward, sen­at­ors be­came less and less hes­it­ant about us­ing the body’s myri­ad delay tac­tics to stall nom­in­a­tions from even get­ting a vote. (Bork, at the very least, got one and lost.) By the time of Bill Clin­ton’s pres­id­ency, Re­pub­lic­ans had no com­punc­tion about bot­tling up any num­ber of ju­di­cial nom­in­a­tions, es­pe­cially as his term came to an end us­ing only-in-the-Sen­ate tools like holds. This in­cluded Clin­ton’s nom­in­ee, Elena Kagan, who nev­er made it to the D.C. Cir­cuit Court of Ap­peals, be­cause her nom­in­a­tion was nev­er giv­en a hear­ing in the Ju­di­ciary Com­mit­tee then chaired by Re­pub­lic­an Or­rin Hatch.

When Demo­crats re­turned to the minor­ity in 2003, Re­id, then the minor­ity whip, took out a can­non when be­fore only pis­tols had been used to shoot down nom­in­a­tions. Demo­crats em­ployed the fili­buster as a weapon of choice. “If it all began with Robert Bork. No doubt the in­tens­ity of ju­di­cial nom­in­ees heated up at that time—and now the Re­pub­lic­ans have taken to ex­treme and it’s fili­busters on ster­oids,” says a top Demo­crat­ic staffer from that time re­call­ing the road to chaos.

Gran­ted, Re­id’s tac­tic was not the first time the fili­buster had been used to scuttle a ju­di­cial nom­in­a­tion. It happened in the 19th cen­tury, and it also took place in 1968 when Lyn­don John­son tried to el­ev­ate As­so­ci­ate Justice Abe Fortas to be chief justice. (Fortas even­tu­ally resigned from the Court over eth­ics is­sues.) But Re­id em­braced the fili­buster as the chief tac­tic in un­der­min­ing ju­di­cial nom­in­a­tions. Norm Orn­stein, known as a non­par­tis­an con­gres­sion­al schol­ar has got­ten at­ten­tion for a new book, It’s Even Worse Than It Looks, that breaks from false equi­val­ence and lays most of the blame for Wash­ing­ton’s cur­rent grid­lock squarely on Re­pub­lic­an ex­trem­ism. Still, Orn­stein calls the Demo­crat­ic ju­di­cial fili­busters of the pre­vi­ous dec­ade dis­taste­ful. “It was a bad mo­ment that rou­tin­ized fili­busters,” he says.

Most not­ably, Re­id used the fili­buster to scuttle the nom­in­a­tion of Miguel Es­trada, a con­ser­vat­ive law­yer who had been a fed­er­al pro­sec­utor and an as­sist­ant so­li­cit­or gen­er­al. The pres­id­ent’s nom­in­a­tion of Es­trada to the D.C. Cir­cuit Court of Ap­peals, ar­gu­ably the na­tion’s second-highest court and a spring­board for the Su­preme Court, set Wash­ing­ton buzz­ing. Of Hon­dur­an des­cent, Es­trada is of an eth­ni­city that put him on a con­ser­vat­ive wish list for the Su­premes—if he first could get on the D.C. Cir­cuit. Demo­crats re­cog­nized this, too, and seized on his con­ser­vat­ive polit­ics, which was en­tirely jus­ti­fi­able, al­though any num­ber of lib­er­als thought Es­trada a good pick. Kagan her­self said dur­ing her Su­preme Court hear­ings some years later that Es­trada would be an “ab­so­lutely su­per­lat­ive” jur­ist.

But the Demo­crats held up a vote on Es­trada at first, they said, to get more an­swers. Re­id was in­teg­ral to the ob­struc­tion­ist strategy. “Mr. Es­trada comes with a scant pa­per trail but a repu­ta­tion for tak­ing ex­treme po­s­i­tions on im­port­ant leg­al ques­tions. He stone­walled when he was asked at his con­firm­a­tion hear­ings last fall to ad­dress con­cerns about his views,” said Re­id in 2003, ex­plain­ing one of the many delays and sound­ing every bit like the Re­pub­lic­ans who would later op­pose Obama’s nom­in­ees for sim­il­ar reas­ons. But it’s not like Re­id & Co. moved on to a vote after a reas­on­able peri­od of col­lect­ing in­form­a­tion. The nom­in­a­tion lan­guished for al­most two years. Even­tu­ally, Es­trada with­drew his nom­in­a­tion. (Dis­clos­ure: Es­trada was a mem­ber of the team that rep­res­en­ted me and Time Inc. in the CIA leak case.) Be­fore it was over, some 10 Bush nom­in­ees were blocked through the fili­buster.

At the time Re­id de­fen­ded his ac­tions, not­ing that as a per­cent­age of ju­di­cial nom­in­a­tions Pres­id­ent Bush had fared quite well. “We turned down 10. More than 98 per­cent of the judges that the pres­id­ent asked for he got: 204 to 10. That’s a tre­mend­ously im­press­ive num­ber for the pres­id­ent to get,” he said in an in­ter­view with PBS shortly after be­com­ing minor­ity lead­er in 2005. That’s a fair point. Clin­ton saw 70 nom­in­a­tions scuttled, but it doesn’t change the fact that Re­id as whip and then as minor­ity lead­er took the fili­buster to a high­er level by train­ing it on ju­di­cial nom­in­ees en masse. (It’s worth not­ing that then-Sen. Barack Obama backed a fili­buster of Samuel Alito when Bush tapped the New Jer­sey jur­ist for the high court.)

In early 2005, the Re­pub­lic­an ma­jor­ity in the Sen­ate, then led by Bill Frist, openly dis­cussed the “nuc­le­ar op­tion” to cur­tail the fili­buster. (Today, Demo­crats now in the ma­jor­ity and be­deviled by the Re­pub­lic­ans, make sim­il­ar ar­gu­ments.) To avoid the con­flag­ra­tion, more than a dozen sen­at­ors of both parties, the “Gang of 14,” came to an agree­ment that the fili­buster would not be used against ju­di­cial nom­in­a­tions un­less it was un­der “ex­traordin­ary cir­cum­stances.” The con­cord wasn’t form­ally voted on in the Sen­ate, but it was in­form­ally ad­op­ted as policy. It stood as a re­buke to Re­id and the Demo­crat­ic tac­tics. The peace didn’t hold, of course. Fili­busters are now de ri­geur in the Mc­Con­nell era. It’s im­possible to ima­gine so many sen­at­ors even be­ing cap­able of com­ing to­geth­er to of­fer a voice of san­ity. For his part, Re­id has said he’s con­sid­er­ing push­ing for sub­stant­ive fili­buster re­form, even if he hasn’t ac­ted on it. Bet­ter late than nev­er.

-Mat­thew Cooper

Grover Nor­quist: Fath­er of the Blood Oath

The de­fund-or-bust pos­ture among Re­pub­lic­ans that pre­cip­it­ated this week’s gov­ern­ment shut­down is only the latest lit­mus test to gum up the gears of gov­ern­ment. Politi­cians of both parties are in­creas­ingly asked to pledge fealty to this cause and that, lock­ing them in­to po­s­i­tions that for­bid the kind of give-and-take that un­der­pins bi­par­tis­an le­gis­lat­ing.

In the last quarter-cen­tury, no pur­ity test has held as much sway as the one craf­ted by an­ti­tax ad­voc­ate Grover Nor­quist. His pledge is a simple 65 words, in­clud­ing the sign­er’s name. Those who sign — 219 cur­rent House mem­bers and 39 sen­at­ors, ac­cord­ing to Nor­quist’s tally — vow nev­er to raise taxes. “The pledge,” as it is known, is meant to last a life­time.

(JIM WAT­SON/AFP/Getty Im­ages)

It’s been wildly suc­cess­ful. Few Re­pub­lic­ans — and over­whelm­ingly the 1,100 sign­ers in elec­ted of­fice across all 50 states are Re­pub­lic­ans — ever stray. Those who do are pun­ished at the bal­lot box. The res­ult: an an­ti­tax grip on le­gis­la­tion in cap­it­ols across the coun­try, though few are as fierce as the one in Wash­ing­ton, D.C., where few party lead­ers com­mand the in­flu­ence that Nor­quist holds.

“This,” an ex­as­per­ated Sen­ate Ma­jor­ity Lead­er Harry Re­id, D-Nev., de­clared on the floor last year, “is the Grover Nor­quist Con­gress.”

Nor­quist’s an­ti­tax ideo­logy was in­grained at an early age. As a child, his fath­er would buy him and his sib­lings ice-cream cones, only to steal bite after bite from them. “In­come tax,” his fath­er would say. “Sales tax.” Nor­quist says it’s not why he be­came a Re­pub­lic­an, but the les­son stuck: “The gov­ern­ment keeps com­ing back for more.”

Nor­quist went on to be­come a lead­er of the Col­lege Re­pub­lic­ans and, later, the founder of Amer­ic­ans for Tax Re­form in 1985 (at Pres­id­ent Re­agan’s re­quest, he said). He had 120 pledge sign­ers by 1986 and has been gath­er­ing more ever since.

His as­cend­ency was on dis­play in an Au­gust 2011 pres­id­en­tial primary de­bate, when all the Re­pub­lic­an can­did­ates were asked if they would ac­cept a po­ten­tial budget deal that in­cluded 10 dol­lars in spend­ing cuts in ex­change for just one dol­lar in new taxes. “Who on this stage would walk away from that deal?” asked the mod­er­at­or. Without hes­it­a­tion, every Re­pub­lic­an on stage raised their right hand, just as they would when tak­ing the oath of of­fice.

Nor­quist had won.

That presents a prob­lem for good gov­ernance, says Sen. Tom Coburn of Ok­lahoma, one of the Sen­ate’s most con­ser­vat­ive mem­bers and a one­time sign­er of Nor­quist’s pledge who has since be­come an out­spoken crit­ic. “Your oath is to up­hold the Con­sti­tu­tion,” Coburn says. “Lit­mus tests play on short-term polit­ic­al in­terests. If you don’t do this, ‘We’re go­ing to do this to you, in your next elec­tion.’ That doesn’t help. It doesn’t solve the prob­lems of the coun­try. What it does is po­lar­ize us.”

It’s one of the reas­ons that talk of a budget­ary “grand bar­gain” — a blend of spend­ing con­straints on fast-grow­ing en­ti­tle­ments like Medi­care and tax hikes — re­mains an idea kept alive only in cloistered Wash­ing­ton think tanks. To score the back­ing of lib­er­al con­stitu­en­cies needed to win primar­ies, Demo­crats must pledge nev­er to tinker with en­ti­tle­ments. And nearly all Re­pub­lic­ans take the pledge.

The res­ult: re­cord de­fi­cits, un­rivaled ran­cor, and en­dem­ic grid­lock.

Which is fine by Nor­quist, so long as Demo­crats hold power and the al­tern­at­ive is a com­prom­ise that would in­clude taxes. The budget fight of 2011 is an ex­ample. It ended with a dead­locked su­per com­mit­tee that was sup­posed to reach a grand bar­gain. In­stead, se­quest­ra­tion — in­dis­crim­in­ate, across-the-board cuts that were de­signed to be so loath­some as to nev­er go in­to ef­fect — is now the law of the land.

Nor­quist loves it. “We won. They lost. I un­der­stand why they’re pissed,” he says. “It was a 10-year bend­ing down of the cost curve. It was tre­mend­ous pro­gress. It is dif­fi­cult to im­possible to see how you could have got­ten a bet­ter spend­ing lim­it through a Demo­crat­ic Sen­ate and a Demo­crat­ic pres­id­ent.”

But, in a fas­cin­at­ing twist, this fath­er of lit­mus-test polit­ics is held in less-than-hon­or­able es­teem by the next gen­er­a­tion of no-com­prom­ise con­ser­vat­ives he has helped birth. He’s a squish, they say, com­plain­ing he hasn’t joined the de­fund Obama­care fight (in­stead, he’s tossed cold wa­ter on it), that he backed the GOP lead­er­ship in the 2011 budget fight (in­stead of push­ing for an un­real­ist­ic con­sti­tu­tion­al amend­ment cap­ping spend­ing) and, chiefly, that he ac­qui­esced to rais­ing taxes on the rich in Janu­ary when the Bush tax cuts ex­pired.

“Grover has lost a little of his cachet with the con­ser­vat­ive grass roots be­cause he’s fought too of­ten on the side of the es­tab­lish­ment,” said one seni­or con­ser­vat­ive strategist, who de­clined to be named be­cause the per­son still works with Nor­quist.

Nor­quist, who has heard the grumbling, said he has re­mained faith­ful to the pledge. His crit­ics live in a “fanta­sy­land,” he says. “Stat­ing your fer­vent be­lief in Tinker Bell does not make you hard­core. It makes you a be­liev­er in Tinker Bell.”

Taxes would have gone up on every Amer­ic­an this Janu­ary if Con­gress did noth­ing. Vot­ing to make per­man­ent 85 per­cent of the Bush tax cuts was a huge win, he says. As for the cur­rent show­down between con­gres­sion­al Re­pub­lic­ans and Pres­id­ent Obama, he was dis­missive of those who’ve led the GOP in­to battle without a plan for vic­tory.

“Guys, you don’t win by whin­ing about how much you want,” Nor­quist said. “You win by get­ting more than you have.”

Few have done that bet­ter than he has. And Wash­ing­ton is all the more knot­ted be­cause of it.

-Shane Gold­mach­er

Who do you think broke Wash­ing­ton? Tell us here.

What We're Following See More »
TALKING CLIMATE CHANGE
Al Gore Meeting with Ivanka Trump
44 minutes ago
THE LATEST
PLENTIFUL OIL RESERVES
Trump Native American Council Recommends Privatizing Indian Land
50 minutes ago
THE LATEST

A group advising Donald Trump on Native American issues is encouraging him to privatize Indian reservations, taking the land out of the hands of the "suffocating federal bureaucracy." Currently, tribes have rights to the land but don't own it, meaning they can drill, but only under strenuous government restriction. Markwayne Mullin, a Republican congressman from Oklahoma and a member of the Cherokee tribe thinks the plan would be supported by Native American tribes nationally.

Source:
IT’S OFFICIAL
Trump to Nominate Carson to Lead HUD
4 hours ago
THE LATEST

As has been rumored for a week, Donald Trump will nominate Ben Carson, his former rival, to lead the Department of Housing and Urban Development. In a statement, Trump said, "We have talked at length about my urban renewal agenda and our message of economic revival, very much including our inner cities. Ben shares my optimism about the future of our country and is part of ensuring that this is a Presidency representing all Americans. He is a tough competitor and never gives up."

Source:
TOO COSTLY, SAYS GREEN PARTY
Stein Drops Pennsylvania Recount
4 hours ago
THE LATEST

"Supporters of Green Party presidential candidate Jill Stein on Saturday withdrew a last-ditch lawsuit in Pennsylvania state court aimed at forcing a statewide ballot recount, another major setback in the effort to verify the votes in three states that provided President-elect Donald Trump his margin of victory. Ms. Stein’s campaign announced in a statement Saturday that the Pennsylvania lawsuit had been dropped after the court demanded that a $1 million bond be posted by the 100 Pennsylvania residents who brought the suit."

Source:
ANOTHER MORNING TWEETSTORM
Trump Threatens 35% Tariff on Companies that Move Overseas
4 hours ago
THE LATEST

In a series of early-morning tweets on Sunday, Donald Trump threatened companies that attempt to relocate out of the country. "Any business that leaves our country for another country, fires its employees, builds a new factory or plant in the other country, and then thinks it will sell its product back into the U.S. without retribution or consequence, is WRONG!," he wrote. "There will be a tax on our soon to be strong border of 35% for these companies."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login