How Harry Reid and Grover Norquist Paralyzed Congress

National Journal
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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.

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) 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

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) 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

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