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.
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.
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.
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.