The Rules of the Game

Depending on when you picked up this book, you may well be reading it during the run-up to the 2020 presidential election—which means it is debate season. This tradition of top party candidates facing off is must-see television, at least for some. For the networks and other major players in the political-industrial complex, 2020 means big money. During the 2016 election cycle, presidential debate viewership rivaled the Super Bowl; many millions of advertising dollars flowed to the broadcasters. CBS charged advertisers up to a quarter-million dollars for a thirty-second political slot.

Why is business so good in politics? Why does it work so well for the industry itself but not for everyone else? Only by teasing apart the key rules and practices—the machinery of elections and legislating—that have been set and optimized by the duopoly over generations can we answer these questions and devise solutions to save our democracy. But first, what exactly do we mean by rules?

Let’s turn back to presidential debates. From 1976 until 1984, the debates were sponsored by the League of Women Voters. As a nonpartisan organization, the league occasionally ran into predictable conflicts with the duopoly. In 1980, for example, President Jimmy Carter boycotted the first presidential debate of that election when the league invited John Anderson, a freethinking congressman who broke with the Republican Party to run as an independent.1 Four years later, the league condemned the campaigns of Ronald Reagan and Walter Mondale for “totally abusing the process” by trying to control what questions could be asked. By the next presidential race in 1984, the Republican National Committee (RNC) and Democratic National Committee (DNC) had begun plotting how to take over the debates themselves. The RNC chair, Frank Fahrenkopf Jr., made the reason explicit: “The two major political parties should do everything in their power to strengthen their own position.”2

Months later, a report by the Georgetown University Center for Strategic and International Studies endorsed “turning over the sponsorship of the Presidential debates to the two major parties.”3 The report’s findings, and its timing, were no coincidence. It was written by a committee packed with the industry’s core constituents—politicians, political consultants, and news executives—and cochaired by a former Republican congressman and the former head of the DNC.4 The acting DNC and RNC chairs endorsed the report. Meanwhile, Dorothy S. Ridings, the president of the League of Women Voters, issued a warning: “If future presidential forums are sponsored only by the two major parties, it stretches the imagination to think that significant independent or third-party candidates would ever be included in such debates.”5 She proved prophetic.

In 1987, the duopoly was quite pleased to follow the report’s recommendation and form the Commission on Presidential Debates (CPD), initially cochaired by the heads of the DNC and RNC. At a joint news conference announcing the CPD, the new cochairs admitted that they were unlikely to allow third parties to participate in the debates.6

Ross Perot, a billionaire and political neophyte put this policy to the test in 1992, when he ran as the Reform Party candidate. The CPD initially planned to bar Perot from the debates. Eventually, however, he was allowed to participate after the campaigns of George H. W. Bush and Bill Clinton lobbied for his inclusion, each believing that Perot would draw more votes from the other side.7 Perot won almost 20 percent of the vote that November, clearly proving that he was worthy of his spot on the stage.

In 1996, however, the CPD refused Perot a spot.8 Unlike four years earlier, the two duopoly candidates now calculated that his inclusion was not in their interest. Clinton, the frontrunner, wished to make the debates nonevents, while opponent Bob Dole believed, though incorrectly, that Perot’s candidacy had spoiled the last election for the Republicans. The CPD was happy to oblige. In the words of Dole’s campaign chair, “the Commission does what you tell them to do.”9

The decision to exclude was not, however, what citizens wanted. Three-quarters of eligible voters supported Perot’s inclusion—and were denied the debate they wanted.10 A New York Times editorial headlined “Fixing the Presidential Debates” attacked the CPD’s decision, saying that “the Commission proved itself to be a tool of the two dominant parties rather than a guardian of the American interest.”11

The CPD has since window-dressed its rules—for instance, establishing the standard that a candidate must achieve at least 15 percent support in national polls to be invited.12 While this 15 percent rule might appear neutral, its effects are anything but. An outsider faces the nearly impossible task of reaching this threshold by the September deadline.13 New competitors are unlikely to achieve this level of voter support without the media attention that comes with a nationally televised debate—the very platform the 15 percent rule denies them.

The duopoly succeeded in capturing the debates, a critical channel, and also managed to fortify barriers to entry—all by redesigning their own self-preserving rules of the game.

When the Players Set the Rules

In many ways, the duopoly’s concerted efforts to optimize its success are no different than what we see in other industries. Players in any game hone their competitive strategies to increase profitability and adapt as the regulatory landscape shifts. Think about professional sports. When James Naismith invented basketball in 1891, every basket was worth two points, so teams prioritized high-percentage shots and sought players who could dominate near the hoop both offensively and defensively. In an effort to modernize the game and make it more exciting for fans, the National Basketball Association (NBA) adopted the three-point line in 1977. As a result, strategic priorities and team composition changed. Today’s game is fast-paced, with “position-less” three-point sharpshooters and floor-spreading defenders replacing the once-dominant power forwards and bruising centers. In basketball, as elsewhere, an independent authority changed the rules and consistently monitors, and regulates, the game.

What is particularly brazen about the politics industry is that, over time, the duopoly itself has optimized the rules of the game and in fundamental ways. Only by pinpointing the most important of these rules and practices, and conceiving of new ones, can we devise solutions to inject healthy competition in elections and legislating.

The Machinery of Politics

Any investigative journalists worth their salt know that getting an important story off the ground almost always starts with following the money. The same guiding principle applies to investigating how the rules of the politics industry have been written over time.

Follow the money: the core currencies of the politics industry are money and votes. Consequently, the rules that dictate how elections are won and how laws are written—the arenas in which money and votes are both earned and spent—have the most impact.

A vast, arcane, but duopoly-benefiting set of rules and practices determine the structure of our nation’s elections and our elected officials’ lawmaking. As explained earlier, we call these rules and practices the industry’s machinery. Think of this machinery as the political system’s software, quietly humming in the background, out of sight and often out of mind, but powerfully shaping how candidates and lawmakers compete.

We can divide this machinery into two parts. First, how do we decide who gets placed on a ballot? How do we decide who wins? The rules that govern these questions are the industry’s elections machinery. Second, once a candidate is sent to Washington as an elected official, how is the legislator permitted, or constrained, to draft legislation and turn bills into laws? What rules and practices determine how Congress works? These are the industry’s legislative machinery. Together, this machinery comprises the most important rules governing competition in the politics industry—and distorting healthy competition. Let’s take a look under the proverbial hood.

Elections Machinery

Today’s elections machinery ensures that moderates need not apply, that those who seek compromise are punished, and that independents and third parties are locked out. Two key features of today’s elections machinery are the most important in cementing unhealthy competition: party primaries and plurality voting. The duopoly did not originally create these features, but it has powerfully optimized around them.

Party Primaries

While most of us don’t participate in party primaries, we are typically aware of them. Party primaries mark an election’s official starting line. While all primaries narrow down the field of competition for the general election, the rules vary state by state. In states with closed primaries, only party-affiliated voters may participate in their party’s primary. Independents and third-party voters are completely locked out. In states with open primaries, any registered voter may participate, regardless of political affiliation.

Party primaries go back to an early-twentieth-century innovation that ended the selection of candidates by party bosses in party conventions, instead giving citizens the power to directly choose their parties’ nominees. This innovation was supposed to be a good-government reform, and it had some benefits. Today, however, party primaries have evolved to be an enemy of good government. The duopoly has learned to exploit party primaries to strengthen ideological purity and enforce party loyalty.

As discussed, in party primaries a small group of more-ideological voters (customers) become guardians at the gate. Gatekeeping authority makes this small band of partisans one of the most powerful customer segments in the politics industry. It’s no coincidence that the more ideologically extreme of a voter you are, the more likely you are to think that you’re able to influence government, according to recent research.14 Party primaries can have the effect of screening out problem-solving candidates, while rewarding more extreme candidates.

When Joe Biden became vice president in 2009, it was well understood that Republican congressman Mike Castle would take Biden’s seat as the next senator from Delaware.15 Castle was elected governor in 1984 and reelected in 1988 with over 70 percent of the vote. Term limits led to a transition to D.C., where he served as Delaware’s sole representative in the House for a state-record nine terms, with a reputation as a problem-solving moderate. Arriving in Congress amid Republican Speaker of the House Newt Gingrich’s politics of conflict, Castle led the Republican Mainstream Partnership, a group committed to passing pragmatic policies and working across the aisle. He was integral to George W. Bush’s No Child Left Behind education policy, but he broke with his party to vote in favor of the Wall Street bailout in the midst of the 2008 financial crisis.

Castle’s consensus-oriented approach to politics, the so-called Delaware way, made him enormously popular in his home state and the overwhelming favorite in the 2010 election. Yet not everyone was thrilled that Castle was, at times, out of step with Republican orthodoxy. To some on the right, Castle’s centrism represented a betrayal of the conservative agenda. His support for same-sex marriage, stem cell research, and gun control earned him the RINO (Republican in name only) label. In the Republican Senate primary that fall, partisan forces rallied behind Castle’s opponent, Christine O’Donnell, a Tea Party Republican candidate who had twice in the prior five years run for the Senate and lost. With endorsements from national Tea Party stars and financing from conservative advocacy groups, O’Donnell pulled off a dramatic upset, defeating Castle with just 30,561 votes versus Castle’s 27,021, in the low-turnout primary.16

It was a stunning setback, but still just the primary. If Castle were to run as an independent in the November general election, the path to victory appeared wide open. O’Donnell’s was a weak candidacy bogged down by controversies, such as the accusation by her former campaign manager that O’Donnell used donations to pay her rent.17 Castle also had the edge over the Democratic Senate nominee, Chris Coons. Even after his defeat in the primary, polls predicted that Castle would defeat Coons head-to-head by a twenty-one-point margin in the general election. In terms of American elections, that’s a landslide waiting to happen.18

But no one has ever heard of “Senator Mike Castle.” There was a problem. Delaware has what’s called a sore-loser law. This ludicrous law dictates that candidates who run and lose in their party’s primary are not allowed to appear on the general election ballot, even as an independent.19 Instead, the 2010 party primary—in which less than 6 percent of the population participated and which was decided by just three thousand votes in a state of nearly one million people—denied the general-election voters the opportunity to vote for the most popular politician in the state.20

Because of the sore-loser law, Castle couldn’t even get on the general election ballot. Coons cruised to victory over O’Donnell.

Sore-loser laws are an example of rules devised by the industry actors themselves. These rules were not invented by the Framers but gained a foothold thanks to private, gain-seeking political parties. The first sore-loser law was enacted by Mississippi in 1906. Over time, these laws gained in popularity, reaching twenty states by 1970. Another twenty-one states adopted sore-loser structures between 1976 and 1994.21 Today, forty-four states have these wacky rules that prevent candidates from running in the general election after losing in a party primary.22

In the handful of states without these truly undemocratic rules, election outcomes can be dramatically different. In 2006, for example, Connecticut senator Joe Lieberman was challenged in his Democratic party primary by Ned Lamont, who outflanked Lieberman to his left by criticizing Lieberman’s willingness to work with the Bush White House. With strong liberal backing, Lamont pulled off a stunning upset, defeating Lieberman by a mere ten thousand votes. If this were Delaware, it would have been the end of the road for Senator Lieberman. But because Connecticut was then one of only four states without a sore-loser law, Lieberman ran as an independent in the general election and won, proving he was the choice of the people.23

Sore-loser laws are just one egregious example of how democratic principles have been violated by rules designed by our parties to serve their own interests and restrict competition. Other examples abound.

For instance, biased ballot access rules in many states make it more difficult for independent and third-party candidates to get on the ballot. Candidates are required to collect a certain number of signatures, but gathering these names can be a Herculean effort, especially for new competitors who often lack the infrastructure and resources required. In Alabama, for instance, a candidate must gather signatures from at least 3 percent of voters in the last gubernatorial election. This requirement has been met just once since 1997, when the rule was created.24

Party primaries are the centerpiece of elections machinery. They ensure that the public interest and a person’s electability do not intersect. As outlined earlier in the book, when legislators are considering a big, potentially bipartisan legislative deal, the most important question they are forced to consider is “Can I make it back through my partisan primary if I vote for this?” Today, most of the time the answer is no.

Former House Majority Leader Eric Cantor learned this the hard way.25 He was successfully “primaried” in 2014 by a Tea Party Republican insurgent as punishment for his tentative outreach on immigration—a Republican version of the Dream Act. In this instance, even though the duopoly optimizes around and deploys these rules, it can also be victims of them—and at the highest levels, as was the case for Cantor. House Republicans have since moved even further to the right than any other time in recent history, despite little change in the ideological composition among Americans. Party primaries are a huge problem for the country, but not the only one. So, too, is a little-known system we use to tally the votes.

Plurality Voting

Many Americans are surprised to learn that our elections are not designed to ensure the election of the candidate with the broadest appeal to the most voters. In fact, politicians can easily win elections with more than two candidates without winning a majority of votes.

For example, in a three-way race, a candidate can win with as little as 34 percent of the vote—indicating that two-thirds of voters preferred someone else. This is precisely what happened in Maine in 2010, when Paul LePage, a Tea Party Republican candidate, won his gubernatorial primary with only 37.4 percent of the vote. He then won the governorship with only 37.6 percent. In other words, nearly two-thirds of voters—Democrats and Republicans—did not select the candidate who would now be their governor; those two-thirds preferred someone else. Despite being one of America’s most unpopular governors during his tenure, LePage won a second term in 2014, again without majority support.26 This system of voting incentivizes candidates not to speak to a broad cross-section of the electorate, but rather to target a just-big-enough base of partisans who can push them slightly ahead of their opponents.

But that’s just the smallest impact of the pernicious plurality voting system. Plurality voting also creates “the spoiler effect.” Returning to Maine, how exactly did LePage secure two terms as governor despite his unpopularity? Eliot Cutler, an independent in the race, had won more than 8 percent of the vote. Polls indicated that had Cutler not run, most of those votes would have gone to LePage’s Democratic rival. In other words, Cutler spoiled the election, throwing it to LePage by taking votes away from the Democratic candidate.

The spoiler effect pressures voters to not vote for the candidate they like the most out of fear that they will inadvertently contribute to the election of the candidate they like the least. For example, think back to the 2016 presidential race. You weren’t supposed to vote for Jill Stein, the Green party candidate, because that would take a vote away from Hillary and spoil the election for her. On the other side, you weren’t supposed to vote for Gary Johnson, the Libertarian candidate, because that would take a vote away from Trump.

Plurality voting has a bone-chilling effect on our democracy because it creates the single greatest barrier to entry for new competition in politics—the spoiler argument—which is wielded against all potential competition to the duopoly (you can’t run, you’ll just ruin it for [insert candidate’s name]). The truth is that Eliot Cutler, the Maine independent spoiler, was an anomaly. Most potential new competitors never make it to the starting line—they can’t compete when faced with the spoiler argument.

Imagine you want to run for Senate as an independent. Not only will you be heavily discouraged from running by whichever side of the duopoly views you as a threat, but the side of the industrial complex you are threatening will, without compunction, do whatever it takes to eliminate your candidacy. Think of Howard Schultz. In the spring of 2019, the former CEO of Starbucks considered an independent run for President. The outcry from Democrats was loud and often vicious because Democrats believed he would hand the 2020 election to Donald Trump. Republicans would do the same to anyone they thought would take votes from their candidate. And both sides justify their bullying, because, in our current system, the existential threat of losing to the other party is seen as great enough to excuse the bullying. That’s precisely the kind of problem plurality voting creates.

If you think about it, politics is the only industry where we are regularly told that less competition is better for the customer. Now it doesn’t matter if you think Howard Schultz would have made a great president or not—we can all still recognize that there’s something profoundly unhealthy about a political system in which having more talented, successful people competing is somehow bad.

And that’s not the only problem with plurality voting. Not only does it keep many potential candidates out of the race, it keeps others from success if they do get in because it creates the “wasted vote” argument. Whenever we want to vote for someone not considered to have a strong chance of winning, we are told that we’re wasting our vote. Because citizens want their votes to matter, Greg Orman describes plurality voting as creating a “gravitation pull” that prevents new challengers from becoming viable.27 How did we end up with such an unhelpful voting method? When the Constitution was written, the only electoral model in existence was the British plurality winner system. According to political scientist Lee Drutman, “None of the other more modern electoral systems had been invented yet, so none of the Framers gave congressional elections much thought.” They just copied the British.28

The Framers did many exceptional things—but plurality voting was a mistake. Fortunately, as we describe later, we can reengineer this elections machinery. Our approach also includes reengineering its partner in unhealthy competition, legislative machinery.

Legislative Machinery

Should a candidate make it through a party primary, win at least a plurality, and head to Washington, a partisan-captured legislative machinery awaits. Like elections machinery, it is a powerful set of rules ensuring that the interests of the political-industrial complex are prioritized. Let’s start with a story about budgets, brinkmanship, and a little-known rule that operates in the background of all legislation, with extraordinary ramifications.

Each year, Congress must set a budget for the federal government. If no agreement is reached before the new fiscal year begins, parts of the government are shut down. In 2013, both a divided government and increased polarization around health-care reform gripped Washington. While Democrats controlled the Senate and the White House, Republicans held the House of Representatives and were determined to repeal and replace the Affordable Care Act (ACA).29 No Republican could survive a primary without pledging to do absolutely everything in his or her power to undo the act.30

In late 2013, that promise came due. As the end of the fiscal year approached, Republican forces were mobilizing for the standoff. In August, eighty House members signed a letter urging Speaker of the House John Boehner to use the budget appropriations process to defund the ACA.31 A legion of industry interest groups fell into line. Heritage Action, the political arm of the conservative Heritage Foundation think tank, launched a multicity campaign to rally support. The political-industrial complex was activated, and forcefully.

With battle lines drawn and the deadline approaching, a back-and-forth ensued between the Republican-controlled House and the Democrat-controlled Senate—which refused to accept a budget that nullified the ACA—until the clock ran out.32 On October 1, the government shut down. In some ways, the shutdown was just the typical story of stalled negotiations between the House of Representatives, the Senate, and the White House. House Republicans were committed to following through on their campaign promise to defund the ACA. The Senate and White House were unwilling to cave. The two sides reached an impasse until the added pressure of the debt ceiling, and an impending default on October 16, broke the stalemate and forced the House to fold.33

But this summary overlooks the troubling part of the story. The shutdown didn’t need to last sixteen days. It didn’t need to happen at all. At any time, either before the shutdown or in the sixteen intervening days, a clean spending bill would almost certainly have passed in the House had a vote been held.34 Instead, the shutdown only ended when Speaker Boehner decided he would allow a bill—a bill that had already passed in the Senate and had majority support in the House—to come to the House floor for a vote. The country had been held hostage for sixteen days by using a little-known but incredibly powerful rule: the so-called Hastert Rule.

The Hastert Rule is a particularly egregious example of today’s partisan legislative machinery in action.35 Now standard practice—of Speakers of both parties—although in fact written down nowhere, the Hastert Rule dictates that the Speaker will not allow a floor vote on a bill unless a majority of the majority party—the Speaker’s party—supports the bill, even if a majority of the full House would vote to pass it.

Unless Speakers ignore this practice—a rare occurrence—bipartisan bills that appeal to the minority party (in this example, the Democrats) and some of the majority party (the Republicans) are killed by never being introduced. Legislation supported by a majority of Americans and by a majority of the House has no chance of passing—in fact, is not even allowed to be debated—because there will never be a vote. The bill won’t reach the floor. No deliberation, no amendments, no votes. No transparency. No accountability.

Effectively, this made-up rule, not found in the Constitution, not codified in law or even written in the House rules book, cements hyper-partisan control over the legislature. In the case of the 2013 shutdown, it cost the country $24 billion for a sixteen-day shutdown that 90 percent of Americans didn’t want from the start.36

It’s important to note how normal—how very “water to the fish”—this type of partisan machination has become to most of us, including journalists and editorial boards. Little was written at the time of the 2013 shutdown that illuminated the lunacy of a single person’s ability (a single person elected by a small number of one party’s primary voters in one district in one state) to stop a democratically elected legislature from solving a problem practically everyone in the country wanted solved. Not to mention the waste of $24 billion. This is not democracy. It is partisan oligarchy.

And it’s no way to run a country. We should be outraged. And then, we should fix it (more on that in chapter 5).

The Partisan Takeover of Congress

Just like the sore-loser law in our elections, the Hastert Rule in Congress is just one of many ways in which the invisible machinery shaping our legislative process has been appropriated and self-optimized by the duopoly. To understand just how complete the partisan takeover of our nation’s legislative machinery has been, let’s take a step back.37

From World War II until the early 1970s, the way the House and Senate worked is sometimes referred to by political scientists as the “textbook Congress.”38 For those of us who are not political scientists, we may know it better as the Schoolhouse Rock Congress—the one portrayed in the animated musical series. In the famous song “I’m Just a Bill,” the law-to-be sang about its hopes after being proposed by concerned citizens and drafted by their representative:

I’m just a bill. Yes I’m only a bill, and I got as far as Capitol Hill.

Well, now I’m stuck in committee, and I’ll sit here and wait …

As an animated story made for children, it’s a decent depiction of how Congress worked in the mid-twentieth century. As the song explains, the bill’s fate would be decided in committee. During this time, Congress was organized around a set of strong committees spanning a range of subjects such as agriculture and foreign affairs. Bills introduced in Congress were assigned to the relevant committee. Under the leadership of the committee chair, committee members from both parties debated, offered amendments, and decided whether the bill should be sent to the floor for a vote.

Remarkably, there was no mention of Democrats or Republicans in the song—just members of Congress in committee. This reflects a key difference between the Washington of the 1950s and 1960s and Washington today. Parties had not yet gained control of the legislative process; committees were in control. The committees were insulated from the parties by a set of norms, such as the seniority system, in which committee chairs were selected according to length of service, not selected with discretion by party leadership.39 Lacking control of personnel, party leaders had much less control over the governing process.40 Committees were intended to be where dialogue, deliberation, and negotiation took place and where members came together to identify problems and draft solutions.41

By the time “I’m Just a Bill” was first aired on TV in 1976, a partisan takeover was well underway in Washington. The takeover was first led by the Democrats, who had been a permanent majority in the House of Representatives for forty years starting in 1955. It was then cemented by Republicans when they finally took the reins in 1995—reshaping Congress and setting our political system on a course toward dysfunction and gridlock.

Ground zero for the partisan takeover was the House of Representatives during the 1970s, when a Democratic majority became fed up with conservatives using committees to hold up liberal bills.42 A liberal faction among Democrats in Congress known as the Democratic Study Group, established in 1959, had long worked to organize and strategize around liberal legislative priorities, creating “the necessary legislative machinery and internal party unity to guarantee action on the Democrat programs pledged in our platform.”43 The takeover started small, first by reviving the Democratic caucus. While most legislators previously had little contact with party leaders once in office, this changed in 1969, when all Democrats began holding monthly meetings in which they set agendas, devised legislative strategies, and coordinated so that all members spoke in one unified voice.44

The second front was an attack on committees. First, the Democrats mitigated the committee chairs’ power, limiting the leaders’ control over the committee agenda and transferring to party leadership the authority to appoint subcommittee heads. After the Democrats restricted what the chairs could do, the next step was to select who the chairs would be. In 1971, the Democrats announced that seniority would no longer be the only criterion used in selection.45 Just four years later, three sitting committee chairs were ousted. While only 1.1 percent of committee chairs were not based on seniority in the 1960s, that figure had jumped to more than 15 percent by the 1970s.46

The message was becoming clear: ideological purity and partisan fealty (often cloaked as merit-based selection) would now be dominant factors.47 To have a chance at securing a committee chair, members would need to demonstrate loyalty to the party leaders responsible for appointing them. Going forward, any chair who ignored party directives did so at his or her own risk.

After co-opting the committee chairs, the Democratic leadership then turned to its rank-and-file members. In 1975, the job of making committee assignments was transferred from the Ways and Means Committee to the newly formed Steering and Policy Committee, chaired by the Speaker and dominated by party leadership. Career trajectories for members now hinged on preserving good standing with party leaders.

Even with control over committee members, the Democrats were still unhappy that bipartisan committees could make key decisions. So, beginning in the 1970s, the Democrats started bypassing committees altogether, employing partisan task forces to manage policies of high importance. These task forces were staffed exclusively with Democrats selected by the Speaker to carry out the party’s agenda.

To complete the creation of a fully partisan legislative machinery, the Democrats zeroed-in on the House Rules Committee, which plays a critical role as the central gatekeeper for the House’s bills. After a bill leaves its committee or jurisdiction, it must go through the Rules Committee, where it’s either put on the calendar for debate and a vote—or not.

The Rules Committee had traditionally prided itself as a neutral referee, making impartial decisions on which bills would move to the floor, in what order, and under which rules of debate, depending on the large bodies of proposed legislation and varying degrees of national import. In 1975, however, the Democrats commandeered the committee, giving the Speaker the power to appoint the chair and the Democratic members. Now, nothing could come to the floor without the Speaker’s approval. When writing legislation, committees no longer had to think just about what the best policy would be or what would be favored by a majority in the House. Instead, a critical step was to put forward policies that could get by a cadre of partisans appointed by a party leader and in complete control of the congressional calendar.

Although the Democrats who had been in power spearheaded this first phase of turning Congress over to partisan interests, the second was carried on by the Republicans once they took control of the House in 1994 for the first time in a generation. Rather than deconstructing the partisan legislative machinery, Speaker Newt Gingrich extended it, building on the foundations established by the prior architects of partisanship. In appointing committee chairs, he bypassed senior Republicans in favor of devout loyalists.48 In a dramatic break from tradition, he put freshmen acolytes on the most prestigious committees. With loyalists in place, he could exert more control over the work of committees—for example, forcing members of the Appropriations Committee to sign a pledge that they would cut spending.49

Gingrich also worked to dismantle the nonpartisan structures that had long supported the day-to-day legislative work of Congress. He cut by a third Congress’s professional staff—the economists, lawyers, and investigators who work for committees, not for individual members. Meanwhile, with resources for committees dried up, resources for the Speaker’s office soared.50 Gingrich also cut by a third the staff available to the Government Accountability Office and the Congressional Research Service, two nonpartisan bodies exclusively dedicated to supporting Congress overall. And he shut down the Office of Technology Assessment, which had provided committees with nonpartisan analysis on complex science and technology issues.51 By gutting and shutting, Gingrich effectively neutralized whatever fell outside his control as the party leader.

In addition to centralizing power over how bills were drafted by weakening committees and eliminating nonpartisan support staff, Gingrich also exerted partisan control over whether bills moved to the House floor—and even whether they were open to debate. With the groundwork laid by Gingrich’s Democratic predecessors, the Rules Committee now under his thumb blocked any bills not tightly aligned with a partisan agenda by issuing an unprecedented number of “closed rules” that simply barred bills from deliberation altogether.52 By the end of Gingrich’s first year as Speaker, barely over half of the rules issued by the Rules Committee allowed for open debate.53

Given these steps, Gingrich is sometimes villainized as “the man who broke politics.”54 But this moniker gives Gingrich too much credit. The takeover of Congress and the creation of a partisan legislative machinery was an ongoing, multidecade project carried out by teams of partisans on both sides of the aisle.

Today, the system our legislators put in place does not promote pragmatic solutions or compromise. As was reported in late 2019, an elected official’s ability to raise money and distribute it to party colleagues is incredibly meaningful in accumulating power—hitting your fundraising targets often translates to better committee assignments.55 The system maximizes the value the parties can deliver to their core partisan and special interest customers while leaving average voters dissatisfied.

How a Bill Becomes Law Today

Congress has been carefully constructed to institutionalize partisanship and work against bipartisan solutions. To see how today’s partisan legislative machinery works in action, consider the path of a bill as it travels through the House of Representatives.

Captured Committees

Once a bill is proposed, it is typically assigned to the relevant committee. As we have seen, committees are now beholden to party leaders. These individuals are motivated to be loyal soldiers and are threatened with losing their positions or being denied promotions if they stray from ideological purity.56 Majority-party leaders have extra privileges, setting the size of committees, distributing seats and staff between the parties, and selecting the chair.57

The partisan chairs of congressional committees wield substantial control over big decisions, such as the committee’s schedule. In 2003, for example, the Republican-controlled House Ways and Means Committee tried to rush through pension reform before the Democratic members had a chance to read the bill. When the Democrats protested, committee chair Bill Thomas called the US Capitol Police to remove Democrats from the committee library.58

Partisans transformed committees from havens for negotiation and problem solving into battlegrounds. Committee hearings were once used to learn from stakeholders and experts as part of deliberations. Not today. The number of committee hearings dropped by half between 1994 and 2014. And the hearings that are held aren’t really about learning from the public. A 2016 study reviewing forty years of committee hearings found that they have been increasingly used to wage partisan warfare, not to discover sound policy solutions.59

If, by some fluke, this process fails to produce a satisfactory bill, party leadership reserves the right to rewrite bills after they have left committee.60 Increasingly, however, the majority party skips the charade of bipartisanship altogether, substituting the use of committees with partisan task forces, where party leaders have more influence.61 After retaking the House in 2006, for example, the Democrats pushed through an ambitious set of bills in their first hundred hours, with no committee involvement, no negotiations, and no compromise.62 The House Republicans were completely cut out of the business of lawmaking. In the 113th Congress, roughly 40 percent of substantive legislation simply bypassed committees altogether.63

A Party-Controlled House Floor

The vast majority of bills die in committee. A few partisan proposals, however, do make it out. The next step, though, is not the House floor. Instead, the bill must make it through a small cadre of majority-party partisans on the Rules Committee. This group, just like primary voters in elections, serves as guardians at the gate, deciding whether bills can go to a vote—and if so, whether they’ll be open for debate and amendments.64 No bill goes to the floor without Rules Committee approval.65 It’s here that the Speaker can wield the Hastert Rule. Frustrated with the decline in debate on the House floor while he was in the minority, Paul Ryan promised, on becoming Speaker in 2015, to allow a more open process. Yet the partisan machinery won out. Not once in 2017 did Ryan allow open debate when considering a bill.66 (As you can well imagine, the Senate has its own arcane approaches—worthy of at least another chapter—but the result is the same: party control.)

Partisan Conference Committees

If a bill makes it through the first two stages of the partisan legislative machinery in the House, and a similar bill overcomes the grips of Senate gridlock, then the final step is a conference committee.67 Traditionally, these committees brought together Republicans and Democrats from the House and Senate to reconcile differences in the bills passed by the respective chambers and sent a mutually agreed upon final version to the two chambers for an up-or-down vote.

Today, conference committees are nearly extinct. In the 114th Congress, there were just eight conference reports, down from sixty-seven in the 104th Congress a decade earlier.68 Now, when one party controls both chambers, majority leadership meets behind closed doors and then simply announces the outcome of its internal negotiation to the other side.

If a conference committee is actually held, it’s staffed with leadership-appointed members who manage negotiations and undercut bipartisan deals. Before the Republican Senate voted to go to conference on the Tax Cut and Jobs Act of 2017, Democratic Senator Ron Wyden described the process: “Today the Senate is going to debate whether to go to conference with the House to resolve the differences between the two tax plans Republicans have passed. But make no mistake—the Conference Committee that will meet in the days ahead is nothing more than theater. It won’t be a real effort to have an honest debate in the light of day.”69

.  .  .

Today, this well-oiled machinery is so reliable that new people or new policy won’t make a difference. America’s top priority must therefore be to reengineer the rules of the game in politics to create healthy competition on dimensions that serve the public interest. It’s both that simple and that hard. And time is short. The consequences of a political-industrial complex overrun by unhealthy competition are horrifying—and, even scarier, utterly normalized.

It is accepted as normal that only Republicans or Democrats can get on a presidential debate stage and make their case to the country.

It is accepted as normal when the Mitch McConnells and Nancy Pelosis of America—currently our most powerful members of Congress—announce publicly and proudly that their top priorities are either resisting the current president or electing more members of their own party.

It is normal that bipartisan bills are killed despite majority support.

It is normal that a “lobbying index” of companies that derive big earnings from lobbying outperforms the S&P 500 over the last decade.70

And it is normal that the richest country in the world—our country—has its credit downgraded as a result of partisan political gamesmanship. What could be more irresponsible?

Let’s be clear: America is in decline. And it doesn’t have to be.

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