Column: The fallout of dysfunction
WASHINGTON — In any complex system, from the human body to the automobile, one malfunctioning part can strain the entire mechanism. The same is true of our out-of-alignment government.
A dysfunctional Congress corrodes the rest of the constitutional architecture. It imposes a burden on other branches to pick up the policymaking slack, and threatens to shift excessive authority outside the legislature.
Similarly, it throws off kilter the balance between the federal government and the states, leaving those laboratories of democracy without adequate tools and leeway to conduct their experiments.
That Congress is broken may be the ultimate dog-bites-man column, although former Defense Secretary Robert Gates’ acidic assessment is as undeniable as it is quotable: “uncivil, incompetent in fulfilling basic constitutional responsibilities, micro-managerial, parochial, hypocritical, egotistical, thin-skinned, often putting self (and re-election) before country.”
Even so, the congressional failure isn’t total. Case in point: the Senate intelligence committee’s just-released report on the “preventable” tragedy in Benghazi. When legislators choose careful oversight over political grandstanding, the results not only provide crucial evidence for the historical record — they can help prevent the recurrence of such debacles.
But these positive congressional moments have become more exception than rule. My point concerns the spillover effects of this dysfunction, as illustrated by a trio of unrelated events: the federal appeals court ruling on Internet neutrality; the president’s announcement on reforming government surveillance; and the chair of the National Governors Association unloading the state executives’ bipartisan frustration with Congress.
The net neutrality case involves whether Internet service providers must treat all web traffic equally, or whether, by contrast, providers can charge Netflix, for example, (or Netflix users for that matter) higher prices for faster service. The issue has pingponged for years now between the Federal Communications Commission and the D.C. Circuit Court, which has twice slapped down the agency’s efforts to require neutrality. (Disclosure: My brother worked on the case before leaving the FCC.)
Advocates of net neutrality contend that failing to ensure a level technological playing field will harm consumers by raising prices and stifling innovation. Opponents of net neutrality argue ... pretty much the same.
In short, this is precisely the sort of contested policy issue that ought to be decided by Congress, not intuited by a regulatory agency that then attempts to shoehorn its efforts into a statutory structure that did not contemplate the question. The last time Congress rewrote the telecommunications law, in 1996, it included a mere 11 references to the Internet and only one mention of broadband. No one imagined streaming cellphone videos of cute cats.
But as painful as it was for Congress to bring forth a rewrite of telecommunications law 18 years ago, it seems almost unimaginable today, given the polarized state of congressional relations and the big money interests arrayed on both sides of the net neutrality debate.
The same questions about how to operate in an age of legislative gridlock arise in the context of surveillance. The Washington Post reported that Robert Litt, the intelligence community’s top lawyer, told lawmakers about the National Security Agency’s massive sweep of telephone records, “Well you’re the ones who passed it” — the law the administration argues authorizes such collection. “And if you don’t like it, you can always repeal it.”
Well, technically. It may be that Congress rouses itself to rewrite, or at least reconsider, surveillance rules. President Obama was right, in addressing the issue in Friday’s speech, to call for congressional involvement in setting the legal parameters for acceptable surveillance. But again, it is difficult to see Congress successfully navigating this policy minefield. This leaves sensitive policy choices by default to the executive branch, overseen by the courts.
Then there is the matter of states hobbled by Washington dysfunction, with outdated laws caught in congressional limbo, federal spending bills delayed in ways that impede state-level planning, and states suffering the fallout from the mindless shutdown and equally mindless sequester cuts.
“We do not have the luxury of inaction,” NGA Chair Mary Fallin, the Republican governor of Oklahoma, noted of her fellow state executives. Yet Congress has dithered on pretty much every item on the gubernatorial to-do list.
To take one example Fallin cited in her State of the States message: 41 states are now operating under waivers from the No Child Left Behind law, which has been awaiting reauthorization since 2007. “That is no way to run a program,” Fallin said.
It’s hard to argue with her assessment. And it’s hard not to worry about the fallout of dysfunction, and not just on Congress alone.
Ruth Marcus’ email address is email@example.com.