Americans worried about a third government shutdown precipitated by Donald Trump’s demand for a wall on the southern border breathed a little easier Monday night. Congressional negotiators announced they had reached a tentative compromise seemingly acceptable to Republicans and Democrats at a time of almost unprecedented gridlock. The “agreement in principle” includes $1.375 billion to fund 55 miles of border fencing and a requirement that ICE reduce the number of immigrants in detention from the current level of 49,000 (a record high) to around 40,000 by September.
Anti-immigration conservatives have already denounced even this limited deal, creating the possibility that Trump will do what he did in December and refuse to agree to a plan hammered out by both parties in Congress, precipitating another pointless, costly shutdown. But even if he signs off on it, Congress doesn’t deserve a whole lot of credit for keeping the government open, which is surely the lowest possible bar for the country’s leaders to clear, other than maybe “don’t let DC get burned by foreign troops again.” Instead, the cramped confines of the deal should serve as a trademark of a Congress with a stunted imagination and a extremely limited reach.
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After the last, painful shutdown, there was some noise that Congress, with the help of, uh, Jared Kushner, might figure out a “grand bargain” on immigration. This deal, as imagined in opinion columns, would include a wall, up to $25 billion in border security funding, the requirement that employers use E-Verify to make sure they don’t hire undocumented workers, and other tweaks to the immigration system desired by the right. In exchange, conservatives might accept letting the millions of undocumented people living in the country acquire legal status and, eventually, citizenship. It’s the sort of deal that relatively moderate Republicans were talking about before the shutdown—and the sort of deal that has been repeatedly scuttled over the years mostly thanks to an reactionary right-wing fringe that refuses to support “amnesty” for undocumented people.
What’s maddening is that there’s evidence such deals have broad support in Congress. For instance, a year ago, multiple compromise bills offering citizenship to “Dreamers” who came to the US illegally as children were voted for by a majority of senators, though not the 60-vote supermajority that all legislation now requires. Such a bill could surely also pass in a Democratic House. But the US legislative system now has a bewildering array of choke points where bills can be killed, all of which were on display during the shutdown, and none of which are going anywhere any time soon.
First, leaders of either chamber can simply refuse to bring legislation up for a vote, even in the case of bills passed by the other chamber—we saw that in early January, when Senate Majority Leader Mitch McConnell wouldn’t hold a vote on a House-backed bill to open the government. Second, thanks to filibuster rules dating to at least the early 20th century, legislation requires a supermajority in the Senate to become law—so even when McConnell did bring up the government-reopening legislation and 52 senators voted for it, it failed. The president’s veto power means that for most policies to become law, the party that supports them must control the House and the White House and have more than 60 votes in the Senate. Oh, and the courts can also invalidate laws passed by Congress and signed by the president, which is why McConnell is focused on confirming as many conservatives judges as he can before Democrats retake the presidency and the Senate.
The two parties could compromise, of course, but these choke points make that more difficult, especially because right-wing politicians have become experts in their use. Going back to immigration, in 2013, a bipartisan reform proposal known as the Gang of Eight bill easily passed the Senate, but later died because some conservatives in the House hated it, and Republican Speaker John Boehner refused to bring it up for a vote—even though it might very well have had majority support.
Legislating has become so difficult that progress seems impossible despite the best efforts of politicians who genuinely want to make the country better. This is the case even on issues where bipartisanship should be possible. Trump’s much-hyped infrastructure plan never even resulted in a bill. Paid family leave for workers, a popular proposal Trump said he supported in his State of the Union speech, has been blocked for years by Republicans and it’s unclear if they’ll ever back it—a proposal last year from Senator Marco Rubio to allow workers to go on paid leave by dipping into their future Social Security benefits went nowhere after attracting little support. Congress hasn’t even been able to get itself together enough to vote on whether it approves of the wars the US is currently waging. Bipartisan legislation still gets passed occasionally when no one is paying attention, like the just-passed Senate land conservation bill or a 2017 elder abuse law signed by Trump, but these are rare, rare occurrences.
This has created a dynamic where the public may not expect Congress to really do anything, either. The action is now elsewhere. The Supreme Court has been responsible for major societal changes, like the nationwide legalization of abortion and same sex marriage; the president can now seemingly send troops wherever he likes without oversight. Most of the political upheavals of the Trump era have occurred because he signed executive orders that were subsequently challenged in court, with Congress entirely sidelined.
No wonder everyone is fixated on the 2020 elections and arguing over bills intended as messaging exercises, like the Green New Deal—unless it’s under unified control by one party, Congress is essentially a debating society for millionaires who sometimes fuck up so badly that federal workers end up having to go without pay. (During the shutdown, some Republican senators re-introduced an old bill that would prevent future government shutdowns. It has so far failed to gather any momentum.)
Fixing Congress requires removing these choke points and making it easier for bills to be passed. That means radical change: At the far end of the spectrum you have ideas like recently deceased Congressman John Dingell’s proposal to abolish the Senate entirely in order to take back the disproportionate power granted to small states by the Constitution. At a minimum, the Senate’s absurd and arbitrary 60-vote threshold should be dropped for good. Republicans passed a far-reaching tax cut package with a mere majority thanks to a mechanism known as “reconciliation.” Obscure parliamentary procedure aside, what’s the real-world, practical rationale for Democrats to allow a minority to block their agenda if they take back power in 2020?
Most of all, the public’s attitude toward Congress needs to change. The legislative branch is among the most unpopular institutions in the country, but people shouldn’t just hate it, they should be demanding that it change on a fundamental level. America faces challenges ranging from monopolies to inequality to climate change to robots taking jobs to failing infrastructure to an outdated immigration system. On a lot of these issues, there’s opportunity for compromise—Trump’s election proves that many Republicans are at least open to economically populist arguments. But even popular ideas can be choked out by a legislative system that has become overgrown and ungovernable. It shouldn’t be enough for politicians to merely tell Americans what they want to do. They should be able to explain how they will get those things done, and exactly how they will overcome institutional hurdles that tend to benefit the status quo.
Until Congress is fixed, America will remain broken.
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