There are known knowns; there are things we know that we know.
There are known unknowns; that is to say, there are things that we now know we don’t know.
But there are also unknown unknowns – there are things we do not know we don’t know.
–Donald Rumsfeld, former Secretary of Defense and Member of Congress
Although Secretary Rumsfeld’s “known knowns” earned him the 2003 Foot in Mouth Award, his comment was actually a memorable elaboration on a bit of common sense: We know we don’t know everything, nor can we predict everything. He spoke it in reference to the Iraq War, but as a former Member of Congress he could just as easily have referred to the legislative process. In war and in politics, minimizing the unknown unknowns and squarely dealing with what is actually known are essential to success.
When it comes to the government shutdown, Members of Congress and the Administration seem to have forgotten Rumsfeld’s lesson. Washington, unfortunately, is not acting rationally. It’s like the old joke. Two friends are in line to see a movie, when one says, “John Wayne is the greatest cowboy ever.” His friend says, “No, he’s not, and I’ll bet you ten dollars he falls of his horse during the movie.” His friend gladly accepts the bet. Sure enough, halfway through the movie, John Wayne is knocked off his horse by a tree branch. After the movie, the crestfallen fan hands over the ten dollars. But his friend says, “I can’t accept your money, because I saw the movie yesterday and I knew he was going to fall off.” To which the fan replies, “No, keep the money. I saw the movie yesterday too, but I didn’t think he would fall off two times in a row.” Like the John Wayne fan, Washington should know better. Rather than showing well-considered leadership, elected officials seem like they are gambling on risky propositions.
A government shutdown represents the utter and complete failure of the budget process, as formalized by the Congressional Budget Act of 1974. This act established a series of steps for the Congress and President to follow in drafting the dozen appropriations bills to fund the government. These procedures and others (the standing rules for both Chambers, special rules in the House, unanimous consents agreements in the Senate, precedents, traditions, and so on) establish order for the legislative process, helping ensure a clean, predictable result. Failure to follow these norms can backfire on the parties, leaving them with a situation that they can no longer handle.
The current shutdown and much of what preceded it shows how haywire legislating can become when proper procedures are not followed. The first danger is the unpredictability of what comes out of politicians’ mouths. It just takes one misspoken word to change the headlines. One Republican made a comment about needing to “get something” out of the shutdown, but not knowing what, and the President seized on the remark when going on the offensive. On the other side of the aisle, when a reporter asked Senate Majority Leader Harry Reid why the Senate would not take up bills providing funds for cancer treatments, he provided a response worthy of a soundbite: “Why would we want to do that? I have 1,100 people at Nellis Air Force base that are sitting home.” In both cases, both lawmakers had to spend precious time and energy tamping down accusations of heartlessness. Not a great way to win the war for public opinion.
If stupid statements are bad enough, ill-conceived actions are a second, maybe greater, danger. The Administration suffered terrible press on Tuesday and Wednesday of last week when it attempted to block an Honor Flight of WWII veterans from visiting their open-air memorial near the Washington monument. Four apparently essential Park Service employees were caught on camera trying to erect blockades to make it impossible for the 90 year-olds to proceed to the memorial. These men stormed Normandy and Iwo Jima in the face of enemy fire—the thought of them being held back by flimsy barriers erected by their own government was laughable.
In another case, an Air Force chaplain was reportedly threatened with disciplinary actions, including potential firing, if he ministered during a shutdown. Another priest was forbidden from celebrating a wedding—although, inexplicably, the wedding itself could be on base. The general counsel for the Archdiocese of Military Services, which ministers to the nation’s Catholic servicemen, warned that priests acting as military chaplains could be arrested if they performed their duties during the shutdown. It would be a brave bureaucrat that would tell a Jesuit he could not pray with a soldier.
During crisis legislating, the surprise actions of the opposition can be even more damaging than self-inflicted wounds like shutting down the monuments or taking petty actions, in the words of one Park Service ranger, “to make life as difficult for people as we can”. In the week leading up to the shutdown, Republicans were sniping at each other left and right…or right and farther right, as the case may be. It might have been a good bet to say they would cave to the Democrats since they were so disunited. However, for the most part, Republicans have remained remarkably cohesive in the face of the President’s red line against Obamacare negotiations (sorry, couldn’t resist). It is kind of like a bar room brawl where the sober friend warned his, let’s say, more enthusiastic friend, who had been imbibing some defund brew, not to provoke a fight. But once the fight begins, the sober friend isn’t going to abandon his buddy to getting his teeth kicked in. We’ll see how long this unity lasts – but for now it is actually rather remarkable given the vitriol Republicans were reserving for each other last week. This leaves the Democrats still hoping that they’ll fold, but there’s no way to tell whether that will happen anytime soon.
No, the current shutdown should be enough to persuade any lawmaker that crisis legislating is not worth the effort. The best alternative is to observe regular order, the open process. There are numerous benefits to legislating this way. It allows ideas to be thoroughly considered: There is more debate and more alternatives are presented. Theoretically, a high-quality bill should naturally attract more and more supporters, and since it is a comparatively long process, there is more time to persuade holdouts to assent to it. Once sponsors and co-sponsors build a large consensus, they will have greater control over the debate in the public square. Fewer opponents within Congress and outside of it can effectively snipe at the bill. A less adversarial atmosphere means Members need to worry less about comments about withholding funds from cancer patients or getting something out of a crisis.
So where do we go from here? Obviously, it’s too late to observe regular order, but perhaps we can do something almost like it—not with the funding bills, but with Obamacare. The date for people to start signing up for the healthcare exchanges coincided with the government shutdown, bringing further attention to the political controversy surrounding the new healthcare law. There has been a potentially useful discussion on the merits of Obamacare. There have been numerous signs that the legislation will have negative consequences, and after all, even the backbone of the Democratic coalition – blue collar labor unions – have recently voiced serious reservations with the Obamacare. The computer snafus during the first week were an embarrassing, if not completely unexpected, black eye to the Administration’s roll out of online registration. When the law really gets into full swing, more issues might surface. For America, Obamacare is a land of unknown unknowns.
A shrewd move by the President to resolve the shutdown would be to accept the amendment to delay the individual mandate for one year, in exchange for Congress agreeing to stop trying to repeal the law and working to negotiate a bill to fix the legislation’s numerous flaws. It would be a magnanimous gesture on the part of the President, and it would give him and the Congress the time to come up with serious reforms, which could be implemented in a methodical way, with bipartisan support and marketed to the public with convincing messages. It’s a win-win for the Democrats, because if that strategy is successful, the law they have is better than the one they started with, which was not drafted with anything approaching a good process. If nothing comes of the attempt to fix the law, it still puts Republicans on the spot. Some would probably welcome the chance to fix the bill, but the more hardcore would likely balk at anything less than the unattainable goal of repeal. The President postpones implementation beyond the 2014 election and probably gets the Republicans to start fighting among themselves again. For the Democrats, this strategy would be a masterwork of legislative and political planning.
Although that solution would probably be the best compromise available, the current players in American politics could still not demand an addendum to Profiles in Courage. The real answer is for Congress to get back to doing its job according to the Congressional Budget Act. Both Chambers should pass a budget and agree to a blueprint for Federal revenue and spending. Then they should pass the appropriation bills necessary to implement that blueprint, hold conference committees if necessary, and send the bills to the President for his signature. Finally, they should reconcile any differences with the original budget and complete the process by October 1 of the new fiscal year. That’s the law. That is how it is supposed to be done with 535 legislators and the President working together and negotiating over the big and small things that make up our government.
People working in Congress today will look at that paragraph as incredulous – as if they cannot imagine that ever happening again. Indeed, the last time Congress completed the process under regular order was 1997, when the budget was balanced. But we’re not aware of anyone who thinks that what we have now is any better than what we had then. Instead of 536 people participating we have three participants – President Obama, Speaker Boehner and Majority Leader Reid – and 533 observers who get to vote on whatever those three agreed on. That’s not the way it is supposed to work, and the sooner we get back to regular order, the better it will be for these United States.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.