Sen. Evan Bayh: 'We've got good people trapped in a dysfunctional system'
Earlier this year, Sen. Evan Bayh (D-Ind.) announced his retirement from the Senate. It was a bit of a shock: Bayh had been twice considered for vice president, was frequently mentioned as a presidential candidate and looked likely to win his reelection campaign. But within a couple of days, Bayh had articulated an uncommonly detailed critique of the modern Senate and its corrosive inertia. In an interview Thursday, he expanded on that argument. What follows is a lightly edited transcript of our conversation.
In your New York Times essay explaining the reasons behind your retirement, you said you felt able to make a bigger difference at an institution of higher learning, a business a nonprofit. I thought to myself, "My God, we've got members of the most powerful legislative body in the most powerful country in the world saying, 'We could be doing more at a university.' " That struck me as a sad comment.
Well, it was a difficult decision for me and there's always some melancholy attached to it. Perhaps my frame of reference is shaped by the fact that I became governor of our state when I was 30, and I served in an executive capacity. Every day, I was making decisions, I was putting things into effect, I was holding people accountable, I was being held accountable, and there was not a night when I didn't go home and put my head on the pillow and I couldn't look back and think about someone I'd helped, a difference I'd made, something I thought had improved the quality of life of the people of our state.
A legislative body is not quite that way, and the Senate in particular is not quite that way. Months can go by, and we're deliberating things, but we're not actually putting anything into effect, and for me, I just wanted a greater sense of satisfaction about making a difference every day. People come into public life for different reasons. None of us are ego-challenged, I think, or we probably wouldn't be doing what we're doing, so if anyone tells you that they don't like the sound of the applause and the ego gratification, I don't think they're being straight with you.
But at the end of the day, after a while, that's not what it's all about. If one of my boys was asking me if they should go into politics, I'd say there's only one reason to go into public life and that's to help people. I'm not a committee chairman, not likely to be for some time. On the Republican side they rotate every six years; on our side, they don't. I'm not likely to be in leadership. And I honestly felt as of this moment in time, given the way things are operating around here, maybe more in a micro way than a macro way, I could make a bigger difference in a different capacity. Between being governor and part of the Senate, one of the things I did was I held a chair at the business school at my alma mater, Indiana University. And I'd go to lecture the graduates, and I loved that, answering their questions. It was real, it was tangible, and it was making a difference every day.
A lot of politicians who decide to retire stop where you stopped on that first day and that first speech. They say that things have gotten very partisan and very polarized and very frustrating and it's not worth doing this anymore. But over the next couple of days, you took a couple steps further and you said they've gotten that way for structural reasons, that we've begun running this place in a way that doesn't allow decent people to act decently, or doesn't allow this institution to work in a functional sense. And I thought that was interesting, because we tend to just say, "You know what? These folks aren't doing well enough. We'll just replace them with new and better folks."
We've got good people trapped in a dysfunctional system. The vast majority of my colleagues are smart, hardworking and patriotic, but they're not able to translate those good intentions into action nearly often enough. We now live in an age where most of our challenges, or at least a lot of them, are external to our country, they're no longer internal.
We dither to our peril because other countries, they've got challenges, but they're moving forward. Some of our problems are just going to compound unaddressed, so our challenges will get worse while other nations are resolving theirs, and at least on a relative basis, we risk the future. So this paralysis, while never great, is particularly harmful today. I think checks and balances are important, but we need to reform the system to make action more possible than it currently is. It's a balance between not wanting government to overact, but paralysis is going to kill us if we keep on like this.
One of the difficulties in having this conversation is convincing people that this is different than it was 20 years ago, 40 years ago, 50 years ago. People have this sense from high school civics that we built the Senate to be slow, which is to some degree true, but not this true, and …
No one ever built the filibuster rule. It just kind of was created.
Was Aaron Burr responsible?
Aaron Burr said you guys should get rid of the motion on the proceeding question, just because it's redundant. They did that, and 30 years later someone recognized that they had just created the filibuster.
In his farewell speech after he shot Alexander Hamilton, he said, "You guys are a great body, but your rulebook is messy, you just got to clean it up, here are some suggestions." Next term they did exactly what he told them to do. Then a couple of decades later somebody said, "My God, wait, we can just stop them from moving from the previous question." And once you had that power, nobody could change it, because the minority never wanted to.
Well it's a more dynamic world today but our institutions have not become more dynamic. As a matter of fact some of the impediments to change are greater than ever before. We were looking the other day at, correct me if I'm wrong, guys, but I think through the decade of the '50s we averaged one filibuster per Congress. That's one for every two years! We had last year how many, 60? 69?
Sixty-seven, I think.
So the world is more dynamic, but the institutional impediments to change are greater, and therefore the risk to the future of the country is greater.
What's your explanation of why that has happened? As you say, the filibuster existed before, in many ways it was easier to sustain one before, in 1975 they changed it to 60 votes from 67. So what has happened, why are we here when previously we were there?
Well, there are a number of things. The filibuster's been around for a long time, and in some ways it was harder to overcome with the 67-vote threshold, but it wasn't used nearly as much. It was reserved for things of truly large import. Today, it's used to just stop the place from moving. It's not uncommon today to have things filibustered that, once they get past the filibuster, are passed unanimously. So it's clearly for the purpose of preventing action not because of any underlying, substantive disagreement. I read your piece on Senator [Harry] Reid. He mentioned spitball, but the four corners was actually better, because that was for the purpose of just running out the clock and preventing any scoring. That's not a bad analogy to the way the filibuster is being used.
Number two, and this is difficult to deal with in some ways because involves the Supreme Court's interpretation of the First Amendment, but fundraising. You now have six-year campaigns for the Senate -- you never stop running. It's not uncommon for a member of the Senate to have a fundraising breakfast, a fundraising lunch and a fundraising dinner, and then when the Senate breaks for the week to go home, more fundraisers. And that's driven by the cost of campaigning, which is driven by the cost of broadcast advertising and a variety of other things. So if you've got to raise 15 or 20 million dollars in $2,000 increments, it's unending. And if you're then perpetually in campaign mode, it makes it harder to put those sorts of considerations aside to look to forge some sort of principle or compromise.
So there's no doubt in my mind that the campaign finance situation has just made things a lot worse. And with the Citizens United decision, I think it's about to get even worse, it's going to play out in some ways I think both parties will live to regret, the good justices notwithstanding. Somebody once told me, I guess it was, someone was lamenting, whether you agreed with their jurisprudence, particularly in Gore v. Bush or not, Sandra Day O'Connor at least had run for office, and that was not a bad perspective, to have at least one justice sitting there, saying, "Now wait a minute …"
It used to be common to have politicians on the court.
Oh yeah, very common. To have at least somebody sitting there saying, "Now wait a minute, let me tell you how this is going to play out in the real world," but that doesn't seem to be on their minds so much these days.
Then, we've always had divisions in our society, no doubt about that. I think back to the day when I was a boy, my father's time, we had the Vietnam War, there were literally soldiers with guns on the top of government buildings during large demonstrations. We had assassinations. Thank God we don't see that going on. So the division does seem to have affected this body a little bit more. Some of that's fundraising again, but it does seem like the core elements of both parties take more of an all-or-nothing kind of approach. Whenever you have an all-or-nothing kind of approach, with the kind of rules we have around here, you run the risk of ending up with nothing.
So how do you find principled compromise without it looking like an act of cowardice or immorality? And the final thing I'd point out, and it sounded kind of, I don't know what the word would be, but you say, "The senators should get together and have lunch." Oh, well, c'mon that sounds silly! But we no longer have as much of the personal relationships that then enable you to work through partisan and ideological differences, there's just not as much of that anymore. And again, that doesn't sound quite as erudite as talking about institutional rules or constitutional jurisprudence, but on a human level, that's what makes the place work, and there's just not as much of that, because again, you've got to go home, raise money, people just don't spend that kind of time together.
Alongside those interpersonal relationships, what about …
Can I stop you for a second?
My father was on the Judiciary Committee all 18 years. He had a good personal relationship with Jim Eastland. They probably didn't agree on practically anything, or very little, from a public policy standpoint. But they were willing to work through that to see what they could get done just because they knew each other and liked each other. Eastland was a strident anti-Communist and would routinely denounce Castro on the floor of the Senate, and called my dad in one day, sat down, and he's got this humidor and says, "Birch, can I offer you one of these fine Havana cigars?" So there was an example of even Senator Eastland putting pragmatism ahead of ideology.
One of the other pieces I wonder about is the absence of congressional identity. A lot of folks think that the checks and balances were internal to Congress, that the check is the Senate having a filibuster to slow down the House. But the idea was that Congress would check the executive. But when Congress can't legislate effectively, more and more power accrues to the executive -- EPA will do carbon, Federal Reserve will do financial crisis, you'll have independent Medicare commissions and everything else. You'd think people in Congress would be upset about that. You'd think they'd want to come together and say, "We're going to be back in the majority some time. Can't we do something six years from now so we can make this place work again?"
It's a manifestation of short-term versus long-term considerations. People around here all too often only think about the next election rather than the long-term consequences of the tactics used to win the next election, which of course then are immediately employed upon them. So you end up in this endless cycle and it is deplorable, and you're right, from an institutional perspective it's self-defeating, and I can't begin to tell you how much this pervades everything around here.
My first meeting as a senator, my first day, they were already talking about the next election. Part of that's the permanent campaign, part of that's a word I've been using more frequently, "tribal." Our politics has become tribal: It's us versus them. Around here, the caucus system is all designed to forge party unity, and that's important, but there are few if any countervailing mechanisms to try to forge unity and find some common ground. To get to your question though, yeah, you're right, it's not in the interest of the institution, it's in the short-term interest of the party. Or, look, if you're on the outside and you want to be committee chairman, you got to get in, and you worry about governing after you get in. But you all too often found that you've rendered a lot less effective your ability to operate once you've got in.
So now that you've been vocal on these points, I'm curious what you've heard from others. There must be some underlying, gut-level recognition that something's gone wrong with the Senate.
I'm not going to mention names today. We just had our, we have the caucus lunch on Tuesday and the Democratic policy lunch on Thursday, so we had our policy lunch today. Two of my colleagues said to me today, "You know, if this place doesn't get any better, they shouldn't be surprised if I make the same decision you did."
What about your Republican colleagues? I'm not asking for names, but this doesn't seem to me like it should be partisan. Senator [Michael] Bennet, who of course you know, put it an interesting way to me, he said the hardest thing in corporate restructuring is all these debt holders are fighting over the last nickel, and you have to convince them that if they don't stop there will be no asset worth having anymore.
Our fiscal condition is a perfect example of this. At the end of the day, I'm still idealistic, but there's a lot to be cynical about around here, and one of the saddest chapters in cynicism was this whole effort to get the deficit and debt under control where you actually had seven members who voted against their own bill, otherwise it would have been enacted. Why did they do that?
They'd been convinced that it's not in their interest for the other political party, which happens to be mine, to appear to be fiscally responsible before the election. So the country goes deeper in debt, the debts are harder to solve, the debt of our children is greater, but it's all about this November. And they'll figure out what to do about the welfare of the country after they've got the votes. It's deeply irresponsible, and that's why, if I just look at this analytically, I think that it may take an exogenous event of some kind.
If you look back at our history, if the two parties aren't functioning too well, it has happened that a third-party movement will arise, have some reform ideas, one of the two existing parties will feel threatened and then absorb that reform agenda, and hopefully get it enacted. That could happen, I think it's less likely. What's more likely is some kind of outside economic event, because what we're doing here, Ezra, is we're on the path of political least resistance. Make no hard decisions until something outside the system forces you to, so you can then go to your people and say, "It's not me. It's the bond market. It's the currency traders. They're forcing us to do this. It wasn't our refusal to act all along that brought us to this point."
The path of least resistance is to just keep borrowing until the markets start reacting. And I'm afraid that that may be what happens. The problem then is that the debts are so big, the interest payments are so large, it starts cannibalizing everything else, and our children are the ones who end up paying for this. And I can't imagine too many things more irresponsible than burdening your children because we didn't have the backbone to make hard decisions.
So are your colleagues wrong in any of that? I mean, one thing that comes up again and again if you do this is that you guys really do get hammered when you get near anything that might, say, actually cut costs in the health-care system, or actually begin to rein in spending. And the Republicans and the Democrats at different times have both been right that you can retake Congress by making the other party into a failure. And my institution, by the way, is beyond complicit in elevating controversy over analysis.
That's your area of expertise, not mine, but it has occurred to me over the years that the economics of the media have not been helpful. And the reason for that is, how do you attract viewers? How do you attract readers? Controversy sells, right?
Companies that are publicly held have a fiduciary duty to their shareholders to try to maximize their profits within ethical reasons. So looking at that, you say, "Okay, how do we go about responsibly maximizing the profits of this enterprise? We've got to attract readers, we've got to attract viewers, what does that?" Well, controversy does that, and controversy tends to be over here on the two extremes, rather than trying to forge some synthesis. But that's just the forces of economics at work.
It's a competitive chain inward. It comes from the things furthest on the fringe and goes in and in and finally the newspapers – the Times, The Post – who deal with it in a more august and stentorian way, but they deal with it. We did write about death panels, not that we thought there were any death panels, but we had to write about it -- it was a controversy.
My take on that was, I'm reasonably confident that there are no death panels in this bill, but if there are, that's an appointment I want. That's power. Forget Finance. Forget Appropriations. I want the death panel.
But one thing about death panels that gets to a lot of this is that there's a real lack of trust. A lot of the things people are willing to believe about this health-care bill suggest people are willing to believe that the folks that their neighbors are electing are willing to do some pretty awful things to them. There's no sense that, "This is our government, that we elected, that's going to have to stand before us again. They wouldn't kill my grandfather!"
Yeah, I think one of the challenges that as progressives we have, and this is why I come back to the fiscal issue here at the end, but one of our great challenges is to rehabilitate the reputation of government of being effective at actually delivering the results that the people want. It's easy to say, "I don't want the government to do anything." That's the end of the argument. It's harder to say, "If you trust me with your money, I'm going to be a good steward of those resources, and here's what together we will accomplish that you could not accomplish on your own." That's a more complex presentation, and you have the responsibility for implementing it appropriately.
That's why I've always felt that progressives should be particularly offended when there's waste or inefficiency because it gets to the very heart of our own argument that in a large, complex world, for some things, we really are stronger and safer when we're in it together than when we're just trying to deal with all these issues on our own. So one of the things I was struck by was a poll asking out of every dollar in taxes you pay, how many cents do you believe are wasted? Some people said 100, some people said zero. The average was something like 44, 45 cents on the dollar.
That's not even possible! A lot of it is just transfer payments, the government doesn't hold onto it long enough to waste that amount. But if that's what people believe, that's the notion we've got to get to.
Because it always comes down to the argument of the right. If you felt you were giving money to a charity that was wasting 45 cents for every dollar you give, you probably wouldn't give to that charity any more. So the right's argument is, you can better use your money than the government can. That's a pretty compelling argument if people think the government is wasting 45 percent of revenues. So to deal with that, we have to be especially focused on outcomes, not just inputs, and results.
In any event, I don't know how we got into that, but I think you put your finger on a very good point, and that is we live in a time of skepticism about collective action to meet the challenges we face. That's an issue we have to address in order to enlist the support of the American people for what needs to be done to help our country and ultimately to help them.
And this seems like one of the harder questions.
It is. I'm always a deficit scold and one of the reasons for that is not only that I know it's unsustainable, but I think it goes to the heart of being a progressive,. You can't be progressive if you're for education and health care and the environment and you're on the road to fiscal ruin. Number one, economically it's not sustainable. Number two, you lose the support of the public. So I've always thought an emphasis on a growing economy and sound financial management were necessary prerequisites to actually having a more progressive, compassionate society. That's how I look at it.
Take this health-care bill. It would be a lot easier -- and we're going to ultimately get it passed -- but it would be a lot easier to pass it if the economy were growing and people were feeling better about their own economic circumstances. Of course, some of this is unavoidable, you've got to deal with the economic cycle as it is not as you wish it were -- you had to run deficits here at least temporarily, I voted for the stimulus bill and all that -- but once you're on a trajectory for self-sustaining recovery, then you've got to start putting into place some efforts to start getting the deficit under control.
Two or three days after you made your resignation speech, this critique of government emerged, in an incredibly fully formed fashion. It wasn't, "I've come to think the filibuster is a bit of a problem." It's a three-page New York Times piece running through the electoral incentives for polarization. Why not before? Why not when you were serving?
The Times piece came together in about a day, a day and a half, and one of the reasons for that, Ezra, was those were the things that had been gathering in my mind for some time. My decision was very difficult for me personally, it came after a very long period of deliberation. There was no epiphany, it was just kind of growing, and I was asking myself, "I love helping my country, I'm idealistic, I love public service, why am I not feeling as fulfilled as I would like in this place? What would it take to get more?" And I concluded from that, "Because we're not getting enough done." And then I began thinking, well why aren't we getting enough done?
And those were the thoughts that began gathering in my mind and ultimately resulted in my decision, but I wanted it to be more than, "I've reached this conclusion and now I'm retiring," I wanted it to be: "And here's what we can do to make the place a better, more functional place." There's also always this tension. You want to be a reformer, you want to do what's right, but if you want to get things done you also got to operate within the system. You can't just be an iconoclast tossing pebbles from the outside. So it's a question of striking that balance between speaking truth to people who need to hear it on the one hand, but calibrating it, or doing it in a way so they don't just say, "To hell with them," and you don't get anything done as a result.
Then you might ask, "That being the case, why don't you run again?" and I honestly concluded that the chances for implementing reforms in the near term were probably not as great as I would like. So juxtaposing making these suggestions and then probably not going anywhere for some time versus being in the classroom, leading a foundation, doing something where I could actually be, I'd love to come home some day and say, "Dear, do you know what we got done today? I've got this really bright kid in my class, and do you know what he asked me, and here's what I told him, and I think I saw a little epiphany moment go off in his mind." That'd make me feel pretty good. Doesn't happen too often here.
I saw that Harry [Reid] and Chuck [Schumer] are talking about reforming the filibuster, maybe using the constitutional approach at the start of the next session. That would be good. I hope we can respond to the Citizens United case. You can't overrule or overturn it, but there are things we could do that would make groups loath to go that route by raising their profile, making them appear in their own ads. We've got to deal with this problem of foreign corporations' possible influence on elections.
The Republicans changed and decided to rotate committee chairmanships after '94. I don't know why we did not do that, but you've got the seniority system which for some younger members coming up, that's a source of some frustration. They'd like to get their ideas in, people elect them to come to office to provide a breath of fresh air or change and all of a sudden they're relegated to the back benches and don't have a whole lot of say. And so that balance between experience, which is important, but innovation and reform, new people come in, is maybe something we ought to revisit.
But to get back to the concept of an exogenous event forcing these questions, I remember, it was right on the cusp of the financial crisis, and I'm on the Banking Committee, and there were probably 12 of us, and it was over at the Capitol, one of the conference rooms there, and it was like 9 o'clock, 10 o'clock at night and they called us all in, emergency meeting. The secretary of the Treasury's there and the chairman of the Federal Reserve.
This is back in Paulson or Geithner days?
This is [Henry] Paulson, right before the meltdown. So we all come in and Paulson says, "Chairman I think you need to tell the members what's going on." And [Ben] Bernanke, he's a professor, he's not given to hyperbole or overstatement, he says if nothing is done within 72 hours, we will have a complete meltdown of the global financial system, and it will be in all likelihood on the magnitude of the Great Depression. And half of us Democrats, half of us Republicans, listened to this and kind of looked at each other and said, "Look, we've got to act here. Otherwise the country's going to go down the toilet." And you know what? We acted.
But it took something of that magnitude to finally shake the place up. We can't afford to have this repeated over and over again because at some point we may not get the response right. So that's why we need institutional reform so we can have a better chance of implementing the changes that a dynamic world requires. Otherwise, you know, the Chinese, I didn't put this in any of my piece, but you talk to the Chinese, they think we're headed toward status as a second-class power. They think we'll have a strong military, but that economically and financially we'll be not very significant. If we don't get our act together they may be right.
So it shouldn't take a repetition of these kind of calamities, but if we don't reform the institution, it probably will. One final thing I'd say, and this is in fairness to my colleagues, it's hard, in some ways you're asking individual members to relinquish some of their own personal power and prerogatives for the sake of the whole. That's what you call statesmanship, right? You say, "You know what? I might be a little less important, but if that's what it takes for this body to function better or for Congress to function better, then that's what we ought to do." That's always a hard sell. It'd be a hard sell for me too. Maybe it's easier for me to say that because I'm not in a position to head a committee or leadership, but that's part of it.
The filibuster, the hold that gives each senator the power to obstruct rather than the power to create, and so you're asking each one when you reform the filibuster or you limit the hold, to give up some of that ability to obstruct and be a little less relevant from time to time. When every senator has the ability to stand up and say, "I'm putting a hold on every executive brand appointment," he's going to get some attention. And there's probably one or two things that he'd probably like to accomplish because of that. We won't be able to do quite so much of that, but the place will function a little bit more.
Photo credit: Kevin Lamarque/Reuters
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