With the re-election of the second-most-conservative Republican president of the past 75 years, the retention of a solid Republican majority in the House, and 55 Republican senators including a raft of new Republicans elected in 2002 and 2004, it was understandable that conservative hopes for the 109th Congress would be sky high. To hear some people talk, we were supposed to have the Big Rock Candy Mountain of Conservatism, where conservative judges hang from the trees, you can pick constitutional amendments on social issues right off the vine and bathe in pools of entitlement reform, where it rains tax cuts in the morning and spending cuts in the afternoon, and you can go to sleep on a bed of tort reform to the gentle hum of tough border enforcement off in the distance.
Congress, of course, doesn’t work that way, never has. If you don’t believe me, look at all the years over the past four decades when the Democrats held both Houses of Congress and the White House was in the hands of a Democrat or a politically weak and beleaguered Republican, and they still couldn’t even get legislation on national health insurance to a floor vote.
That’s not to say that conservatives lack for reasons to be disappointed in the fruits of the majority. But as disgruntled conservatives consider whether to come home and vote Republican again on November 7, they also have to remember that there have been reasons to be happy with the accomplishments of the 109th Congress (even aside from the mischief that the very fact of a Republican majority prevents a Democratic majority from doing). I present a short but significant list of areas in which the 109th Congress has gotten results for us. A number of these came with some or even significant bipartisan support, but in nearly all cases the results would have been very different under Speaker Pelosi, her team of arch-liberal committee chairs, and a Senate run by Harry Reid and Dick Durbin with key committees chaired by Patrick Leahy, Ted Kennedy and Carl Levin.
This list focuses only on accomplishments that actually got passed into law, although some good bills passed the House but not the Senate. And the GOP caucus also in one case (federal funding for embryonic stem cell research) provided the votes to sustain a presidential veto. Also, for those who are focused on the charge of a “do nothing” Congress (an oldie from the 40s! old slogans never die!), I haven’t mentioned here other legislation whose merits for conservatives are more debatable, like the Bankruptcy Abuse Prevention and Consumer Protection Act, the SAFE Port Act, and the Pension Protection Act.
1. The Courts.
In two short years we have seen the Senate confirm John Roberts and Samuel Alito to the Supreme Court. Roberts’ ascension to Chief Justice solidified the legacy of William Rehnquist, while Justice Alito should be a more reliable judicial conservative than Sandra Day O’Connor. Plus, the existence of a solid GOP majority was undoubtedly a factor in convincing President Bush to drop Harriet Miers (Reid’s preferred candidate) in favor of then-Judge Alito.
Despite Democratic obstruction and delay, we have also seen the confirmation of 15 Circuit judges: Bill Pryor, Janice Rogers Brown, Brett Kavanagh, Priscilla Owen, Kimberly Ann Moore, Jerome Holmes, Neil Gorsuch, Bobby Shepherd, Michael Chagares, Thomas Griffith, David McKeague, Richard Griffin, Sandra Segal Ikuta, Milan Smith, and Susan Bieke Nielson (Judge Nielson has since died). Many, though not all, of these are well-known judicial conservatives. The Senate has also confirmed 35 federal District Court judges. You may not think that’s enough, but it’s more than would get through a Democratic Senate; of that we can be sure.
2. National Security
The President has particular authority and responsibility for military and foreign policy matters. But Congress has a role to play too. Some of that comes in the form of appropriations to continue the war effort, appropriations that could be held up by Democratic committee chairmen in the next Congress. But it is also reflected in legislation. This Congress passed two significant pieces of legislation. In March 2006, Congress renewed the Patriot Act, which was due to expire and which provides essential tools to fight the War on Terror. Just the past month, Congress – in a deal brokered among two factions, both led by Republicans – passed the Military Commissions Act, resolving by statute a difficult and knotty set of questions about the handling of detainees, questions that will be with us for the duration of the war.
No, Congress has not passed comprehensive immigration reform – but then, there are legitimate reasons why not, given deep divisions in the public and even among members of the Republican coalition on this issue. But as neoliberal commentator Mickey Kaus spent months arguing, there is a strong consensus on building a fence along the border with Mexico as at least a first step towards reducing the torrent of illegal immigrants crossing that border. Sometimes, starting with the easy questions makes sense, and so at the end of its term in October the 109th Congress passed the Secure Fence Act, which provides for 700 miles of fencing in the areas of the border that the Border Patrol has the most difficulty policing. Some may argue that the Republican leadership only got this done because the voters they depend on at election time were demanding that something be done about immigration. To which I respond: precisely. Because Nancy Pelosi’s caucus would not see the same necessity.
Given the major cuts in the income, capital gains, dividend and estate taxes in 2001, 2003, and 2004, it is not surprising that new and additional tax cuts have not been a major priority for this latest Congress. And for now, the Bush tax cuts are not quite in danger of expiring in the immediate future. But at least one significant tax bill passed in this Congress, with the passage in May 2006 of the Tax Increase Prevention and Reconciliation Act, which extended the capital gains and dividend tax cuts out from 2008 to 2010, created relief for 2006 from the Alternative Minimum Tax, and offered tax breaks on the conversion of traditional IRAs to Roth IRAs.
The battle over making the remainder of the tax cuts “permanent” (i.e., so that Congress can’t raise taxes merely by letting them expire) will go on – if there is a Republican majority to carry it on.
The federal budget is a massive and ever-expanding thing, and to be frank, the fight against overspending has been suppressed by dynamics at both ends of Pennsylvania Avenue: Congress is institutionally set up to demand federal spending in every state and district, and President Bush simply hasn’t led any battles for major reductions in spending.
For all of that, though, this Congress did manage to pass into law or rule three steps towards restraining the runaway spending train. In February 2006, the Deficit Reduction Act was signed into law, bringing with it a projected savings of $40 billion (more here from the CBO and here from the Heritage Foundation on the House version of the bill). Even granting the congenital unreliability of government budgetary forecasts and even though about a quarter of the savings come from projected revenues from an analog spectrum auction by the FCC (which doesn’t count as a spending cut in my book), the Deficit Reduction Act did at least trim tens of billions of dollars from entitlement programs, which is the biggest part of the budget and the hardest one to cut.
Two other spending reforms were passed in September of this year. The first was a new rule of procedure in the House of Representatives, H. Res. 1000, which requires a list of earmarks and the Representatives requesting them, even (or perhaps especially) earmarks dropped into bills at the conference stage (i.e., when the House- and Senate-passed bills are being reconciled). Per the “Boehner protocol,” at least as long as the current Majority Leader is in place, H. Res. 1000 will be applied broadly and without loopholes to all new bills containing earmarks, regardless of form.
The other was a bill, passed and signed as the culmination of a campaign begun in the blogosphere, entitled the Federal Funding Accountability and Transparency Act, a/k/a the Coburn-Obama bill, which provides for a public database of federal grants and contracts.
H. Res. 1000 and the Coburn-Obama bills don’t cut a dime by themselves, but anybody who knows Washington can tell you that changing the procedures is half the battle; by providing increased public and media oversight over earmarks and pork-barrel spending – as well as simply a better mechanism for Members to see what they are voting on and at whose behest – the rule and the bill together provide a first step towards getting the pork problem under at least the beginnings of control.
6. Free Trade
This Congress passed two significant free trade acts, the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (CAFTA), signed in August 2005, which opens markets in Latin America, and the United States-Oman Free Trade Agreement Implementation Act in September 2006, which eliminated trade barriers for an ally in the Middle East. That is, if you are keeping track, two more examples of less government and more liberty – and with the benefit of making more friends abroad. Given the anti-free-trade tilt of the post-Clinton Democrats, a Republican majority is crucial to getting trade deals done.
Free trade pacts with Peru and Vietnam remain pending for the next Congress.
7. Lawsuit Reform
This is perhaps the one I’m most intimately familiar with, and one that has had immediate practical significance – the Class Action Fairness Act, passed in February 2005. Like a lot of subjects on this list, reform of the civil justice system will likely take many incremental steps, but this one went right to work, immediately re-routing scores of multimillion-dollar nationwide class actions with nationwide effects out of the handful of plaintiff-friendliest state court jurisdictions and into federal court to be governed by uniform national procedural standards (including the fact that federal courts are less likely to apply a single state’s law to a lawsuit involving people from all over the country). Though it operates to transfer power from state to federal government, CAFA is actually a significant boon to federalism by reducing the ability of any single state to export its laws and the biases of a particular locale to the nation as a whole.
Not such a terrible job for two years’ work, two years in which much attention was consumed by natural disasters at home and war abroad and during which the House leadership underwent a significant mid-course reshuffling. More can, and should, be demanded of future GOP majorities. But much less should be expected if those majorities don’t survive November 7.