Congressional Molasses

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Little by little, in a slow accretion of individual actions, many of which are insignificant in themselves, Congress is changing its role in the government.

It blocks action instead of shapes it. It puts strings on appropriations to restrain what even nongovernmental organizations might do. It withholds money that the United States legally owes to the United Nations. It refuses to allow participation in world trade negotiations. The list could go on.

Consider how the Senate is exercising its power to confirm presidential nominations - by not using it. For a long time, committees have killed nominations simply by not acting on them. This saves face for the nominee in that he or she is not actually rejected by the Senate.

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Killing nominations becomes a different matter when it is applied en masse, as has been happening recently. So many nominations for federal judgeships are backed up in the Judiciary Committee that Chief Justice Rehnquist has complained about it. From time to time since Republicans regained control of the Senate in 1995, the same backlog (in this case, ambassadorial nominees) has built up in the Foreign Relations Committee.

As a result, positions aren't filled, and much government work goes undone. The chief justice, the president, and others complain that the Senate is shirking its duty, that at least it ought to vote on the nominees.

The trouble with this argument is that there is no duty on the Senate's part to vote at all. Even if it did vote, it might postpone consideration of the nomination indefinitely.

The real difficulties here are of a different nature: (1) Senate rules and practices (especially practices) make it easy for any senator to delay a vote, both in committee and in the full Senate. And (2) the committee chairmen and the Senate leaders are afraid (probably with reason) that if there were votes, the nominees would be confirmed.

But (3) in one respect, the Senate leadership does not control procedure. That's because of the cloture rule. In effect, it takes 60 senators to prevail against determined opposition. By prolonging debate, 41 senators can keep a question from being brought to a vote. Thus, for practical purposes, it takes three-fifths of the whole Senate to do anything to which there is substantial opposition.

Frequently, this all ends in legislative gridlock, generally deplored by advocates of good government, but in the view of the founders of the Republic not a bad thing. Alexander Hamilton called "promptitude of decision ... oftener an evil than a benefit." The founders also were wary of Congress grabbing too much power. They regarded the president as the weaker of the two branches.

"The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex," James Madison wrote. The fear was that Congress would do too much rather than too little. Apparently it didn't occur to anyone that Congress would make no decisions at all.

The possibility of deadlock is inherent in the checks and balances of the Constitution. If the president and Congress are at loggerheads, and if each insists on constitutional prerogatives, government paralysis will result. Historically, compromise almost always is reached before this point. The closure of the government in the 1995 budget dispute is an exception, the Civil War a more grievous one.

The founders thought they had left a way out of this dilemma - namely, elections. They had no great faith in the people, but they had less in the government. They would have been quite at home in the anti-Washington climate that has gripped the country since the election of Jimmy Carter 20 years ago.

They would have said there is nothing wrong with the Senate's behavior today that a good election could not cure.

* Pat M. Holt, former chief of staff of the Senate Foreign Relations Committee, writes on foreign affairs from Washington.

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