CIVILITY IN THE HOUSE REVISITED
STATEMENT OF DONALD R. WOLFENSBERGER
BEFORE THE SUBCOMMITTEE ON RULES AND ORGANIZATION OF THE HOUSE
HOUSE COMMITTEE ON RULES
THURSDAY, APRIL 29, 1999

Mr. Chairman and members of the Subcommittee:

I appreciate your invitation to submit a statement for the record in your ongoing inquiry into the state of civility in the House, and what, if anything, can be done to improve the situation. I want to commend this subcommittee on its continuous monitoring of this important matter. I also want to commend the principal organizers of the bipartisan Hershey retreat, Representatives LaHood and Sawyer, for their diligence and follow-through on their earlier efforts.

The views I express in this statement are my own and not those of the Wilson Center which is a non-partisan research center that does not take positions on policy issues or pending legislation.

Civility, like a delicate plant, requires constant care and nurturing if it is to survive and thrive. Preserving it on the rough and tumble turf of partisan politics is a little like trying to protect a violet growing on a busy playground. And yet, as the makers of your rules and precedents made clear from the outset, it is essential for the law making process to function. That is what Jefferson had in mind in his “Manual of Parliamentary Practice” when he stressed the importance of having rules that establish “a uniformity of proceeding in business” so that “order, decency, and regularity [may] be preserved in a dignified public body.” What better way to describe the aim and elements of civility in a dignified public body like Congress than maintaining order, decency and regularity? Without it, Congress not only loses its ability to carry out its responsibilities effectively, but it also loses the respect of the people.

As you may recall, when I last testified on this subject on April 17, 1997, your civility hearing had to be suspended at midpoint because of an outbreak of incivility on the House floor that led to a series of votes. I hope this year’s hearing will not be similarly blessed with such an ironic twist as much as it may shine the spotlight on your commendable efforts to maintain a more civil House. My guess is that it will not be so interrupted because there does seem to be a more positive and respectful atmosphere in the House over the last two years or so than during the very contentious and often heated 104th Congress. And I say this notwithstanding what some observers thought was a very vicious, poisonous, and highly partisan committee and floor impeachment process last year – something I will return to shortly.

Why does the House at least seem to be more civil now than before? I would list a number of obvious reasons. First there has been a cease-fire, if not permanent truce, in the internal ethics wars between Members and parties. Ninety percent of the incivility we witnessed was directly related to the then Speaker’s pending case in the ethics committee and the fact that some Members insisted on discussing it on the House floor, and in the most personal and disrespectful terms, when it was clearly against the rules to do so.
Second, and relatedly, the previous Speaker was a lightening rod for the opposition party both because of his own highly visible and confrontational style, and because he was the clearest symbol and cause of the current minority’s reversal of fortunes in 1994.

Third, both parties are wearing their relatively new mantels with more dignity and grace than before. That is not to say that the minority has completely overcome its angry denial and replaced it with complacent acceptance of its minority status. Nor does it mean that the majority has completely overcome the natural arrogance that often accompanies the exercise of power. Far from it. Partisanship still runs high in the House as both parties vigorously struggle for public attention, support, and majority status in the next election.

But, I would again caution against confusing partisanship with incivility. This is a political body comprised of partisans, and it is through political struggle that we thrash out our national policies. The sound and fury of these partisan struggles is to me at least a sign that our representative democracy is functioning as it should. It is when the tumult subsides and there is talk about nonpartisan approaches to problems that I grab for my wallet and wonder what deals were cut behind closed doors and what it’s going to cost us. Bipartisan compromise, on the other hand, is not necessarily as suspect since it usually is the product of publicly stated positions by elements in the two parties and the resultant bargaining necessary to forge a majority coalition to enact it into law. Bipartisan compromise is the only way the government can function in divided party government such as we have now between the Executive and Legislative branches.

But, in the process of arriving at those compromises, hard-bargaining is sometimes accompanied by harsh words; tough positions are staked out using tough rhetoric. Again, this need not be considered a sign of incivility so long as the players involved do not personalize their differences and engage in ad hominem attacks on opposing parties by questioning their integrity, motives, or sincerity.

Drawing that careful distinction between partisanship and incivility makes it easier to proceed in assessing whether there is still a significant problem of incivility in the House. The recent impeachment proceedings in the House and Senate gave rise to a number of instant analyses that the House, at least, had once again descended into the pit of vicious partisanship -- the so-called politics of personal destruction -- and that it might take months if not years to dig yourselves out. I, for one, do not perceive such lasting wounds and scars covering this body today. To the contrary, what I sense is that most Members have gladly put the impeachment debates behind them and are anxious to get on with their legislative responsibilities and make their mark. They know that no useful purpose is served by living in the past or obsessing on recriminations.

As one who watched most of both the Judiciary Committee’s hearings and deliberations and the House floor debates last year, there is no denying that there were some instances of incivility in the heat of the committee’s proceedings. It was a highly emotional and tense situation in which Members on both sides found it hard to understand how their opponents could possibly come to a diametrically opposite conclusion over whether the alleged offenses constituted impeachable conduct. This inability to understand the opponent’s point of view led to a questioning of motives. There were also some instances of staged outrage or attacks. Television can be a seductive temptress to those with a flair for the dramatic. For those of the public who bothered to watch all this, I suspect the blatant partisanship was seen for what it was, and the thespian antics were seen for what they were. But, in between were a lot of Members who felt genuinely and strongly about their well thought-out convictions and positions.

When things got to the House floor, many pundits and reporters dismissed the seriousness of the occasion by viewing the largely partisan vote as an indication that it was nothing but a partisan vendetta or confrontation. To those who watched and listened closely to the Members on both sides of the aisle who patiently and sincerely explained how they had arrived at their decisions, there was obviously a lot more there than a mere partisan exercise. But what struck me most was the dignity and decorum that attended the House debates, just as we are told they attended the closed Senate deliberations. Anyone who wrote this off as an episode of petty partisanship just wasn’t paying attention. A fair minded person would come away crediting both sides with making a thoughtful and forceful case for their positions. Had this not been a serious matter to begin with, I suspect it easily would have degenerated into partisan name-calling and motive-questioning.

I have cited the impeachment example at some length, not only because it is one of our more recent controversies in which the element of partisanship was involved, but because it is also a good example of how there can be a gap between what the people get through the media filter and what the reality of a situation may be. In the case of impeachment, because there were partisan votes in the Judiciary Committee and on the House floor, many concluded that it had been motivated for purely partisan purposes, and therefore that it was just one more example of Congress behaving badly.

My own assessment as a long-time Congress watcher was quite the opposite, and that is that it was an example of both Houses of Congress acting at their best, regardless of which side you feel may have been more right on the central impeachment issues. The Senate got higher marks from some in the media perhaps because more of an effort was made to accommodate minority procedural concerns, though the outcome was the same as far as the party-line voting and the denial of a censure resolution. The Senate also benefitted by not having a potentially contentious committee process. And it also avoided the possibility of grandstanding during floor deliberations by closing down that phase to the public.

Let me conclude my testimony by making just a few comments both about the Annenberg civility study and about some of the proposals emanating from the Hershey retreat.

First, on the attempt to quantify degrees of incivility through word searches in the Congressional Record, I would say this is an imperfect tool at best, and a misleading one at worst. The most glaring example of misleading is on the debate over impeachment which I have just discussed. On the one hand, the graphs show incivility jumping off the charts -- mainly because some words were used in describing the President’s alleged behavior. On the other hand, the text of the report concedes that the debate was actually quite civil and respectful. You can’t have it both ways.

Second, I would question the means used to chart incivility. On the one hand, the introduction to the report is careful to distinguish between incivility and partisanship, praising the value of the latter, while on the other hand the word counts and resulting graphs equate partisanship and non-cooperation with incivility. This is both dangerous and misleading when the aim is (or should be) to isolate actual instances of incivility. I would thus recommend in the future that the identification of words that presumably demonstrate partisanship and non-cooperation (such as “inflexible”?) be eliminated so as not to blur partisanship with incivility.

Just as partisanship is not the same as incivility, the use of certain pejorative words, aspersions, name-calling, or hyperbole is not necessarily an indication of incivility. If the words are not aimed at calling into question the integrity, motives, or behavior of another Member or the President or Vice President, the words may be perfectly acceptable in the context in which they are used. The study does not indicate that the instances charted are all instances of references by one Member to another, or to the President or Vice President.

Third, on those measures of actual intimations of incivility as reflected in demands that words be taken down, there is still an imperfect measure of actual incivility for two reasons. First, not all demands that words be taken down are ultimately resolved by ruling that the words were unparliamentary. The report does not indicate in how many instances the chair ruled, for instance, that the words did not constitute a breach of decorum. In other instances, the words are withdrawn by the alleged offender before there is a ruling, regardless of whether an actual offense was committed.

But the other half of this is even more egregious, and that is that the study does not catch those instances in which breaches of decorum were committed but the offender was not called on it. I recall sitting on the floor during one-minute speeches, waiting for a rule to be called up, and hearing numerous instances in which the majority refrained from demanding that words be taken down because they knew the confrontation would only snowball and provide the offender more attention than ignoring him would. Moreover, taking down words could lead to a vote on appealing the ruling of the chair, further prolonging and magnifying the episode.

Sometimes a parliamentary inquiry would be lodged with the Speaker after the offending Member was finished. Sometimes the Speaker, prompted by the offensive language, would admonish Members not to engage in personalities in debate, but again after the offending Member was seated. The Annenberg study does not pick-up on such instances which are far more frequent and usual than the words taken down process. I seem to recall the chairman of this subcommittee biting his tongue rather than provoke a confrontation on many an occasion when offensive language was being used, especially as the fall elections of 1996 grew closer. Yet these incidents are not reflected in the graphs.

Fourth, I would avoid simply measuring the instances in which the chair asks the Member speaking to suspend or calls the House to order. In both cases, it may be because the House needs calling to order because it is just too noisy. Yes, this is a breach in decorum, but not a clear indication of incivility. It is more often than not a sign of inattentiveness, boredom or bonhomie.

In conclusion, I think the report is very misleading because incivility is difficult to pinpoint simply by quantifying the use of certain words. Context and mood are everything. Raised voices and inflections can be very incivil, even if the words spoken do not cross the line. Conversely, instances of improper language may go unchallenged to avoid turning the offender into a martyr for the cause of free speech, and therefore not show up on word searches.

I wish I could suggest a better way to gauge instances of incivility in the House on a continuous basis, but unfortunately no one has yet invented a device that can accurately measure the mood and temperature of the membership in the Chamber with such precision.

Finally, let me comment on just two of the proposals that garnered some measure of support from the Hershey retreat. The first one is to “establish a bipartisan committee to address institutional and fairness concerns including: scheduling, committee ratios, and resources, floor procedure, and family needs.”

While the idea of a more bipartisan House operation has some superficial appeal in the ideal world, we know from experience that it doesn’t work. Republicans need only recall the experience with the bipartisan Joint Committee on the Organization of Congress on which they got little of what they asked for, but voted to send it to the floor with the understanding they could at least offer their further amendments at that time. Yet the the measure was killed in the Rules Committee precisely because the leadership thought some of the amendments might be adopted on a bipartisan basis. The inability of such a joint committee to produce a truly bipartisan product, or of the majority leadership to allow a bipartisan debate and amendment process on the floor speaks volumes about such bipartisan committee efforts. Instead of promoting and increasing civility, they only lead to greater frustration and incivility when high expectations are dashed on the rocks of reality.

I am not saying all this in partisan criticism of the Democrats. Their leadership was acting as they thought a majority party should. When we were in the minority the Democrats would often rebut our complaints of unfairness and lack of bipartisan control by reminding us that the majority party was elected to run the House, had the sole responsibility for doing so, and would be held accountable for its success or failure.

One Democratic chairman, of whom I am fond, would even frequently quote former Republican Speaker Tom Reed to the effect that “the only duty of the minority is to help make a quorum and collect its pay.”

By rejecting a bipartisan committee as a substitute for majority party operation and control of the institution I am not suggesting that the majority should ignore the minority, as Tom Reed seemed to suggest. I understand all too well from experience that the majority can rile up minority complaints, protests, outrage, and even incivility, by acting in an unfair and arbitrary way towards the minority party. The best way to avoid such outbreaks is frequent and meaningful consultation between the majority and minority. And this is best done through regular one-on-one meetings between the Speaker and the minority leader – something current Speaker Hastert, to his credit, has restored.

That is not to say that frequent meetings will result in the minority getting everything it wants. Of course it won’t and shouldn’t. But it does increase the chances that the minority will get much more than it might reasonably expect to get through abrasive and confrontational tactics. The majority in this Congress has continued to move towards a more equitable sharing of staff resources at the committee level. To its credit it is currently putting out more open and modified open rules. To its credit it is scheduling more bipartisan briefings. And I am sure there are other examples of more conciliatory and accommodative approaches of which I am not aware.

Of course the minority will continue to focus on those areas where it feels it is not getting a fair shake, and well it should. But I do not think its gains will be increased or enhanced by injecting some form of bipartisan committee, even if advisory in nature, between the Speaker and minority leader, let alone as a substitute for the Committees on Rules or House Administration.

The civility retreat leaders and committee can provide an ongoing sounding board for complaints about the causes of incivility, and a serving board of advice to the bipartisan leadership on how to mitigate those causes. It can also serve as board of education for those who choose to misbehave. But this is quite different from a bipartisan committee assuming even an advisory role on matters that have always been left to the discretion of the majority party in the efficient and accountable operation of the House.

The other proposal that I would recommend you reject is the one for a “draft code of honor” that would cover everything from building personal relationships and trust, to improving discourse and campaign tactics. I understand that this is well-motivated out of concern over the decline in civil discourse both in the House and in campaigns, and the desire to combat it through building more bridges between the parties based on improved personal relationships. But I would suggest that you already have a very well considered and sufficient code of conduct when it comes to your floor behavior and speech, and that is now found in Rule XVII, “Decorum and Debate.”

As I suggested when last I testified on civility and decorum in debate: teach it, learn it, and enforce it among all Members, beginning with the leadership. Don’t just consign it to a 15-minute briefing during freshman orientation and somehow think that Members will abide by it for life. It needs to be re-taught and relearned every session, from the rostrum and the leadership tables, to the most senior as well as the most junior members.

Rather than reiterate my other suggestions from 1997, I would simply urge Members who are interested to get a copy of those hearings as a complement to these. I am confident and optimistic that the House does have it within its grasp to turn things around from the nastiness that too often surfaced in 1995 and 1996. Even from a distance, now, I can detect that change beginning to take place. Obviously it will suffer some setbacks at the election season draws nearer next year. But I think Members from both parties realize that they make no points with potential voters when they act in less than a grown-up manner in the people’s House. I wish you well in your continued progress towards the goal of responsible partisanship through civility.

Thank you.
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CURRICULUM VITAE

Donald R. Wolfensberger has been a public policy scholar at the Woodrow Wilson International Center for Scholars since June of 1998, a position in which he has written articles and organized seminars on “the Information Age Congress and the Policy Process.” Prior to that, he was a guest scholar at the Wilson Center, beginning in February of 1997. During that period he wrote Congress and the People: Deliberative Democracy on Trial, a book scheduled for publication in November,1999, by Johns Hopkins University Press.

Wolfensberger was chief of staff of the House Rules Committee in the 104th Congress (1995-96), and served as minority staff director of the committee in the 102nd and 103rd Congresses (1991-94). He previously served as minority staff director of the Subcommittee on Rules and Organization of the House (1979-80), and the Subcommittee on Legislative Process (1981-1990). He began his Hill career as legislative director to Representative John B. Anderson (R-Ill.), a position he held from 1969-1978.

Wolfensberger is a 1964 graduate of North Central College, and successfully completed his course work towards an M.A. in political science at the University of Iowa in 1966. In 1967-68 he served as a Peace Corps volunteer in Tanzania, East Africa.

He has worked as a newspaper reporter and radio newscaster.