A Polarized Committee Reflects a Gridlocked Congress

Amy Harder
National Journal

Shortly after Rep. Fred Upton, R-Mich., won the chairmanship of the House Energy and Commerce Committee in December 2010, he invited all the former committee chairmen and their wives to dinner at Carmine’s in downtown Washington.

The famous New York Italian restaurant had just opened its D.C. location and provided a private dining room for the party of 12. But this was no routine gathering. It was the first time all of the committee’s former chairmen had assembled in a room together, men who have all held one of the heaviest gavels in Congress.

Energy and Commerce is the oldest standing legislative committee in the House, having operated nonstop for more than 200 years. More than a thousand bills introduced in the last Congress were referred to the panel and its 54 members (only Ways and Means handled more). It has a budget that exceeds $10 million and more than 100 staffers, second only to the Appropriations Committee on both counts.

Energy and Commerce also has the broadest jurisdiction in Congress, covering a divergent basket of issues that includes telecommunications, energy and environmental policy, food and drug safety, international trade—even sports. It oversees the departments of Energy, Commerce, Health and Human Services, and Transportation, as well as the Federal Trade Commission, the Food and Drug Administration, and the Federal Communications Commission.

Accordingly, some of the most memorable moments in Congress over the past three decades have happened in E&C chambers, including the passage of the Clean Air Act amendments in 1990, the historic testimony of tobacco executives in 1994, numerous hearings on the BP oil spill, and President Obama’s health care overhaul in 2010.

“There were a lot of memories going on, everybody was bringing up different things about our work and time together,” said former Rep. Billy Tauzin, R-La., who was chairman of the committee from 2001 to 2004.

Energy and Commerce's Jurisdiction

Everyone Upton invited came, including Rep. Joe Barton, R-Texas, whom Upton had just defeated in an ugly fight for the chairmanship, and Rep. Henry Waxman, the California liberal who was the incoming ranking member. Former Chairman John Dingell, D-Mich., long a force on the panel, was there, as was another past chair, former Rep. Thomas Bliley, R-Va. “It wasn’t political,” Tauzin recalled. “It was just about us getting together to celebrate our careers on the committee. If Fred had his druthers, he’d do more of that.”

But the next two years would contain little to celebrate.

During the last Congress, the committee wielded one of the loudest Republican megaphones in the House, home to messaging battles over President Obama’s signature health care law, EPA regulations, and Solyndra, the stimulus-backed solar company that went bankrupt.

For all the headlines these issues have made, some say the committee’s Republican leaders have little of substance to show for it. The health care law still stands, none of the committee’s environmental bills became law, and the panel’s oversight of Solyndra’s failings didn’t trigger any legal or regulatory changes. But to a House GOP majority operating with a Democratic Senate and presidency, pushing those issues was necessary, even if they knew they wouldn’t produce actual legislation.

“As a first step, our members wanted to address issues that had gone too far, simply asking EPA to slow down and consider the impact of its actions on the economy,” said Gary Andres, the committee’s staff director. “Everything we did must be looked at in its context. You had four years of Democratic majority, two years of the Obama presidency. The pendulum had swung pretty far in the other direction—Republicans needed to provide some balance.”

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Many Republicans and Democrats say the committee is not as powerful as it was under Dingell during the ’80s and ’90s, when he led the passage of the landmark Clean Air Act amendments with strong bipartisan support and waged intense congressional investigations into both Republican and Democratic administrations. But the loss in committee power isn’t unique to Energy and Commerce. Many experts say that no committee is as strong as it once was before former Speaker Newt Gingrich shifted power to leadership in the mid 1990s.

Add to that the fact that Congress has grown more polarized—and more conservative—in recent years, with redistricting creating safer districts for both parties, and the result is a committee with fewer moderate members. “When I was there, we used to still have some relatively conservative Democrats to work with,” said Bliley, who chaired the panel from 1995 to 2001. “These days, it looks like they’re only putting those of the hard-left on the committee. That’s made Chairman Upton’s job harder. And yes, the Republicans have put very conservative members on, too. It’s not a one-way street.”

As a relatively moderate Republican, Upton was forced to carry the agenda of a more conservative GOP that is frustrated with almost all the policies Obama is pushing.

“As a chairman, you can’t be a complete free-range player, because you are representing and leading the whole conference as a committee chairman,” said Rep. Greg Walden, R-Ore., one of Upton’s closest friends in Congress and chairman of the Communications and Technology Subcommittee. “You’re not just speaking for yourself anymore. It changes how you operate. That’s natural and normal.”

Dingell, who was chairman for a total of 16 years over two separate stints, put it more bluntly. “He’s a fair and honorable man, and an able chairman,” he told National Journal Daily in an interview. “The crazy right-wingers are after him all the time.”

On big-ticket items like climate change, health care reform, and the Keystone XL pipeline, the Michigan House Republican works closely with leadership. Some Democrats say he is at the whim of a GOP leadership that, in turn, is at the whim of a young, ultraconservative crop of rank-and-file members.

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“Upton is—or would be—a good chairman, but he’ll only be as good of a chairman as they will let him be, because they’re constantly telling him what to do,” Dingell said of GOP leaders. “Like all chairmen, he must dance to the speaker’s tune. The unfortunate thing is, the speaker is dancing to the freshmen and sophomores’ tune.”

Upton sees it differently, saying the committee has the confidence of both House Speaker John Boehner and Majority Leader Eric Cantor. “They trust us. They know what we’re doing,” he said.

Still, there are signs the environment is shifting. The Republican losses in the 2012 elections have steered the party toward a period of heavy introspection that is not lost on committee chairs. With the 113th Congress under way, the messaging wars have died down in Upton’s committee and the prospect for bipartisanship on big-ticket items is at least better than it was. Upton’s staff is going through an “adjustment process,” Andres said, citing the election.

“Maybe we’ll do things a little different than we did in the first two years just because the environment has changed.”

For now, the staffs of Upton and Waxman seem to be operating in parallel universes. Upton is carrying out the official agenda of the committee by holding regular weekly meetings with his subcommittee chairs to discuss what kinds of hearings and legislation to consider. As has been the tradition on the committee, the agenda-setting doesn’t involve much, if any, input from the minority staff. Upton’s subcommittee chairs have been holding hearings on politically innocuous topics, such as electrical-grid reliability challenges and health-information technologies. The committee is also pushing legislation that would bypass presidential authority and approve the Keystone XL pipeline, one of the more controversial issues in Washington.

Meanwhile, Waxman launched two initiatives this year that are not affiliated with the committee’s official agenda at all: the Safe Climate Caucus and the Bicameral Task Force on Climate Change. Neither has Republican support. But that doesn’t stop Waxman, who sees climate change as the biggest threat facing the country. “To me this is … more important than all the issues we’re spending time on,” he said in an interview.

When NJ Daily asked Upton about Waxman’s focus on climate change and whether they could find common ground, he skirted giving a direct answer. “Frankly, a lot of us believe Republicans are in the majority because of cap-and-trade,” Upton said, referring to climate-change legislation Waxman and Rep. Edward Markey, D-Mass., pushed through the House in June 2009, only to see it die in the Senate.

The only surefire way the committee will affecting global warming will be by debating the Environmental Protection Agency’s greenhouse-gas regulations, which Congress is unlikely to change despite the amount of attention and effort Republicans put into trying. The panel exhausted most legislative fixes last Congress, and now Republicans are unsure which way to go. “We haven’t decided the course we’re going to take yet,” Upton said.

Waxman and Upton get along well enough, the two lawmakers and their aides say. They keep the committee’s operations running on time. They don’t personally dislike each other. But given the parallel universes they operate in with regard to some of the biggest policies Energy and Commerce oversees, their relationship sometimes seems nonexistent.

The two have held just one meeting together as committee leaders since Upton became chairman, according to Waxman and his staff director, Phil Barnett—and it wasn’t even their meeting. Rather, it came during the Solyndra probe, when the Obama administration requested that Upton and Waxman both meet with the White House general counsel.

In response to the dozens of letters Waxman has sent requesting hearings on climate change since 2011, Upton has responded just once in writing, according to Barnett. In a short letter dated March 14, 2013, Upton and Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky., wrote to Waxman that the committee has discussed climate change in many hearings in the past and will continue to do so this Congress.

Upton’s staff shrugs this off, saying Waxman is just writing the letters to get media attention.

Both Democrats and Republicans say Upton is an inherently bipartisan lawmaker, even in this era of a more-conservative Republican Party, and that Waxman has always been intrinsically more partisan. Whatever the case, the two men have distinctly different styles. To pass legislation, Waxman starts with the support of his party on the left and then works to the political middle before approaching Republicans. Upton, conversely, often tries starting from the political middle and working out to the extremes in both parties.

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“[Waxman’s] preference is to build the strongest majority in his own party and then approach the other side of the aisle from that position of strength; that’s a respectable way to go about it,” said former Rep. Rick Boucher, D-Va., who worked on climate-change legislation with both Upton and Waxman when he was on the committee. “My personal approach was to reach out simultaneously to interested members of both parties and try to achieve my goal as a bipartisan measure at the onset. Both ways can be effective.”

Exacerbating Waxman’s partisan image is the fact that part of the ranking member’s job is to rebut the majority’s political actions. “Given the goal I have, I may come across as quite partisan,” he said. “I have high regard for [Upton]—very fine person. I’m sure if we had more opportunity to talk through issues, we could find common ground.”

Indeed, the Energy and Commerce Committee does find areas where Republicans and Democrats can work together—they just don’t make a lot of headlines. In the last Congress, the panel authored or helped author roughly 40 bills ultimately signed by the president, according to Upton's staff. The more high-profile among those signed into law include measures giving greater authority to the Consumer Product Safety Commission (cosponsors included Upton, Waxman, Barton and Dingell); a telecommunications bill on broadband and spectrum policy that was folded into larger legislation extending the payroll-tax cut holiday through the end of 2012; and legislation strengthening the nation’s pipeline safety. This last measure was chiefly authored by the House Transportation and Infrastructure Committee, but given Upton’s personal interest in it (the 2010 oil pipeline spill in the Kalamazoo River occurred just outside of his district) he made sure his committee had a hand in its writing. Half of the 40 bills were smaller-ticket health care measures folded into Senate legislation on the Food and Drug Administration, most of them received at least a few Democratic votes.

Energy and Commerce has seen a few bipartisan successes this Congress, too, including legislation that passed in the House to streamline regulatory reviews for hydropower projects; it was sponsored by Rep. Cathy McMorris-Rodgers, R-Wash., and several Democrats, including Markey. Unlike most energy bills the House passes, this one has promising prospects for consideration in the Senate.

Waxman and Upton are optimistic about bipartisanship this Congress, despite their less-than-stellar track record of working together.

“What we’re trying to do is find areas where we can agree. And we’ve already started to do that,” Andres said. “But, there are also going to be some of these major national issues where the parties have staked out pretty strong positions, where it’s going to be hard to find common ground on those things.” Such national issues include legislation bypassing the president to approve the Keystone XL pipeline; EPA’s greenhouse-gas rules; and oversight of Obama’s Affordable Care Act.

Certain issues have better bipartisan prospects. The staffs of the two leaders are releasing joint white papers addressing concerns about the Renewable Fuels Standard, a federal mandate requiring increasingly large amounts of biofuels to be used in gasoline. Upton also says he’s hopeful Waxman and other Democrats could be on board with a proposal he is working on with House Ways and Means Committee Chairman Dave Camp, R-Mich., on the so-called Medicare “doc fix,” which would change how much physicians get paid to care for Medicare patients.

“He’s very interested,” Upton said of Waxman, “as are other Democrats, to really work on the bipartisan proposal and get it moved through the committee process.”

Could these smaller successes breed bipartisan goodwill for bigger items like climate-change legislation or a comprehensive overhaul of telecommunications law, something that hasn’t been done since 1996, when Bliley chaired the committee?

Dingell, who is poised in June to become the longest-serving member of Congress in American history, isn’t optimistic that lawmakers can break the gridlock. “My expectations are very low,” he said. “Very frankly, I think it’s going to take some kind of massive calamity—a depression, a total sweep-out of this place, a complete change of government—to get rid of some of these know-it-alls, to get somebody in who understands you have to work together in the public’s interest.

“The worst part of it is, it’s the Republican approach, but it’s beginning to affect the Democratic side,” Dingell said. “We’re responding the same way they are—becoming more partisan.”