Power Game

by Hedrick Smith

  Even so, Brockway’s rare day in the sun exposed the reality of the “shadow government” that stands behind senators and congressmen. Other staffers, vicariously enjoying Brockway’s prominence, kiddingly called him “Senator Brockway.” Schooled in the ethic of staff anonymity, Brockway was suitably shy in public but privately admitted the kick of having his picture in the newspapers and seeing the Joint Tax staff get public credit.

  This episode illustrates one vital facet of power in Congress—namely, that the power of a committee and its chairman quite frequently rests on the quality of its staff. Packwood had been in a terrible political jam; he could not have produced a radical new tax package without the talent of Brockway’s Joint Tax staff.

  Back on April 17, Packwood had known that his original tax plan was doomed, and that it would be fatal to his committee chairmanship for tax reform to die on his doorstep. He was desperate. Packwood and his aide, Bill Diefenderfer, told me they had toyed months earlier with trying to lower tax rates dramatically, but that package had seemed unattainable because they could not figure out how to raise tax revenues to compensate for revenues lost by cutting tax rates. Suddenly they saw little to lose in gambling on such an effect.2

  Packwood needed concrete alternatives and in a great hurry. Diefenderfer’s Finance Committee staff lacked the technical expertise to produce a package fast enough. Joint Tax, and Brockway especially, was more capable and politically freer to dream up the options and do rapid computer runs. Without Joint Tax, Packwood would have been dead in the water. With it, he could regain political momentum.

  Packwood kept control of the ultimate decisions, but delegated substantial authority to Brockway. To Brockway, who had studied tax law under Stanley Surrey—a former assistant secretary of the Treasury whose name is synonymous with knocking loopholes out of the tax code—this sudden opportunity was like a dream come true. While Brockway is politically neutral, he is not without an ideology: the ideology of reform. His professional bent is to eliminate tax credits, incentives, preferences, shelters, and loopholes and to use the tax code to collect revenues “on a level playing field”—the same for all—not to use the tax code as an instrument of social and economic engineering or to favor certain interest groups or to promote various policy goals. Indeed, the “nonpolitical” ethic of Joint Tax makes it an inevitable adversary to many special interests.3

  Most senators and congressmen praise Brockway as a talented, honest staff chief who does not push his own agenda. But once Packwood offered him an opening, Brockway pulled his own pet ideas off the shelf. Like a halfback given a key block, he suddenly had running room in a broken field.

  “You have a situation you can play,” Brockway remarked later. “You try to get the most you can get, but you’ve got to read the field right to see what will go. You’ve got to make decisions that make sense to your bosses, the committee members.”

  When Brockway came back to Packwood with new options, he knew some were only theoretical because they would not fly politically. But two Brockway features were terribly important in cleaning up the tax code, and neither had been boldly pushed so far by the Reagan administration or by the tax-writing committees.

  One key Brockway proposal was eliminating the special low rate for capital gains, which was worth about $150 billion in taxes to the government over five years. This idea, borrowed from the Democratic Bradley-Gephardt bill, had never really gotten a chance in either the House or Senate committee deliberations. But now, with the prospect of dramatically lower personal income tax rates, it commanded new attention when Brockway raised it.

  A second Brockway idea became a cornerstone of the Packwood plan: closing the passive-loss loophole in the existing tax law. Passive loss was the gimmick by which promoters sold tax shelters to the rich, to generate passive or paper losses (often at several times the cost of their investment) in real estate deals, cattle herds, timberlands, art investments, and oil-and-gas programs. Wealthy investors would then write off these paper losses against actual cash income from other business, thereby drastically reducing their taxes or escaping the IRS entirely. Joint Tax estimated that killing this loophole would generate about $52 billion in tax revenues over five years.

  To his credit, Packwood grabbed Brockway’s idea and made it a vital point in selling the new tax package as serious reform. With a “reform” image, the tax bill got new life. Packwood and a reformist core of his committee adopted and modified the Brockway options to pass a surprising new tax package. Both the “passive-loss and capital-gains features made it into law—testimony to the power of an influential staff chief.

  Moreover, in August 1986, when Packwood and Rostenkowski finally struck a broad compromise between the differing House and Senate versions of the tax bill, they turned over considerable discretionary power to their staff chiefs: Brockway, William Diefenderfer of the Senate Finance Committee, and Rob Leonard, Rostenkowski’s top tax expert on the House Ways and Means Committee staff. It had been done before—in 1982, Brockway and staff drafted a compromise for rolling back $8 billion worth of tax breaks granted in 1981 to major corporations; and in 1984, the tax staffs produced the $50 billion in tax revenues that congressional leaders wanted.

  Now in 1986, once again, huge items worth hundreds of millions of dollars to specific industries were crafted by the staff team. One important provision, affecting virtually every business, involved writing the legal rules for calculating business profits for tax purposes. Normally, corporations report bigger profits to stockholders than to the IRS, bragging to one audience, poor-mouthing to the other. This time the tax-writing staff insisted that the claims that companies were making to Wall Street had to be used on tax reports. That would bring in bigger tax revenues.

  Moral: Never underestimate the power of writing the fine print. “The actual drafting of the legislation, the fine points, the statement of managers, the explanations, the things that can make millions and millions of dollars of difference have to be done by Joint Tax because of the complexity and technicality of the tax code,” observed Stuart Eizenstat, former domestic policy chief in the Carter White House and now a lawyer-lobbyist. “They’re the only ones who can deal with it. And every tax conference [between House and Senate] of necessity leaves significant areas for the Joint Committee to fill in. Significant areas, involving tens of millions of dollars in decision. So it’s a tremendously important institution.”4

  Still, Brockway is sensitive to practical limits on his leeway. “You try to go for consensus with the other staffs involved, House and Senate, Treasury, the IRS,” he said. Moreover, he senses what will sit right with his political chiefs. “If you start thinking you’re a free agent, that you have independent power yourself, you’re setting yourself up for a fall,” Brockway cautioned. “Your power really is derivative. If you abuse it, they can take it away from you in an instant.”

  Moynihan’s Iron Law of Emulation

  Certainly, powerful staff is not new to Congress. When Lyndon Johnson was Senate majority leader in the 1950s, his aide Bobby Baker was known as the ninety-ninth senator (when there were ninety-eight elected Senate members) because Baker so visibly helped manage the Senate, dispensing space, patronage, and other favors, manipulating members, and gathering votes. From the mid-fifties to the mid-seventies, Dick Sullivan, a tough New Yorker, was the powerhouse staff director of the House Public Works Committee, a man who made a difference on where money got spent, for whom, and on what. Another important staff man who wielded money power in the late 1960s and 1970s was Harley Dirks of the Senate Appropriations Subcommittee on Labor, Health, Education and Welfare. A vigorous policy entrepreneur was Michael Pertschuk of the Senate Commerce Committee. An aggressive staff aide with close links to Ralph Nader and his consumer network, Pertschuk steered the committee chairman, Senator Warren Magnuson of Washington, into consumer activism.5 Individual staff chiefs were sometimes more powerful in the old game than they are in the new game.

  In fact, despite Brock
way’s considerable influence, he personally is less powerful than Lawrence Woodworth, the veteran tax expert who worked for the Joint Tax staff for thirty-two years and ran that staff from 1962 to 1976. The difference between the power of Woodworth and the power of Brockway reflects the “sunshine” laws forcing Congress to operate more in the open, as well as the dispersal of power in Congress. In the old-breed staff game, the process was more private, both houses were in control of Democrats, and the staffs of the Senate Finance Committee and House Ways and Means Committee were weaker. That allowed Woodworth to shape entire tax bills and negotiate deals between powerful committee chairmen such as Wilbur Mills in the House and Russell Long in the Senate. Typical of the old breed, Woodworth was a private power broker in a small club of congressional barons. When he died in 1977, Al Ullman, then chairman of the Ways and Means Committee, eulogized him as someone with “as much influence in shaping tax policy in this country as any committee chairman or treasury secretary or president in recent memory.”

  The climate has changed since Woodworth’s heyday. During the half-dozen years when the Senate was controlled by Republicans and the House was under Democratic rule, Brockway had to toe a more careful nonpartisan line than Woodworth did. Moreover, in Wood-worth’s early years, Joint Tax did virtually all the tax work for both houses of Congress; in recent years, the staffs of the tax-writing committees in the two houses have taken over some of that load. “Larry had much more power than I do,” Brockway readily conceded. “There are so many players now, so many other staffs, so many power centers involved.” In sum, just as Congress stripped its power barons of some power, it also spread around staff power too. But while individual figures may not be as powerful as they used to be, overall staff power has grown. It has proliferated, multiplied, expanded, and spread so that now, in sheer numbers and talent, the new-breed staff are more important and pervasive than ever before.

  Nowadays, staffers are a ubiquitous presence, riding elevators and congressional subways beside senators and House members rushing to a vote; at their elbows, giving advice; behind them at hearings, whispering questions; prepping their bosses for press interviews or shoving speeches into their hands; giving them political and substantive guidance; handling constituents; screening lobbyists; setting the agenda for committees; briefing members on the budget or haggling over its provisions; formulating proposals; making decisions; mastering procedure; managing hearings; cross-examining generals; probing the Central Intelligence Agency; negotiating with the White House.

  “They are like millipedes crawling up the walls, coming out of every drawer—damnedest thing you ever saw,” Bryce Harlow impatiently wheezed. His congressional staff work began in 1938, and he went on to become Eisenhower’s chief congressional liaison.6

  “If the image for the Senate in the 1950s was a few powerful whales and a lot of minnows, then the image now for congressional staff is field mice running all over the place,” added Michael Malbin, a political scientist at the American Enterprise Institute and author of Unelected Representatives, an excellent book on Capitol Hill staff.

  In short, the old game was played on a smaller board. Now there are many more active players in both houses, and far more staffers egging them on, angling for issues that will look good in the press and with constituents back home, fighting for turf against other committees, creating agendas that will put their senator or congressman on the map. The explosion of staff activity and numbers on Capitol Hill is an important hallmark of the new Washington.

  This trend was set off by the congressional reforms of the early and mid-seventies, sparked by the bitter congressional distrust for the executive branch after the Vietnam War and the Watergate scandal. Intent on informing and arming itself for confrontations with the executive branch, the newly assertive Congress set up its own Congressional Budget Office and an Office of Technology Assessment to reinforce its investigative arm, the General Accounting Office. It expanded the Congressional Research Service. And it hired literally thousands of new people for the personal staffs of members and the committee staffs handling policy and legislation. From 1973 to 1985, the number of congressional staff leapt from about 11,500 to more than 24,000. If all the printers, administrators, cooks, barbers, security guards, and gym employees are thrown in, close to 32,000 people were working for the legislative branch by the mid-1980s.7

  Historically, what happened was that Congress, looking at the burgeoning executive branch, saw staff as an instrument of power—a source of information and troops for battle. As time wore on, staff became not only an instrument of power but a measure of power. The larger a senator’s or a House committee chairman’s staff, the more power it was assumed he had. Small staff was a sign of weakness. Large and able staffs gravitated to powerful legislators. The political syllogism moved through phases—from staff buttresses power, to staff follows power, to staff symbolizes power.

  With a wry Irish twist, Senator David Patrick Moynihan of New York suggested that Congress was driven by “the iron law of emulation.”8 It was copying the executive branch, building a bureaucracy to fight a bureaucracy. “Whenever any branch of government acquires a new technique which enhances its power in relation to the other branches, that technique will soon be adopted by those other branches as well,” Moynihan argued. Opposing sides of the Washington power game borrow techniques from each other. Congress set up its own budget office to match the president’s Office of Management and Budget and his Council of Economic Advisers. It formed new intelligence committees to cope with the Central Intelligence Agency and other intelligence arms. It set up its own technology office to offset the one in the White House. Its committee staffs grew to cope with the increasing complexity of executive departments.

  Internally, there have been two important institutional engines of staff growth in Congress. One is the dispersal of power; in the old days, the power barons, the committee chairmen, ruled with a firm hand through small but powerful staffs. As power spread to subcommittees, everyone wanted more staff. First, subcommittee chairmen and ranking minority members, then individual committee members demanded their own committee staffers on each of their committees to protect their interests. The second institutional engine was the dramatic increase in constituent casework and the rising tide of mail that swamped Congress. Those needs made senators and congressmen demand a buildup in their personal staffs. In a typical House member’s office, fourteen of eighteen staff aides are engaged in casework, travel, and administration; only a handful follow the substance of legislation. Most policy work is done by committee staffs.

  The staff explosion was forced by the limits of time and rising demands. Senators and congressmen had to ease their own workloads, for they were stretched too thin, dealing with floor debates, subcommittee work, campaign fund-raising, and travel home every weekend. What’s more, no single person can keep up with the sprawling substance of policy. On a normal day, a senator or congressman has two and sometimes three simultaneous committee hearings, floor votes, issues caucuses, meetings with other congressmen from his state or region, plus lobbyists, constituents, and press to handle. He will dart into one hearing, get a quick fill-in from his staffer, inject his ten minutes’ worth and rush on to the next event, often told by an aide how to vote as he rushes onto the floor. Only the staff specialist has any continuity with substance. The member is constantly hopscotching.

  “It’s just a crazy life,” remarked David Aylward, former staff director for the House Subcommittee on Telecommunications, Consumer Protection, and Finance under Timothy Wirth of Colorado. “What Wirth’s administrative assistant did was manage chaos all day.” Aylward told me, shaking his head at the thought. “You see, a really good politician becomes a spokesman rather than a hands-on expert. He can’t afford to become a hands-on expert. Jimmy Carter was a classic example of somebody who tried to be a hands-on expert, and it just doesn’t work.”

  “If you’ve ever seen an active member of Congress’s daily schedule it’s ju
st scary,” Aylward said. “When I got to the point in our subcommittee where we had an expert on securities, an expert on banking, an expert on telephone, an expert on television, an expert on motor-vehicle safety, and international trade and so on, I would get bounced through meetings where I would be brought in because Wirth had to do something else. So I was kind of half playing congressman. I started to get some feel for what his life was like. I’d get briefed for three minutes beforehand about what I was supposed to say in some meeting. I didn’t understand it. I would just do what I was told to say. That got frightening. I didn’t feel comfortable with that. But that’s what a member’s life is like. There’s no way Wirth could be an expert on all of those things, much less the budget committee, which he was on, much less arms control that he cared about, much less clean air and other kinds of health issues. So the staff had become more and more important.”9

  Aylward voiced a typical staffer’s view when he declared, “You wouldn’t catch me dead running for office.” Seeing the chaotic life, most staff aides pass up elective office. More frequently, they take highly paid jobs as Washington lawyers and lobbyists, as did Aylward. While in government, many enjoy exercising power anonymously. They care more about results than publicity. They prefer the mastery of substance and process to the glory and hassle of elective office. Some even come to feel that as staff, they have more power than senators or congressmen do.

  Take Norman Dicks, who spent eight years as an aide to Senator Warren Magnuson of Washington and then won election to the House in 1976. A year later, he remarked to my New York Times colleague Martin Tolchin: “People asked me how I felt about being elected to Congress, and I told them I never thought I’d give up that much power voluntarily [emphasis added].]”10