05/20/2010 10:01 am ET | Updated May 25, 2011

How Does a Bill Become a Law? Scandals Required.

Would we today have laws on drug safety, auto safety, campaign finance ceilings -- and maybe shortly Wall Street Reform -- without Sherri Finkbein, GM's detective tailing Ralph Nader, Watergate and Goldman Sachs? Are scandals to Congress what oxygen is to life?

There have been and will continue to be debates over the size and cost of government -- or pro-choice vs. pro-life. But what's not debatable is that our Congress is so paralyzed that often only tragedies can overcome its arteriosclerosis.

It would be best, according to the adage, to "repair the roof while the sun is shining," But in fact it often takes the equivalent of tornadoes to get Congress to pay attention and do its job.

Sherri Finkbein, for example, was an American woman who took untested Thalidomide during her pregnancy and had to go to Sweden for an abortion when she realized that "Thalidomide Babies" were being born with flippers instead of feet and hands. Congress responded with the 1962 FDA Amendments requiring that such drugs be tested not only for safety but also efficacy.

Would there have been a 1957 and then 1964 Civil Rights laws without the murders of first Emmett Till and then Schwerner, Goodman and Chaney? It was only after the disclosure that GM had hired a detective to investigate Ralph Nader that Unsafe at Any
garnered enormous national attention and the Congress created the National Highway Traffic Safety Commission in 1967. Unsafe was in a a tradition that included Upton Sinclair's The Jungle in 1905 and Rachel Carson's Silent Spring in 1964 that led, respectively, to food safety and anti-pesticide laws.

Reformers had failed for decades to enact enforceable, modest limits on campaign contributions...until money and politics combusted over Watergate and produced the consequential 1974 law that governs us still. And today, a lobby as powerful as Wall Street wouldn't have lost a cloture vote and face the imminent enactment of a new regulatory law without both the recent epic market meltdown in general and Goldman Sachs lawsuit in particular.

There's also the spectacle of how stuck Toyota accelerators and the Gulf oil rig explosion are doing more for clean energy and auto safety than all 535 members of Congress combined (throw in a president, too). Congress is holding the first auto safety hearings in a decade; and not only is the Drill, Baby Drill crowd now tweeting about other issues but also serious climate/clean energy legislation has a wind behind it.

Everyone is arguing that people are angry at Washington -- and the Tea Party is riding that wave. So why do they ignore culprits hidden in plain sight -- i.e., the gerrymander, the legal bribes of big political contributions, Senate "holds" and the filibuster?

The gerrymander allows politicians to choose their voters rather than voters choosing their politicians; in campaigns, money still shouts -- and will likely get worse as the Supreme Court's radical right block seems eager to eliminate even existing constraints in the name of corporate "speech"; and the unprecedented level of secret Senate holds and use of the filibuster have created a legislative gridlock that enables Republicans today to have an influence far beyond their numbers. We are usually governed by minority rule.

Each congressional defect was created by Congress and can be undone by Congress.
Non-partisan panels in some states are drawing election lines; clean money laws in other states are leveling the financial playing field; and there are plausible moves underway to stop anonymous holds and routine filibusters from effectively rewriting the Constitution to require a 60 vote super-majority in the Senate.

In fact, there is a growing consensus in both chambers that it's time for more systemic reforms to fix our broken branch of government. Either in the near-term, while Democrats have their congressional margins, or after 2012 when President Obama could conceivably add to them, America needs a pro-democracy agenda and movement every bit as dramatic as Lech Walesa's. I'd settle for a few more progressive Rand Pauls.

Instead of waiting for tragedy to strike to move legislation, reforming these archaic rules can enable us to finally engage in preventive lawmaking -- to build guard rails at the top of a cliff rather than merely locating ambulances below.

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