Louis J. Esbin, Esq./ FOR KHTS 

Following the 2012 Presidential election, much can be said of the manner by which each of the political party’s campaigns was waged.

But now, in the days leading up to the “Fiscal Cliff, the manner in which our representatives square up along ideological lines may truly foretell the battle for our Democracy.

Use of the words “wage” and “battle” are not accidental, as these words are often attributed to the manner by which divergent factions engage in war or in a serious fight to achieve an end. It seems that our representatives are engaged in a form of war. Most certainly, a serious fight! But, is the process new, is it necessary to achieve the end, and is there a solution?

George Washington, John Adams, and Thomas Jefferson each grappled with the evolution of the party system in our fledgling democracy and each bemoaned its inevitable proliferation and recognized its necessity, along with the incivility that flowed from it. The election of 1800 should not be lost to the deep recesses of history. It pitted Thomas Jefferson, as the Democratic-Republican, against John Adam, the Federalist.

Jefferson sought to reduce the size and scope of the federal government by ending internal taxes, reducing the size of the army and navy, and paying off the government’s debt. Limiting the federal government flowed from his strict interpretation of the Constitution. Adams, on the other hand, during his term in office had expanded the army and navy, attacked individual rights in the Alien and Sedition Acts, and assessed new taxes and deficit spending used to support broadened federal action. By a vote of Congress, Jefferson was elected as president.

“Much indeed to be regretted, party disputes are now carried to such a length, and truth is so enveloped in mist and false representation, that it is extremely difficult to know through what channel to seek it. This difficulty to one, who is of no party, and whose sole wish is to pursue with undeviating steps a path which would lead this country to respectability, wealth, and happiness, is exceedingly to be lamented. But such, for wise purposes, it is presumed, is the turbulence of human passions in party disputes, when victory more than truth is the palm contended for.” George Washington, letter to Timothy Pickering, July 27, 1795. And, George Washington, in a letter to Thomas Jefferson, on July 6, 1796, wrote: “I was no party man myself, and the first wish of my heart was, if parties did exist, to reconcile them.”

In 1813, Thomas Jefferson penned a letter to John Adams, in which he stated: “To me… it appears that there have been differences of opinion and party differences, from the first establishment of government to the present day, and on the same question which now divides our own country; that these will continue through all future time; that every one takes his side in favor of the many, or of the few, according to his constitution, and the circumstances in which he is placed.”

Fast forward to the polarization of the political process during the 104th Congress (January 3, 1995 to January 3, 1997), in which Newt Gingrich, as Speaker of the House, was pitted inescapably with President Bill Clinton. From March 7-9, 1997, 200 members of the House of Representatives, 165 spouses and 100 of their children attended a bipartisan retreat in Hershey, Pennsylvania (Hershey Retreat) coordinated by The Aspen Institute and funded by a grant from The Pew Charitable Trusts. According to its organizers, it was designed “To seek a greater degree of civility, mutual respect and, when possible, bipartisanship among Members of the House of Representatives in order to foster an environment in which vigorous debate and mutual respect can coexist.”

In March 1997, the Annenberg Public Policy Center of the University of Pennsylvania prepared a background report on civility in the House for use at the Hershey Retreat [http://www.asc.upenn.edu/appc/pubs] and in March 1998 updated that report based upon calls for a House member to suspend and for the House to be in order from the 99th through the 104th Congress. (Pew Report).

The Pew Report found that following the Hershey Retreat the instances of incivility in the 105th Congress had diminished and references to the Hershey Retreat or attendance by a House member at the Hershey Retreat were effective at reducing vulgarity, incivility and encouraging recognition and correction of bad behavior. The Pew Report recommends, among other things, that House members socialize with one another more often, as “It is easier to vilify those one doesn’t know. If social contact increases comity, then increasing the number of activities that bring House members of different parties (and their families) together off the floor should encourage a higher level of mutual respect during floor exchanges.”

Notwithstanding the evidence of how isolation among partisan members of Congress is counter-productive for civility, not surprising, there is disagreement that is often politicized and polarized along party lines. The subject matter, certainly as evidenced by the Hershey Retreat, the Pew Report, and comments from Washington, Jefferson and Adams, is not new.

Very often, those professing to be to the left of the political spectrum are calling for greater civility and those to the right bemoaning the accusation as an attempt to quell the political debate inherent in our Democracy. One commentator refers to the debate as “crybabyism,” and in referencing the Pew Report, criticized the Hershey Retreat as a three-quarter of a million dollar “resort getaway for relatively wealthy congressional families…,” doubting the value of creating face to face social interaction as a method to reduce incivility. State of the Debate: The Case Against “Civility” (The American Prospect, Randall Kennedy, December 2001).

Fifteen years later, the Hershey Retreat is but a distant memory.

Today, Internet-based social media is recognized as a source of incivility because of its indirect and often anonymous interaction (http://www.blogtalkradio.com/search/examples-of-incivility-in-social-media/); a malady recognized by the Pew Report afflicting Congress. Incivility arising from internet-based social media supports the Pew Report’s conclusion that the lack of face to face interaction directly effects civility, and most importantly political incivility.

Political civility and partisan politics are not mutually exclusive. “As a result of this increased polarization and partisanship, members of Congress are less able and less willing to forge the personal relationships that are necessary for Congress to function. These relationships make Congress more effective as an institution and result in the body passing more productive legislation. In the absence of these close social bonds, Congress is less effective and does not function the way that it ought to.” [Bringing Down the House: The Causes and Effects of the Decline of Personal Relationships in the U.S. House of Representatives, College of Arts and Sciences CUREJ – College Undergraduate Research Electronic Journal, Evan M. Philipson, April 2011](Philpson Report).

The Philipson Report is a thorough and comprehensive report of the failure of members of Congress to effectively engage in the social networking so important in politics and recognized as imperative to business success, “offering four practical recommendations that can be implemented to reverse the decline of personal relationships in the House. They are: redistricting reform, return to a five-day
Congressional workweek, campaign finance reform, and decentralization of the power of party leadership.”

But, there is a fifth solution that is much closer at hand: the institutional memory of Congress as an institution and of our Democracy as a means of governance. The study and understanding of history is relevant for our elected officials to lead. History’s lessons are an important ingredient in civility, regardless of political leanings. It goes along with the oft forgotten edict to “respect your elders,” not only because of their age, but because of the lessons that may be taught; a measure of civility that seems to be lost in the rush of our 21st Century society and Congress.

Surprisingly, the need for an historian was not lost on the Subcommittee on Rules & Organization of the House convened in 1997 to discuss the Hershey Retreat and the findings of the Pew Report. The Subcommittee expressly recognized that the turnover of members of Congress gives rise to the loss of institutional memory and historians.

No doubt that since the Hershey Retreat of 1997, much of Congress’ membership has left the institution and with them taken the memory of social and political bipartisanism. “At the commencement of the 112th Congress (January 3, 2011), the average number of years of House service for Representatives was 9.8, or just less than five terms. The average number of years of Senate service for Senators was 11.4, slightly less than two full Senate terms.” (http://www.fas.org/sgp/crs/misc/R42365.pdf)

The average current member of Congress is not privy to the experience of the Hershey Retreat, knows little or nothing of it, and seems only answerable to central party leadership, partisan politics, and wholly lacking of institutional memory. All too obvious, they are not only doomed to repeat the mistakes of the past, but are not even cognizant of the debate of their forefathers upon which the democracy has evolved or current issues emanate. The desires of their constituents, even at the cost of millions of taxpayer dollars, are sacrificed in the interest of adhering to the party line; being a loyal party partisan.

The history of partisan politics, the rise of political incivility and the cause for there being a lack of reasonable political discourse cannot be dismissed as irrelevant.

It is not to say that partisan differences and ideology should be abandoned, as certainly they should not. In our “instant information” and 24-hour media environment it is imperative that the manner and method by which ideas, opinions and differences are discussed, promoted and fostered, are done so with respect for disagreement, differences of opinion, and the historical sources of each. Debate does not equate to berate!

Although Randall Kennedy may decry the monetary cost, regular Hershey Retreat type events are necessary. Attendance by elected officials without lobbyists and operatives at a Hershey Retreat every 6-8 years (within the variance of the average term of service) to promote institutional memory and civility is well worth the cost; certainly less expensive than going over the “Fiscal Cliff.” And, with a newly elected Congress at hand, a commitment to attending such a Hershey Retreat should stand on an equal footing with taking Grover Norquist’s vow against raising taxes.

Commitment to the party and its ideological dictates without a commitment to political civility is not Democracy as Washington, Adams and Jefferson envisioned, but certainly warned. “To uphold and defend the Constitution” is the vow of office that implies to uphold and defend the historical and institutional memory and the political discourse and civil debate upon which our Democracy has evolved.

There is neither a Constitutional vow to party affiliation nor a vow to adhere to act in political concert in a predetermined manner!

“There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.” John Adams, letter to Jonathan Jackson, October 2, 1789.

Louis J. Esbin graduated from the School of Business of the University at Albany, New York; has been a California lawyer since 1985 and
Connecticut since 1998; is a certified bankruptcy specialist by the California Board of Legal Specialization; has been a volunteer Community Court Judge for the City of Santa Clarita, California since 2006; is a contributing author for the CEB “Mortgages, Deeds of Trust and Foreclosure Litigation” (4 th Ed. 2009); co-authored the professional treatise “Practicing Under BAPCPA 2005 (Practice Law Group 2006); is a member of the Los Angeles Bankruptcy Inn of Court; is a founding member and past president of the Central District of California Bankruptcy Attorneys Association; is a founding member of the Santa Clarita Valley Bar Association; and has been a Rotarian since 1993. He is the principal of the Law Offices of Louis J. Esbin and can be found at www.Esbinlaw.com and 661-254-5050.hg