What ails Congress? Six explanations

Summary

Everyone has an opinion on what is wrong with Congress. This post covers the field, laying out six different types of explanations as to why America’s legislature is struggling, ranging from factors well beyond legislators’ control to institutional choices clearly susceptible to reform.

Introduction

In my new National Affairs article, “Congress Indispensable,” I lay out an ideal of what our legislature ought to be and describe how our current Congress falls short of that ideal. I quite intentionally eschew diagnosis and prescription, because too often discussions about congressional dysfunction proceed as if the institution’s failings are self-explanatory and that it is obvious what a healthy legislature would look like. Our abundance of clichés for discussing a “broken” Congress notwithstanding, the truth is that people have varying or even conflicting senses of what the institution should do and how it is failing. I argue that our aspirations for Congress need to be informed by the particular strengths of representative government, rather than the values of efficiency or social welfare that so often dominate our public discourse.

But the appetite for diagnosis and prescription is bottomless! Early reactions to the article indicate that people are downright miffed not to find any acknowledgment of their favored explanation of what has gone wrong or what would fix things. So in this post, I do my best to simply catalog prescriptions, and in a sequel I will do the same for diagnoses.

I aim to be comprehensive (in ideas, if not citations); if I’ve missed anything, I hope readers will let me know. I also aim to suppress my own opinions (of which I have many) about the relative merits of these judgments, leaving those arguments for another day. I proceed through several different levels of explanations.

1.     The modern world is no place for legislatures

Perhaps the demands of modernity are fundamentally incompatible with generalist legislatures that are too formalist, slow, and myopic to keep up. The work of government has become so complex and intricate that legislators seem unable to effectively guide policy development, while centralized and hierarchical executives are able to build the administrative structures needed to do so.[1] At the same time, modern communications technologies enhance the possibilities for direct contact between government and citizens, including extensive reliance on referenda. And so, across the western world, legislatures are in decline.[2] As I explain in “Congress Indispensable,” this perspective can be thought of as the central feature of the tradition of skepticism about Congress dating back to Woodrow Wilson’s Congressional Government.[3]

A distinct, but related, path to legislature-skepticism is to suggest that the problems representative legislatures historically emerged to solve have been eclipsed by others, so that representative assemblies are no longer well-suited to serve society’s needs. F.R. Ankersmit suggests that representative institutions were well suited to “the kind of problem that we inherited from our aristocratic past (i.e., conflicts arising from social inequality),” but are not very capable of handling the “conflict within the mind of the individual citizen” between competing values, which he believes are now the more important type of problem.[4] Meanwhile, where original parliaments were very concretely rooted in the consent of feudal lords, the sort of consent modern legislatures are able to offer is highly abstract, and not actually of much concern to most citizens. More flexible purpose-specific networks, which make no pretension to universal consent but offer some features of openness, are on the rise.[5] Some argue that Congress’s bicameral structure makes its predicament even more severe than other legislatures, with its two chambers’ differing distributions of preferences rendering decision-making especially difficult.[6]

2.     21st-century citizens don’t want representative government

Less grandly, perhaps it is not modern life that representative legislatures are incompatible with, but rather modern citizens. Apparently, citizens throughout the developed world are souring on democracy itself, with young people in particular showing an increasing appetite for strong leadership rather than deliberative process.[7]

Legislators in particular strike contemporary observers as feckless and corrupted. A 1995 study found that U.S. citizens professed a strong commitment to democracy, but in fact reviled most of the observable features of our democracy; members of Congress seemed to embody the hated “out of touch Washington system” more than any other actors, and thus came in for special contempt.[8] Congress is supposed to somehow be able to balance expanded expectations for government performance, respect for (multiplying) identity groups, and its core function of representativeness, but it has no means of doing so.[9]

Some argue that decades of reforms promoting transparency have made Congress’s image problem considerably worse. In short, citizens now have an easier time seeing how the sausage is made, and (unsurprisingly) they don’t like it. Their distaste for many of the most transactional features of lawmaking, such as earmarks, has led to their elimination in the name of “good government” principles, but in fact the overall effect has been that Congress has deprived itself of tools it needed to perform governing functions smoothly.[10] In short, Congress is squeezed between citizens’ insatiable desire to know and their distaste for what they see; trust is difficult for Congress to regain, once lost, since neither openness nor “secrecy” sit well with the public.

3.     21st-century America is too polarized to have a working Congress

The single most-discussed feature of the modern Congress is its polarization. In the mid-20th century, there was considerable overlap between Democrats and Republicans’ voting behavior in both the House and Senate. Both parties contained liberal and conservative elements (in large part because of the long shadow of the Civil War) and there were several distinct issues cleaving legislators into variable coalitions. Today, all that has changed: Democrats are “liberal” and Republicans are “conservative” (with both of those words bearing highly stylized, historically contingent meanings), and they line up against each other in well-ordered battle lines to a remarkable degree. Nearly every live issue sorts liberals against conservatives, and the numbers of genuine moderates has fallen precipitously over the last decade.[11]

There is some controversy about whether congressional polarization is attributable to a deeper polarization of American citizens; some scholars have argued that a relatively moderate public is increasingly poorly represented by two parties so uniformly and sharply opposed to each other, and the proportion of American voters registered as independent is at an all-time high.[12] But there is considerable evidence that Americans themselves are becoming sorted into two distinct camps, such that elite polarization ought to be regarded as a fairly faithful representation of Americans’ views. Especially important in this regard is what Alan Abramowitz and Steven Webster have dubbed negative partisanship: a firm allegiance to one party motivated primarily by antipathy to the other.[13]

Rather than simple polarization causing congressional dysfunction, the real problem may be the specific configuration of modern polarization, which features two nearly balanced sides locked into a confrontation without a clear favorite. Frances Lee argues that it is the extended period of competitive balance between Democrats and Republicans that began in the 1980s, and is now easily the longest such period in American history since the Civil War, which pushes our politics toward mutual destruction and futility.[14] Severe polarization has occurred before, but with a clear majority party being held accountable by a responsible opposition rather than with two roughly equal combatants. The dynamics of such a system are quite different from what we see today.

4.     Our congressional elections produce the wrong incentives for legislators

Rather than seeing polarization of the citizenry as the problem, we might instead focus on other aspects of our contemporary election process that give members of Congress the “wrong” incentives. As leading culprits, observers often point to:

• Partisan gerrymanders and extremist primary electorates. The argument is that strategic partisan redistricting has created more safe seats, which in turn empowers the quite unrepresentative voters who turn out to vote in the primary elections that are in essence the “real” elections for control of the congressional seat.[15]
• Special interests who are perceived to have captured our political process, corrupting it to do their bidding, often in the form of protecting an unjustifiable status quo. Their influence comes through the careful distribution of monetary donations, which have flooded the system and forced legislators facing well-financed opponents to devote their own energies disproportionately to fundraising. Even if naked quid pro quo bribery is a small part of national politics, much more access to the system is available to those who pay, and the interests of large corporations end up crowding out others.[16]
• A changed media environment, which pushes office-seekers to frame things in increasingly national and hyper-partisan terms. In Tip O’Neill’s day, “all politics is local” may have been high wisdom, but it seems quite dated in an environment that channels dollars and media attention to those who adopt the most confrontational postures. The demise of local journalism, the rise of social media, and the fragmentation of media into warring political camps all contribute.[17] This might also be connected to longstanding complaints about the demise of comity and civility in our political culture. When the “loudest” voices in our political discourse have concerns that systematically diverge from the electorate as a whole, or from a refined elite that previously saw itself as the keeper of a certain kind of decorum and values, the result is a coarsened politics that fails to appeal to the better angels of our nature.

5.     Modern political parties are subverting the institution

America’s two leading political parties have always been about winning elections, but they have nevertheless transformed in ways that many people believe have caused them to degrade contemporary politics.

• The parties sought and achieved a degree of ideological consistency unknown to mid-20th century American politics, which featured two “big tent” parties whose strange concatenations of client groups could only be explained historically. By succeeding so spectacularly in making Democrats the “liberal” party and Republicans the “conservative” one—and by solidifying the meanings of those ideologies in ways that put them squarely at odds with each other—the parties essentially hollowed out the vital center of American politics and made it impossible for legislators to work across the aisle.[18]
• An alternative perspective emphasizes not ideological consistency, but the remarkable extent to which parties have succeeded in making politics into almost exclusively a team sport, with absolutely everything being given a partisan valence and framed in terms of zero-sum partisan conflict. In other words, the parties have managed to polarize our political arena and thus our whole society, rather than causation running in the other direction.
• Alternatively, one can argue that the focus needs to be primarily on the modern Republican Party, which has fashioned itself as an “insurgent outlier” rather than as an organization capable of contributing to governance. Most prominently championed by Tom Mann and Norm Ornstein, this view explains contemporary dysfunction as a consequence of the rise of Newt Gingrich and his cohort of Republicans who took control of the House of Representatives in the 1994 elections. Under the leadership of Gingrich, and through the speakerships of Dennis Hastert, John Boehner, and now Paul Ryan (and frequently paralleled in the Senate), Republicans structured Congress to promote conflict and embarrass their partisan opponents.[19] This shift could be attributed to fundamentally corrupt motives on the part of Republican leaders (who were scandalously solicitous of corporate interests), or to a fundamental asymmetry in the composition of the two parties’ electorates, with Republican voters preferring an ideological, bomb-throwing style of representation and Democratic voters more interested in transactionally pursuing various policy objectives.[20]
• Although their position has never been spelled out as definitively, a diametrically opposed set of observers identify such Democrats as Jim Wright, the Clintons, Rahm Emanuel, Nancy Pelosi, and Harry Reid as prime movers in turning Congress into a more combative arena.[21]
• Surprisingly, there are also those who would blame the weakness of parties as a major cause of current legislative dysfunction. Ray La Raja and Jonathan Rauch argue that the diminished role of state parties vis-a-vis activist donors and national parties has been a major factor in promoting highly ideological politics.[22]

6.     Congress is crippling itself

Finally, a number of theories assert that Congress’s contemporary failures result from self-inflicted wounds.

• Leadership, overbearing or impotent? Some observers see Congress as having become leadership-heavy in ways that push against real deliberation. Retiring Representative Reid Ribble (R-WI) lamented that “The leadership has 100% say on everything and they drive and direct every decision.”[23] Others, however, actually lament the ways that campaign finance laws have diminished the power of leaders to push through compromises.[24]
• Anti-majoritarian rules, especially the filibuster. For those who envision the legislature’s proper role as being a simple conduit for majority opinion, any choices that entrench supermajority requirements are clearly to be regarded as perniciously “antidemocratic.” Others oppose the filibuster and the proliferation of “veto points” within the legislative process on the less-populist grounds that they imperil the ability of our legislature to act and thus promote its marginalization.[25]
• Confused and weakened committees. Congress is destined to remain a body of generalists, and yet the division of labor embedded in its committee structure is crucial to allowing it to specialize enough to legislate effectively. Today, a tangled web of overlapping committee jurisdictions weakens Congress’s ability to hold the executive branch accountable.[26] Meanwhile, committee assignments are apparently made on the basis of fundraising prowess rather than policy interest or acumen.[27]
• Congress has piled up self-imposed rules, especially in the realm of budgeting, that impose a series of mini-crises that must be handled in order to stave off serious negative consequences. Such artificial crises (“cliffs”) have crowded out everything else from the legislative agenda, as well as poisoning relations between members.
• Congress has allowed its own functional capacity to erode (or in some cases actively disabled itself). This unilateral disarmament in the conflict between branches (frequently discussed here at LegBranch.com) can be seen either as a manifestation of a dysfunctional Congress or as an independent cause of institutional dysfunction.[28]

Conclusion

Not all of these explanations can be correct—some are diametrically opposed to each other. Still, there is probably truth in many of them. My own belief is that there is less at stake in getting the right answer than most people seem to think. The “we” of the reform community will never be of one mind, nor should it be. People are energized to search for ways to strengthen Congress for a variety of reasons, and their passions are unlikely to be transferred from one strategy to another as a result of any social scientific detective work. Reform is more often in the realm of rhetoric than of careful logic, and there is little to be gained by pretending otherwise. It would be a shame if people of good faith hoping to help Congress right itself ended up expending their energy competing with each other rather than collectively working to promote an atmosphere of congressional self-reflection and renewal. There are plenty of problems to go around.

And solutions, too—which I will catalog in my next post.

Philip Wallach is a senior fellow in governance at the R Street Institute.

Notes

[1] On the advantages executives possess (and have accumulated), see Andrew Rudalevige, “Constitutional Structure, Political History, and the Invisible Congress,” in The Imperial Presidency and the Constitution, edited by Gary J. Schmitt, Joseph M. Bessette, and Andrew E. Busch (Rowman & Littlefield, 2017).

[2] See, e.g., Valentine Herman and Juliet Lodge, “The European parliament and the “decline of legislatures” thesis,” Politics 13 (1978): 10-25; John G. Matsusaka, “The eclipse of legislatures: Direct democracy in the 21st century,” Public Choice 124 (July 2005): 157-177.

[3] Woodrow Wilson, Congressional Government (Transaction Publishers, 2002 (1885)).

[4] F.R. Ankersmit, Political Representation (Stanford University Press, 2002), p. 106.

[5] Ankersmit discusses the work of Jean-Marie Guéhenno in this vein; 182-185. Cf., Edward L. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton University Press, 2005). For an empirical look at the rise of policymaking bodies outside the control of not only the legislature but of the state itself, see Catherine E. Rudder, A. Lee Fritschler, and Yon Jung Choi, Public Policymaking by Private Organizations (Brookings Institution Press, 2016).

[6] Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (Brookings Institution Press, 2003), 83.

[7] See Roberto Stefan Foa and Yascha Mounk, “The Signs of Deconsolidation,” Journal of Democracy, January 2017, pp. 5-15. http://www.journalofdemocracy.org/sites/default/files/02_28.1_Foa%20%26%20Mounk%20pp%205-15.pdf

[8] Hibbing and Theiss-Morse, Congress as Public Enemy, pp. 88-98.

[9] Joseph Cooper, “Performance and Expectations in American Politics: The Problem of Distrust in Congress,” in Congress and the Decline of Public Trust, edited by Joseph Cooper (Boulder, CO: Westview Press, 1999); Russell J. Dalton, Democratic Challenges Democratic Choices: The Erosion of Political Support in Advanced Industrial Democracies (Oxford University Press, 2004).

[10] Jonathan Rauch, “Political realism: How hacks, machines, big money, and back-room deals can strengthen American democracy,” Brookings Institution, May 2015. https://www.brookings.edu/wp-content/uploads/2016/08/political-realism-rauch2.pdf; Daniel Stid, “Two Pathways for Congressional Reform,” in Is Congress Broken: The Virtues and Defects of Partisanship and Gridlock. Eds. William F. Connelly Jr., John J. Pitney Jr., and Gary J. Schmitt (Brookings Institution Press, 2017), pp. 11-36.

[11] Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches, 2nd Edition (MIT Press, 2016).

[12] Morris P. Fiorina, Disconnect: The Breakdown of Representation in American Politics (Norman, OK: University of Oklahoma Press, 2009). More recent data is available in Samantha Smith, “5 facts about America’s political independents,” Pew Research Center Fact Tank, July 5, 2016. http://www.pewresearch.org/fact-tank/2016/07/05/5-facts-about-americas-political-independents/.

[13] Matthew Levendusky, The Partisan Sort: How Liberals Became Democrats and Conservatives Became Republicans (Chicago, IL: University of Chicago Press, 2009); Alan Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy (Yale University Press, 2010); Joseph Bafumi and Michael C. Herron, “Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress,” American Political Science Review 104, August 2010, pp. 519-542; Alan Abramowitz and Steven Webster, “The rise of negative partisanship and the nationalization of U.S. elections in the 21st century,” Election Studies 41 (March 2016), pp. 12-22.

[14] Frances Lee, Insecure Majorities: Congress and the Perpetual Campaign (University of Chicago Press, 2016).

[15] Jamie L. Carson et al., “Redistricting and Party Polarization in the U.S. House of Representatives.” American Politics Research 35, November 2007, pp. 878-904; David W., Hahrie Han, and Jeremy C. Pope. “Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?” Legislative Studies Quarterly 32 (Feb. 2007), pp. 79-105; Elaine C. Kamarck, “Increasing Turnout in Congressional Primaries,” Brookings Institution, July 2014. https://www.brookings.edu/wp-content/uploads/2016/06/KamarckIncreasing-Turnout-in-Congressional-Primaries72614.pdf and citations therein.  Many political scientists dismiss gerrymandering’s importance; for one such argument, see Charles Hunt, “No, gerrymandering is not THE cause for non-competitive elections and legislative polarization,” LegBranch.com, January 5, 2018. http://www.legbranch.com/theblog/2018/1/5/no-gerrymandering-is-not-the-cause-for-non-competitive-congressional-elections-and-legislative-polarization

[16] For empirical evidence on the importance of money to gaining access, see Lee Drutman, The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate (Oxford University Press, 2015); Joshua L. Kalla and David E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment.” American Journal of Political Science 60, July 2016, pp. 545-558. For pushback against claims of money’s power, see Jeffrey Milyo, “Politics ain’t broke, so reforms won’t fix it,” Washington Examiner, July 6, 2015. http://www.washingtonexaminer.com/politics-aint-broke-so-reforms-wont-fix-it/article/2567569

[17] Darrell M. West, The Rise and Fall of the Media Establishment (Palgrave Macmillan, 2001); Markus Prior, “Media and Political Polarization,” Annual Review of Political Science 16,  May 2013, pp. 101-127.

[18] For one new historical account, see Sam Rosenfeld, The Polarizers: Postwar Architects of our Partisan Era (University of Chicago Press, 2017).

[19] Thomas E. Mann and Norman J. Ornstein, The Broken Branch: How Congress if Failing and How to Get It Back on Track (Oxford University Press, 2006); It’s Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 2nd Ed. (Basic Books, 2016).

[20] Matt Grossman and David A. Hopkins, “Ideological Republicans and Group Interest Democrats: The Asymmetry of American Party Politics,” Perspectives on Politics 13,  March 2015, pp. 119-139.

[21] John M. Barry, “The House of Jim Wright: How a short-lived speakership made congressional gamesmanship the new normal,” Politico Magazine, May 7, 2015. https://www.politico.com/magazine/story/2015/05/the-house-of-jim-wright-117718

[22] Raymond J. La Raja and Jonathan Rauch, “The state of state parties—and how strengthening them can improve our politics,” Brookings Center for Effective Public Management, March 2016. https://www.brookings.edu/wp-content/uploads/2016/07/states.pdf

[23] Craig Gilbert, “Leaving Congress, Ribble warns GOP against overreach,” Milwaukee Journal-Sentinel, December 13, 2016. http://www.jsonline.com/story/news/blogs/wisconsin-voter/2016/12/08/leaving-congress-ribble-warns-gop-against-overreach/95145602/

[24] Jonathan Rauch, “How American Politics Went Insane,” The Atlantic (July/August 2016) (https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/).

[25] For examples, see Hendrik Hertzberg, “Oh, Shut Up,” New Yorker, January 10, 2011. http://www.newyorker.com/magazine/2011/01/10/oh-shut-up; Garret Epps, “How the Senate Filibuster Went Out-of-Control—and Who Can Rein It In,” The Atlantic, December 27, 2012. https://www.theatlantic.com/national/archive/2012/12/how-the-senate-filibuster-went-out-of-control-and-who-can-rein-it-in/266645/. For a similar charge informed by first-hand experience, see Olympia J. Snowe, “Why I’m leaving the Senate,” Washington Post, March 1, 2012. https://www.washingtonpost.com/opinions/olympia-snowe-why-im-leaving-the-senate/2012/03/01/gIQApGYZlR_story.html?utm_term=.1ff6db1bf0b9

[26] Joshua D. Clinton, David E. Lewis, and Jennifer L. Selin, “Influencing the Bureaucracy: The Irony of Congressional Oversight,” American Journal of Political Science 58, April 2014, pp. 387-401 (ungated draft: https://my.vanderbilt.edu/joshclinton/files/2013/06/Influencing-Bureaucracy-AJPS-Manucript-FINAL.pdf).

[27] “The Price of Power,” Issue One (2017). https://www.issueone.org/wp-content/uploads/2017/05/price-of-power-final.pdf

[28] For extended discussion, see Paul Glastris and Haley Sweetland Edwards, “The Big Lobotomy,” Washington Monthly, summer 2014. http://washingtonmonthly.com/magazine/junejulyaug-2014/the-big-lobotomy/; Lee Drutman and Steven Teles, “A New Agenda for Political Reform,” Washington Monthly, spring 2015. http://washingtonmonthly.com/magazine/maraprmay-2015/a-new-agenda-for-political-reform/