Congress: Difficult by design

Daniel Patrick Moynihan once remarked that “the United States is the one nation in the world with a real legislature.” The senator from New York was boasting of our system, but many would take his statement as an indictment. The independence of Congress in our separation of powers makes our elected representatives uniquely able to frustrate the plans of our executive branch and seemingly ensures a parochialism more easily contained in other systems of government. If a legislature is conceived as an organ for “efficiently solving problems,” these are firing offenses. Given how many people conceive of government in these terms today, it is not surprising that we are experiencing a boomlet in articles that urge the scrapping of Congress as we have known it. Indeed, the glaring defects of our current Congress make the case at least superficially attractive.

As with so many of America’s unusual features, however, the distinctive character of our Congress needs to be understood on its own terms. Congress is an embodiment of America’s unmatched commitment to pluralism. As such, it deserves to be mended rather than ended. Efforts to reform Congress will be fraught and messy, but in the past they have succeeded in spite of widespread skepticism.

The same cannot be said for attempts to effect wholesale constitutional change. Since the late 19th century, a parade of writers and (less frequently) politicians have insisted that only root-and-branch replacement of an obsolete governing document could equip America to handle the challenges of the modern, industrial, globalized world. Their intellectual outputs have sometimes been impressive but have almost never produced actual constitutional change. (Some reformers’ involvement in the push for the 17th Amendment is an arguable exception.) Mostly, the reformers have been driven by a horror at the inefficiency of American government, and, mostly, the cure they have sought is a parliamentary system in which the legislature and executive are fused and the governing party is assured control of the agenda.

The most famous expositor of this position was Professor Woodrow Wilson, whose Congressional Government (1885) was the culmination of years of criticism that he began publishing as a Princeton undergraduate. Wilson believed in “the principle of ministerial responsibility,” in which a fully responsible cabinet government could push forward an agenda of its choosing, subject only to the continued consent of the legislature, which would have the power to force the government’s resignation by rejecting its program at any time.

Wilson was hardly alone in his judgment. The Gilded Age Congress inspired disgust in many of his contemporaries, including some of the body’s own leading members. In 1881, responding to a widespread sense of frustration with partisan deadlock and congressional inaction, the Senate appointed a select committee to consider a bill that would have allowed the leading cabinet secretaries to hold seats in the House of Representatives and obliged those secretaries to report weekly to both houses of Congress. The eight-member committee, chaired by George H. Pendleton (D., Ohio) and divided evenly between Democrats and Republicans, unanimously recommended the bill as an appropriate first step in moving America toward the parliamentary best practices of its European peers. It went nowhere.

However tempting, it’s simply wrong to assume that our constitutional system’s critics must have been radicals at heart. In many respects, Wilson himself was a rock-ribbed conservative. Many champions of change have professed an essentially con­servative motivation. For example, William Y. Elliott, a Harvard political scientist who put forth a book-length plan for a new constitution in 1935, said that he feared “an unworkable legislative system of checks and balances will be superseded in times of crisis by executive authority more and more Caesarian in character.” In other words, a failure to remake our own system would open the door to Communism or Fascism. In 1942, a similar rationale animated no less a conservative icon than Henry Hazlitt to map out a move to a parliamentary system in a book he reissued after Watergate.

In various ways, today’s critics often lay claim to a similar conservative impulse, asserting that if the system is not reformed to allow it to better bend in the democratic wind, it will end up broken to pieces. Vox’s Matthew Yglesias channels the comparative research of Juan Linz, who studied the coup-prone presidentialism of Latin America, to say that our democracy itself is in peril if we fail to adapt. Lee Drutman of New America argues that if we fail to adopt a multiparty system, we will be doomed to see fringe elements capturing one of our two major parties again and again. In his view, figures such as Donald Trump are properly co-opted and marginalized as minor-party leaders in proportional-representation systems. At worst they can become only junior partners in a coalition government, whereas in our system they can hijack a major party with the support of only a small, angry minority.

Fear of an actual regime collapse (of the sort that ends with the generals in charge) seem rather overblown. This isn’t because America’s constitutional system is incapable of such a collapse, however, but rather because the actors operating within it are capable of incremental policy evolution instead of pure stagnation or wild lurching. If the constitutionally prescribed path of congressional legislation is blocked, the president and executive branch find ways to circumvent it — a lesson made clear by the second Obama administration. If the president goes too far or moves too fast in trying to change the direction of policy, entrenched bureaucrats, courts, the foreign-policy establishment, and Congress will box him in — a lesson that many observers of the Trump administration recognize by now.

By no means is this a triumphant portrait; Ross Douthat calls it “constitutional decadence.” This system yields only a pale shadow of the separation of powers’ intended virtues while partaking fully of its disadvantages for efficient government. But if this diagnosis is correct, the chances of mustering the confidence and unity necessary for a full-scale overhaul seem scant indeed.

That prospect of drawn-out mediocrity has led some would-be reformers to lean into presidentialism as much as possible without having to seek a complete constitutional overhaul. Two leading scholars of the presidency, William Howell and Terry Moe, neither of whom is a partisan thinker, offer a polemical argument to this effect in Relic(2016). If we follow our reason rather than a sense of nostalgia for a simpler time, they write, we should seek to continue the progressives’ project of government re­form by marginalizing Congress, which is properly regarded as a body of “extraordinarily sophisticated parochialism.” To do so would create room for more rational, coherent governance as well as enhance democratic accountability through presidential elections that are more clearly decisive. A single, short constitutional amendment could revolutionize the system by endowing the president with unlimited power to propose legislation and receive quick up-or-down votes from Congress, in the manner of the president’s Trade Promotion Authority (TPA). (Under their amendment, the president’s proposals would become law by default in the face of congressional inaction.)

They contend that a supercharged president would pursue the national interest far better than the factious Congress can. What TPA did for trade, Howell and Moe’s fast-track proposal power would do for budgets, foreign policy, energy — everything. Their expectation is that smaller deficits, wiser diplomacy, a sensible climate policy, and a happier American people would emerge.

Of course, given the strength of the recent cross-partisan push to repoliticize trade, Howell and Moe’s lionization of TPA’s ability to transcend petty politics is ironically timed. When governing elites suppress political dissent on an issue, that dissent is likely to explode back onto the scene in unpredictable ways. Multiparty proportional-representation systems or no, democratic deficits in Europe have come home to roost, and our own populist moment ought to be understood in the same light. Critics of our system rail against “Congress” as a metonym for “an unruly, disagreeable democratic electorate”; as armchair rulers, they would prefer to banish from view the problems posed by our divergent aims and values, the better to get down to the complicated work of social optimization.

In reality, however, a country of 325 million citizens is necessarily a place full of political conflicts, and we can only choose between trying to suppress them and letting them play out in plain view. For all its inability to achieve efficiency, Congress is admirably suited to the latter choice, which is clearly the more sustainable one. A friendly critic of Hazlitt’s 1942 proposal noted that the parliamentary system “demands, to a far greater degree than our Congressional system, a sacrifice of the initiative, independence and individuality of the ordinary legislative member. The M.P. must merge himself with his party; the Congressman may stand alone.” In creating that possibility, the Framers created a political role in which ambition was put in service of representing parochial concerns. This was not an oversight but a purposeful and central feature of the system.

As James Burnham explained in his Congress and the American Tradition (1959), Congress is the institution onto which the Framers inscribed their basic skepticism of ultimate solutions. It ensures a diffusion of power that tracks the diffusion of the population over its vast expanse (in the House) and the authority reserved to the states (in the Senate, a feature that particularly enrages democratic purists today). Because of the Senate’s staggered elections, it ensures that transient majorities cannot simply have their way. This design is not intended to ensure that we end up with better policies. Instead, Congress is the beating heart of representative government, and Burnham says its cacophonous multiplicity is the only way “the irreducible variety of the people’s interests, activities and aspirations [can] find political expression.”

This image is an appealing one for our diversity-revering age, but its critics say that the rise of polarization has made it a mirage. Our current Congress seems to contain not multitudes but two teams aiming at each other’s throats. Roll-call votes seem to show a greater separation between the parties than ever before. What little policymaking Congress does is tightly controlled by majority-party leaders’ offices. Issues that do not fit into the majority party’s national electoral pitch are scrupulously ignored. For these reasons, highfalutin talk of “multiplicity given voice” rings hollow.

These complaints are all fair, but it is a non sequitur to leap to a call for constitutional reform. Congress has not always been this way, and plenty of its own members are fed up with it today. We should therefore embrace rule changes that reduce the leaders’ roles, give members on committees a real chance to forge coalitions of convenience, and take the lid off of intraparty fights over defining issues such as entitlement spending and immigration. We must fight constitutional decadence by finding ways to put politics where it belongs — in the first branch.

This article originally appeared in National Review on September 13, 2018.

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