Congress, Heal Thyself!

It’s almost too late

Approval of Congress is at a record low, and that’s a danger to our democracy. If the American people don’t approve what lawmakers are doing, they will lose trust and confidence in the institution and may embrace radical, undemocratic alternatives. The solution is not “Just Do What the People Want” because Americans are sharply divided on many major political issues and most legislative action requires compromise. Instead, the best approach is for Congress to listen to the concerns of voters and make a solid good faith attempt to act on many of those concerns.

I’m an Article I guy who respects the Congress and wants it to accept and exploit its Constitutional powers and responsibilities. I spent 22 years as a Senate staffer, so I have seen the good, the bad, and the ugly, and I’m deeply worried about current trends. Congress is suffering from multiple organ failure at a time when it most needs to be active and productive.

Too often, however, media commentators and even politicians themselves criticize Congress for the wrong things. And that means they are making the wrong diagnosis of the legislative disease and will likely grab at ineffective treatments.

Parochialism is built into the Constitution. Of course members will tend to put local interests above national ones until a compelling case is made. Gridlock is a feature of legislative behavior that requires compromise to get things done. But many lawmakers would rather have an issue to shout about than a half a loaf of relief. Partisanship is a consequence of our electoral system. It’s a logical way of organizing the competition for power. Now it has metastasized to a near fatal condition.

Many people attack the Senate filibuster as a roadblock to popular sovereignty, but I see it as only one of many tools of obstruction available to lawmakers. On balance it prevents more bad outcomes than good ones. Obstruction is a problem that would remain even if the filibuster goes.

Other critics point to misleading or insignificant indicators of supposed congressional failure: the lower numbers of bills passed or days in session or votes taken or oversight hearings held. Those numbers matter a little, but the bigger failures are the erosion of staff capacity through budget cuts and the refusal to increase congressional salaries since 2009, consigning us to a Congress of mostly aging millionaires.

There are bipartisan fixes for many of these smaller problems, as discussed by AEI’s Kevin Kosar and the Brennan Center and the Problems Solvers Caucus.

The bigger problems, especially now in the second Trump presidency, are the multiple organ failures weakening the Congress.

Congress has abdicated its war powers

I made this argument in more detail in March and in June, and I recognize that there is a long and sad history of congressional reluctance to take responsibility for major military operations. There at last have been efforts to end the Iran war by narrow majorities, but the GOP-controlled military committees have not demanded regular hearings and briefings on the war. The Pentagon itself has limited its reports to Vietnam-like enemy “kills” rather than strategic developments. To fulfill its responsibilities to the American people, Congress and its committees should be investigating military developments and taking action to support or restrain the conflict as it determines appropriate. Right now, lawmakers aren’t even doing enough “watchful waiting” as the war continues.

Congress has surrendered its trade powers

After troubling delays, the Supreme Court finally ruled that Congress has the exclusive power over trade and that the “Liberation Day” tariffs imposed under the International Emergency Economic Powers Act [IEEPA] were unconstitutional. The Administration seized upon other long-dormant legislative authorities to reimpose tariffs. Lawmakers continue to sit back and hope that the Court protects congressional powers. Congress should revisit those musty statute books and repeal or at least revise the sections that have been used and abused by Trump.

Congress has failed to control its power of the purse

The most surprising example of congressional weakness and decline has been its loss of control over federal spending, its power of the purse. That is a dangerous dereliction of duty of the most important authority the legislative branch has. It has only insisted on following the law requiring rescission of unwanted spending on a small $9 billion pot of foreign aid money. For much of the rest of tens of billions of dollars of cancelled contracts and refusals to spend appropriations, it has let the courts deal with the problems. It seems indifferent to illegal “pocket rescissions.” Lawmakers have willingly given up their regular spending powers by allowing funding through reconciliation laws and multiyear authorities. Powers not asserted easily become powers lost – and that has been happening with appropriations.

The institutionalists have been outflanked by the hyperpartisans

Many lawmakers have complained about these developments and tried to reassert congressional prerogatives. But in recent years they have been outflanked and outvoted by the hyperpartisans who put party messaging above legislative accomplishments.

I used to point out Kevin Kosar’s distinction between the “Secret Congress” that gets things done and the “Toxic Congress” that boosts disapproval ratings. Especially in the 119^th Congress, effective lawmakers have been losing out.

As recently as June 13, I applauded congressional action on the National Defense Authorization Act [NDAA], which has been approved by Congress and enacted into law for 65 years in a row. That record may be ending, however, because of partisan games. The House passed its bill but sent it to the Senate bundled with the crazy SAVE act to change election rules only a few weeks before early voting starts. Democratic Senators refused to start debate on the Senate’s bill. So what has been a bipartisan “must pass” measure is likely to be delayed until after the elections, if even then.

Appropriators are usually the most skilled practitioners of legislative deliberation and compromise because they have to pass the laws funding the government. Fights between the president and congressional leaders have prevented the appropriators from finishing their jobs for months in recent years. But they can act quickly when allowed to. Matt Glassman points out, however, that more and more spending has been done outside those regular appropriations bills. Spending has become much more partisan.

Lawmakers want to get out

The erosion of congressional powers and the poison of hyperpartisanship are driving more members to give up and get out. It’s hard to accomplish much, so members are discouraged. Why would anyone want to take a job that has low pay, high expenses, loss of privacy, and lots of public abuse? Especially when the power to make things happen grows smaller every day?

There are many causes of the toxic partisanship America has today. The parties have become more ideological. Our communities have become more solidly partisan. The media have segmented and proliferated, and are driven by algorithms rewarding outrage and extremism. The Supreme Court ruled campaign limits unconstitutional, unblocking torrents of secret money. State legislatures have gerrymandered themselves and congressional districts to prevent party competition.

Congress has made things worse by its own changes. Newt Gingrich helped Republicans win the House for the first time in 40 years by a campaign of scandal-mongering and nastiness. “We had to destroy the House in order to save it,” he claimed. When his give-no-quarter colleagues got elected to the Senate, they infected the upper chamber with majoritarianism. The only duty of the opposition was to oppose, not offer alternatives.

Gingrich also urged members to live in their districts, turning Congress into a Tuesday-Thursday club. In the 1970s, 2/3 of the members lived in the DC area; now only 15% do. We now have a Congress of strangers. Retiring Senator Pat Leahy [D-VT] told a friend of mine, “We don’t talk to each other any more.”

The biggest change by Gingrich and his successors in both parties has been the assertion of top-down control. The committees of jurisdiction have been relegated to filling in the blanks of outlines set by the leaders. The end result has often been huge “omnibuses” of appropriations bills and giant reconciliation bills. Members don’t get to offer amendments any more. The House leadership imposes closed rules on bills and Senate leaders “fill the amendment tree” to prevent unwanted or embarrassing votes.

There’s a reason for this power grab. In nine of the thirteen congressional elections in this century, party control switched in one or both houses. The congressional leaders felt compelled to enforce party discipline and nationalize elections with a common message. These changes have accelerated the multiple organ failure that is weakening Congress internally and in public esteem.

Another consequence of this atrophied legislative process is that members prioritize messaging rather than legislation. They hire “communications” specialists instead of legislative aides. They release clever videos instead of bills to improve government.

Heal Congress with institutionalists, regular order, and individual responsibility

The most urgent treatment Congress needs is the re-empowerment of the members who believe in the role of the legislature and are willing to assert its proper authorities. Let the appropriators handle spending, the revenue committees do trade, the defense committees oversee and legislate. Let the House and Senate do what they want, not what the president wants. And when they disagree, work out a compromise.

Some analysts say the Regular Order – of committees of jurisdiction doing their jobs, then letting the chambers review and revise – is impossible in this age of partisanship. I see it as the best remedy for the top-down system we have now. The regular order requires compromise and coalitions that often cross party lines. That’s what the Framers expected.

It’s hard to localize elections when Big Money can run national campaigns on culture war issues rather than what most voters really care about. But most voters are not strong partisans. In surveys, they pick and choose between Republican and Democratic positions on a broad spectrum of issues. Let the best local candidate win, providing they promise to think for themselves and do their best to represent their constituents. While they may all think about reelection once in office, they should not try to avoid responsibility for tough votes while they’re there.

There is still time to save Congress. I hope that the members who care about the institution and the Constitution will tell their voters how they plan to help.