Congress is a mess. It seems incapable of passing major legislation; it is divided by bitter animosities, held in almost universal contempt, and without an apparent plan to right itself. So goes the conventional wisdom, and, as of early 2018, it is mostly right.
But saying that Congress is troubled is very different from offering a clear direction for reform. Strikingly few people — including among our elected officials themselves — have a strong sense of what Congress's institutional identity ought to be, or can say what a functional Congress ought to do in our 21st-century constitutional system. Taking up a long intellectual tradition running back through Woodrow Wilson, many intelligent observers have become convinced that Congress is obsolete, and the best thing it could do is just get out of the way.
Properly understood, however, Congress is no anachronism. The very features that would-be reformers find most exasperating — its messiness, balkiness, and cacophony — are those that render our representative legislature capable, in ways the other branches are not, of maintaining the bonds that hold together our sprawling republic. Critics of Congress are right to think that the legislature is a poor champion of efficient government relative to the executive branch, but they fail to realize the deeper goods and goals that representative government serves, namely promoting provisional coalition-building, generating trust, and creating real political accountability.
Congress can play these roles; indeed, for our constitutional system to function properly, it must do so. That is not to say that the institution is living up to its responsibilities today. Congress in our century has accelerated its own marginalization, which was already advanced. It is on its way to becoming little more than a forum in which policies negotiated elsewhere come to be formally enacted and low-impact criticisms of the ruling order are aired. Such a hollowing out of our first branch threatens an effective repudiation of the ideal of self-government, and it has the potential to generate (or exacerbate) an acute crisis of legitimacy. Congress clearly needs to revitalize itself. But that means it first needs to understand its own proper purpose again.
THE VIRTUES OF REPRESENTATIVE GOVERNMENT
Ever since Woodrow Wilson published Congressional Government in 1885, critics of America's legislature have seized on his rhetorically powerful account of what is wrong with Congress. In short, it is a parochial-minded pest standing athwart the president's best efforts to advance the national good. The more the president can tame it, the better for American policymaking's ability to keep up with the fast-paced challenges of modernity.
The Wilsonian reform tradition dominates intellectuals' thinking about Congress today. That thinking is usefully encapsulated in Relic, a terse, forceful polemic recently published by William Howell and Terry Moe, two of America's pre-eminent scholars of the executive branch. Both subscribe to a more-or-less moderate politics, but they are zealous in their denunciation of Congress. Following Wilson and the Progressives of a century ago, they argue that our legislature's parochialism and myopia preclude it from engaging in the work of coherent problem-solving that citizens in our complex society clearly demand. They declare, "[T]he path to effective government requires moving Congress from the front seat of legislative policymaking to the back seat, where its pathologies can do less damage."
Howell and Moe's main prescription is to amend the Constitution to give the president a defeasible agenda-setting power across the whole run of policy matters, so that Congress could be forced to quickly vote on (apparently unlimited numbers of) legislative proposals submitted directly by the executive branch. That this proposal strikes Howell and Moe as a good one is a function of their basic premise; they seem to think it obvious that government is about solving social problems efficiently, and politics is nothing more than the process through which this problem-solving impulse ought to operate.
Commonsensical and widely shared as this starting point may be, it is an impoverished view of what politics is truly about. It takes for granted that government confronts clear, well-formulated problems akin to those solved by engineers. But in fact political work is much harder because the basic dimensions not only of the solutions, but also of the problems themselves, are contested. Finding answers is hard; finding answers that account for an entire political community, even as it changes over time, and even as parts of it vehemently disagree with each other, is much harder.
To respond to the Wilsonian critique today, we need to recover an approach to Congress that recognizes that citizens interacting with each other in good faith will not necessarily ever come to agree on what the right answers are. We therefore cannot think of politics as a quest for "right answers" or even "best answers," but rather should think in terms of living and pursuing collective action together, even though we will never agree on everything. Once we adopt this more skeptical framing, the distinctive virtues of representative government can emerge more clearly.
LIVING WITH DIVISION
If the political developments of the last few years have taught us nothing else, they have made one thing amply clear: America is a deeply divided nation, whose citizens sometimes seem to inhabit different moral universes. This makes it all the more important that we rely on a system of government that allows provisional cooperation between seemingly opposed factions. In our system, that means giving a prominent place to Congress.
An approach that depends on provisional coalition-building has several notable benefits. First, it creates room for the "strange bedfellows" that distinguish the political realm. The representatives of people whose interests are generally regarded as being in opposition to each other may, on any given issue, find common cause for any number of reasons, giving them the experience of pulling together for a common goal even without resolving their deeper differences.
Second, the continuous nature of a representative assembly — in which "generations" of members overlap and expect to negotiate with each other indefinitely — creates room for a complicated favor economy among the legislators. Mutual give and take across the whole range of issues allows accommodation of different groups' most intense preferences, while also allowing the "losers" in one round of bargaining to keep faith with a larger process they trust will serve them in another round.
Third, and perhaps most important, mutual seeking of workable compromise creates the possibility of enacting policies that don't conform to any side's "right" answer. Whereas a search for consensus limits possibilities, the frisson implicit in compromise creates them: The need to act in ways that are not ideal in order to fend off worse possibilities, including systemic breakdown, calls forth ideas not present in any of the contending schools of thought. Those could take the form of novel policy designs, but might also include new ways of organizing people's relationships with the government.
Many Wilsonian reformers deny that there is any need for such messy interplay between interests, arguing that each policy choice should be treated as a simple optimization problem in which total social welfare is maximized. To the extent there are disagreements about what such maximization entails, they are likely to be rooted in some people's deficient understanding or self-destructive monomania, and so establishing the correctness of a given policy is as much a matter of properly educating or marginalizing opponents (whichever is more appropriate) as it is a matter of accommodating them in any serious way.
To illustrate the problems with this way of thinking, it is instructive to engage Howell and Moe's framing of their major reform idea. They say that, across the whole range of federal policymaking, we should be replicating the dynamics of presidential fast-track authority for trade, which they assert "works quite well to promote coherent, well-integrated outcomes." Because fast-track authority reduces Congress's ability to intervene on behalf of parochial interests and strengthens the nationally oriented president, all of government should mimic it.
Howell and Moe's assessment of the recent history of trade deals reflects the elite judgment that the net benefits of free trade have been established by economics, and therefore anyone who opposes the expansion of free trade is guilty of special pleading. That line of thinking presents itself as scientific, value-neutral, and objective, but it contains a set of highly contestable normative judgments. Many Americans, including well-informed ones like Utah senator Mike Lee, look at the record of recent trade deals and believe that regular people, especially in their capacity as workers, are being ill-served in ways that are not sufficiently balanced by any gains for Americans as consumers. Perhaps such concerns can be defeated on the merits, but to wave them off as irrelevant is presumptuous and antidemocratic. And whatever policy position one favors, recent developments demonstrate that, as a matter of political legitimacy, our White House-centered trade-policy formulation has some very serious shortcomings.
For a few issues — those that clearly require, in the words of Alexander Hamilton, "decision, activity, secrecy, and dispatch" — a suppression of diversity in favor of a centralized decision-maker is justifiable. But for the vast majority of issues, probably including trade, it is politically untenable. As James Burnham put it, "The people cannot be represented by or embodied in a single leader precisely because of the people's diversity. Their representation, if it is to be more than a masquerade, must have some sort of correspondence to their diversity." The very multiplicity and messiness of Congress as an assembly is, in this regard, a major asset in coping with high levels of diversity.
Within this mindset, charges of parochialism among legislators take on a different cast. Howell and Moe see parochialism as simply a sin against the truth that the (singular) president can apprehend: "Fifty eyewitness accounts of what is best for each of the fifty states, and another 435 pleas for what is best for each of the 435 voting districts, do not add up to a coherent statement about what is best for the country as a whole. Only a presidential perspective can do that." This view, trotted out regularly by presidents since Andrew Jackson's bank-veto fight, distorts what representative government is supposed to be about. Properly understood, though, "parochialism" can be appreciated as "rootedness," and the (admittedly noisy) encounter between hundreds of representatives bringing forward their constituents' concerns as an indispensable part of governing democratically.
TRUST AND ACCOUNTABILITY
A representative legislature's ability to give outlet to differences and take seriously people's parochial concerns is crucial to its ability to generate trust in a diverse populace. At least in theory, the need to assemble majority coalitions should force our representatives to forge different sub-groupings of "we the people" capable of working together on different issues. Creating a vibrant, if ever fluctuating, sense that the nation's actions are meaningfully "ours" is among the legislature's most important functions, and one that no other constitutional actor is capable of performing.
Cultivating a sense among citizens that they are represented is especially crucial in a low-trust political environment. The more there is a broad and deep trust of public officials, the more they may be able to reap efficiencies in public administration. Conversely, as mistrust accumulates, officials must commit more time and resources to reassuring citizens that their concerns have been taken seriously. Institutionally speaking, that is likely to mean committing to working through the legislature, even when the executive branch really does possess many of the advantages its admirers such as Howell and Moe ascribe to it.
If we lived in a world in which trust was strong and stable, much of what goes on in a legislature might well be regarded as wasteful, but this is not a possibility that should worry us. Instead, as John Dunn puts it, the hopeful scenario for political life is to find ourselves forever grappling with "how best to construct, reproduce or repair structures of well-founded mutual trust." Because a diverse and free society is unlikely to be able to long sustain a deeply felt trust, much of politics is always a matter of cultivating trust sufficient for some purpose.
Trust is a relationship that exists between particular persons, not a matter of abstract logic, and so it is difficult to predict what people will be distrustful about. A well-functioning legislature will extend lots of provisional trust to many people, but can adjust its levels of trust very quickly in response to changing public sentiment. When it turns out that trust was extended wrongly, underlying trust in representatives can make that failure bearable — or voters can readily get themselves new representatives at the next election.
That kind of back-end accountability is, of course, the hallmark of democratic government. America's chattering class is currently experiencing a kind of collective epiphany that this accountability is not, in fact, a very precise tool for controlling government officials, given the exceedingly low levels of information possessed by (rationally ignorant) voters and the extreme noisiness of elections. This is a welcome and overdue correction to the surprisingly common belief that voters somehow run the show, rather than merely playing an occasionally pivotal role in our political dramas. But if people are ready to recognize that accountability means something other than "doing what the people want," they should not doubt that there is such a thing as meaningful accountability; in our constitutional system, it is most often the result of cross-branch interactions.
Political accountability is not a species of managerial accountability. Neither the people nor the government is a unitary actor with a coherent will, and the blunt corrective mechanisms we have are used as frequently for arbitrary reasons as for good ones. Enforcing political accountability can be usefully analogized to criminal punishment: an attempt to manage and minimize certain hazards through an ongoing system of scrutiny and corrective action. Even that may make accountability seem simpler and more rational than it tends to be in practice. Dunn recommends thinking of political accountability as "a bold, if perhaps somewhat muddled, approach to mediating the strains of political membership."
Once again, understanding our political institutions requires seeing that they are not about getting "right answers," or maximum efficiency, or six-sigma quality control, as Wilsonian reformers often seem to desire. Our Madisonian Constitution instead creates accountability by forcing political actors to give persuasive reasons when called to account. The executive branch must manage to persuade the Congress (and often courts) of the non-arbitrariness, legality, and usefulness of its activities, lest the legislature deprive it of resources or cancel its initiatives. Legislators must work to persuade each other of the merits of their proposals in order to form working majority coalitions. And legislators must present accounts of themselves that sufficiently preserve their constituents' trust in order to get re-elected.
In each of these cases, offering an account is more than just the uttering of certain formulaic justifications, whether legal, logical, or moralistic; the listeners must be addressed and persuaded on terms that they will find acceptable. As Thucydides had it, "One who forms a judgment on any point, but cannot explain himself clearly to the people, might as well have never thought at all on the subject." Bryan Garsten puts it another way: "The effort to persuade requires us to engage with others wherever they stand and to begin our argument there, as opposed to simply asserting that they would adopt our opinion if they were more reasonable."
The kind of accountability a diverse group of representatives will demand is thus an antidote to the sins of insularity and groupthink that so often plague bureaucracies. Experts may well find it burdensome to explain themselves to elected representatives — after all, it is they who are capable of assessing which kind of accounting is sufficient, not generalist legislators. The wisdom of our Madisonian Constitution lies in rejecting that thinking, ensuring that no branch can assume a mindset in which the judgment of only one kind of anointed people matters.
A strong Congress, representing many diverse points of view, should also make it impossible for the country to be run by an insulated president — which, in an age without any belief in the divine right of (even elected) kings, is perhaps the least accountable and least trust-generating institutional structure imaginable. To have a prerogative-wielding executive branch in which the one supposedly accountable figure, the president, seeks always to maintain deniability and preserve his ability to point the finger at subordinates when things go wrong is especially corrosive of public trust. Empowering diverse legislators to call executive officials to account, up to and including the president, creates a far more potent form of accountability for the executive than the president's encounter with voters every four years.
CONGRESS GONE WRONG
To present these ideals is not to say that our current system instantiates them. To the contrary, there are reasons to think that Congress in the 21st century has mostly failed to live up to all three of these main ideals: It has flattened the country's diversity rather than representing it; it has conspicuously failed to generate trust; and it has done a very poor job creating the conditions for meaningful accountability. Before turning to any questions of reform, we must seek to understand how it is failing in each of these crucial roles.
The first failure is the flattening of diversity. A functional representative assembly's legislative work ought to reflect the diversity of the concerns of its members, both in the process of generating laws and in the enactments themselves. Congress as currently structured, however, tends to flatten the nation's diversity into two polarized, warring camps.
Take Congress's legislative outputs first. Contrary to most people's impressions, it is not entirely clear that the Congress's productivity has fallen off in recent years. If we look at the number of pages of legislation that Congress passes into law, the average has been around 6,000 pages per Congress for several decades, with a fair bit of fluctuation but no clear trend. What has changed dramatically is the shape of that work: Broadly speaking, in the post-war era, public laws per Congress have gone from something like 800 to around 300.
That is a consequence of Congress's increasingly conducting its business through the passage of omnibus legislation, which often bundles together a wide range of policy priorities. Crucially, omnibus bills are tightly controlled by majority-party leaders, who are thereby strengthened relative to rank-and-file legislators; this top-heavy power structure tends to impair Congress's ability to live up to the ideal of complex, fluid representation, as Glen Krutz has observed.
The flattening of diversity is exacerbated when the reliance on omnibus bills is combined with a mindset of all-out partisan warfare, as it has been for most of the 21st century. In that case, party leaders come to view their power to control the agenda first and foremost as a tool for electoral positioning — a zero-sum game. Entertaining the kind of ever-shifting coalition-building that ought to be the hallmark of a representative legislature in a diverse polity is unattractive to a leader who has come to think of himself primarily as the general of a pre-defined army; thinking about ways to compromise with the enemy is bound to undermine his troops' discipline. Instead, leaders must marshal existing players to gain every advantage possible in service of tactical victories today and electoral victories tomorrow. As James Curry has demonstrated in his excellent Legislating in the Dark, House leadership in recent years has exercised effective control over information to steer its party toward stylized engagement with policy issues, rather than open-ended, substantive deliberation meant to absorb more varied and detailed concerns.
Members who must swim in these waters face a very different connection to the electorate than the one we are accustomed to thinking of. Whereas we generally think of legislators as beholden to their constituents' particular, parochial concerns, legislators in the current environment come to see their political fortunes as functions of their party's ability to control the national narrative. That means they need to act as team players most of all — and if they manage to do so with sufficient verve and vitriol, they may find themselves rewarded with nationwide donations from true believers.
The result is a legislature that prioritizes coalition management over results-oriented deal-making. This was grotesquely apparent in the Republican Party's attempts at health-insurance reform throughout 2017. The various products the party rallied around were purely tactical creations, meant to show that the party could deliver on its "repeal Obamacare" promises of the previous seven years rather than to serve any particular substantive purpose. As Yuval Levin noted, spokespeople for the various bills were remarkably unable to answer some very basic questions: "What does the bill consist of? To what problems does it offer solutions? Why and how should these solutions be expected to work?" The imperatives of perpetual partisan war leave little room for an open-ended search for bipartisan opportunities to improve policy, and indeed tend to drive concrete details out of politics entirely.
The unending partisan battle has hampered the pursuit of the second ideal of a representative legislature: generating trust. Incremental, detail-oriented policymaking builds trust by promoting opportunistic cooperation; in the process of working toward some shared goal, even those who passionately disagree form the habit of extending trust, however provisional the basis. Team-based combat, on the other hand, stokes mistrust, since, if the two sides are engaged in a zero-sum struggle, what basis for trust can there be?
As Congress has lurched toward centrally managed omnibuses, its ability to play small-ball has withered, and it has often consciously sought to foist the work of making hard choices about particulars onto agencies. As political scientists Frank Baumgartner and Bryan Jones put it, "When Congress acts, and that is less and less often, it tends to do so in big, comprehensive pieces of legislation that leave much to the rule-making process in agencies. Political controversy over the original proposal is carried over into the oversight and appropriations process." When contemporary partisan majorities legislate, they do so with a sense of abandon, thinking that the stars will align only rarely for them to stamp their core (national) constituents' commitments onto a policy area. To anyone who does not share those priorities, this is bound to generate suspicion and lasting opposition — even if opportunities for cooperation were there for the taking.
These political dynamics reduce trust among the representatives themselves, who lose the ability to see Congress as having shared institutional interests and therefore become reluctant to invest in the institution. Even as the executive branch's responsibilities have ballooned, legislators have thinned the ranks of their own staffs and diminished their salaries. Such thriftiness is popular with most constituents, who tend to distrust Congress and think it is already plenty rich and fat enough. Nevertheless, a penny-wise, pound-foolish attitude about legislative-branch resources (which, at $4.44 billion for fiscal year 2017, make up around 0.1% of total federal-government spending) ultimately poorly serves Americans' interest in having a government whose actions are genuinely rooted in the choices of duly elected representatives — and in which inter-branch accountability serves to discipline each branch.
Other trends in the legislative branch have subverted meaningful accountability, the third ideal it fails to live up to. For many decades, Wilsonian reformers dreamed of getting a Congress of "responsible parties" — that is, one that approximates a Westminster parliamentary system, in which the legislature's main function is to ratify what the executive proposes. This model, they supposed, would make parties accountable to voters, who could easily understand their votes as endorsing one party's platform over the other's. We have achieved the clear choice between near-monolithic parties, but thanks to constitutional features differentiating our system from a Westminster model, we have much less accountability than we did when we had far messier parties.
Most obviously, we can (and very frequently do) find ourselves with different parties in control of Congress and the presidency, since the latter's election is not merely a function of the former. That clouds responsibility, making it unclear who should be held accountable for policy failures. Howell and Moe, to their credit, understand this problem and seek to correct it; compared with their preferred system of presidential primacy, presidents in our current system are deprived of necessary constitutional and statutory authority and so "can muster only a rough facsimile of what is actually needed" to govern effectively. That is exactly right — though, contrary to their suggestions, simply supercharging the presidency does not offer a viable solution.
To be fair, though our system may be halfway to the Wilsonian ideal, Congress has not entirely ceased to provide accountability. It passes appropriations bills. It continues to oversee agency activities and often intervenes, both informally through back channels and formally through such devices as limitation riders to appropriations bills that proscribe particular agency actions. Its committees continue the annual work of authorizing statutes, which requires them to take stock of a given program and offers them a chance to intervene to address its shortcomings. Unfortunately, though these activities do continue, none is working very well.
The (congressionally imposed) requirement that programs have an up-to-date authorization in order to receive appropriations has been honored more in the breach than in the observance in recent years. As Suzanne Mettler has demonstrated, outside of national security, a majority of important policy areas are now governed by laws whose authorizations have expired or are clearly obsolete. Authorizing thus fails to provide a sense of having called the executive branch to account for its actions; indeed, by continuing to fund unauthorized programs, Congress highlights its own inefficacy as an overseer. More generally, committee hearings devoted to considering proposed solutions to policy problems have steadily declined as a share of total hearings, from around two-thirds in the early 1970s to about one-third more recently, according to a Vox report.
In the budget process, which governs the taxing and spending of around a fifth of America's total economic production, Congress engages with the particulars of government programs, accomplishing some serious governing work along the way to passing appropriations acts. Without denigrating the value of that work, it is nevertheless clear that, overall, the budget process as it now exists serves Congress's institutional ideals very poorly.
The most obvious manifestations of the budget process's failure are the manufactured crises that have plagued us since 2011, including an extended government shutdown in October 2013 and several near-defaults caused by debt-limit disputes resolved only at the eleventh hour. Amazingly, even under unified Republican government in 2017, there was serious talk of the possibility of a debt-ceiling impasse or perhaps a "good" government shutdown; budget-related disruptions are now apparently a routine part of our dysfunctional legislative business. That they significantly erode Americans' faith in the government's competence seems to be irrelevant.
Given the great costs of our current budgeting practices, one might expect there to be great advantages, but the benefits are meager. Inter-branch accountability is clearly a primary goal of the budget process, which was imposed in 1974 to counter the high-handed spending practices of Lyndon Johnson and Richard Nixon. And the primary instigators of the recent budget dust-ups (and, for that matter, their predecessors in the 1995-96 budget fights) have their hearts in the right places, more or less, in seeking to use Congress's power of the purse to check what they see as wasteful and ill-conceived spending programs tended by the executive branch. But they are laboring under a terrible misapprehension if they believe the current budget process provides an effective means for this control.
The presidential and congressional budgets have become massively time-consuming exercises in posturing that have little relation to actual decision-making. In reality, appropriations bills cover a continually shrinking portion of actual federal-government spending, most of which flows automatically from mandatory-spending statutes that make outlays a function of demand rather than deliberate legislative choice. Of the $3.9 trillion (20.9% of GDP) that the federal government spent in 2016, $2.4 trillion (13% of GDP) went toward mandatory spending. The discretionary portion of spending, over which all of the bitter budget battles are fought, amounted to just $1.2 trillion (6.4% of GDP). Tax expenditures, which cost more than a trillion dollars of lost revenue annually, rarely enter the conversation at all. The relentless drive to impose accountability on discretionary-spending programs — though surely important work — has led Congress away from meaningfully addressing (and taking responsibility for) the bigger fiscal picture.
Meanwhile, the willingness to pursue political conflict right up until a hard deadline ultimately leads to a continuation of the status quo even for most discretionary spending. When partisan one-upmanship is confused for meaningful cross-branch accountability, Congress ends up the loser.
HOPE FOR REFORM
The reality thus fails to live up to the ideal: The institution that Congress ought to be in order to serve the ideals of representing diversity, building trust, and delivering meaningful accountability is awfully different from the sordid mess it has actually become. So what should be done?
A panoply of reform programs for Congress is waiting in the wings, each with its diehard enthusiasts. Outsiders preaching fire and brimstone, however, cannot drive the kind of deep-reaching overhaul Congress needs. Instead, we have to ask what will motivate members themselves to change the institution to which they belong. There are no easy answers, but there are two sources for hope that such a shift in mindset is possible.
First, Congress has self-consciously transformed itself before, often directly in response to its own well-deserved sense of inadequacy vis-à-vis a striving executive branch. Most important among these transformations were the post-New Deal, post-WWII reform moment that ultimately led to the passage of the Legislative Reorganization Act and the Administrative Procedure Act in 1946, and then the Vietnam- and Watergate-era reform moment that culminated in a series of 1970s congressional reforms, including the Legislative Reorganization Act of 1970, the Congressional Budget and Impoundment Control Act of 1974, and rules passed in 1975 diminishing the importance of seniority in selecting committee chairmen. The two parties' anxieties about overreach by the 44th and 45th presidents, respectively, create an environment almost ideally suited for a similar renewal of institutional sensibilities.
Second, rank-and-file members find themselves in a system that can offer most of them a path to re-election, but almost nothing else in the way of professional rewards. To the extent that such backbenchers selfishly seek more fulfilling work, they are likely to end up pursuing reforms that would serve Congress's core ideals better than the present system does. They would do well to consider how unfulfilling the congressional reforms of 1995 and 2007 were in this respect. In both cases, newly empowered party leadership worked to centralize power while doing little to enhance the larger body's abilities to fulfill its constitutional responsibilities. Such centralization was sold as enhancing Congress's ability to stand up to the president by presenting a united front, but it has left a self-interested leadership presiding over a hollowed-out institution. Members are proud people, and there is no reason for them to acquiesce in an organizational scheme that empowers them only to be rubber stamps for their leaders or the executive branch. Ultimately, it is their ambitions to be something more that we must rely on to drive change.
Such Madisonian reliance on members' ambitions is appropriate for the pursuit of the larger goal of reclaiming the original, constitutional role of Congress: to serve as a check on the executive, to build coalitions and write laws, and to represent the people in all their messy, noisy diversity. Keeping these goals in mind will help guard against the Wilsonian tendency to attack Congress for not finding the "right answers" easily, and instead give legislators the space to find compromise and pursue a common path forward together.