In a column that appeared the day after the midterm elections, The Washington Post’s Steven Pearlstein offered his congratulations to the Representatives- and Senators-elect, while issuing a “reading list for the incoming Congressional class of 2010.” His “list” consisted of exactly one book: the recently published collection of the letters of Daniel Patrick Moynihan (1927-2003), well described by Pearlstein as a testament to the late New York Senator’s intellectual integrity, his seriousness of purpose, and his love of the English language. Pearlstein concluded by posing this unnerving question to the newly elected members of the 112th Congress: “Are you going to accept the low bar now set for political leadership, or will you commit yourself to bringing some Moynihan-like style, intelligence, candor and independence to an ailing institution? It’s your choice.”
I do not expect the new Members to agonize over Pearlstein’s challenge. Rather than opting for 720 pages of epistolary grace and erudition, I think it far more likely that they will turn instead to more prosaic studies of the national legislature. Among these one of the most distinguished is
The Broken Branch: How Congress Is Failing America and How to Get it Back on Track, by Thomas E. Mann and Norman J. Ornstein.
The co-authors of
The Broken Branch, respected Congress watchers of long standing, see the institution as a perfect storm of dysfunction. Particularly in their chapter reviewing the history of “The First Branch of Government,” Mann and Ornstein make it clear that while Congressional decline has been caused by external challenges of long standing, many of its wounds are relatively recent (they trace the “seeds of the contemporary problem” to 1969) and essentially self-inflicted. In the case of the House of Representatives, frequently adopted closed rules have severely restricted debate, standard rules of procedure have too often been honored in the breach, the role of the Speaker has been grotesquely inflated, strident partisanship has replaced the bipartisan camaraderie of the committee system, and deliberation has been eclipsed by the “permanent campaign” that necessitates non-stop fund-raising. Finally, the chamber has ceased to be interested in exercising oversight of the executive branch. Over on the Senate side, there has been an increased reliance on the filibuster, or filibuster threats; heavy reliance on anonymous “holds” that sidetrack bills and nominations; more aggressive use of the budget reconciliation process; and a decline of debate on the floor that makes a mockery of the Senate’s traditional claim to be “the world’s greatest deliberative body.” In both chambers, ideological purity trumps bipartisan comity.
The good news is that to the extent that Congress has broken itself, it should have the capacity to reform itself back to good health. Mann and Ornstein recommend—among many other things—turning redistricting over to the professionals, restoring the power of committee chairmen, rewriting the campaign finance laws, beefing up ethics guidelines, reinstituting legislative oversight of the executive branch, taming the filibuster, reining in reconciliation, bringing Congressional families to town, and reintroducing bipartisan lunches.
There are, however, those who believe that Congressional decline is much more the result of the exertion of executive and/or judicial muscle. If Congress has been “broken” from without, inward-looking reform strategies such as those advocated by Mann and Ornstein begin to look much less compelling. Our newly elected Representatives and Senators should perhaps be dipping into this literature as well.
Consider, for example, the argument of Matthew Crenson and Benjamin Ginsberg in
Presidential Power: Unchecked and Unbalanced (New York: W. W. Norton & Company, 2007). The authors contend that while Abraham Lincoln did much to aggrandize the presidency (and, by extension, the national government) during the Civil War, it wasn’t until the twentieth century that unfettered “presidentialism” really took off (at the expense of Congress). Crenson and Ginsberg pay particular attention to three more or less concurrent developments having to do with control of the federal budget, war powers, and what the authors call “executive unilateralism.”
At a time when even the presumptive Republican Speaker of the House believes that it’s the Democratic president “who sets the agenda for our government,” it is amazing to think that prior to World War I everyone agreed that budget planning was a Congressional responsibility. In fact, Crenson and Ginsberg contend that the national legislature “maintained near-absolute control of the federal bureaucracy” and was understood to be the formulator of national fiscal policy. In the course of the twentieth century, Congress was gradually eclipsed. In 1921, the legislation authorizing the Bureau of the Budget (BoB) was passed. Later, during Franklin D. Roosevelt’s long watch, BoB was assigned to the executive office of the president. In 1974, it was upgraded to the Office of Management and Budget, at which time Congress thought to create the Congressional Budget Office as a kind of “counter-weight.” Could it be that the diminished role of Congress in the budget planning process has something to do with its inability to pass appropriations bills? Now some Republicans are talking about restoring a prominent role for Congress in budget planning, though perhaps one may be forgiven for wondering whether their motivations are more partisan than constitutional.
On the war-making front, Crenson and Ginsberg note that during the 70 years that have elapsed since the last time Congress exercised its exclusive power to declare war, the United States has been almost continuously engaged in hot or cold warfare. The expansion of the Commander-in-Chief clause has rendered declarations of war superfluous. And while the War Powers Act of 1973 often is celebrated as a post-Vietnam reassertion of Congressional initiative, it actually conceded powers to the President that go far beyond Constitutional provisions.
In a revealing anecdote, Crenson and Ginsberg ask their readers to keep in mind the kinds of powers relied upon by the Bush Administration in Iraq and Afghanistan while relating the story of James K. Polk’s attempt to prosecute the Mexican War. Polk, a Democrat, was able to persuade Congress to declare war on Mexico, but a freshman Congressman named Abraham Lincoln gave him a serious case of heartburn in the process. It didn’t help that both of Polk’s top generals, Winfield Scott and Zachary Taylor, were leading Whigs who harbored presidential aspirations. Cresson and Ginsberg emphasize that Polk was unable even to control the State Department functionary, Nicholas Trist, who was dispatched to negotiate a peace settlement with the Mexicans. When Trist encountered difficulty, Polk ordered him home. But Trist elected to stay in Mexico and negotiate a deal, the Treaty of Guadalupe-Hidalgo, instead. Polk, who disapproved of the treaty, then ordered that Trist be put under military arrest and put on a boat bound for Washington. Subsequently, the Senate ratified Trist’s treaty, celebrated Taylor’s military exploits, and censured Polk for “a war unnecessarily and unconstitutionally begun by the President of the United States.” The contrast with the Bush Administration’s twenty-first-century experience could hardly be more stark: with the conspicuous exception of Senator Robert Byrd (D-WV)—though others took up the cause later—Congress put up little or no initial resistance to the wars against terrorism, Afghanistan, and Iraq.
Regulatory review, too, once resided with Congress, but gradually it has migrated to the executive branch. The authors of Presidential Power: Unchecked and Unbalanced document the increased reliance on executive action, particularly as it has been promulgated through executive orders. Congress fought back with the Congressional Review Act of 2001, which seemed to give the legislature oversight over the independent regulatory agencies. “The problem,” however, as Crenson and Ginsberg explain, “is that a congressional decision to invalidate a regulation could be vetoed by the president.”
It is worth mentioning, too, that the judiciary—famously characterized by Alexander Hamilton as the “least dangerous” branch, also has had a hand in the emasculation of Congress. Since Louis Brandeis introduced “sociological jurisprudence” to the federal judiciary in the 1908 case of Muller v. Oregon, judges have gradually become used to legislating from the bench, an activity that liberals now take for granted and do not regard as particularly controversial—witness Justice Sotomayor’s casual acknowledgement that “the court of appeals is where policy is made.” What’s surprising is that even conservative judges seem to have lost their inhibitions about judicial activism. Congress’s instinct seems to be to roll over and play dead. Given the balance of partisan power in Washington at the moment, it seems highly unlikely, for example, that Congress will act to undo the electoral consequences of the Court’s controversial decision in the
Citizens United case any time soon.
Congress, alas, cannot be portrayed simply as the hapless victim of an imperial presidency or activist judiciary. All too often, the House and Senate have acquiesced as aggressive presidents or appellate courts have assumed legislative prerogatives. Mann and Ornstein are particularly eloquent on this point, bemoaning how a supine Congress has too often shrunk from contesting and overseeing the executive, especially when partisan and ideological interests prevail over institutional responsibilities. But again, this is nothing new. The agenda for the New Deal was set by a hyper-partisan FDR White House, not by Congress. Likewise, the Civil Rights movement proceeded mainly in the judiciary, with courageous support provided at critical moments by the executive branch—Little Rock being the classic instance, with Congress managing to keep a discreet distance.
Similarly, it looks as if the contentious “Don’t Ask, Don’t Tell” policy will be resolved by an odd coalition of Pentagon bureaucrats and appellate court judges, rather than Congress. And after the failure of H.R. 2454, the American Clean Energy and Security Act of 2009, it appears that U.S. policy on global climate change will be forged, for better or worse, through executive orders drafted by functionaries in the Environmental Protection Agency or the Energy Department. In sum, members of the freshman class of the 112th Congress could do far worse, by way of orientation, than to study both The Broken Branch and Presidential Power to consider both internal and external challenges to Congressional authority.
And they’d better be prepared for partisan in-fighting that has become nasty and ingrained. Like most observers of Congress, Mann and Ornstein seem to assume that the unleashing of partisan and ideological passions is the cause of Congressional irresponsibility. I would argue that it is more effect than cause. It’s a disturbing thought, but it could be that Congressional politics is vicious for the same reason that university faculty politics is vicious: because “the stakes are so low.”
Pearlstein is probably right that the only cure for the disease from which Congress suffers would require “bringing some Moynihan-like style, intelligence, candor and independence to an ailing institution.” And so we have come full circle.
