If We Give Up on Congress, What Will We Lose?

31 May, 2023
Philip Wallach

Discourse Magazine

In the political dramas of the 2010s and 2020s, Congress often gets cast as the villain. When would-be reform presidents are blocked in their attempts to secure worthy progress, they blame legislators’ single-minded partisanship or bullheaded stubbornness. When laws are passed but do less good than we hoped, their architects blame the distorting influence of members’ parochial attachments to their districts, which transforms every program into a distributional smorgasbord rather than a targeted effort. And then there are the self-imposed crises, where Congress is blamed for its inability to get a handle on routine debt limit increases or even to pass a budget or annual spending bills.

Perhaps any one of these issues would seem forgivable as a cost to pay for a system of checks and balances. But it seems that an alarming number of Americans are ready to throw in the towel on democratic government altogether, with a third of respondents in a recent Axios-Ipsos poll agreeing that “Strong, unelected leaders are better than weak elected ones.” If getting rid of Congress entirely seems politically infeasible, there are plenty who urge the functional marginalization of our legislature so that “the grown-ups” elsewhere in government can finally figure out how to make things work.

This is a pitch with remarkably broad appeal—Democrats and Republicans, establishment good-government types and libertarian technocrats and populists, all sometimes suggest that if Congress won’t do what they want it to, then it ought to be cut out of the loop. Recent presidents are frequently enthusiastic endorsers of this view. Barack Obama faces defects in the Affordable Care Act that a Republican House is unwilling to fix? Just let the Department of Health and Human Services sort things out, and see if judges will be sympathetic. Donald Trump wants more funding for the southern border wall, but Congress is unwilling to make the necessary appropriations? Just declare a national emergency and repurpose funds from the Department of Homeland Security intended for other purposes. Joe Biden wants to roll out a massive student loan relief program, but suspects Congress will make things difficult? No problem, just say the magic word (“COVID!”) and cite an obscure law already on the books that, at least according to the White House, gives the president broad authority to relieve debt burdens for people experiencing hardships. Debt ceiling fights got you down? Maybe the 14th Amendment’s insistence that the “validity of the public debt of the United States … shall not be questioned” means that Congress isn’t entitled to constrain the Treasury Department’s borrowing authority.

Members of Congress have also gotten into the act. Annual appropriations a drag? Maybe we ought to provide for automatic continuing resolutions that will keep things going without any need for new congressional action, as Senator Mark Warner’s Stop Shutdowns Transferring Unnecessary Pain and Inflicting Damage In The Coming Years (STUPIDITY) Act would do.

When members of Congress—and sober ones, at that—advance plans to strip their own institution’s powers in the name of stopping stupidity, a significant development is clearly afoot. Circumvention of our legislators may come to be the norm rather than the exception. Reflexive defenders of the status quo and people who took their middle school civics lessons a little too literally may grumble, but so what? The U.S. needs to make the best of the hand it has been dealt, and if that means throwing some old customs into the discard pile, such is the way of progress.

All that sounds very persuasive until you start considering what a diminishment of Congress amounts to in practice: executive government possibly steered and checked by the judiciary. The only legitimating democratic input into such a system comes in the form of quadrennial presidential elections, which will inevitably come to take on nearly apocalyptic significance—so much so that perhaps neither side can afford to admit that they have really lost.

Meanwhile, the stakes for new nominations to the Supreme Court, which have already grown significantly in the last four decades, would take on even greater importance. And the court itself could come to be seen as a substitute legislative council, complete with the public making (ineffectual) demands for the makeup of the institution to better reflect the composition of the American public and diving into elaborate Kremlinology about the real motivation for their rulings.

Those discontented with our present politics but ordering more congressional circumvention are very much like the diner who complains that the food is terrible and the portions much too small. And while people on both sides of the political spectrum are good at convincing themselves that it will be their people in the White House and sitting on the (perhaps expanded?) Supreme Court, there is really no sign that either party is about to build a durable majority coalition. In our politically divided country, overreliance on the executive and judiciary will lead us to wild swings of policy followed by howls of anger—and eventually, inevitably, much more than howls.

Champions of executive government are sometimes attuned to the question of responsiveness and have a whole cottage industry coming up with creative ideas for ensuring that different groups’ concerns are adequately represented within the policymaking process—“Participedia” crows that it has 379 different methods of participation that policymakers might utilize, from a Democracy Cafe to a Wikivote to Gamification of Public Policy Decision-making. Ideas like these seem almost comically oblivious of the fact that they are simply trying to reinvent aspects of representative government, creating a substitute Congress even though we still have the real thing.

Meanwhile, while Congress may be down, it is not out. What’s more, our form of representative democracy still offers the best way to represent the priorities of the American people. And it is certainly far better than inventing some new way to make circumvention viable to work on reviving our legislature as the forum in which competing factions bump up against each other and work out mutually acceptable accommodations. We need our representatives in Congress, who are responsible to their constituents by virtue of elections, to practice politics—to balance competing interests and values, to come up with positive-sum logrolls that build supermajority support for important initiatives, to back-slap and cajole their way to deals that tolerably advance the national interest.

In calling for Congress to embrace this role, we shouldn’t kid ourselves about what we’d be getting: As economists are only too eager to point out, old-fashioned politicking is no way to arrive at efficient policies. They’re not wrong—legislators will pass lots of laws that, especially with the benefit of hindsight, we will regard as economically wasteful. But it’s easy to overvalue the importance of governing efficiently relative to securing social peace—which is the bedrock purpose of government, after all.

The problem, of course, is that it’s easy to call for a livelier, more responsible Congress, but hard to see how we get from here to there. Our legislature is the way it is today because its members have made it that way, and they have their reasons. In short, most of our elected officials tend to be partisans first and aspiring lawmakers second. (A small but growing number of members is mostly interested in promoting their own personal brands, but they are more a symptom of the institution’s problems than its root cause.) They believe in the overriding importance of winning the next election (and especially of getting their copartisan into the Oval Office), and they believe the best way to pursue that goal is to act like a loyal foot soldier in congressional struggles. Their leaders arrange the agenda so as to portray the other side in the worst possible light, and that suits rank-and-file members fine, even if it forecloses opportunities to improve policy in ways that would benefit their constituents. After all, doing the hard work of compromise would inevitably anger some part of their constituency, while inaction can often be blamed on the other side.

James Madison famously suggested that ambition counteracting ambition would be the balance wheel of our system of separated powers, and it still ought to work. As they’ve allowed themselves to be reduced to lever-pullers and fundraisers, members of Congress (and especially the House of Representatives) have allowed themselves to be turned into mere functionaries in our dysfunctional system. That surely grates on their sense of self-importance, and there are indeed signs that they will demand a different kind of congressional leadership than the overbearing sort they’ve lived with in the recent past—this was one of the major themes of the Speakership fight in January 2023, with some Republican members demanding a devolution of power in exchange for their support. It remains to be seen, though, whether the rule changes they secured will make much difference, and whether would-be policy entrepreneurs in Congress can subordinate their partisan loyalty to their legislative goals.

If they can’t, and instead continue to participate in their own institution’s marginalization, we need to be honest with ourselves about what we’ve lost. Democratic representation in Congress is what makes the United States a self-governing republic. Take it away, in form or just in fact, and our system looks a lot like an elected monarchy—and not in the just-for-show style of King Charles III. Instead of the messy but genuinely representative political process that characterizes the work of legislatures, we’ll see jockeying for influence in the court of the king or strongman. Personalities will predominate over principles.

Of course, it’s possible to get an enlightened monarch. For policy wonks and utopian dreamers alike, the temptation of imagining yourself whispering in the ear of a supercharged president can be irresistible. Think of the good that we could do if only we didn’t have to worry about sordid politics.

Thanks to the fight against fascist and hypernationalist regimes, Americans were more attuned to the awful defects of this way of thinking in the wake of the Second World War (to say nothing of the 1770s). We’re less sensitive to them today. But arbitrary government, indifferent to the concerns of the citizenry, is as live a possibility as ever. If we persist in wishing that Congress would sometimes just get out of the way, we may find that we were wishing on the monkey’s paw.