Congress Did Not Lose Its Power. They Gave It Away

One of the most persistent trends in American governance is the weakening of the legislative branch of government. Both bodies struggle to get any meaningful legislation passed and usually end up using gimmicks and all-or-nothing omnibus bills to accomplish the one thing the Constitution requires of them – a budget. And while Congress dithers, the Executive branch, under both parties, sucks up Congress’ constitutional power for itself.

Congress appears weak, not because the Constitution made it weak, but because members and party leaders have constructed systems that reward the avoidance of responsibility, suppress ordinary legislative bargaining, and make it easier for presidents to govern in Congress’ place.

This is a serious problem, as it undermines the essential constitutional barriers between the branches by inviting the President to step into the resulting vacuum.

One possible explanation is that the country is so bitterly divided that politicians, who are in the business of attracting votes, are afraid of alienating their constituents and losing their jobs. There is certainly an argument that can be made that a cowardly Congress will always be a passive legislative body. It would be hard to dismiss this out of hand.

On the other hand, it could be that the political parties have become so hyper-partisan that they refuse to work with the other party, making the idea of bipartisan legislation anathema to members of the House and Senate. As a result, both parties, when in the majority, have set up systems and rules designed to block the opposition party from any meaningful participation in the legislative process.

Since the turn of the century, in the House, both parties have set up a model of governing in the House that places almost all legislative power in the hands of the Speaker. Gone are the days of the strong Committee chair. Forgotten are the bipartisan victories on transformational legislation – like the Civil Rights Act, Welfare Reform, Tax Reform, and other laws that changed America. The Speaker, through a combination of the Rules Committee and his party’s fear of criticism, has all but choked out the minority, even offering amendments on the House floor. The House of Representatives has a less open process that virtually and state or local legislative body.

How does this work? Members voluntarily give up their independence to the Speaker in exchange for being protected from tough votes. One of the things members of the majority party fear most are “November Amendments” designed not to win a majority, but to force vulnerable members into taking tough votes. The Speaker controls this through the Rules Committee, where his or her handpicked members systematically prohibit open debate on the Floor while blocking any amendments from the other party (or frequently even their own party).

When you prohibit the other party from having any influence on the outcome of a bill, they have little incentive to do anything other than obstruct and criticize the process. Knowing they are not going to get any legislative accomplishments to put before their voters, their only option is to vilify the other party in speeches, on cable news, and on social media.

However, when the Speaker blocks the other party from participation on the floor, they must rely exclusively on their own party. And that empowers a small handful of members to use their votes as leverage to get what they want added to a bill. In the case of Mike Johnson, it seems to take acts of legislative magic to get almost anything through the House. His predecessor, Kevin McCarthy, was victimized by less than five percent of his own party’s caucus, who were able to unite with the opposite party to remove him from the Speakership. And what did his successor do to punish these rebellious members? Well, not much, because he needed their votes for the next big thing.

Only Speaker Pelosi had managed to make this one-party system work. And that was through political skill accumulated over a lifetime of experience, and pure brute political strength that, unlike the Republican rebels, came with certain punishment for opposing her. No Republican has been able to duplicate her ability to manipulate power in the House, and it is hard to imagine a Republican Speaker reproducing that model under the contemporary Republican coalition. Nancy Pelosi, whether you agree with her politics or not, was the most powerful Speaker since Tip O’Neill, who frequently had lopsided majorities to help him manage the House. O’Neill also had a system of strong committee chairs, who built their own bipartisan coalitions to get legislation passed. One of the hallmarks of 21st-century governance in the House is the absence of strong committee chairs who can challenge the power of their own Speaker.

The fear that drives the House to hide behind the skirt of their leader, however, has more to do with politicians’ fears of their own party base. When redistricting started becoming dominated by computer software and the Voting Rights Act, districts became increasingly dominated by one party. Why? Because politicians tend to be interested in job security, or in the case of a state legislator, drawing a map, their next job. Today, districts are so lopsided on a partisan basis that fewer than ten percent of this year’s elections will be held in competitive seats.

One of the hallmarks of 21st-century governance in the House is the absence of strong committee chairs who can challenge the power of their own Speaker.

Some people believed that lopsided districts would free members of the House to be more independent, no longer having to fear the other party in the next election. But something ugly happened on the way to Nirvana. While a Representative might not need to talk to anyone in the other party to win reelection, they now have to fear their own party’s base voters. Base voters, being highly partisan, tend to be more ideologically extreme. As a result, Republican legislators need to move to the right, and Democratic legislators need to move to the left, to protect themselves from a primary challenge.

The more lopsided the partisan makeup of a district, the more extremely partisan a Member of Congress is likely to be. Who are the few Members willing to be more bipartisan? Those ten percent represent the most competitive swing districts, where they need to gather votes from both sides of the aisle to win.

Yet these Members are the most viciously targeted by both their own party’s base and the other party. The base voters, being suspicious of a representative who talks to the other party, are constantly threatening the Member with a primary. And the opposition campaign committees, dedicated to capturing the majority in the next election run adds against the Representative almost from the start of their term. Congressional leaders discourage their members from working with members from “purple” districts, since they do not want them to achieve any accomplishments before the next election. As a result, the members most likely to be bipartisan often find they have no one in the other party to work with.

Not only that, but our campaign finance systems also mean that the Representative will have to start raising money almost immediately, knowing their opponent will have millions of dollars in national money, from all sorts of anonymous sources. One of the greatest contributors to the hostile environment for swing-seat members has been the nationalization of campaign contributions and the inordinate influence of a handful of megadonors. And, of course, these megadonors want something for their money, which has an out of the ordinary influence on Congressional leaders trying to preserve or capture the majority.

The Senate is not the same body it was, and defenders of the filibuster who wish it were are increasingly relying on wishful thinking and nostalgia.

The Senate is no better. As I highlighted last month, the Senate has been rendered dysfunctional by the abuse of the filibuster. Today’s filibuster is not a tool for creating a bipartisan coalition, but a tool that has the accidental effect of giving any minority with 41 votes effective control of the Senate floor. And unlike the end of the 1990s, the purpose of the filibuster is no longer to force a moderation of critical legislation, but to block the majority party from accomplishing anything at all.

Perhaps there is a lingering belief that the Senate was an august body capable of rising above politics for the sake of the nation. If that was ever true, it certainly is not today. The Senate is not the same body it was, and defenders of the filibuster who wish it were are increasingly relying on wishful thinking and nostalgia.

The 21^st Century Senate governance is one where the minority’s goal is to block everything, unless the majority caves on every controversial point. Minority Leader Schumer will block a judge who will ultimately get 90 votes for confirmation just because he can. He will, sometimes, after inflicting enough pain, like in last year’s budget shutdown, concede to support the must-pass budget after the majority has given up everything of significance it had hoped to accomplish. Forget authorization bills, where government programs are examined for fraud and abuse. The goal of the minority today, unlike even a few decades ago, is to assert a level of control that prevents the majority from passing its agenda.

The majority, in retaliation, has developed legislative tactics that can rightly be referred to as an offensive filibuster. Harry Reid was the author of many of these tactics, but his Republican counterparts have kept pace. When the Senate brings up a bill, the Majority Leader files a cloture petition and then immediately goes to other business for 48 hours. At that point, a cloture motion is in order. If there are sixty votes for cloture, then debate and most amendments are blocked. That’s right. Senators are not even allowed to debate legislation, much less amend it.

If cloture fails, the Senate could go into a debate, but the Majority Leader has another trick up his sleeve. He can use his right of first recognition – the presiding officer must recognize the Majority Leader first – to “fill the amendment tree.” This is an arcane part of Senate rules that allows only a certain number of amendments to be pending at once. The Majority Leader files an amendment on each branch of the tree, files a substitute amendment, and a perfecting amendment on each of those, and then never calls any of the amendments up for a vote. As a result, there is no available branch for any other Senator, majority or minority, to offer an amendment.

Thus, like the House, the majority can prevent the minority from offering any amendments. The difference is that in the Senate, no member of the majority party can offer an amendment either. During Harry Reid’s last term as Majority Leader, only 15 total amendments for an entire session of Congress were allowed to be voted on. It’s hard to pass any kind of reform if a Senator is not ever allowed to amend an underlying bill.

Some suggest bringing back the talking filibuster. In the 1970s, the Senate changed its procedures to allow the majority leader to switch to another piece of legislation if the first one is being filibustered. This was called the two-track rule. The talking filibuster would require abandoning this rule, which the Majority Leader can do on his own, and staying on a bill until Senators have exhausted themselves and agree to allow a vote.

Sadly, this too might be misguided nostalgia. They all think that a “talking filibuster” would exhaust the minority, but this is the age of social media, where a significant number of Senators would want to talk forever, and others, who might not want to participate, would, if necessary, be forced by pressure from the base to help out. The same political imperatives that would keep a talking filibuster going forever also mean that Senators no longer are moved by loyalty to the chamber – even if it were true, which it is not, that the filibuster advances the reputation or institutional integrity of the Senate.

There is no Senate rule or constitutional imperative that the minority should, as a matter of right, be able to block the majority from voting on a bill. The only issue should be what procedure best advances the public interest in the substantive policies that do matter. The former success of the filibuster involved forcing the majority to moderate a bill sufficiently to attract enough minority votes to pass legislation. Those days are over. So long as the majority allows the 21^st Century filibuster to continue, the Senate will remain one of the democratic world’s most persistently dysfunctional national legislatures.

There is no Senate rule or constitutional imperative that the minority should, as a matter of right, be able to block the majority from voting on a bill.

The consequences of a breakdown in Congressional capacity are that the President increasingly governs through emergency declarations, executive orders, agency rulemaking, and prosecutorial discretion. Congress is forced into a greater reliance on appropriations riders and massive must-pass packages instead of ordinary authorization and oversight. Meanwhile, presidents of both parties inherit precedents from their predecessors that they criticized in opposition but exploit once in office.

So what can be done? The Senate is pretty simple. Nuke the filibuster and return to a normal amendment process. Yes, the minority will occasionally win an amendment, and they might force some tough partisan votes. But two can play that game. The majority can offer just as damaging amendments that force the minority into tough votes. Eventually, those things work themselves out so that both sides simply table frivolous or blatantly partisan amendments.

The House is more complicated. Almost all solutions require the Speaker to surrender some of their power. The House needs to restore a strong committee system. Strong committee chairs, at least the good ones, know how to build bipartisan support for legislation within the committee. This includes allowing the minority to include amendments and legislative ideas that give them a stake in the bill. Then, when the bill goes to the floor, there is already bipartisan support, and members of the minority, acting as agents for their caucus in their committee, are in a position to win over more of their colleagues.

Instantly, what happens is that the number of minority members supporting the committee bill is sufficient to offset the uncooperative members of the majority party, looking for a reason to get on the evening cable news programs. Big issues get resolved and voted on.

The next step is to return to something resembling “regular order” on the House floor. This is the quaint notion that the House actually follows its own rules for debate that it passes at the start of every new Congress. Regular order allows for each member to speak for five minutes and allows for amendments to be offered, as well as substitutes and second-degree perfecting amendments (perfecting being in the eye of the beholder). Now you would actually have legislation going on that Members would, first, be interested in and second, have to pay attention to what is happening on the floor rather than leaving the Hill to make fundraising phone calls.

Modifications can still be made to keep the debate under control, such as a reasonable time limit on general debate and time limits on the amount of time an amendment might be considered. It can limit the number of amendments that each side will be allowed, forcing the minority to narrow down their goals. That is the beauty of the Rules Committee. It can create any modifications it wants. Right now, it does, but to the detriment of open debate. A Speaker willing to give up some of the control of what happens on the floor could appoint Rules Committee members (unlike most other committees, the Speaker handpicks the members of the Rules Committee) that will accommodate a commitment to sticking to the principles of regular order.

There are a number of ideas that would allow for a more respectful level of discourse in the House without undermining the voters’ ideological choice in the previous election. One can govern without being obnoxious to one’s opponents. Here, the principle behind our system of government is most clear. Every American gets to participate in choosing their representatives. Those elected should have the right to bring their constituents’ views before Congress, even if they lose a vote. Respecting a colleague is not a matter of surrendering one’s deeply held views, but merely allowing a process that respects the choices of the voters.

A minority cannot demand to prevail, but it should be able to participate, offer ideas, force a recorded vote, and sometimes win. The current system denies even that modest version of representative government.

One of the remarkable things about our Constitutional Convention was the fact that no delegate was always on the winning side, and no delegate was always on the losing side. They all won some and lost some. And in the end, they created one of the most remarkable documents in the history of the world. In 1787, Alexander Hamilton wrote: “For my own part, I sincerely esteem it [the Constitution] a system which without the finger of God, never could have been suggested and agreed upon by such a diversity of interests.”

Perhaps it will once again require the “finger of God” to set Congress back on the right track, but it can also be accomplished, not by reform, so much as by respect. The first reform is therefore not technical but moral: Congress must recover the belief that participation is not capitulation, that compromise is not surrender, and that its members were sent to legislate -- not merely to perform for their partisan tribes. Budget reform is where that recovery ought to begin.