A Constitutional Congress

United States Capitol building in Washington, DC

In an exceptionally important article, Chris DeMuth addresses the deep pathologies of our politics. Chris has written extensively about the fateful drift into executive government, which (he cogently explains) is also a debt-ridden and lawless government (see his website here).  In this piece, he tackles a principal institutional cause of those tendencies: for Congress, legislation has become an unnatural act, to be performed only in extremis. Thus,

a constitutional revival will require a cultural revival. Recovering Congress’s lost powers will require relearning legislative skills, redirecting legislators’ energies, and risking the ire of party constituencies who are unfamiliar with the obligations of legislating and their centrality to the separation of powers. That is a tall order, but the time may be ripe.

Chris outlines five practical steps that Congress could take to a restore a piece of its constitutional authority—all of them requiring a bit of political courage, but none so bold as to be doomed from the get-go.

Tough to do because (in the Federalist’s parlance) the motives of the men have become disconnected from the interest of the institution: Congress no longer attracts people who want to legislate. Instead, it attracts folks who want to pontificate about principle on a national stage, administer a few fixes behind closed doors, and maybe lay the groundwork for a lucrative lobbying career. Why might they change their stripes?

Because there’s something humiliating about being a member of an institution with an approval rating below that of Ebola and Lindsay Lohan. There’s no downside to trying something totally rad: take responsibility, and legislate.

Reader Discussion

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on October 22, 2014 at 10:33:19 am

Because there’s something humiliating about being a member of an institution with an approval rating below that of Ebola and Lindsay Lohan. There’s no downside to trying something totally rad: take responsibility, and legislate.

Sure, no downside – unless you think that being rejected by voters is more humiliating. But if you do have that feeling, then you’ll do the things that seem calculated to help you win the next election – and that often involves evading responsibility and refraining from legislating.

Milton Friedman remarked, “[Voters] think the way you solve things is by electing the right people. It’s nice to elect the right people, but that isn’t how you solve things. The way you solve things is by making it politically profitable for the wrong people to do the right thing.”

Congresscritters (and Presidents for that matter) respond to the incentives of their respective offices. Voters regard voting as an act of consumption – deriving satisfaction from reaffirming their world view – rather than an act of investment – allocating a resource (a vote) in a manner designed to earn a maximum return over time. Presidents at least have ego concerns: They sense that people with attribute outcomes to the president, rightly or not. But even as Congress has low public esteem, it is unclear that people are shunning their individual congressional representatives; I don’t.

If we want change, stop focusing on the individuals and start focusing on the incentives. Now, what specifically should we change? Don’t know. To be fair, websites such as this one – promoting reforms, stigmatizing antisocial behavior – play a role, so I don’t mean to fault present company. But I expect we need bigger carrots and bigger sticks.

(P.s. I hear Disney is doing a re-re-make of The Parent Trap, only this time it will star ebola….)

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on October 22, 2014 at 11:58:25 am

sadly, you are right!
The one thing missing from the current political scene appears to be *principle* - is there no longer any place for that honorable trait? or are we to continue to be governed by "Disneyesque" rock star types?

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on October 22, 2014 at 22:08:56 pm

Somewhere engraved on my hard drive is a G. Will quote of M. Greve to the effect that the reason the Founders determined on limiting the functions of government was that they recognized the limitations of the people.

Reading the Demuth article and its delineations, the most salient possibility may be that of actual (real) oversight - with resultant reactive response (and not just "throw more money at it").

We are faced with the fact that the "voters," (including those who could but don't) and therefore their "representatives" are becoming the least effective participants in the US political system - including the legislative process.

Such a solution is not likely even if the now engrained habits of devolution, and legislation that is usually no more than a framework of "objectives" with means and methods to be determined by the unelected (not even the Executive - it's gotten beyond the reach of the Executive Staff) were to end. The cession has not been to the Executive, it has been to the other political agents who now predominate in both the formative and implementation processes of "legislation." Even if they were so inclined (let alone capable) the "representatives" would not have the "reach" to deal with the complex of functions they have allowed to usurp the facilities and operations of the federal government. In the 535 individuals there is not enough mental or physical capacity to encompass (let alone understand) the huge volumes of information required to legislate for The Federal Administrative State. Add to those 535 the hundreds (thousands?) of professional staff personnel - there is still not enough. George Will's quote of Professor Greve is salient as to why.

Even so, there are now the other political agents, entrenched, who would contend any alteration of their functions; they are:

1. The unelected "staff" and other administrators (bureaucrats) upon whom theelected are dependent and to whom they have delegated the authority to
legislate by regulation and "policy."

2. The extensive "lobby" system operatives, especially those for particular interests (that includes social policy objectives as well as economic objectives). These people, in synch with the congressional staffs, "write" the laws, modify the regs and "capture" the regulators.

3. The Principals (politicians within groups such as workers, teachers and scientists) who use the numerical or reputational significance of groups they purport to "stand" for or whose members they purport to represent - so called "leaders;" the subsidiary politicians.

4. The money-hungry media and its wordsmiths whose constant efforts are to "wage influence," not to inform. They are the reason money is so effective in politics. Less so, with the growing importance of "ground games" (get out the vote).

There are others at cycles.

Is there any point to "Seizing the task of legislating?" There may be something to Demuth's suggestion (a la REINS) of limiting non-congressional legislating.
The broader task could work, and have a point, IF the functions of the Federal Administrative State could be *substantially* reduced FIRST. That does not seem to be a stated political objective.

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R Richard Schweitzer
on October 23, 2014 at 11:58:51 am

We have reached the point where separation of powers is questionable. But worse yet, we now have a situation where Washington is ceded ultimate political power. For at last part of the 20th century there remained a shared responsibility in governance between states and Washington, but with the New deal came a greater reliance on the myth of central government. We are now faced with something resembling government ukase, and with slim hope of a change in fortune and a return to federalism.

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john trainor
on October 24, 2014 at 09:22:16 am

If Congress would like to revive their standing with the people, they could start by 1) no longer exempting themselves from the legislation that they foist upon the rest of us 2) passing a Revolving Door Tax that taxes members at 90 percent of their income above the amount earned in the last year prior to being elected 3) eliminating pensions for members of Congress 4) eliminating all taxpayer-funded travel (I would argue that 99 percent or more of such boondoggles are really either vacations or electioneering/fundraising/corruption) 5) tighter home state residency requirements (you must solely own a home or pay rent and you must travel to your state at least 50 percent of your non-working days in DC).

That's a short list. Any more that would discourage careerism among politicos would be even better. File such ideas, however, in the "Never Happen" file.

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PD Quig
on October 25, 2014 at 17:41:58 pm

Thank you for this.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.