Seeking a Power Agenda

Conventional wisdom holds that the Speakership of the House is an impossible job because the Republican caucus is ungovernable. On this narrative, compromise is profane, and conservative purists outflank any constructive proposal leadership makes, thus rendering it toxic to the opposition. The purists are the proverbial bidders in Burke’s “auction of popularity”: “If any [leader] should happen to propose a scheme of liberty, soberly limited, and defined with proper qualifications, he will be immediately outbid by his competitors, who will produce something more splendidly popular.”

Alas: What’s a speaker to do?  Scribes—like cats, fascinated with motion and thus tormented by gridlock—wring their hands over policy.  The next Speaker’s agenda should be power: reasserting the primary place of the people’s House against a Presidency determined to relegate Congress to secondary status as an advisory branch.

A power agenda, as opposed to a policy one, can unite.  The institutional interests of the House might even, on Madisonian grounds, attract some—not much, but some—bipartisan support.

This entails a full embrace of the bodycheck constitutionalism that John Boehner, ever searching for the Big Deal of which legacies are made, eschewed.  It means that when the President refuses to enforce a law of Congress, Congress should, rather than hiding behind judicial robes like a child clinging to a mother’s skirt, refuse to fund the agency in question, or enact any administrative priority pertaining to it, until he or she does.  (Senate partnership, such as declining to confirm any nominee to such an agency, would help.)

This, of course, requires the will and capacity to make a case to the public in constitutional terms.  Refusing to fund an agency over, say, non-enforcement of immigration laws is naturally conducive to a claim of shutting down the government, or a department of it, in order to insist on deportations.

But this results in a donnybrook crystallized in this way precisely because such conflict is so rare.  A background condition in which Presidents know Congress will bite when aroused may restrain them in the first place.  It may never be necessary to meet at noon on the streets of Hadleyville if all parties know gunfire is possible.

More broadly, the issue, of course, is not deportations, or torture, or wiretapping, or any number of other issues on which executives have contravened Congress.  Those who support a President’s policy can always oppose his or her assertion of power.  The issue, and the case can be made, is whether we want an executive-as-archon who draws limitless and undifferentiated power from an assertion of democratic legitimacy.

Whether the public is receptive to such a case, persuasively made, is open to question, to be sure, but so is whether the public is capable of sustained constitutional government.  An enduring preference for action over institutional architecture—a concern with getting things done over how they get done—would raise serious concerns about the answer.

Madison’s answer, to which the next Speaker should recur, is that actors inside that architecture will maintain it because they seek office to exercise power.  Thus their personal ambition—power—is connected to their institutional interest: authority.

Political parties and legislative careerism have done much to undo that assumption, but the next Speaker might reignite it.  That involves making a constitutional case not merely to the public but to political actors.  It involves reminding them that if they want to pursue other goods, they need power first, and if they want power, they must defend the institution from which they draw it.

Such a case can draw them together, providing a basis for setting aside policy disputes in favor of constitutional unity.  Madison plainly assumes it will.  The logic of Federalist 51 does not otherwise operate.

To be sure, a great deal stands in the way of the next Speaker pursuing such an agenda.  The House is a sprawling collective action problem in which each member’s share of the power exercised is probably too diffuse to justify his or her sacrifice of personal goals to institutional goods.

But an agenda focused on restoring the influence of the House is a necessary predicate to many of those goals, so members might be persuaded, especially by the excellent suggestions Christopher DeMuth made in August’s Liberty Law Forum: reclaiming Congress’ taxing and regulatory power, restoring annual appropriations and censuring unconstitutional executive actions.

To the extent members are pursuing goals unrelated to power used to influence policy—prestige, venality and the like—those ulterior aims should be short-circuited.  Term limitation would help do that trick.  To be sure, the institutional costs of term limits—including depriving the Speaker of one of the most treasured motives for keeping members in line, the seniority system—would not be negligible.

But the essential debility afflicting Congress is a deranged motive for occupying office.  Without restoring that motive to the exercise of power—and why else disrupt one’s career for a maximum 12-year stint in the House that will not be long enough to pay the dividends to which today’s former incumbents are accustomed—other reforms cannot succeed.

The essential problem of John Boehner’s speakership was his inability to corral his own troops toward a vision they shared.  The elegies to his leadership, sung mostly by commentators who pined for his failure, operate within a framework that assume a successful Speaker will be one who strikes deals with the White House.  Conflict aversion is the regnant constitutional ethic.  But conflict is healthy.  Conflict separates and checks power in addition to clarifying policy.

The question is conflict over what.  Conflict merely over policy, while valuable, may in isolation be a losing proposition for a Speaker trapped between his own caucus on one flank and the White House on the other.  Conflict over power itself might well unite one against the other—and restore the regime to the balance its architects intended.