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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.

Reader Discussion

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on October 05, 2015 at 09:29:48 am

[…] Seeking a Power Agenda […]

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They’re Baaack - Freedom's Floodgates
on October 05, 2015 at 10:16:58 am

While it's a nice sentiment in theory, it won't work in practice. First, political power in Washington is no longer wielded by branches of the government, but by political parties, so bipartisanship is out from the get go. Second, the conservative firebrands who are mucking up the joint generally don't care about Madisonian democracy and the distribution of power. They dislike the executive wielding power because they dislike the ends to which the current executive is wielding that power. If a conservative Republican were to win in '16, they'd have no problem with him or her running roughshod over Congress, especially if the Democrats managed to win back control of Congress in '16 (it's an unlikely scenario, I know, a Dem win of Congress coupled with a Rep win of the White House). And third, the American people generally don't care about the distribution of power between the branches either. The vast majority of Americans view the current balance of power between the executive and legislative branches as the preferred order of things, they just disagree as to how that power should be used.

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Brett Champion
on October 05, 2015 at 12:06:45 pm

"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."

And yet,here there seems to be one missing component of the electoral / power dynamic. It is this:
"Well, congressman / woman, do as the party (and its backers) want or you will find yourself interviewing for a position on K Street (not all that bad, I am told)." Thus to exercise power, one must be in power and the party has considerable influence in who attains to, or remains in power.

It also strikes me that we have seen a fundamental transformation in the concept of power as viewed by our elected representatives. Power may no longer be exclusively perceived by these actors as the ability or capacity to effect a civic good; rather, in large measure it is viewed as "celebrity" and the attendant benefits of such celebrity and / or the perception by the electorate as a deal - maker. Power, or at least the perception / aura of power flows from the "deal" - irrespective of the virtue of the deal - in a facsimile of the Big Man on Campus syndrome.

Does this sound too cynical? Yes, and that is precisely where we find ourselves. The benefits of "going along to get along" in the Legislative are too great and the potential liabilities of pursuing / endorsing constitutional methods are too daunting for all but a few of the modern species of Legislator.

As our blogging compatriot, Scott Amorian, argues, a return to virtue is called for: Will we, are we capable of do(ing) this?

In effect, can we muster the will to use the constitutional tools provided us by Madison, et al.? Can our Legislators overcome the impetus of their own personal ambitions and motivations?
For a host of reasons, I am skeptical and once again slipping into a Tocquevillean sense of unquietude.

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gabe
on October 05, 2015 at 14:04:36 pm

At least one "conservative firebrand" I know of (that would be me, though sadly I am not also in position to muck up the joint) does indeed object to the current version of the presidency without regard to who might occupy the office in the future.

It might be that the vast majority of Americans take the view you ascribe to them. But if they do, this is the result of (i) the disappearance over the last 40 years of any adequate education in basic American civics, (ii) the pernicious effects of which current Congressional leadership is disinclined to, and is in any event utterly incapable of, offsetting by articulating the relevant points to the American public in a clear and succinct way. As Reagan demonstrated, it is indeed possible to accomplish the latter.

I contend that it is too soon to give up on the American people. Instead, it is past time for those who are in a position to do so to speak to them in straightforward, plain talk about what is going on with respect to the centralization of power, why it is a dangerous problem, and why they should care about it. Otherwise, the vacuum will increasingly be filled by populist pandering, as we are beginning to see.

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John Thompson
on October 05, 2015 at 14:50:10 pm

A nontrivial question: To what degree does international political appearances affect the behavior of the Speaker?

Some conflict is good, and can be justified on the international stage. But I see a lot of problems that would occur if those conflicts became too deep and too public. Too strong of an appearance of conflict could impact things such as the stability of the dollar, and treaty negotiating positions as well. Perhaps that is part of what would motivate a Speaker to not act as assertively as they would if only national concerns were at play.

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Scott Amorian
on October 06, 2015 at 00:47:33 am

Eh. As far as I can tell, the primary tool Congress has to rein in the executive is the purse string -- but that means being willing the endure a government shut-down. Repeatedly, the public blames such shut-downs on Republicans. The most vulnerable Republicans (especially Senators) eventually cry uncle and join the Democrats in passing funding bills.

Yup, a congressman might want to flex political muscle if he wants to exercise power. But exercising power seems like a remote possibility. A more proximate goal is to simply avoid rocking the boat, thereby having a 90+% chance of getting re-elected. After all, actually exercising power would render a congressman liable for any adverse consequences of the policy he passes. But if the congressman never actually manages to pass anything, then he never has to accept responsiblity for any results. His policies will remain forever pristine because they will never have been sullied through actual use.

In short, I'm not expecting much change.

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nobody.really
on October 06, 2015 at 11:12:37 am

And here is Exhibit #1 in support of Nobody's position:

://www.powerlineblog.com/archives/2015/10/the-klobuchar-kludge-contd.php

Here is first para:

"The Klobuchar kludge, cont’d

Minnesota Senator Amy Klobuchar specializes in avoiding outspoken stands on important issues. She looks for opportunities to lead the way on trivialities calculated to garner broad public support, such as her crusade against the threat to life and limb posed by “The crisis of the detergent pod.”

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gabe
on October 06, 2015 at 14:49:23 pm

The full writing can be found here: http://www.bartleby.com/24/3/16.html. This is an expanded selection. (Emphasis, mine.)

The effects of the incapacity shown by the popular leaders in all the great members of the commonwealth are to be covered with the “all-atoning name” of liberty. In some people I see great liberty indeed; in many, if not in the most, an oppressive, degrading servitude. But what is liberty without wisdom, and without virtue? It is the greatest of all possible evils; for it is folly, vice, and madness, without tuition or restraint. Those who know what virtuous liberty is, cannot bear to see it disgraced by incapable heads, on account of their having high-sounding words in their mouths. Grand, swelling sentiments of liberty I am sure I do not despise. They warm the heart; they enlarge and liberalize our minds; they animate our courage in a time of conflict. Old as I am, I read the fine raptures of Lucan and Corneille with pleasure. Neither do I wholly condemn the little arts and devices of popularity. They facilitate the carrying of many points of moment; they keep the people together; they refresh the mind in its exertions; and they diffuse occasional gaiety over the severe brow of moral freedom. Every politician ought to sacrifice to the graces; and to join compliance with reason. But in such an undertaking as that in France, all these subsidiary sentiments and artifices are of little avail. To make a government requires no great prudence. Settle the seat of power; teach obedience and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein. But to form a free government; that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful, and combining mind. This I do not find in those who take the lead in the National Assembly. Perhaps they are not so miserably deficient as they appear. I rather believe it. It would put them below the common level of human understanding. But when the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators; the instruments, not the guides, of the people. If any of them 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. Suspicions will be raised of his fidelity to his cause. Moderation will be stigmatized as the virtue of cowards; and compromise as the prudence of traitors; until, in hopes of preserving the credit which may enable him to temper, and moderate, on some occasions, the popular leader is obliged to become active in propagating doctrines, and establishing powers, that will afterwards defeat any sober purpose at which he ultimately might have aimed.

Burke says that liberty, which is expressed in populism, must be restrained by wisdom and virtue. Wisdom and virtue are not found in mechanisms, or under rocks, but in the hearts and minds of people. Therefore the populism must be held in check by wise and virtuous people. So the problem of controlling populism is really the problem of having virtuous people provide that check. That means finding and appointing such people, giving them the power to check excesses, and ensuring that they do not become corrupted by populism themselves. We, the general population, are unsuited to the task of providing that check ourselves, because that would just be more populism. So a specialized group of natural nobles must be selected, appointed and empowered to do the job. That is the way out of Weiner's downward spiraling, sisyphean circle of hell. Repeating the same mistake, but going all-in with even greater effort, pitting ever stronger populist power against ever stronger populist power, will not only not solve the problem, it will add to the problem in the long run.

The problem is how to appoint such people. I know the answer because I do such a thing periodically.

As an engineer I occasionally interview people to hire them. I have a list of minimum criteria I select against. I find the candidate who best fits the criteria. Then I look for the negatives--reasons not to hire the person--and toss out the applications of people with dishonest resumes, histories of making problems, etc. When I am done I have a ranked list of preferred candidates with the riff-raff excluded.

That is how the virtuous people, Burke's check, can be hired.

They can be elected by the public jury. If given a set of positive requirements, and negative disqualifications, and a list of candidates and facts, the general public can through the electoral process select well qualified people. That will work for the same reason that the jury system works. The general public will, if given a set of criteria and facts, normally arrive at a rational judgment. Populist elections do not really have clearly stated "proper qualifications" and disqualifications which is why they turn into popularity contests.

Give those virtuous people a secret ballot to say "no" to bad government without fear of retribution (just like a jury trial), protect them from political mischief in the form of false accusations, and you finally have a functional burkean government.

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Scott Amorian
on October 06, 2015 at 14:52:05 pm

Damn. Blockquotes again.

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Scott Amorian
on October 06, 2015 at 17:41:21 pm

Those who know what virtuous liberty is, cannot bear to see it disgraced by incapable heads, on account of their having high-sounding words in their mouths.... Every politician ought to sacrifice to the graces; and to join compliance with reason. But in such an undertaking as that in France, all these subsidiary sentiments and artifices are of little avail.

No high minded man, no man of right feeling, can contemplate the lumbering and slovenly lying of the present day without grieving to see a noble art so prostituted.

* * *

No fact is more firmly established than that lying is a necessity of our circumstances -- the deduction that it is then a Virtue goes without saying. No virtue can reach its highest usefulness without careful and diligent cultivation -- therefore, it goes without saying that this one ought to be taught in the public schools -- even in the newspapers....

* * *

[Skillful lying is] the fourth Grace, the tenth Muse, man’s best and surest friend.

Mark Twain, On the Decay of the Art of Lying, 1885

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nobody.really
on October 06, 2015 at 17:57:15 pm

[W]hen the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service.... If any of them 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. Suspicions will be raised of his fidelity to his cause. Moderation will be stigmatized as the virtue of cowards; and compromise as the prudence of traitors; until, in hopes of preserving the credit which may enable him to temper, and moderate, on some occasions, the popular leader is obliged to become active in propagating doctrines, and establishing powers, that will afterwards defeat any sober purpose at which he ultimately might have aimed.

"Balance is boring, or so ... it often seemed. We kindled to originals, harkened to the outspoken and the over-the-top, applauded the outstanding and the extraordinary. What could be more bland and bourgeois, especially when the money was rolling in and the sky was the limit, than balanced diets and balanced budgets and balanced judgments? Don’t be divided, be single-minded, exhorted the sages of success. Take a stand, make a difference, get your name up in lights....

[W]e should have been able to sense that the claims of single-mindedness needed to be balanced against the claims of balance. For our moral and political life ... constantly invites us to choose: Shall we honor the observed differences between men and women or seek to overcome them? Shall we respect political opinions that differ from our own or try to route them from the field? Shall we live as best we can according to the dictates of reason and the demands of faith, or shall we embrace one and deed those of its imperatives which call for the rejection of the other?

In fact, we are divided about single-mindedness. And there is an excellent reason for seeking intellectual and emotional diversification.... Still, a suspicion nags. Isn’t what presents itself as balance ... really a mask for complacency or pandering or failure of nerve?"

In Praise of Balance, Peter Berkowitz’s review of Norma Thompson’s The Ship of State: Statecraft and Politics from Ancient Greece to Democratic America, The New Republic, 5/20/02, p. 41.

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nobody.really
on October 06, 2015 at 19:42:41 pm

Scott / Nobody:

Nice quotes!

NB: Question / comment?

"Still, a suspicion nags. Isn’t what presents itself as balance … really a mask for complacency or pandering or failure of nerve?”"

Yep, this is understandable - but don't you think it sad that it has come to this where we question what in the past would be considered a model of Burkean restraint and instead either question a) motive or b) employ this method in order to dissemble or avoid constructive civic action?

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gabe

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