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The Return of Congressional Government

President Trump’s inability or unwillingness to lead on a legislative agenda has been cast as bad news for conservatism. But his weakness may trigger a renaissance of conservatism properly understood.

By renaissance we don’t mean an immediate batch of policy priorities—though congressional Republicans appear likely to pursue such priorities—but a long-term commitment to conserving the constitutional regime. Since James Burnham, constitutionalists have argued that Congress, the first branch of the Founders’ design, is the naturally conservative branch of government.

Republicans now have an opportunity and a responsibility to prove they are up to the task. The imperative here is constitutional, but also political. Reihan Salam, executive editor of National Review, put it well on CBS’s “Face the Nation” recently when he raised the prospect of a “moral cascade” that the GOP might experience if the Trump presidency continues its train of failures and incompetence.

The cascade effect generally describes an initial stimulus that produces a series of interactions that destabilize and collapse a system or network. The moral cascade that Salam evokes is tantamount to an entire party experiencing not only a failed presidency but the evisceration of its moral capital. That happened when it so firmly tied itself to a presidency that spoke without clarity in the face of blatant racism and with arrogance and dismissiveness toward those merely unsure of its policies.

Many were rightfully concerned about Trump’s statements during the campaign that impugned certain people’s motives or actions based on their ethnicity or gender. As President, he has only compounded the problem. His press conference after the white supremacist rally in Charlottesville might prove to have been the triggering event that unwinds not just Trump’s presidency but also much of the conservative universe, which scrambled to reorient itself around Trump in 2016. And now we have Trump’s pardon of Sheriff Joe Arpaio. We are likely to see heavy GOP losses in the 2018 election, and after that we may well see the coup de grace of unified Democratic government in 2020, with a Democratic President elected from the grievance-mongering Left. President Sanders, President Warren, President Harris, anyone?

If the cascade is coming, how does one hedge against a collapse? Begin with the fact that the Trump presidency is weak, unambitious, and unable to exert significant leverage in any of the policy disputes currently taking place in Washington.

To date, two achievements loom largest: the Gorsuch confirmation and the repeal of certain Obama-era regulations. The former depended on a GOP Senate that very much wanted a conservative on the Supreme Court. The latter was accomplished by the executive branch unilaterally pulling or suspending regulations left over from the previous administration, and by Congress legislating under the Congressional Review Act.

In short, the real work hasn’t even started. The prospects of achieving tax reform or any other significant item of the Trump agenda could not be dimmer at this moment.

Congressional Republicans can’t tie their loyalty to this President, not any longer. If they wish to preserve their majority status, they must retake the reins the Constitution gives them and be the decisive force of politics in our country. They need to announce that their method of governing is in the committee system, where legislation percolates upward through a system of deliberation and bargaining and the floor, where rank-and-file members in both parties are empowered.

President Trump and his antics can amplify this process or seek to undermine it, but what congressional leaders must communicate is that individual members of Congress, in committee, will be shaping the future. On the next priority of tax reform, Congress will fly solo, as the White House just announced that it will not produce its own tax plan.

Granted, this is easy to say but hard to do, especially given Congress’ lack of intellectual capital and members’ weakness of nerve. They have for decades given their powers over to the executive branch, removing themselves from the real work of republican government and the accountability that comes with it. This has taken various forms, from delegation of policymaking to administrators to abdication over questions of war and peace. This allows members of Congress to offer platitudes without being responsible for the details of governing. It is a transfer of power to technocrats and thus a flight from politics.

There is a way back, however, and necessity forces it upon Congress. The Constitution, which lives because it is written, thus transferring its meaning to each generation, accords these senators and representatives the ability to bring the federal government to a halt if they so choose. That is to say, we have a Constitution written for the legislative branch to govern as first among equals. But do the legislators know it? The issue is less the immediate disputes pending before the Congress than a realignment of the regime for processing them.

The challenge for Congress is to prove that it can survive politically  and, more significantly, to establish—on behalf not of a party but of the country—that it can govern constitutionally. That requires reforms that restore the institution’s capacity to take action as an independent branch of government rather than an adjunct of the executive.

It should begin with a restoration of the committee system, which, as Christopher DeMuth notes, was dismantled in the 1970s in the name of democracy and egalitarianism, a move that unilaterally disarmed the legislative branch against an executive whose strength lies in specialization and hierarchy.

Second, Congress should reclaim the regular budget process. Its power of appropriating and authorizing expenditures, and raising and lowering these by the year, is perhaps its single most forceful lever over policy. Publius says in Federalist 58 that “this power over the purse may, in fact, be regarded as the most complete and effectual weapon, with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Yet it has largely been surrendered in favor of continuing resolutions.

Similarly, Congress should forgo the use of omnibus bills that legitimate presidential signing statements. It should send the White House individual bills that force the executive to accept or reject specific laws.

Finally, the House should abandon the “Hastert rule,” the informal custom according to which the majority will only pass bills that rely on its votes alone. This discourages bipartisanship while moving all consequential decisions into closed-door conference meetings of the majority party.

The point is not to moderate legislation. It is, rather, to forge a sense of shared institutional interest in loyalty to the branch of government as opposed to reflexive obedience to, or opposition to, the President on a partisan basis.

Congressional government will be messy. So is republicanism. It will not be the rational stuff of Woodrow Wilson’s imaginings. Good. It will be political. It is supposed to be. Most of all, it will disperse power and, in the fullest sense, represent the people. It is what the Framers intended. There is both a window and a necessity for its reclamation.

Reader Discussion

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on August 28, 2017 at 08:58:06 am

The first few paragraphs were utter nonsense so I stopped reading. Essays like this are why I have nothing but contempt for the so-called conservative movement. You guys have been utterly worthless with not one single victory in twelve years. Ryan and McConnel have all the tools of power but have done nothing with them. Yet all your criticism goes toward Trump.

Conservatism is a joke. You can't even conserve women's bathrooms. Your movement is dead. You helped kill it.

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Boxty
on August 28, 2017 at 09:43:41 am

The "establishment " republicans in Congress have NEVER tied themselves to this president or his policies. The best statement you make is this:

"In short, the real work hasn’t even started."

We the people gave the republicans the house, senate and presidency, with an agenda, promised by them for the last 8 years and now that they have the power to do what they promised, they don't have the will or the balls to do it.

What you keep saying is congress should "go back to doing this", they should reclaim a budget process that has put us $19 TRILLION in debt. Nonsense !

Let's go back to business as usual and pretend that this Trump "revolution" never occurred !

That is why the republicans will lose in 2018, no other reason.

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Jim
on August 28, 2017 at 10:01:47 am

Richard and Greg are part of the problem. Their critique of the right tells me that they are just a couple of soldiers of the liberal cause. Where bathroom laws are more important than the safety of our citizens. These two have blinders on, tunnel vision and make excuses for what we want. In the new dictionary they will be called " Snowflakes ".

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Abelardo Aguilu
on August 28, 2017 at 10:23:42 am

The above three commentaries seem to gauge a level of anger over the "first six (now eight) months" that Republicans better well heed. You will notice, they don't seem to assign blame to Trump, rightly or wrongly.

The suggestions in the essay may have merit, but still it 'takes two to tango' and I can't imagine the Dems. would have an interest in Bi-partisan kumbaya revivals, when they may be beginning to think they actually have, with the latest events, the President and Repub. Congress on the ropes.

Still, to the Left, it probably wouldn't be the wisest move to start picking out new curtains for the White House or new Gavel Doilies for the their leadership just yet. It’s that kind of over-optimism and mis-reading of the electorate that likely explains 2016.

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Paul Binotto
on August 28, 2017 at 12:23:40 pm

What an extraordinary epistle for these libertarian pages.

One does not have to subscribe to all of Walter Lippmann's conclusions (I don't) to appreciate his judgements of the legislative functions set out in his "The Good Society" (1941 ed.), which is heartily recommended to these (conservative [?]) apostles.

Of course, in examining the functions of Legislators, we have to consider (and determine) the functions of Governments (3 levels) in terms of our social order and the relationships within it.

Normative Libertarianism is framed by concern with the impacts of the functions of governments on individual liberty and therefore to limit those impacts by limiting those functions.

For the past 85 (at least) years the Federal legislative processes ( **however conducted**) have concentrated increasingly, not on the functions Lippmann described, but on generating Rules of Policy (legislation, regulations, ordinances and their excrescences), which are attempts to describe, define and delineate *DESIRED* social order and the relationships necessary for it.

In doing so the Legislators have, of natural necessity created the extra Constitutional Federal Administrative State in order to expand, or create anew, functions of the Federal Government and through it, those of the States. Adverting to forms of prior processes, without revisions of the functions of governments AND of the functions of Legislators will achieve nothing, other than delays, in the impacts of legislation, or in the impacts of failures to correct legislation.

The enormities of conceits of assumed capacities to determine what shall be the nature of "the" DESIRED social order, have grown with the increases in permanent, professional legislative staffing despite what our Apostles note as "Congress’ lack of intellectual capital," which has always been with us.

The real "Legislative Crisis" is not so much a matter of "leadership" from the Executive Office (nor, indeed the conduct of that office); and, it is not in HOW Legislators conduct their proceedings, but, rather WHY and to WHAT ENDS they act in their publically assigned capacities.

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R Richard Schweitzer
on August 28, 2017 at 13:36:49 pm

Off topic: Richard Reinsch, can we expect any more posts from James R. Rogers? I don't mean to be ungrateful, but I was especially enjoying his contributions.

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nobody.really
on August 28, 2017 at 15:29:48 pm

Reinsch & Weiner make the familiar observation (among political scientists) that the federal government has shifted from the design imagined by the Framers—in which Congress would jealously guard its power out of a sense of institutional loyalty and a desire to wield power—to the current mode—in which Congressional leaders cede actual leadership to the Executive Branch out of a desire to avoid blame, thereby ensuring their re-election.

Reinsch & Weiner argue that this time the Executive is doing so much damage to the party that the old formula may not work to ensure the re-election of Congressmen. Thus desperation may finally prompt Congressmen (and Senators) to distance themselves from the Executive and establish an independent identity—with actual accomplishments.

It’s a theory. And I sense that there’s some merit in it: O’Connell and Ryan have not launched a public war against the White House, but they’ve indicated their differences.

But I think any long-term prognosis for change is just wishful thinking. Yes, Reinsch, Weiner, AND the voters seem to be frustrated with Trump. But to suggest that they all have the SAME frustrations, and thus desire the SAME solutions, makes about as much sense as assuming that everyone who had frustrations with ObamaCare had the same frustrations and desired the same solutions.

If you subscribe to the view that Trump is an anomaly, then I expect that once he’s gone (in 2020?), things will revert to the norm. Congressmen simply have too much to gain from the familiar system. Moreover, it isn’t a terrible system. Congressmen act as corporate board members: reading reports, setting some policies, and rubber stamping the executive’s actions until an emergency arises, when they act to rein in or replace the executive. A reactive role is still a role; a rudder may trail behind the boat, but it can still steer.

But what if Trump is not an anomaly, but a symptom of a longer-term trend? That is, what if politics becomes increasingly dominated by low-information populist voters treating elections as entertainment akin to professional wrestling—and policy objectives are largely symbolic or irrelevant? Forget about President Warren; we’re talking President Dwayne “The Rock” Johnson. Presidential candidates would campaign largely on the basis of grievance against some scapegoat—maybe immigrants, maybe government—and claim to be a savior. Then, having gotten elected, they would need to either solve problems or punish scapegoats (or find new ones). Solving problems would require a knack for governance, which they likely lack, whereas identifying scapegoats will be a talent they have already demonstrated. So we’ll get a stream of scapegoats being led to the gallows, metaphorically or not.

In that environment, I'd expect congressmen to behave much like Roman Senators behaved when confronted with emperors. That is, I'd expect them to capitulate in order to avoid becoming scapegoats themselves. Indeed, that's the behavior we observe among most Republican congressmen right now.

Over time, we might expect Congress and the Senate to become populated with movie stars and athletes—people who would not be easy for an executive to scapegoat because the low-information voters would already have a firm and positive impression of them. When that occurs, we might expect the bodies to have sufficient star power to serve as a countervailing force against the executive’s star power.

In any event, I’m not seeing a circumstance when voters become so frustrated with dysfunctional government that they prefer candidates with governing skills over candidates with campaigning skills.

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nobody.really
on August 28, 2017 at 16:17:03 pm

You make some good points, Nobody; oddly, what you describe as "scapegoating" might be as good a description of the Resistance & SJW's - could it be that both sides are becoming so unhinged that either has nearly become the other? Or opposite sides of the same coin?

I think you are correct, (as I infer from your commentary) that the conventional wisdom which usually makes politics at least slightly more predictable, than say, the weather, may no longer be a reliable bellwether for understanding where the current electoral flock is headed.

For political scientists, this is probably represents the most exciting period in American politics to observe in ages, because it has become the least predictable. Hopefully, least predictable doesn't also translate into most combustible and destructible.

On a side note; looking at winners and losers, I can't help wondering how, William (Thomas) Jefferson, or Jefferson (Davis), Clinton will fair under the current post-Charlottesville hysteria against (seemingly) all things with a hint of Southern Confederacy or Slave-ownership association...will he become a casualty of friendly fire?

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Paul Binotto
on August 28, 2017 at 17:45:10 pm

"In any event, I’m not seeing a circumstance when voters become so frustrated with dysfunctional government . . . "

Perhaps because the Legislators do not function as, and are not, the "Government;" but, the Federal Administrative State , which is *not* dysfunctional, IS the "government" that interacts with the broader electorate.

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R Richard Schweitzer
on August 28, 2017 at 20:26:48 pm

Nobody:

I. too. enjoyed Rogers" essay.

BTW> You ain't no Dawg - are you? Just kidding, my friend!

But, yeah, Rogers stuff is good.

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gabe
on August 28, 2017 at 20:30:53 pm

nobody:

Ok - good points - BUT don;t limit the "low-information" voters to populists ( a pejorative in the present mind).

Many of my Democrat, tailgating buddies are about as low information as one can imagine.

Agree with your other points.

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gabe
on August 29, 2017 at 10:58:34 am

A) The conservative outrage over Trump's CV remarks, which even was expressed by someone like Julius Krein, continues to puzzle me. First, to speak about the event in any finely-tuned balanced way, i.e., giving greater blame to the White Nationalist and Racialist groups while still giving significant blame to Antifa, and perhaps CV police management, was a task of a pretty high order. Nothing in Trump's history suggests he was equipped to make it. Why, then the conservative shock and surprise? Anti-Trumpers like me who are nevertheless very opposed to lose impeachment-talk and fantastical resignation talk were not at all surprised. Our hope is simply that Trump behaves like a largely-sane man, and that the primaries will deliver us a better candidate in 2020. So second, we see no duty to get all outraged every time the MSM zeroes in on some new "can-you-believe-it" Trump-offense. We see that as playing into an ILLEGITIMATE pattern of "politics" that wholly centers power around the presidency, the media, and the manipulated tides of elite opinion. The very sort of thing Richard opposed in his recent Natl Affairs piece! Third, there is NOTHING that ANY non-leftist prez could have said about CV, even with all the nuance and latest facts provided, that would have satisfied the MSM. Nor is there yet solid evidence of a widely growing white nationalist movement, or of Trump support for/connection to it, despite the deep leftist conviction that this must be the case.

B. What is more, it is now apparent that the combination of 1) crude elite-opinion virtue-signalling about Nazis, Nazis, Nazis, 2) the documented growth of Antifa membership and activity, and 3) the readiness of both Antifa and the huge group of people who take them and the SPLC seriously to label conservatives as fascists, has the potential to become a threat, to public peace and freedom of speech, of great magnitude. A threat 10x, more likely 100x, that of the minuscule white nationalist and racialist groups, unless the latter grow faster than we expect, given the recent publicity. See that Daniel Payne editorial at the Federalist last week. And see the Weekly Standard piece (May) on Carol Swain's work if you want to see how to think about white nationalist type groups without crudity and with the slightest bit of Christian charity.

C. If you talk about restoring power to Congress, you simply have to talk about the issue of filibuster reform. Opinions can be legitimately divided here, so that a reform leaves the basic ability of Senators to fb intact might be considered, but it is not an issue a discussion like this should dodge.

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Carl Eric Scott
on August 29, 2017 at 15:12:33 pm

Same here.

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Scott Amorian
on August 29, 2017 at 15:41:27 pm

And in this blog post we find yet another great example of how Jedi mind tricks of the press and academia really do work on some people.

Trump's background is as a salesman, a negotiator and a business executive, not as a politician. That's why he talks and acts the way he does, and why he doesn't talk and act like a practiced and polished politician. That's why so many people wanted him as president. We rejected the establishment types. Establishment types, such as Greg and Richard, reject Trump. The people reject the establishment types because they seem hellbent on conserving the business as usual that must inevitably lead to an increasingly exclusive (and therefore collapsing) society.

There is no debating the kinds of arguments presented in the blog post because it is all founded upon political wonkiness. The issue is not the points discussed, rather, the issue is about what to do when a large numbers of people are in a political rage. Fortunately, the Framers provided some protections against these kinds of rages.

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Scott Amorian
on September 06, 2017 at 16:01:51 pm

"...Congress’ lack of intellectual capital and members’ weakness of nerve. They have for decades given their powers over to the executive branch, removing themselves from the real work of republican government and the accountability that comes with it. "

This statement is limited to Republican controlled Congresses. Or rather, to CONSERVATIVE controlled Congresses. When Republicans were not conservative, like in the 60s, Republicans and Democrats in Congress governed.

LBJ was more a creature of Congress than president for his five years in the White House, as he had served for decades in Congress as leader in exercising Congressional power. FDR did not dictate much to Congress that Congress was not already doing. And Obama signed law's in his first two years drafted by Congress under templates developed in Congress while Obama was a back bencher more than leader.

Conservatives in Congress generally govern by dictating thoughts and behaviors which they refuse to fund by tax and spend. The US will have great health care for everyone in need, EMTALA, but it won't be paid for. Thus conservatives claim Obamacare was not needed because no one dies from lack of health care because EMTALA delivers free health care to everyone. The US will be the most powerful militarily in the world, but then conservatives refuse to fund what Congress defines as required for that power.

Trump campaigned with all the intellectual coherence of Republicans in Congress, promising free lunch after free lunch. Trump delivered what conservatives wanted, no amnesty of any sort to illegal, which then means just more illegals, not fewer, more lawlessness, not less. Immigrants are supposed to carry their papers, but not US citizens who essentially have no right to get "papers" proving they are US citizens, so US citizens can be rounded up as illegals without papers and then have no rights in their fight to prove they should not be deported because they are US citizens.

On subject after subject, the conservatives have forced Republicans in Congress to be incoherent promising the impossible for free.

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mulp
on September 06, 2017 at 16:12:13 pm

Re: C, you believe the Democratic Congress should have gotten far more bills passed in 2009-2010?

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mulp
on September 07, 2017 at 18:02:49 pm

I agree with your comments on the first part of the blame game .
The ideas presented on what Congress should do to do their Constitutional duty are good, but the blame strictly belongs to the so-called legislative leaders going back a number of years.

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Everette Hamilton

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