They’re Into Masochism

Among its myriad other mysteries, the 2016 election presents this Madisonian puzzle: Why are so many members of Congress genuflecting before presidential nominees whose platforms include emasculating them?

Speaker Ryan (R-Wisc.) defends his endorsement of Donald Trump despite apparently disagreeing with the nominee-in-waiting’s every public utterance. Senator Warren (D-Mass.) rushes to the Hillary Clinton camp at the first sign that the latter’s nomination is sealed. What kind of power would either lawmaker—or the countless others executing comparable maneuvers—maintain under these presidencies?

“The great thing about executive orders,” says Trump, “is that I don’t have to go back to Congress.” He does not oppose President Obama’s expansion of executive authority; he will just use it more fabulously. In his words, Trump is “going to use [executive orders] much better and they’re going to serve a much better purpose than [Obama’s] done.”

Here, similarly, is Hillary Clinton: “If Congress won’t act,” she says of her opposition to corporate inversions, “then I will ask the Treasury Department when I’m there to use its regulatory authority, if that’s what it takes.” With respect to guns, she will “work with Congress” but “look at ways as President.”

Why would members of Congress, whether Republicans or Democrats, endorse such candidates?  Indeed, on Madisonian assumptions about the separation of powers, we are not supposed to have to worry about a President acting in that domineering manner. The way it is supposed to work is that Congress, jealous of its power, would unite to retaliate against abuses by the Chief Executive.

Yet not only does this no longer occur, we now see members of Congress—with the scant and consequently notable exception of such principled constitutionalists as Senator Ben Sasse (R-Neb.)—lining up, as if duty-bound, behind candidates who promise to subjugate them. Trump in particular rejoices in this humiliation, imposed nearly as a form of hazing.

Madison tells us that when things start to go awry, we must look for answers by probing the office-holder’s motive for seeking office: Whence, in other words, ambition? Presidents still have it. They obsess over legacies, and protect their office for themselves and their successors like threatened animals.

Whereas from the look of it, members of Congress are seeking office for reasons other than exercising power. They spin off authority, as George F. Will has put it, like an impetuous vortex flipped into reverse. This was inconceivable to Madison, partly because he did not consider congressional service that glamorous. For much of the 19th century, the period that Woodrow Wilson stigmatized as the era of “congressional government,” a typical Representative served for an average of three years. Average service climbed to today’s peak of over 10 years alongside the 20th century growth of presidential government.

That seems curious—the less power one has, the longer one serves—except that something else happened in the 20th century: Washington became an imperial capital, and the national government became a distributor of detailed and complex largesse. Congressional seats therefore became objects of prestige, and congressional relationships became lucrative commodities.

In this environment, there are reasons to serve in Congress other than the pursuit of power. The pathetic capitulation of members to presidential nominees who openly plan to defenestrate them illustrates either the consequent absurdity or corruption, or both.

The Madisonian answer would therefore be, first of all, to alter the motives for serving in Congress. One way to do it would be term limitation. This would drain congressional relationships of their monetized value and deprive service of any attraction other than that of exercising power. Thus would institutional prerogatives be defended during what Daniel Patrick Moynihan called “this brief but sacred authority.”

Second, simplify the national government’s role in economic distribution. A political application of the principle of Occam’s Razor might somewhat deprive congressional relationships of the priesthood of detail that makes them convertible into profitable post-Capitol careers. That does not have to mean budgetary austerity. That is a separate debate. The question is the detail and complexity with which taxpayer monies are administered. (The complexity with which the tax code seeks to manage behavior and indirectly distribute subsidies is but one illustration.)

Neither of these would come without cost. Term limitation in particular would deprive the nation of the service of worthy leaders. On the other hand, their expertise is increasingly bargained at the expense of their wisdom, and its returns diminish in an institution that is hemorrhaging power. The ease with which senior statesmen surrender their prerogatives to a presidential office that should not wield them and to suitors who should not occupy it indicates they no longer have a moral claim to their indispensability.

Simplification would return us to Publius’ regime, and term limitation might help to restore it.  By contrast, continued capitulation to the presidency, magnified by its pursuit by those so unworthy of it, now delivers a compelling reminder that the good sense of republican citizens might be more valuable than the costly expertise of careerists.

Reader Discussion

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on June 16, 2016 at 10:45:06 am


You nailed it!

Rather than assume the responsibilities of a "statesman", our representatives have taken on the role of a manic Easter Bunny, deliriously dispensing colored eggs to favored constituents. Of course, all in exchange for further feathering of the Bunny's lair.

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on June 16, 2016 at 12:31:55 pm


1. Why would people now pursue longer careers in Congress? I have to suspect that changes in technology–airlines and air conditioning—have rendered the act of getting to, living in, and returning from DC vastly more agreeable than in the past. This can hardly be overstated.

2. Why would congressmen endorse presidential candidates that promise to “emasculate” them?

A. Endorsements reflect a choice between viable alternatives. If all the viable alternatives involve “emasculation,” then emasculation ceases to serve as a relevant criterion for choosing.

B. True, Madison may have over-estimated a congressman’s jealous loyalty to his institution, and failed to anticipate the power of parties (“factions”). Or, to rephrase, Madison may have failed to anticipate that a congressman might want to actually achieve something for his constituents, and might come to see that, in a world of partisan gridlock, aligning with the Executive may be the sole means by which that might occur. Why should I look with disdain on a congressman who values making a practical difference for his constituents more than pursuing jealous turf battles?

C. And, yeah, by foisting responsibility onto the executive, congressmen wash their hands of blame if and when things go wrong. In a gerrymandered world in which congressmen pay no price for inaction, but pay a heavy price for failing to maintain sufficient doctrinal purity, congressmen have every incentive to leave the heavy lifting to someone else.

3. Would term limits change this dynamic?

A. Mostly, term limits would succeed in strengthening the hands of the unelected lobbyists, staff, and bureaucrats who would become the sole source of experience as congressmen come and go. (You can scarcely get a better education on the role of long-term legislative staffers than to watch/listen to the BBC’s Yes, Minister and Yes, Prime Minister.)

B. Term limits might also strengthen the hand of the executive (relative to the status quo). Today, legislators can play hardball with an ambitious executive by telling him that if he doesn’t want to compromise, they’ll just wait for the next executive. (Conceptually, Judge Garland’s nomination illustrates this dynamic: Republicans imply that if only Obama had picked a more reasonable nominee they would have been willing to act, but since Obama was unwilling to compromise Republicans will instead wait for the next executive.) But legislative term limits would permit the executive to play the same game with legislators: You can take the deal I offer you and be able to claim credit for achieving some part of your ambition—or I’ll just wait and cut a deal with your successor.

C. Term limits might also enhance a legislator’s focus on securing his next job, which is often lobbying. Why focus on pleasing your current boss (your constituents) rather than your next one?

3. I favor simplifying public policy, too, all else being equal. And sometimes I suspect Congress does make public policy less simple than it could be in order to secure electoral advantage. For example, we could link the federal minimum wage to an index of inflation—but that would deprive Democrats of the opportunity to promise to raise the wage to compensate for the effects of inflation, and deprive Republicans of the opportunity to promise to fight such changes. So there is little constituency for simplicity.

I’m intrigued by the idea of a basic income guarantee (BIG), as proposed by Charles Murray among others. That might simplify distribution issues somewhat.

That said, I suspect most public policy is unavoidably complex. Simple-minded people praise the idea of a “flat tax,” as if the big challenge in calculating taxes is determining which income bracket you are in. It isn’t; the big challenge is defining “income”—which is an unavoidable complex question. (Ok, perhaps we could reduce the complexity by shifting away from an income tax and toward a progressive consumption-based tax, such as the X Tax, but even that proposal is wildly complicated.)

Ponder the recent discussion about assault rifles. Both presidential candidates have suggested that the nation might benefit from reducing the availability of such rifles. But they want the limitation to reflect some particularized evaluation of each person seeking to buy such a rifle, rather than to reflect the generalized principle that we don’t let private citizens walk around with nuclear devices, shoulder-launched anti-aircraft missiles, and bazookas—and we’re now adding assault rifles to that list. The latter proposal would be vastly simpler to explain and administer, and less susceptible to manipulation, but is (so far) disfavored by the politicians.

In short, simplicity has no lobby.

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on June 16, 2016 at 12:43:01 pm

Ok, so the Abrams Tank I have on my front lawn is STILL OK! Whew!!!!

Good comments on problems associated with term limits.

It seems to me however that the real issue is not term limits or any other *reform* but rather that the Federal Government simply has become involved in far more than it is capable of handling and far more than it is entitled to *handle.*

Recalling again, the lessons provided by the Good Sisters of St. Joseph many decades ago: "One should endeavor to avoid the *occasions of sin* - Growth of government increases the quantity (and quality) of these occasions. With government, it provides the additional benefit of allowing a Representative to mask his / her "sin" under the guise of constituent service.

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on June 16, 2016 at 15:30:25 pm

I don't think there is a single answer to the problem, but a number of smaller problems, many of which can be addressed.

Perhaps one of the main problems is that of transparency. There is too much of it in Congress. When a voter's choice becomes known, the voter becomes subject to enticements and punishments, the carrots and sticks. Eventually the results of the poll show the influence of the persons with the most carrots and the biggest sticks. In our government that would be lobbyists and party leaders, with the president being one of the dominant party leaders as well as the wielder of a very big stick politically.

Past reforms from the 1940's and 1970 created greater transparency and were intended (at least as I read them) to prevent congressmen from using policy making to their own advantage. I would suggest that doing so may have worked, at least to a limited degree. But the tradeoff was one form of corruption for another. Corruption of personal advantage for corruption through manipulation of congressional votes.

The Continental Congresses of 1774-1776 worked very much in secret. The Constitutional Convention was very secretive. Vote tallies were recorded, but who voted and how was not. (The tallies in Madison's notes were bootlegs.) The expectation was that the Constitutional Congress would act similarly, though, I would guess, not to the same extreme.

The Framers anticipated a certain amount of secretiveness in Congress. The Constitution provides that the Senate must disclose its members votes at the request of a fifth of either house, where it says "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal." The Yeas and Nays were not to be generally recorded.

Perhaps it's time to reconsider the unanticipated consequences of greater transparency. To a great degree it subjugated the Congress to the Executive and opened more opportunities for accusations of corruption if not actual corruption. I would suggest that because actions of Congress have been shown to correlate strongly to the desires of the wealthy elite and little or not at all to the general public, that perhaps actual corruption is the case.

The question, then, is how to remove the carrots and sticks, while minimizing opportunities for taking personal advantages. What credible and supportable voting process would produce that effect? I suggest that it would be better to go back to the original plan of general secrecy, but add some trustworthy and confidential public oversight, perhaps in the form of a publicly elected officer to provide oversight of Congress (not an officer appointed by Congress).

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Scott Amorian

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.