Restoring the First Branch

by Yuval Levin

Everyone seems to agree that Congress has in some respects been dysfunctional in recent years, but that agreement actually masks some deep differences. How is Congress dysfunctional? What is the function it is failing to perform? 

Answers to this question often reflect people’s substantive policy priorities more than an assessment of Congress as an institution. Some observers think the problem is that Congress isn’t passing enough major legislation. Others think Congress isn’t doing enough to reverse the damage done by the major legislation enacted in recent years. Some think Congress doesn’t compromise enough; others think it avoids essential disagreements. Some think party leaders have too much power; others think they have too little. These different definitions of dysfunction lead to different prescriptions: Maybe Congress needs stronger professional and analytical support. Maybe it needs less centralized rules. Maybe it needs to be less consolidated, or maybe it needs to be more so. 

But if there is one function of the Congress that should stand above partisan politics and policy differences it is its role in keeping our constitutional order well balanced, and therefore broadly functional itself. And on this front there can be little question that the Congress is dysfunctional. 

Indeed, the weakness of the Congress is the foremost problem now confronting our constitutional system. Many observers, especially on the right, tend to describe this problem in terms of the excesses of the other two branches—and so we call it executive overreach or judicial activism. But the hyperactivity of the other two branches is made possible (and sometimes even necessary) by the often willful weakness of the Congress. An agenda of congressional reform would first of all have to focus on reasserting Congress’s role in our system. 

This morning, ten members of Congress—senators Mike Lee and Jeff Flake and representatives Jeb Hensarling, Cynthia Lummis, Dave Brat, Barry Loudermilk, Gary Palmer, Mia Love, John Ratcliffe, and Mark Walker—launched a new effort aimed at just that reassertion. 

They call it the Article 1 Project, and it will focus on developing legislative proposals in four areas: reclaiming the power of the purse, changing the character of legislative “cliffs” that unduly empower the president, reclaiming Congress’s proper control over regulators, and reforming and reining in executive discretion. They’re already proposing several specific ideas in each area, with more to come. 

(Elaina Plott previewed the project here at NRO last month. As she noted, I have worked some on this effort with the members involved. My colleague Jim Capretta and I also played a small part in this morning’s launch event. I’ve found these ten members’ commitment and creativity on this front enormously impressive and encouraging, I have to say. And I suspect their numbers will grow as colleagues find out about this effort.)

It’s a necessary and very encouraging project. Forcing Congress to confront its own frequently willful dereliction of responsibility is an essential step toward restoring the balance of our constitutional order. And starting that conversation now means these members may also be in a position to get some commitments from presidential candidates to respect the bounds of executive power. If a Republican wins the presidency this year, it will be important to have Republicans on the record in defense of those limits so that some don’t conveniently change their view. And it will also be useful to have started this conversation so that any Democrats who do conveniently rediscover the value of a Congressional counterweight to the presidency might be drawn in. 

This effort is also a great example of what is likely to become an important new model of policy development in Congress. The old model, which relied on centralized leadership control and earmarks and which hasn’t really functioned in more than a decade, will need over time to be replaced by a kind of mediating-structures model of the Congress, in which both the formal committees (and not just their chairmen) and more informal networks of members that arise around specific issues and draw upon outside expertise and support will stand between individual members and the party leadership and will play the pivotal role. The Article 1 Project could help demonstrate how that might work, and it couldn’t have taken up a more important set of issues. 

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