Congress’s Day

Presidents’ Day Weekend is a good time to think about the sorry state of Congress.

That’s true in part because the whole notion of Presidents’ Day sheds a little light on our distorted understanding of the character of our constitutional system. Strictly speaking, there is no such thing as Presidents’ Day. By law, the third Monday in February is a federal holiday called “Washington’s Birthday.” We have gradually and informally turned it into a broader celebration of our government’s chief executive as we have turned almost everything else about our politics into such a celebration of the second branch. This is an old story by now — stretching back at least to Woodrow Wilson’s misguided notion that the president is the tribune of the people, and of course in some ways much further back than that. But it has become a more tragic story as the first branch of our government, the legislative branch, has increasingly taken the lead in its own diminution, so that it might be relieved of the burden of taking the lead in anything else.

This holiday weekend on this particular year has also offered an especially opportune time to reflect on Congress’s dangerous debility, however. The impeachment trial of former president Trump ended on Saturday, so that it now looks like Congress will end up taking no real action in response to an attack against it by a riotous mob gathered and encouraged by a president. This, too, is eerily symptomatic of the broader problem in our system.

In explaining his vote to convict Donald Trump, Nebraska senator Ben Sasse made a key point that reaches well beyond the impeachment itself. He said:

Congress is a weaker institution than the Founders intended, and it is likely to shrivel still smaller. A lot of Republicans talk about restoring Congress’ power from an already over-aggressive executive branch. Conservatives regularly denounce executive overreach – but we ought primarily to denounce legislative impotence. This trial is constitutional because the president abused his power while in office and the House of Representatives impeached him while he was still in office. If Congress cannot forcefully respond to an intimidation attack on Article I instigated by the head of Article II, our constitutional balance will be permanently tilted. A weak and timid Congress will increasingly submit to an emboldened and empowered presidency. That’s unacceptable. This institution needs to respect itself enough to tell the executive that some lines cannot be crossed.

Whatever you think about the particulars of the impeachment trial, the broader truth of this point is increasingly impossible to deny. Almost every other problem in our constitutional system now is a function of or a response to willful congressional weakness. And that willful weakness is not best understood as a reticence to exercise power but as a fundamental failure to understand the nature of Congress’s purpose, function, and role. It’s a failure evident among members of Congress, but also among other constitutional officers, and among the broader public.

That failure is rooted in a deformation of our concept of representation, which itself reaches back to that Wilsonian presidentialism. Long before he was an elected official himself, in his political-science work, Woodrow Wilson argued that the president is the most representative (and therefore the most legitimate) of our public officials because he is the only one chosen by a national electorate. The idea was that the presidency could focus and consolidate the public will in a single person who would then represent our society. This has been a core belief of progressive nationalism ever since, but it has long since become a bipartisan vice and it’s behind a lot of the disfigurement of our republican politics. The fact is that our society is not politically consolidated in this way. It is diverse and manifold, and it is therefore best represented by a plural rather than a singular institution.

The presidency is formed around a single person not because representation is best served by a unitary figure but because, as Alexander Hamilton noted in Federalist No. 70, unity is the first and most essential ingredient of energy in the executive. The president’s job isn’t fundamentally representative. It is Congress that is shaped to be representative. And more important still, Congress is shaped to enable the diverse interests and views of our society to be represented in a way that also enables them to negotiate and bargain, and ultimately to accommodate each other.

This is a primary purpose of Congress as an institution — to enable and compel accommodation in a divided society. And the fact that accommodation now seems nearly impossible in our politics is a result of Congress’s failure to recognize and serve its purpose more than it is the cause of that failure.

That should guide how we think about reforming Congress. If the problem to be solved is that cross-partisan agreement is necessary for Congress to legislate but such agreement is very rare now, then there are broadly two sorts of possible paths toward reform: You could look for ways to make cross-partisan agreement more likely to happen, or you could look for ways to make it less necessary. Too many would-be reformers now lean toward the second path, and so incline to changes that would allow narrow majorities (which are the only sort we have at the moment) to act on their own. This particularly means ending the filibuster in the Senate, but it also means more generally devaluing bargaining in Congress’s work and instead valuing executive characteristics such as energy and dispatch.

But if you think that enabling and compelling compromise is the very purpose of the institution, and that Congress’s serving that purpose is essential to the health of our broader political culture, then you would incline toward the first path of reform — making compromise more likely to happen by enabling the institution to better represent the political diversity of the country and to function as an arena for bargaining and accommodation. That’s not just an argument for keeping the filibuster. It calls for changes to our system, within the bounds of the Constitution. That could include some electoral reforms (like greater experimentation with multi-member districts in the House and with ranked-choice voting), and some institutional reforms (like increasing the size of the House of Representatives, letting committees control some floor time in each house, or combining authorization and appropriation work) that would allow more distinct and durable factions to form within both parties that could alter the roles of party leaders and strengthen the incentives for meaningful bargaining across party lines. In this view, the filibuster is on net a force for good, but it is not sufficient on its own to enable partisan obstruction to become an impetus for cross-partisan deal-making. Reforms of Congress (including perhaps reforms of how filibusters are used in practice) are an urgent necessity, but these need to be aimed at enabling and compelling accommodation, not reducing the need for it.

To see things this way, however, you would need to prioritize Congress’s role as an arena of accommodation. You would have to believe, as I do, that the shortage of cross-partisan deal-making in Congress is a bigger problem for the country at this point than the shortage of major legislation — whatever its partisan valence. And seeing things that way, in turn, would require some reflection on the purpose and nature of Congress, on the sources of its legitimacy, and on the role it is meant to play in our system of government.

Our politics is badly confused about all of these things now. And this is a problem that conservative constitutional thinking is going to have to take up, because it won’t happen elsewhere.

We are in a moment analogous in some respects to the mid 1970s, when modern conservative constitutionalism was born, except that at that point the most urgent problem was a misunderstanding of the proper role of the courts, and today it’s a misunderstanding of the proper role of Congress. The Right’s response then was a gradual, decades-long process of intellectual and institutional work to recover an understanding of the judge’s proper role. It began with law professors and think-tank scholars (many of them at the American Enterprise Institute, such as Antonin Scalia, Robert Bork, Laurence Silberman, Robert Goldwin, Walter Berns, and others) and eventually built out into the crucial professional-formation work of the Federalist Society and then into the broader legal culture. It was enormously successful. By this point, disputes about the role of the judge in our system happen on the terms of the originalism articulated by that effort — they are either arguments among its adherents or between people who accept it and those who reject it. There is barely even a vocabulary for any real alternatives to it anymore.

The next phase of conservative constitutionalism will require a similar set of efforts — intellectual, institutional, and ultimately political — but aimed at recovering an understanding of Congress’s proper role, the sources of its legitimacy, its value to our society, and how it needs to change to be worthy of all that. It is time for an era of congressionalism in our constitutional thought.

Until that can happen, we will be locked in an endless President’s Day, wondering in vain why polarization is rampant and nothing ever gets done in our politics.