The times call for a) solid political science about what American government has become, and b) creative constitutional politics for yanking it off its dominant paths of development, which promise the eventual ruin of the republic. Yes, you can substitute “confrontational” for “creative” if you’d like to, but note that I’m talking about confrontation in the deadly serious we’ve-come-to-a-fork-in-the-road Lincolnian manner, not in the play-acting media-minded manner (Trump, etc.).

At present, what I mean by creative constitutional politics is perhaps best exhibited by Mark Levin’s serious call for amending the Constitution through a state-initiated convention process, by Charles Murray’s serious call for a legal-eagle-run civil disobedience campaign against a certain classes of regulatory abuses, and my own calls for “retaliation” against executive legislating (maybe not during this campaign) and for the “responsibility amendment.”

After reading this very important piece, “Congress Incongruous” at The Library of Law and Liberty, I realize I should be also mentioning Chris DeMuth as a key exemplar of creative constitutional politics. That might seem incongruous itself, given the way his recommended creativity is all about strengthening the position of Congress with respect to that of the Supreme Court, the regulatory agencies, and the presidency, and thus in the immediate term all about strengthening the hand of the congressional Republicans so regularly despised by various self-appointed tribunes of the conservative base like Mr. Levin. Then there’s also the fact that having been the president of AEI from 1986 to 2008, following a stint working for Reagan on regulatory issues, he fits any definition of conservative movement insider.

But this piece will show you he has precisely the kind of scholarly command of what’s going on with the administrative state and Congress that’s needed at the present hour. That is, over the course of his career as a political insider and scholar he has acquired the knowledge of our system that allows him to be this radical in 2015:

…cut back to near abolition the Senate filibuster (which effectively requires 60 rather than 51 votes to pass a bill) and Senate “hold” (whereby an individual member can prevent a scheduled motion from reaching the floor). In the past, these procedures were rare and limited to cases of unusual minority and home-state opposition, because employing them was onerous and strongly discouraged by Senate culture. Today they are frequent, costless, and employed routinely to delay or prevent legislative action for reasons of simple opposition, non-germane tactic, and personal advantage. Republicans and conservatives tend to favor the current practices, and Democrats and progressives to oppose them, because both sides see them as slowing the pace of lawmaking and therefore of government growth. But this construct is out of date. The great engine of government growth today is executive lawmaking, punctuated by spasms of legislation (Obamacare, Dodd-Frank) that propel new executive exertions which Congress is then helpless to moderate.
…Congressional lawmaking cannot hope to keep pace with executive lawmaking unless the Senate drops its House of Lords pretensions and becomes a majority-vote legislature.

DeMuth isn’t talking about the filibuster on Supreme Court appointments, but the regular filibuster. It is, after all, not a feature of the Constitution, but simply of the rules the Senate sets for itself. Now before you flare up into outrage over this idea, perhaps with the images of Jimmy Stewart’s character in Mr. Smith Goes to Washington in your mind’s eye, hear Demuth out:

Today, Congress is an adjunct to the executive—a reverse parliamentary system—when the president’s party controls at least one chamber, as in 2009–2014; and when, as since January 2015, the opposition party controls both chambers, it mainly heckles from the sideline.
The purpose of congressional reconstruction should therefore be practical and specific: to enable Congress once again to pull its weight in the balance-of-power system that we have inherited and are not going to replace.

Whatever the textbooks and spokespersons say, political science that looks at how rule is really happening these days might need to call it a reverse parliamentary system! Or worse! Presidency scholar Jonathan Turley’s phrase “uber-presidency” comes to mind. So does “the executive unbound,” the term of choice by scholars Eric Posner and Adrian Vermule in their book cravenly resigned to the “post-Madisonian” phenomenon their term describes. But in DeMuth’s telling–which finds a powerful confirmation in Charles Murray’s new book, and I’m sure in Mark Levin’s latest also–you have to look not so much at the presidency itself as to how it interacts with what he calls “the delegated regulatory state.” That is his name for our form of government at present. So if you are serious about returning us to real separation of powers, it is time to give up on the filibuster.

How we got to the present de facto form of our government has less to do with FDR, than with some new departures in the early 1970s:

What was new, and radically so, was the agency practice of “informal rulemaking,” which hardly existed before 1970. An agency would publish a proposed rule, collect and assess comments from interested parties, then publish its final rule. Stroke of the pen, law of the land. Rules were subject to judicial review on statutory and constitutional grounds, but the standards of review were lenient and became increasingly so over the years. Once established, the rules were proprietary and dynamic—continuously monitored, enforced, adjudicated, and modified by the agencies that created them, and litigated by interest groups in the agencies’ “stakeholder communities.”
This was a genuine discovery of the practical, adventitious sort, not something lifted from Woodrow Wilson’s playbook for impartial administrative government. Rulemaking, just on paper, was capable of generating prescriptive law at much lower cost and higher speed and volume than legislative process. But its real advantage came in the hands of agencies that were specialized, hierarchal, and missionary. Special-purpose agencies are free of the internal conflicts that are the hallmark, indeed the raison d’être, of the slow-moving, consensus-seeking elected legislature. Hierarchies can make decisions much more expeditiously than the nested committees of a legislature, especially when a single chief makes the final decisions. (The earlier, bi-partisan regulatory commissions imported some of the legislature’s internal conflicts and need for compromise, but most of the post-1970 agencies were headed by a single presidential appointee.) And the missions of the new agencies were aspirational and open-ended—environmental quality, safe and healthy products and workplaces, consumer protection, nondiscrimination and affirmative participation in all walks of life for a lengthening list of identity groups. The agencies attracted individuals who were not only specialists but also committed activists, motivated by a cause; so they were missionary rather than mediating, and their work was never done—every achievement was a call-to-action for the next crusade.
The new regulatory dynamism complemented and reinforced changes underway in Congress. In the early 1970s, when Congress was commissioning many new executive agencies and programs, it was also decommissioning its own seniority system and hierarchy of strong committees and autocratic committee chairmen.

It’s a 7,000-plus word essay, but here’s a few more of the key passages:

…But Congress remained a legislature, riven by the conflicts of democratic representation and the Constitution’s additional, deliberate encumbrances. Delegation to issue-driven agencies and informal rulemaking was the solution to Congress’s inability to manage the expectations of modern democracy by its own devices. Creating a new program to “deal with an issue” was much easier than dealing with it directly through legislative process. Members increasingly turned from collective legislating to individual activism—lobbying the agencies it had created on behalf of local or national constituency groups, and vowing to those groups their determination to support or overturn the latest executive foray.
…Congress now appropriates only a third of annual spending (Social Security, Medicare, Food Stamps, and other programs are on entitlement autopilot), and even that third is usually approved through continuing resolutions where Congress has little practical leverage over program spending or policies. The abandonment of fiscal discipline has given us large federal deficits in all but four years since 1970 and a mounting, plainly unsustainable federal debt.
But it is the regulatory state that reveals the incapacity of Congress most starkly. It is a regime of concentrated power with a logic and momentum of its own. The executive branch has, for example, combined regulation and finance to great effect. That is how, in the 1990s and 2000s, the banking agencies, Fannie Mae, and Freddie Mac engineered hundreds of billions of dollars of highly leveraged mortgage loans to people who could not afford them, far beyond what Congress could have done through simple subsidies in the light of day—and how, in 2008, the Treasury and Federal Reserve came to the rescue with hundreds of billions of bailout dollars without any congressional appropriation. And that is how the Department of Education’s Office of Civil Rights wreaked havoc on men’s collegiate sports incidental to promoting women’s sports, and is now forcing universities to establish campus courts with easy burdens of proof for cases of alleged sexual assault; neither of these programs could have come close to passing as legislation…
Congress retains ultimate authority and could undo such pestilential programs, but it does not. Its latest regulatory statutes, Dodd-Frank and ObamaCare, are executive empowerment documents—launching hundreds of rulemaking proceedings that give agencies unprecedented discretion over matters of momentous national importance. And the Supreme Court, in its Chevron line of cases and its decisions on ObamaCare implementation and EPA’s greenhouse gas program, has made it clear that it will tolerate wild executive extemporizing with statutory law.

All in all, it’s very impressive analytic description of what our system has become. RTWT, do.

DeMuth provides a set of six or so reforms for reinvigorating Congress and “reviving its dormant powers,” in to addition the radical one of ditching the regular filibuster. He also gives you a theoretical discussion about whether the “Representative Legislature” is “outmoded” in contemporary times, given the typical developmental paths of liberal democracies, and newer theories of “discursive representation.” Some of this discussion could be usefully integrated with Pierre Manent’s teaching about the contemporary aversion to binding democratic governance within defined “political forms.”

Today, pollsters give us the somewhat inaccurate idea that everybody hates Congress. I recently read somewhere that the very low approval rates likely have as much to do with lower GOP-voter tolerance for certain kinds of spinelessness and corruption as they do anything else. But what DeMuth ultimately challenges us with is a picture of modern liberal democracy in which the separation of powers and the law-making authority of Congress have become largely vestigial features of a system better described as a reverse parliamentary delegated regulatory state. It’s easy to hate Congress. But exactly what is the alternative?

Unless we mend our ways, says DeMuth, we’re going to find out. To an increasing degree, we already are.