The topic of today’s episode is, “Do we need a Congress?” My guest is my friend and colleague, Dr. Philip Wallach. He is a resident scholar here at AEI where he studies America’s separation of powers system. And he focuses on regulatory power issues and the relationship between Congress and the administrative state. Before joining AEI, Phil was a senior fellow in governance studies at both the R Street Institute and the Brookings Institution. Phil also has served as a fellow with the House Select Committee on the Modernization of Congress. He is the author of the book To The Edge: Legality, Legitimacy, and the Response to the 2008 Financial Crisis. I have him on this episode because he wrote a terrific article for National Affairs titled “Congress Indispensable.” And you will find a link to that article in the program’s transcript.
Kevin:
Phil, welcome to the program.
Phil:
Thanks for having me, Kevin.
Kevin:
Let’s start with public opinion. The public’s opinion of Congress is pretty low. So too is elite opinion of Congress. They don’t seem to think that Congress can do much worthwhile. Why is this?
Phil:
Well on the one hand, there’s something internal in this. I can’t resist sharing one of my favorite quotations on Congress from Speaker of the House, Nicholas Longworth, who in 1925 was asked to reflect on two decades in Congress. And here’s what he said. “During the whole of that time, we have been attacked denounced, despised, hunted, harried, blamed, looked down upon, excoriated and flayed. I refuse to take it personally. I have looked into history. We were unpopular when Lincoln was a Congressman. We were unpopular when John Quincy Adams was a Congressman. We were unpopular even when Henry Clay was a Congressman. We have always been unpopular. From the beginning of the Republic it has been the duty of every free born voter to look down upon us and the duty of every free born humorist to make jokes at us.”
Phil:
And Longworth then went on to say that in the eyes of the press and the public, Congress could really do no right. If it was actively legislating, it would be called meddlesome. If it was failing to legislate, it would be called incompetent or do nothing. And he concluded the only way for a Congressman to be happy is to realize he has no chance.
Phil:
So there’s something timeless about Congress being unpopular and we should never really, even if Congress is functioning really well, I think there’s a lot of reasons to believe that the public will nevertheless not be so thrilled about it. On the other hand, our Congress today is really at a low ebb. It feels itself to be submerged in some bitter partisan struggles. And it’s lost much of its institutional self-respect. People who work in Congress, including the members, share the sense that something is wrong and you don’t need to be an insider to see it. They have broken budget process bringing us recurrent government shut downs. Members are constantly slinging mud at one another, and there’s an almost complete absence of serious deliberation on the great issues of the day.
Kevin:
David Hawkings, who’s a writer for the Roll Call newspaper a long time and covered Congress, and now has moved over to The Fulcrum. He wrote something a few years ago that really stuck with me, which was, he noted that the House of Representatives hasn’t looked like a legislature since the 1980s, because he can’t remember the last time that they took to the floor and had a serious lengthy debate where they aired their differences and eventually work their way towards a compromise. So it’s a legislature, but it often doesn’t look very legislative. Now getting past the sort of general American dyspepsia towards Congress, damned if it does, damned if it doesn’t, there are well read critics who say that plainly Congress is just anachronistic and there’s just no way a 535 member legislature can reasonably be expected to solve complex public policy problems through bargaining. Or to respond to crises with dispatch. That’s why we need a super powerful president and a super powerful administrative state. Are these people wrong?
Phil:
I think they’re asking the wrong question because they fundamentally misunderstood what Congress’ constitutional role is all about and they’ve lost sight of what politics is really all about at its core. So if you want to ask me the question, well, let’s say we want to solve problem X. Is the best thing that we can do run it through the legislative process and see what answers we come up with? No, most of the time people are right to be skeptical about that. But framing things in that way makes the challenges of our political life seem quite a lot simpler than they really are.
Phil:
We don’t just have a bunch of engineering problems that we need to get solved, such that the best thing we could do is to find the people who are best qualified to solve them and just go at it. We have deep and fundamental disagreements about the nature of the problems that are facing our country and what solutions would even look like. So, if you ask instead is Congress an institution that has the ability to help keep our messy, sprawling Republic together in difficult times? Then its plural nature, these 535 members that sound so clunky in terms of solving an engineering problem, that begins to look like an asset rather than a liability. When you’re talking about how to figure out how to work together on these deep fundamental questions, even with disagreement persisting. So my answer is, as long as we’re expecting the right things from Congress, it is not an anachronism.
Kevin:
Yes. I think it’s often assumed by critics that what constitutes a public policy problem is just obvious to all. When in fact, we all know that problems are defined politically. Throw a rock and you’re bound to hit something that somewhere, somebody might be able to call a problem. And what actually is a problem and worthy of government’s attention is an entire process unto itself. It’s not something that can be just skipped. And the legislature strikes me as a place where that’s, where at least that conversation can begin, although frequently Congress doesn’t solve it. That brings me to my next question, which is, what are some of the things that have gone wrong with Congress?
Phil:
Well, how much time do we have here, my friend? There are a lot of different threads to pull on there. I’ll focus on what I consider to be the central problem since back to the 1980s, which you mentioned before, and I see it as leadership dominance. So if we look back a little farther to the Congress of the 1950s and the early 1960s, it was dominated by Committee chairmen, the barons they were sometimes called because of their great problems. And often these were conservative southerners who basically came from one party districts or states and were there forever. And they had a tremendous amount of power, and they caused their own sorts of problems that I’ll put to the side right now. But beginning in the 1960s, and especially in the 1970s, there was a massive reaction to that style of governing in Congress and the barons were taken down a notch.
Phil:
There was a flourishing of subcommittees in the 1970s, an opening up of the whole institution, had more sunlight throughout the whole place. Eventually what emerged with, I’d say that the Speakership of Jim Wright in the late 1980s, and then especially with Newt Gingrich and the mid 1990s, was an era of very powerful congressional leadership where those leaders have been preoccupied first and foremost with partisan competition.
Phil:
We’re in an era, as political scientist Francis Lee has discussed so eloquently, of insecure majorities, where both parties are kind of seeing our system as sitting on a knife edge. It could go either way, either party could end up in control after any election. And that causes them to focus, to the exclusion of almost everything else, on that next election. And what people tend to see almost at every moment as the most important election in history, which is the next one coming up.
Phil:
And when you think in that way, you develop norms against bipartisan cooperation and very strong norms in favor of members thinking of themselves, first and foremost, as members of their partisan team. So that the most important thing they can do as a member of Congress is help their team set itself up for the next election, as best as it possibly can.
Phil:
And so, that doesn’t mean Congress is totally paralyzed. You sometimes hear narratives that make it sound like Congress is just all gridlock, all the time. That’s not true. Congress demonstrates the ability to take fast and dramatic action sometimes, as with the coronavirus legislation passed in March and April of this past year. But the template for action these days is extremely leader dominated where a lot of time bills are negotiated far away from any action on the chamber floors or in the committees. The leaders sort of bring these deals down from on high and members are told when they should show up and vote Yes.
Phil:
So that’s not a process that’s very satisfying for your average member to be a part of. It’s not a process that’s really had terribly impressive results in terms of showing creativity in dealing with our most pressing national problems in recent years. And it’s not a process that takes advantage of the plural nature of Congress, which I’ve talked about, which yes, makes it such a frustrating place in so many ways, but also makes it more able to represent and cope with the United States of America’s incredible diversity.
Kevin:
In your essay, you wrote that Americans need to relearn that politics is not about finding the right answer or even the best answer. And that occurs to me because in what you were describing is happening in Congresses. It seems that every couple of years, when we get a new Congress, leaders in Congress trot out a bill of goods where they’re basically saying we’re going to do the following things, because these are the right answers. They’re not trotting out the problems, they’re trotting out the answers. So what did you mean when you said that Americans need to relearn that politics is not about finding the right answer or even the best answer and what does this have to do with Congress?
Phil:
So I think that many people, a lot of smart people, especially those who excelled in math and economics, whether they use this language or not, basically they want to think about public policy as a series of bounded optimization problems. So basically we want to get the best possible outcome for the country, given the resource constraints we face. So let’s solve that problem and implement the solution. It’s simple, straightforward, easy. If sort of scare quotes politics gets in the way, then let’s figure out how to banish politics from the picture.
Phil:
Now, I don’t want to say the government never faces problems where that kind of thinking is sensible. Sometimes it does. And I’m as enthusiastic about optimizing net benefits in some contexts as the next guy. But a great many matters of importance don’t lend themselves to that mold. And if you treat them like they do, it gets very ugly.
Phil:
You end up acting like the people who have, or you take to be, the wrong answers must either be knaves or fools. They’re either lying, probably out of some form of self-interest, or just doing the math wrong. In which case you might want to try to educate them, but that’s just sort of tedious and really you just sort of wish they’d go away.
Phil:
But we should think instead of politics, as the process of figuring out how to live together and pursue collective action, even though we will never agree on everything, not even the important things. Politics starts from a mutual recognition that deciding how to coordinate our actions is worthwhile. Even though we don’t fool ourselves into thinking that we’re going to share every basic commitment or understanding about the way the world works.
Phil:
And again, Congress can be a wonderful forum for that as legislators who represent diverse parts of the country, bring very different assumptions about how the world work. And they take up common problems together and think about what is to be done about them in light of the common interests that they do share in spite of all their differences.
Phil:
So that creates big potential for coalitions of strange bedfellows, creates lots of room for log rolling and a kind of a favor economy. And those things are not neat and pristine. You can even convince yourself that there sort of inherently some element of corruption in all of that mutual backscratching, but those are the health of our democratic Republic.
Phil:
And so anyone who thinks that you can just banish all of that and get a bunch of right answers, because it’s just obvious what the federal government should be doing to solve America’s problems. That person is implicitly wishing that we didn’t have politics at all. And if we do want to have politics, we do want to have a liberal pluralist Republic, then that’s where Congress can really shine.
Kevin:
What are some ways to reform Congress? To get it closer to serving the role that it should have in our constitutional system?
Phil:
Well, I’d like to see reforms that energized rank and file members of Congress, that make them feel like they can contribute meaningful work every day that will serve their districts in the nation as a whole. When you speak to members now, there’s really such a sense of demoralization, a sense that even if they work their hearts out and make themselves go in depth on the issues that matter to their constituents, there’s a good chance that that work is not going to lead to anything. And I think the nature of legislative work is always going to be, there’s some amount of churn and not everything is always going to turn into legislation. But right now there’s just sort of a general despair where so much of what gets done does not emerge from the committees of jurisdiction, but sort of just gets cobbled together and attached to omnibus spending bills or other kinds of leadership originated bills.
Phil:
And so to me, reenergizing committees seems like the best way of giving those members the chance to make their mark, which in turn sort of allows that representative function of Congress to flourish. And so there are a lot of ways we can think about making committees stronger. Some are as mundane as just beefing up their staff, which are at levels quite a bit off of their peak. But one thing that I’ve been especially attracted to would be some kind of guarantee that each committee would have the chance to have one or two of its bills each Congress receive for consideration. And basically that would mean taking away the leaders’ ability to act as absolute gatekeepers.
Phil:
That would mean that when you go and work on your bill in committee, if you’re working closely with the chairman and the ranking member of that committee, you can really figure out what the top priorities ought to be. And if you’re working on that bill, you know it’s going to be something that Congress really takes at least a serious look at it and hopefully ends up taking a vote on. That would make a big difference if members knew that they could expect that. It would change their incentives and what they would value in spending their time on.
Phil:
To me, it’s not so important that any one particular reform be enacted. There’s a lot of ways that Congress could reorganize its processes, congressional process is always in flux and always has be in the long history of the House and the Senate. But what’s really the most important thing is that members themselves recover a sense of what their institution ought to be. And that they become determined to reshape it and not just accept the status quo in which they generally feel like they’re incredibly marginal actors.
Kevin:
Yeah. A couple of years ago, Senator Manchin of West Virginia famously declared aloud in front of the press. “This place sucks.” Not exactly the sort of thing we expect from a member of what’s supposed to be the world’s greatest deliberative body. But his basic frustration was that he felt, and I’m giving him a word that he didn’t use, a bit like a eunuch, where he’s supposed to be a Senator, but he said he’d gone something like a year or two without even offering an amendment.
Kevin:
And this idea of you have to schlep down to DC, you have people constantly yelling at you and telling you that they want things from you, but then you don’t feel like you have any real agency. It’s got to be very frustrating and unattractive.
Kevin:
And the last I saw the turnover rate in Congress, especially in the House, was pretty high. Members of the GOP were just quitting in droves in 2018. And no surprise, if you can’t get anything done, why stick around when you can just go make money lobbying. Speaking of the members frustration about wasting their time. One thing you’ve written about is the debt ceiling. And that is a kind of perennial issue that comes up and gobbles up time. Is that the sort of thing that Congress could get rid of or fix in some way? So we don’t have these periodic toxic battles where nobody seems to win?
Phil:
Yeah. I think the budget process more generally is a great place to look for opportunities for reform. And there’s, again, a lot of different ways you could go about it. But yeah, I mean the debt ceiling is a very peculiar feature of American governance. You don’t really find other developed economies who say, we have laws that establish how much we’re going to tax. And we have laws that establish how much we’re willing to spend. But also separately, we’re going to come back and say how much debt we’re allowed to issue to try to cover the difference between those two things. That seems a little strange to treat those as somehow disconnected decisions. And it is totally within Congress’s power to reconfigure that. And frankly, in recent years, what we’ve seen is just the debt ceiling being periodically suspended without that much drama, the last couple of times around.
Phil:
So in some ways Congress seems to be leaning in that direction of just sort of, if not entirely getting rid of the debt ceiling, trying to make it something that’s not something that’s creating a lot of drama, not likely to cause a real catastrophe as might be the case if America actually defaulted on its debt.
Phil:
But more generally, I certainly support thinking about how the budget process can become once again, a place for deliberating on where our priorities lie. What are the trade offs that we’re implicitly making in the spending that we’re doing already? And how do we want to adjust that?
Phil:
Because right now we fight tooth and nail over a few billion dollars here or there in discretionary spending in the appropriations bills. But we don’t really have a system that looks at the spending in the trillions that happens on entitlements and thinks about whether that’s allocated appropriately. The budget process is supposed to provide such an occasion, but it’s really in tatters at this point. So that’s certainly one area that Congress ought to work on fixing itself.
Kevin:
Yeah. It’s been the observation of many who watch Congress closely that the broken budget process, among its pathologies, is that it is increasingly crowding out congress’s already limited calendar. Meaning Congress gets started in January. Before they know it they’ve got to get budgeting done. Or they’ve got to pass a last second bill to keep the government from shutting down. And all that craziness and the time they have to spend on tasks doing that crowds out the ability to authorize new programs or deauthorize old programs and the like.
Phil:
I see it as energy more than time, to be honest. It becomes such a painful melodrama for all of the people involved and sort of saps their energy to focus on getting breakthroughs on other things. I have to admit that I think Congress saying that it just doesn’t have time to do things tends to be a bit of an excuse.
Kevin:
Right. Let me move to my last question. And here I want you to make your best pitch to the skeptical listener who has been with us. Do we need Congress?
Phil:
All right. Well, I’m going to try to hit you where it hurts. If we don’t have a representative grappling with each other and finding a way forward in Congress, the alternative, as I see it, is basically to try to do everything either by notice and comment rulemaking, plus a lot of litigation. Or Twitter.
Phil:
And so what I mean is we end up with either using an extremely formalized process with high barriers to meaningful entry and a likelihood that the final outcome is decided by completely unaccountable actors. Even if we sort of build in lots of devices where we tell ourselves they’re accountable. At the end of the day, they don’t have to stand for election and they can become immersed in a kind of group think that leads them to really lose sight of what’s important to people.
Phil:
On the other hand, you have Twitter and all of its competitors, where you have sort of a free entry free for all where the loudest and most sarcastic voices tend to dominate. And you can try to somehow discern the national interest out of that melee, but I don’t see that as a terribly promising program. And so I think, rule by philosopher kings is not on the table folks. And Congress, if it’s working properly, is sort of the last, best hope of a liberal, pluralist society that wants to find a path forward, even in the midst of profound disagreement.
Phil:
So that’s not the stuff of utopia. It’s not a pitch for somebody who wants something that sounds perfect. But my pitch is that Congress is sort of the guts of a free society and heaven help us if it stops digesting.
Kevin:
Yeah. It’s one of the great complaints about Washington DC, is that it is far too elite driven. So if you get rid of Congress, the most popular body, replace it with rulemaking, litigation, and Twitter. What you are going to have is a government system that’s even more hyper elite than before, a rulemaking, litigative, Twitterocracy. And if that’s the choice, then Congress certainly sounds preferable to that, warts and all. Phil, thank you for being on the program.
Phil:
My pleasure.
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