Editor's Note: This column was co-authored by Gordon Lloyd.
The labels used to describe it sadly diminish the 2018 election: “Mid-term” or “off-year” or “non-presidential.” Even though nothing less than the membership and direction of the United States Congress is at stake, such elections receive limited respect and even lower voter turnout (around 40% compared with approximately 60% when there is a presidential race). What’s more, even though the president is not on the ballot, these elections are nevertheless very much a referendum on the president’s performance and popularity.
By all accounts, Congress is in a deep and steady decline and could use the voters’ attention. Its approval ratings range between 10-12%, well below President Trump’s low polling numbers of 35-42%. Overall, 41% of those polled by YouGov say Congress has accomplished even less than usual lately. Many members of Congress have been voting with their feet, choosing in near-record numbers to leave Washington rather than run for reelection. Polarization is up and deliberation is down in Congress.
Can Voters Help Congress Become Great Again?
There are a few problems with Congress that voters could help solve. One major issue is that party partisanship has overtaken institutional systems and loyalty. Formerly committee chairs in Congress wielded considerable power, overseeing hearings, entertaining amendments, fostering debate and compromise. In addition, there were more moderate and liberal Republicans, plus more moderate and conservative Democrats than today, so forging bipartisan majorities on issues was a way of doing business. Now party leaders such as Senate Majority Leader Mitch McConnell wield all the power, holding draft bills in secret, springing them on the Senate when there are enough votes to pass them, and enacting legislation on pure party-line votes, not even involving members of the other party.
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Party unity voting, which was around 60% in the early 1970s is closer to 90% today in both the House and the Senate. The most important legislation of the Obama administration, The Affordable Care Act, was passed on a party-line vote of Democrats and tax reform, the signature legislative accomplishment of the Trump administration so far, was passed on a party-line vote of Republicans.
Voters need to identify more mavericks such as John McCain, who declined to join his party in repealing Obamacare because of the lack of deliberation. Leaders who will not stubbornly toe the party line but who will cross party lines if necessary to find the best policy solutions are sorely needed. In the days when the Senate was more productive, it benefited from members who held as much or more loyalty for the institution of the Senate than for their political party. Voters need to seek out more citizen legislators and fewer professional politicians beholden primarily to their party.
Can Congress Make Itself Great Again?
While voters have a role to play in making Congress great again, Congress itself will have to do the heavy lifting. For starters, Congress will need to stop deferring its powers to the president and once again carry out its own Constitutional responsibilities. For example, although Article I, Section 8 of the Constitution grants to Congress the power to “declare war,” Congress has essentially deferred its war powers to the president. The recent military attacks on Syria’s chemical weapons facilities were ordered by the president without the involvement of Congress. When Congress did authorize the war on terror after 9-11, that authorization has been stretched by three presidents to cover all kinds of military actions, including some against groups that did not even exist at the time of the authorization.
Other powers have been shifted away from Congress by the rise of the administrative state and the ever-expanding role of federal agency rulemaking. In their important 2016 book, Constitutional Morality and the Rise of Quasi-Law, Bruce P. Frohnen and George W. Carey document Congress’s inclination to delegate complex and difficult questions to administrative agencies when they legislate. Congress is now content to pass broad legislation on important subjects such as work place safety, protection of the environment and so forth, leaving the details to be worked out by federal agencies. Columnist George Will has rightly described this weakening of checks and balances as Congress “expelling rather than consolidating power,” the opposite problem from what the founders had feared.
Making Congress Deliberative Again
Congress must also do the hard work of making itself once again a deliberative body. The Senate especially, referred to by former President James Buchanan as “the greatest deliberative body in the world,” hardly deliberates any more. Changing an institution such as the U.S. Senate would be difficult under the best of circumstances, requiring a potent booster shot of political will.
For example, House and Senate leaders could shift power back to committees and committee chairs as part of a return to regular order. Certain rules adjustments, especially in the Senate, could help make the legislative process more deliberative. If the Senate wishes to maintain the filibuster, it would make sense that the cloture vote requirement be lowered from three-fifths to a simple majority, or even 55% of senators present and voting, in order to keep one senator or a small minority from clogging up the legislative process entirely. The practice of allowing a single senator to unilaterally place a “hold” on a nomination or other action should be stopped.
Conclusion
Making Congress great again will not be easy, but we need to start somewhere. Internal reform of rules alone will not be enough to restore deliberation, but it could help. Greater statesmanship, bipartisanship and civility will also be required. The goal is to return to the founders’ notion that deliberation by Congress is an important priority and a useful process. With such an important Constitutional role to play, making Congress great again ought to be top of mind when voters go to the polls this fall, and when the new Congress gathers next January.
David Davenport is a research fellow at the Hoover Institution. Gordon Lloyd is Dockson Professor Emeritus of Public Policy at Pepperdine University.
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