“Ambition must be made to counteract ambition.” With those words, written more than 200 years ago, the authors of the Federalist Papers explained the most important safeguard of the American constitutional system. They then added this promise: “In republican government, the legislative authority necessarily predominates.” Congress enacts laws, appropriates funds, confirms the president’s appointees. Congress can subpoena records, question officials, and even impeach them. Congress can protect the American system from an overbearing president.
But will it?
As politics has become polarized, Congress has increasingly become a check only on presidents of the opposite party. Recent presidents enjoying a same-party majority in Congress—Barack Obama in 2009 and 2010, George W. Bush from 2003 through 2006—usually got their way. And congressional oversight might well be performed even less diligently during the Trump administration.
–“How To Build An Autocracy”, by David Frum. The Atlantic. Read the whole thing.
Frum actually understates the case that Congress is weakening. The decline of the Legislative branch has been going on for at least a century.
It takes a long time to unravel a system of government like the one the Founders created. “Erosion” is a fitting way to describe it–it’s occurred slowly, over generations. But there is one entity that has consistently worked over the decades to reduce the power of the legislature.
That entity is… the United States Congress.
“Wait, what?” you say. “Congress is taking power away from itself? Why would it do that?”
Well, it’s a long story. And, as you probably suspected, it all began with the increasing costs of farming in the late 1800s.
Confused yet? Trust me; this is going to be a long slog, but at the end of it, you will have a better understanding of the United States government. If that seems boring or depressing, watch this video of Natalie Portman and Rashida Jones playing with kittens before you start. It always cheers me up.
All ready now? Let’s go.
Back in the 1800s, after the Civil War, the cost of agriculture was increasing. Rising crop prices and railroad rates caused farmers in the South and West to organize against the wealthy urban Establishment in the Northeast. They formed the Populist Party, which reached the height of its power in 1892, when it adopted what is known as the Omaha Platform. (The Party convention was in Omaha, Nebraska)
There were many reforms that the Populists called for in the Omaha Platform, but there were two in particular that I see as significant:
- Direct election of Senators. (At the time, Senators were elected by the State Legislatures.)
- A graduated income tax.
Why are these significant? Because 20 years later, both of these policies would be added to the U.S. Constitution, in the 16th and 17th Amendments.
Lots of historians are dismissive of the Populists, but to me, the fact that two of their agenda items were put into the Constitution means they must have been on to something.
The direct election of Senators is important because it made Senators more directly accountable to the people of their states. In the original plan for the country, they had been a “above the fray”, unlike members of the House. The idea was that this would make the Senate a place for more senior legislators to operate without constant public pressure. Electing them directly made them more like glorified House members, and thus more sensitive to public opinion.
The income tax, meanwhile, increased government revenue and therefore allowed the government to grow. People still debate whether this is good or bad, but either way, the bottom line is it meant more money and power for the Federal government.
Both the 16th and 17th Amendments were ratified in 1913. That same year, a significant piece of legislation was passed: The Federal Reserve Act. This legislation created a Central Bank to manage the money supply. The Constitution originally stated that it was the job of Congress “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”. But now, that job was being done by the Fed.
In summary, 1913 was a year that saw some big changes in how the government functioned.
The next year, a major conflict erupted among the Great Powers of Europe. This would come to be known as World War I. The United States entered this war in 1917, when Congress formally declared war on Germany and Austria-Hungary.
Congress only formally declared war one more time after that–in World War II. Now, to be sure, they have authorized plenty of other wars to be overseen by the Commander-in-Chief, but that’s different than formally declaring a war.
The next major conflict involving the U.S. after World War II was the Korean war, but President Truman did not seek Congressional approval for that conflict. Since then, the U.S.. has been involved in a number of small military actions without a Congressional vote.
Now and then, Senators and Representatives will complain that the President is violating the Constitution by doing this. This may or may not be true, but nothing ever comes of it. My belief is that despite what they may say, Congress likes it this way. It absolves them from responsibility for wars, and allows them to blame the President when they go badly.
In other words, Congress would prefer to have less power if it means they also have less responsibility.
Over the decades, Congress has gradually turned into a body of careerist bureaucrats who don’t want to do anything except keep getting re-elected. And when you have to make decisions and be responsible for the consequences, it makes it harder to get re-elected. So they have delegated authority for most important functions to other offices–the Executive Branch, the Fed, the Treasury–so that they can get on with the work of running for re-election all the time.
And to top it all off, the President has no incentive to do anything about this situation, because it means s/he keeps getting more power. And s/he only gets to run for re-election one time, so it makes sense to maximize the amount of stuff s/he can accomplish in a four or eight year window of opportunity.
The upshot is that Congress does not usually take the lead on anything significant. They either do nothing, or, if they are a Republican Congress with a Democratic President, they relentlessly obstruct everything they can.
Look at House Speaker Paul Ryan. He was supposedly a super-bright Republican policy whiz a few years ago; brimming with all sorts of Free Market ideas that he could hardly wait to implement. And now that he has a Republican majority in both Houses… he’s going along with the agenda of the Republican President, even though he clearly hates him, and most of what he wants is antithetical to Ryan’s philosophy. (He will get a tax cut for the rich out of it, but Trump will probably make him grovel a bit even for that.)
Why is Ryan doing that? Some people think it’s because he’s a coward who is afraid that Trump will yell at him and hurt his tiny feelings if he disobeys. But I think it’s that he is afraid that Trump will tell his die-hard fans to mount a primary challenge to him if he disobeys.
Thanks to the “Tea Party” movement in 2010, most Republicans are now deathly afraid of a primary challenge from nationalist candidates. And they know Trump would gladly support such candidates if it served him to do so, because has no loyalty to the party, nor does he owe them anything.
The combined effects of changes in how they are elected, changes in their responsibilities, and changes in how modern elections work, all make members of Congress very ineffective.
How can we fix this? I think repealing the direct election of Senators might be a good idea. I don’t think giving them back control of monetary policy would be wise. I much prefer leaving it to professional economists rather than letting the patently unqualified folks in Congress play with interest rates to suit their own re-election campaigns.
There is one other thing that I think would be very helpful in restoring the power of Congress: term limits for Congressional Representatives and Senators. This would mean they, like the President, would have a limited time to accomplish things, instead of allowing them to treat Congressional seats like life appointments.
This is an idea that has been floated by various people over the years, including–believe it or not–Donald Trump himself!
I think it’s a good idea. You know who doesn’t think it’s a good idea? Senate Majority Leader Mitch McConnell. The day after Trump was elected, McConnell made it clear that the Senate would not discuss this idea at all.
McConnell is the model of a careerist Senator who does almost nothing except campaign for re-election. His only notable “accomplishment” is preventing stuff from being done during President Obama’s administration, and he’s been in the Senate since 1985. No wonder he doesn’t want term limits–he’s had an easy job for 32 years.
In Federalist No. 51 (The same essay that Frum quotes in the article above), James Madison wrote:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others.
Time and circumstances have slowly destroyed the “constitutional means and personal motives” that encouraged the Executive and Legislative branches to check one another. The system that now exists is fundamentally unlike the one the Founders envisioned, with both the Executive and Legislative branches preferring that the Executive have powers originally meant to reside with the Legislature.