The changes proposed by the House Select Committee on Modernization would be constructive steps in modernizing the legislative process. However, they do not address the existential threat to the nation posed by the increasing inability of Congress to enact legislation. Over the last several decades, Congress has gradually lost its ability to perform its primary function—enactment of legislation. No democracy can long survive without a legislature capable of addressing the many problems every nation confronts on a regular basis.
Over the last decade, politicians, scholars, and judges have engaged in lively and heated attacks on the legitimacy of the administrative state. Many believe agencies have far too much power and are making decisions that should be made by Congress. The debates about the administrative state that have dominated the pages of law reviews, opinions of courts, and congressional hearing rooms typically focus on the degree of deference courts should confer on agencies and the adequacy of the procedures agencies use to make legally binding rules of conduct. The source of all of those debates is more fundamental, however. The source of those debates is the belief that agencies have too much power and that the other institutions of government are unable or unwilling to impose meaningful limits on their power.
Until the election of President Trump, the debates were primarily partisan in nature. Republicans regularly criticized President Obama and agencies in the Obama Administration for taking actions that Congress never contemplated through use of inadequate procedures and with the inappropriate acquiescence of reviewing courts. Democrats and progressives defended the exercises of power by the agencies, the adequacy of the procedures that the agencies used to take those actions, and the deferential review doctrines courts applied to those actions. Once President Trump was elected, however, Democrats began to criticize many of the actions taken by agencies within the Trump Administration on many of the same bases that Republicans and conservatives had criticized the actions of agencies within the Obama Administration.
In recent years, the President, rather than agencies, increasingly has become the target of the criticisms for two reasons. First, many of the most controversial actions taken during the Trump Administration were taken directly by the President as exercises of broad emergency powers that Congress had conferred on the President. Democrats became alarmed when President Trump used his emergency powers to ban travel from several mostly Muslim countries, to impose large and constantly changing tariffs on imports of goods from many countries, and to spend funds for a Wall that Congress refused to fund. Republicans began to share that sense of alarm when a leading candidate for the Democratic nomination for president promised to use presidential emergency powers to authorize spending trillions of dollars to mitigate climate change. Scholars have identified over one hundred statutes that confer seemingly limitless emergency power on the president. Most of those statutes were enacted many decades ago when Congress believed that it had the power to veto any action taken by the president. The Court held that power unconstitutional in 1983, leaving Congress with no means of limiting the president’s exercise of emergency powers except through the virtually impossible task of overcoming the president’s exercise of his veto power in the process of enacting a statute.
Second, critics of the administrative state began to recognize most of the important and controversial agency actions are taken in response to presidential decisions to order an agency to take the action. Thus, scholars have documented the reality that the most important and most controversial actions that were attributed to agencies in both the Obama Administration and the Trump Administration were actually the product of decisions made in the White House and dictated to the agencies.
It has now become apparent to members of both parties that the president has far too much power. The source of that problem is the impotence of Congress. Gradually over the last sixty years, presidential power has grown as congressional power has declined. Congressional power has now dissipated to the point where Congress lacks the power to address the vast majority of problems that confront the nation by enacting, amending, or repealing a statute. To test the accuracy of that assertion, compare the advice that presidential advisors gave in the 1960s with the advice that they had to give at any time between 2010 and 2020.
First, imagine you were an advisor to a president who took office in the 1960s. Your boss asks you how he can implement his policy agenda. Your answer would have focused primarily on the prospect of legislative action. In the 1960s it was realistic to expect Congress would engage in the compromises required to enact a major piece of legislation with the votes of a bipartisan majority of the members of both Houses of Congress. Thus, for instance, Richard Nixon was successful in implementing his environmental policy objectives by persuading large bipartisan majorities of both Houses of Congress to enact the Clean Air Act and the statute that created the EPA.
Now imagine you were an advisor to a president who was elected during the period 2010 to 2020. You would have to begin by telling your boss that he has no realistic chance of persuading a bipartisan majority of the members of Congress to enact major legislation in any context. If he is lucky enough to hold office in some two-year period in which his party controls both the House and the Senate, he might be able to persuade Congress to enact one or two pieces of major legislation by straight party line votes. Thus, for instance, President Obama was able to get Congress to enact his signature healthcare legislation with no Republican votes and President Trump was able to persuade Congress to enact his signature tax cut Bill by relying entirely on Republican votes. If he is in the more common situation in which either the House or the Senate is controlled by the opposing party, the president has no realistic chance of persuading Congress to enact any major legislation.
In today’s political environment you would have to advise your boss he has no choice but to rely on some combination of Executive Orders and agency actions to implement his policy agenda. Moreover, you would have to advise him that he will need to support those policy decisions as exercises of power that Congress delegated to the president or to agencies in statutes that were enacted thirty to eighty years ago. In most cases, the statutes were enacted to address problems that differ significantly from the problems the nation faces today and in conditions that differ significantly from the conditions that exist today. Thus, for instance, we are relying on a 1934 statute as the primary basis for regulation of the internet, a 1954 statute as the primary basis for our immigration policies, and a 1970 statute as the primary basis for our policies on climate change. None of these statutes were enacted with today’s problems in mind. Congress has been unable to take any legislative action that addresses today’s problems in any of those areas of concern based on today’s conditions.
There are three sources of the impotence of the legislative branch. First, the Framers intentionally created conditions that make it difficult to enact a statute. Three political bodies with different constituencies must agree on every word of a Bill before it can become law. As a practical matter, that characteristic of the constitution, combined with our traditional two-party system, means that virtually all major legislative action requires bipartisan compromise.
Second, we are in period of unprecedented and growing partisan political polarization. That extreme political polarity makes it extraordinarily difficult to forge the kinds of bipartisan compromises that Presidents Johnson and Reagan were famously able to negotiate with the leaders of the opposition party in the House and the Senate. Political scientists have identified many of the sources of our extreme political polarization, but none have yet been able to identify any promising means of reversing the trend toward increased polarization.
Third, we are using methods of choosing candidates for office and leaders of the House and Senate that magnify the adverse effects of political polarization on the legislative process. The methods we choose appear to be consistent with the principles of democracy, but they are not. They have the effect of magnifying the power of a small minority of voters whose views lie at the ideological extremes of the right and the left and of disempowering the majority of voters whose views lie closer to the middle of the spectrum of political views. The leaders of the political parties and the members of the House and Senate have the power to recreate conditions in which Congress can engage in the process of bipartisan compromise that is critical to restoring Congress’s power to legislate.
We rely on party-based primaries as our most frequent method of choosing candidates for office. That method of choosing candidates maximizes the adverse effects of political polarity on the performance of Congress. Party-based primaries are low turn-out elections that favor candidates whose views lie at the ideological extremes of the range of views held by the members of their party. The small group of voters who participate in party-based primaries consist disproportionately of highly partisan activists who support candidates with extreme views.
Reliance on party-based primaries also deters members of the House and Senate from engaging in the compromises that are essential in the process of persuading a bipartisan majority to support a proposed statute. A large majority of the seats in the House and the Senate are “safe seats,” in the sense that the incumbent’s party is virtually certain to win all general elections for the foreseeable future. Those seats are not “safe” in the context of a party-based primary, however.
The only realistic political risk that most members of the House and Senate face is the risk of losing a primary. For Republicans, that risk comes mainly from the right. For Democrats, the risk comes mainly from the left. Republicans who move toward the center to compromise on a Bill risk losing a primary to a candidate who is to their right. Democrats who move to the center to compromise on a Bill risk losing a primary to a candidate who is to their left. The only way that incumbents can protect themselves from being “primaried” out of office is to take extreme partisan positions and to avoid all compromises. Thus, Democrat members have a powerful incentive to take positions on the far left and to avoid compromising on any issue, while Republican members have an incentive to take positions on the far right and to avoid compromising on any issue.
Members of the House and Senate must be willing to compromise in order to enact bipartisan legislation. In today’s conditions of extreme political polarity, it is impossible to put together a bipartisan majority to enact a statute that has been created through the process of compromise. If we want to return to a political environment in which a bipartisan coalition of members of Congress can enact, amend or repeal legislation, we must identify and implement an alternative to party-based primaries. The two most promising alternatives are the peer-based systems that most democracies use to choose candidates for office and the bipartisan primaries that some states are now using for that purpose. Either of those alternatives is far more likely to produce candidates whose views are closer to the center of the range of views of the members of their party. Either will also produce members of the House and Senate who are far more willing to negotiate the compromises that are essential to successful enactment of statutes because they will not be in constant fear that they will be “primaried” out of office by more extreme and less compromising candidates.
We also use methods of choosing the leaders of the House and Senate that maximize the adverse effects of political polarity on the legislative process. The leaders of both Houses of Congress regularly refuse to allow the members to vote on legislation that is supported by a majority of members of the House or Senate and by a majority of the general public. They have no choice but to engage in that undemocratic pattern of conduct because they are elected by a majority of the members of their party.
Thus, for instance, if Republicans control 51 Senate seats, 26 Republicans can successfully block a vote on a Bill that would be enacted by a vote of 74 to 26 if it was the subject of a floor vote. The Republican leader of the Senate knows that he would risk losing his leadership position if he angers a majority of the members of his party by allowing the Senate to vote to enact a statute that is opposed by a majority of Republican members of the Senate.
Similarly, if Democrats control 218 House seats, the Speaker of the House cannot allow a floor vote on a Bill that would be enacted by a vote of 325 to 110, if the 110 who oppose the Bill are members of the Democratic Party. The Democratic Speaker knows that she would risk losing her position of leadership if she angered a majority of the members of her party by allowing Congress to enact a statute that a majority of Democratic members of the House oppose. We can eliminate this undemocratic roadblock to legislation by requiring a two-thirds vote of each House of Congress to elect a leader of each. Such a leader would have an incentive to allow members to vote on any Bill that has the support of a majority of the members of the House and Senate and, presumptively, of the public
We cannot survive as a nation unless we take the steps needed to restore the power of Congress to legislate. The leaders of the two parties and the members of the House and Senate can restore that power if they have the courage needed to change the methods that we use to choose candidates for office and leaders of the House and Senate.