What’s Wrong With Congress (And How to Fix It)

Congress is terribly unpopular, and no one who watches it closely is satisfied with how it is working. Our national legislature barely manages to do its most basic work (such as funding the government), let alone take on complex national challenges (such as modernizing immigration policy). Congress’s regular order—the committee work, oversight, and routine policy negotiations that ought to be the bread and butter of a legislature—has become deformed nearly out of existence. When bills do advance, it is typically by going around these structured processes, either through the work of ad hoc “gangs” of members of both parties or through leadership fiats that deny most legislators any meaningful role. What members end up doing instead too often looks more like political performance art than traditional legislative work, and only exacerbates the partisan frenzy of our civic life.

Yet there is not widespread agreement about just what the underlying problem actually is, and therefore what solutions should look like. If Congress is dysfunctional, what function is it failing to perform?

An answer that points toward constructive reforms must reach below the surface of our frustrations and consider the constitutional purpose of the institution: The problem with the contemporary Congress is not so much that it isn’t passing bills as that it is failing to facilitate cross-partisan bargaining and accommodation. Building and broadening coalitions is the purpose of the national legislature—a purpose that is particularly crucial in a divided time like ours.

This understanding cuts against the most intuitive explanation for Congress’s problems: that it simply isn’t getting enough legislating done, that its inaction frustrates voters and members, and that it needs to be more efficient at passing bills. That diagnosis would argue for reforms empowering even narrow partisan majorities, which are after all the only kind we seem to have now, to act on their own. These might include lowering barriers to action such as supermajority requirements in the Senate, simplifying the convoluted committee system and budget process, and centralizing more authority in party leaders so they could better push an agenda through. The logic of such an approach is straightforward: Winning an election should mean having the power to advance your legislative program, as majorities in most parliamentary democracies do, but Congress’s structure, rules, and norms too often prevent that.

The trouble with this prescription is that it has already been tried for half a century, and has left Congress (like the nation) divided and disgruntled. Progressive Democrats in the 1970s, the Gingrich Republicans in the ’90s, and both parties in this century centralized more and more power in the hands of party leaders, disempowered the committees, and sought purer and more focused partisan agendas. But the result has been a Congress that is not only more centralized but also more embittered and inept.

This is not what the authors of the Constitution intended for Congress. They worried intensely about the dangers of rule by narrow and ephemeral majorities. Congress is supposed to be representative of the public’s will, but that will is not naturally organized into a legislative agenda that could advance the good of the nation. Congress has a role to play in organizing it—“to refine and enlarge the public views,” as James Madison put it in “Federalist No. 10,” “by passing them through the medium of a chosen body of citizens.” And that role is especially crucial for mitigating dangerous social divisions.

To play that role, Congress must be an arena for negotiation, which is often a slow trudge. “In the legislature, promptitude of decision is oftener an evil than a benefit,” Alexander Hamilton wrote in “Federalist No. 70.” “The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.”

Checking such excesses is crucial because Congress has to produce not only legislation but legitimacy. And although majority rule is essential to democratic legitimacy, majority power endangers minority rights and risks rendering the government unjust and therefore illegitimate. So legitimacy requires that majorities be broadened before they are empowered.

Legislators will work to broaden majorities only if narrow majorities aren’t sufficient for exercising real power. So the design of Congress ensures that they aren’t. Making laws is complex, dicey, and hard for either party to do on its own. Congress is constantly getting in its own way in order to encourage majorities that are broader and legislation that is more durable.

In difficult moments, a coalition-building Congress can serve as a genuinely integrative force, creating common ground. This was plainly true of the first Congress, after the adoption of the Constitution, which built real consensus about how the new system should operate. It has been true in some moments of crisis, as with Congress’s assertive oversight and leadership during the Second World War. And it has been true in some periods of social unrest, as with passage of the Civil Rights Acts of the 1950s and ’60s. These weren’t quiet, amicable legislative eras. Congress did what it is meant to do: It fought, argued, and negotiated its way toward action. And because that was how action came to happen, Congress did build greater agreement in the country.

Today’s Congress plainly isn’t doing that. But that is not because the narrow majorities we elect now can’t govern on their own. It is because they are trying to govern on their own, and have been encouraged by half a century of congressional reforms to keep trying, and so to avoid the hard but necessary work of broadening coalitions. For Congress’s sake, and for the sake of making our society less divided, would-be reformers of today’s Congress need to emphasize that work of cross-partisan coalition building, rather than help Congress avoid it.

That might look like empowering congressional committees and intraparty factions, so that leaders have less control and more peculiar coalitions can form. It could mean breaking up the budget process, and even the boundary between authorization and appropriation, so that the everyday work of the committees matters and therefore attracts the energy and attention of members. It could also mean removing cameras from some committee hearings, to let real bargaining happen. And it could involve reforming how the parties choose candidates for Congress, and how elections work in different states, to loosen the grip of the party primaries that have populated Congress with too many members hostile to the work of bargaining and accommodation.

One thing that reformers who want to help Congress bargain more should not do is get rid of the filibuster—the set of Senate rules that effectively means any significant legislation now requires a 60-vote supermajority in the upper chamber. If your list of congressional reforms begins with eliminating the filibuster, then you think coalition-building should be made less necessary. If you’re among the lonely few who defend at least some form of the filibuster, then you think broad coalitions should be made more achievable.

The filibuster is not prescribed in the Constitution. It’s a discretionary Senate practice, or rather a function of the fact that the Senate has always had loose limits on debate. But it is a practice that serves a crucial constitutional purpose, especially in narrowly divided eras such as our own.

In fact, the past few years have provided an exceptionally strong case for saving the filibuster. Its champions often point to its role in slowly broadening support for the civil-rights legislation of the 1960s, which was certainly important. But the filibuster was also the star of the first two years of the Biden administration.

Democrats entered that period with a narrowly elected president and vanishingly tiny majorities in both the House and the Senate—almost as narrow as they could possibly be. And yet in that nearly deadlocked moment, and in the aftermath of an intense controversy about election security fanned by Donald Trump’s conspiracy theories and lies, the Democratic Party sought to advance a highly partisan effort to nationalize election administration. Its very first legislative proposal, H.R. 1, would have had Washington take over key election-administration rulemaking in every state and imposed new and in many cases looser rules for voter registration, ID requirements, eligibility, ballot harvesting, early voting, drop boxes, mail-in voting, locations and hours of polling stations, voting by felons, campaign donations, and more—all on a pure party-line vote in both chambers. In a moment of low public trust in our elections, this would have been an astonishingly reckless act of partisan civic vandalism. And the only reason it did not happen was the filibuster.

What happened in that session of Congress instead was a series of modest but significant bipartisan legislative measures that all began in the Senate, including a reform of the Electoral Count Act and legislation regarding gun regulation, research-and-development support for the domestic semiconductor industry, and infrastructure funding. Every one of those bills took the bipartisan form it did because of the filibuster.

To understand that the role of Congress is to build coalitions is to comprehend an entire vision of American political life—the Constitution’s vision, as it happens, but one we have lost sight of. It is a unique political vision, distinct from that of most other contemporary democracies in ways that could serve us especially well in this moment.

It describes a politics that prioritizes cohesion in a large, diverse society. It suggests that elections are meant not to fully resolve the policy direction of our government but only to determine who will participate in the deliberative process of working it out. It assumes that a process of accommodation that leaves a greater number of Americans satisfied with the outcome is more important than either party getting its way on all the technical details of any legislative measure. It conceives of the work of elected officials, and especially of members of Congress, as consisting of negotiation and accommodation aimed not only at addressing public problems but also at facilitating greater legitimacy and solidarity.

To say that this is not how our politics works now would be a gross understatement. But if this is the sort of politics we want, then we don’t have to look far to figure out what direction to move in. We only have to take our bearings from the Constitution.

The Atlantic

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