Building Article I Conservatism

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By Philip Wallach

The Federalist Society has been famously influential in shaping conservatives’ constitutional vision since its founding in 1982. Its promotion of original-meaning originalism and the concept of the unitary executive have been especially important. There has been no correspondingly distinctive conservative position on the proper institutional role for Congress, however, and so the Federalist Society is now in the midst of an Article I Initiative, in which it seeks to articulate some unifying vision of what our legislature’s institutional and constitutional role should be. As part of that effort, this past Thursday it convened a day-long “Restoring Article I Conference” at the U.S. Capitol Visitor Center.

What most people probably expect from such an event is a barrage of attacks on the unaccountable administrative state and a wish that the powers of each branch revert to their 1920s levels, such that Congress would take upon itself the responsibility of making all policy decisions of any consequence. Some such arguments were made: Representative Barry Loudermilk (R-GA), for example, came over to the event after casting his vote on the omnibus bill and delivered some broadsides against the gross imbalance that has prevailed ever since World War II. Loudermilk, who has introduced a bill to eliminate the Environmental Protection Agency, said of his thinking: “I’m one of those guys who would love to wave a magic wand and get everything back to what our founders intended.” Sen. Mike Lee (R-UT), in his keynote address, was especially concerned about Congress’s having given its power over trade policy to the president, who can too easily manipulate trade policy for his own political purposes.  He had little sympathy for members looking to avoid hard votes, declaring, “If you don’t want to make tough decisions on legislative policy, don’t become a politician.”

Most speakers expressed their support for the Regulations from the Executive in Need of Scrutiny (REINS) Act, which they thought would at least force the legislature to be accountable for the most significant regulations. (Notably, Professor David Schoenbrod, one of the nation’s most prominent critics of delegation to the executive, expressed misgivings about the current House-passed version of REINS, which he thought was biased in an anti-regulatory direction rather than simply standing for congressional accountability).

Strikingly, though, delegation was far from a dominant theme throughout the proceedings. Instead, discussions revolved around how to get the institution working—legislating, overseeing, actually getting into the nitty-gritty of governing—better than it does today. For all the deep love of Publius’ Federalist unsurprisingly present in the room, there was a great deal of worry that the “ambition counteracting ambition” was a theory not being realized in practice because of legislators’ complacency. Instead of ambition in the service of the public good, many speakers worried that most members have settled for the thin gruel of self-preservation in an institution that has contributed to its own marginalization.

Theories about the main causes of Congress’s current maladies were decidedly mixed. Not surprisingly, former Senate Majority Leader Harry Reid (D-NV) was a figure that loomed large in pointing to what had gone wrong. Former Rep. Tom Davis (R-VA) lamented the many ways in which the 21st century Congress has tried to transform itself into a quasi-parliamentary system, complete with the party that does not control the White House conceptualizing itself as an opposition party (beginning, he thought, with Reid during the Bush 43 administration). He did wonder to what extent parties were, in seeing themselves that way, essentially giving increasingly polarized voters what they wanted. He and former Rep. David McIntosh (R-IN, and a co-founder of the Federalist Society) had a lively colloquy about whether Republicans had facilitated the rise of this style of politics by eliminating earmarks, with Davis saying that the congressional power of targeting spending had given back-benchers “skin in the game” that they conspicuously lack today, and McIntosh saying that rampant abuse had more than justified their elimination. Davis said that at the end of the day, deciding who should have the power to designate the recipients of local project spending is a matter of who we ought to trust, and he preferred to trust elected legislators (though, he didn’t clearly say how to overcome a situation in which most Americans don’t trust Congress).

The current broken relationship between the budget, authorizing, and appropriations processes came in for criticism from a number of angles. Senator James Lankford (R-OK) recalled that Ronald Reagan had once held up a giant omnibus spending bill and promised “never again” before begrudgingly signing it, only for Congress to make giant omnibuses (like the one just signed into law) the normal way of appropriating, to the point where “regular order” sounds almost fantastic to most members today. He was not shy in declaring that the 1974 Congressional Budget Act was overdue to be replaced by something new that could have a chance of working for a couple of decades. The way things are done now, he said, there is effectively no balancing of priorities across different jurisdictions; the President’s budget, he thought, was just so much wasted effort and perhaps better dispensed with entirely. He and Davis both highlighted the ongoing costs imposed by our current reliance on continuing resolutions, especially because so many contracts cannot be altered or updated as needed during CRs.  Former Senator John Kyl (R-AZ) pointed out that the framers seem to have underestimated the president’s ability to undermine Congress’s power of the purse through the veto’s leverage. David Hoppe, a former high-level staffer in both chambers of Congress, vehemently urged the 115th Congress to take the (now apparently radical) step of going straight into FY2019 appropriations bills; he worried that most members had never really had the experience of undertaking committee work that they knew would be meaningfully reflected in finalized appropriations bills, and thought that simply making the attempt would be a valuable experience for Congress in trying to reassert the power of the purse.

The theme that emerged most clearly, and which seemed closest to unanimous support, was the need to restore the talking filibuster. While one or two speakers sounded sympathetic to scrapping the filibuster, in general the room seemed solidly against that idea, instead arguing that some institutionalized respect for minority factions (and their intense preferences) was entirely consistent with democracy and in fact indispensable to a system meant to promote compromises. On the other hand, no speaker had a kind word for the current practice of simply taking cloture votes with a 60-vote threshold and then moving on if 41 Senators object. That relieves senators from actually having to hold the floor and present arguments for their positions, making automatic obstructionism all too easy and sucking the substance out of important debates. Senator Kyl pointed out that the presiding officer could require some actual speaker to maintain an objection on the floor under the current rules.

On a related note, we heard a great deal of frustration about the Senate’s current practice of allotting 30 hours of debate on each confirmation vote, regardless of whether anyone has anything approaching that amount to say on the nominee’s suitability. Democrats have used that practice to clog up the Senate’s calendar—but the onus is on the majority party to reform the confirmation process to make it more sensible, now that it has devolved. Mike Lee, once again, thought that actually making people talk for the full 30 hours, including weekends, would quickly change things.

The most interesting discussion of the day was about whether members really want change. Christopher DeMuth, now at the Hudson Institute and formerly the long-time President of the American Enterprise Institute, argued that mostly they do not—they like having an institution structured to minimize hard votes. DeMuth argued that this situation is not the result of legislators’ defective moral character, but the inevitable and rational adaptation to a modern society in which demands for government intervention have multiplied well beyond a legislature’s ability to handle them responsibly. Members come to orient their legislative careers around a few key issues and the building of their personal brand, the better to participate in the celebrity-influence culture that is still capable of shaping public policy debates as they play out (as the legislature itself is not). From DeMuth’s perspective, would-be reformers do well to keep good ideas for change alive but shouldn’t expect big breakthroughs until some major crisis comes in and unsettles things.

DeMuth’s co-panelists Matt Glassman, of the Government Affairs Institute at Georgetown, and James Wallner, of the R Street Institute, pushed a more optimistic view about our legislature’s internal capacity for change—especially if it focuses on those virtues most distinctive to its constitutional position as a legislature. Glassman described a culture in which backbenchers have become convinced that they must do leaders’ bidding; Wallner explained how leaders have cultivated a sense of fear in order to sustain this dynamic, telling members that chaos will ensue if members don’t fall into line. Both urged members in the Senate—the chamber in which individual members possess considerable power because of the reliance on suspending the rules through unanimous consent—to realize their power to change things. If the Majority Leader wants to stifle real open-ended debate by filling the amendment tree, members just need to stop him from doing it by getting a ruling from the parliamentarian. As Hoppe later put it, “The Senate system works if the members are allowed to work the process.” If they are shut out from doing so, their justifiable sense of pride in their office ought to push them to do so. At least in the Senate, members can become agents of change just by saying, “No.” As Wallner has recently argued, Republicans could similarly address the confirmation delay problem by simply refusing to waive the rules.

Plenty of other issues received bits of attention. Building greater congressional capacity, including through increasing staff and member pay? The speakers who weighed in were supportive. Term limits for members? Against. Term limits for committee chairmen? Against, though Hoppe argued it was important that committee members be able to vote out chairmen who they feel are operating ineffectively.

Does this all add up to a coherent, overarching, distinctively conservative vision? Not self-evidently, anyway. And, in fact, while partisans naturally have their focuses determined to some extent by their side’s political needs of the moment, it was striking how non-ideological and ultimately non-partisan these reform discussions were. Perhaps the most important divide now seems to be between leadership and rank and file members—especially on the Republican side. The Federalist Society’s speakers on this day mostly seemed to sympathize with the members. Whether that augurs well for a bottom-up restructuring of our legislative branch remains to be seen.

Philip Wallach is a senior fellow in governance at the R Street Institute.