Re-theorizing Congress

Polarization is an output of our process, not the cause of all our woes

 Image source  here

Image source here

By Philip Wallach and James Wallner

Our recent piece, “Congress is Broken. But don’t blame polarization,” provoked a number of useful discussions about how political scientists should interpret the results of empirical models like DW-NOMINATE. When used improperly, these models distort our understanding of reality rather than illuminating it. Consequently, we believe that political scientists should not use the data produced by such models uncritically. These models should instead be seen as tools that can help foster a better understanding of Congress, but only when appropriate. To that end, we seek to clarify and deepen our original discussion in this post.

1.     What does roll-call polarization mean?

What can polarization be about, if not ideology? Sometimes, parties are engaged in a zero-sum competition over who will benefit from patronage, with few “ideological” implications at all. Other times, parties may frame votes for purely tactical advantage. But assuming that NOMINATE scores are measures of ideology reduces votes over all such conflicts to being indicative of ideology, analogous to a vote to increase or decrease the size of the welfare state. In short, NOMINATE treats all roll call votes as ideological, regardless of their underlying meaning. According to Frances Lee, “The methodologies scholars use to infer the policy distance between the parties cannot distinguish between partisan and ideological conflict.”

This is the ground on which our critique of the way in which political scientists use NOMINATE is based. In that way, we are building on Richard Bensel’s critique of NOMINATE. Bensel writes,

The problem is not with the construction of the algorithm which will always and infallibly produce statistical artifacts but lies, instead, with yawning chasm between those artifacts and the language in which we try to interpret them. … The basic problem is that the ideological beliefs of members of Congress have often been conceived as tautologically identical with the statistical artifacts produced by the NOMINATE algorithm.

Bensel cautions us against thinking of the famous two-dimensional dot plots that are output by the NOMINATE algorithm as composites of each member’s voting pattern. Rather, they depend on the totality of the dataset. Excluding a single member or vote would change the whole picture. As we said in our piece, then, the roll-call-based NOMINATE scores are reflections of what gets voted on much more than they are capable of reflecting what is really in legislators’ heads as they decide how to approach the voting chances they are given.

When we look at political scientists’ attempts to create other measures of ideology, the utterly confused picture that emerges strongly supports our revisionist interpretation of the roll-call-based scores. Chris Tausanovitch and Christopher Warshaw recently showed that six independently constructed measures, each purporting to identify candidates’ ideology, are very poorly correlated with each other – except for the basic feature of being able to reliably identify partisanship. (“[T]wo measures can be expected to explain only 33% of the variance in one another for Democrats and 18% for Republicans.”) Their bottom line is striking: “Overall, the measures we examine only marginally improve on candidates’ party identification for predicting their roll call behavior.” NOMINATE scores do possess some predictive power—but that is no surprise. It is equivalent to saying that roll-call voting in the future will resemble roll-call voting in the past, and it gives no warrant for an ideological interpretation. Indeed, in light of the mixed up picture from the other measures, we should be wary of leaping to an ideological interpretation.

On Twitter, Boris Shor responded to critiques of the standard interpretation even in light of Tausanovitch and Warshaw’s findings: “What they're trying to do is see how much non-chamber measures help predict Congressional roll call behavior, beyond party. If what I want is to characterize chamber polarization, I would use roll call based measures.”  Wallach responded: “‘If what I want is to characterize chamber polarization’...But is that what we want?”

In other words, if this were really about members’ fixed and durable ideological commitments, why would the overall picture painted by these many measures be so jumbled?

2.     Object all you like—but aren’t the members with the extreme NOMINATE scores actually the extreme ideologues?

One passage in our original piece is in need of additional clarification:

The … “first dimension” mapping for each legislator is generally interpreted as representing the legislator’s ideology on the “liberal-conservative” dimension. By construction, this assumes that when two legislators vote in opposite ways most of the time, it is because one of them is “very liberal” and one is “very conservative.” But nothing in the algorithm actually supports using these labels instead of, say, “very likely to toe the Democratic line” and “very likely to toe the Republican line.” Many times, toeing the party line will mean acting out a certain ideological agenda — but many times, it won’t.

It may be intuitive to read, “toe the party line” as meaning, “go along with the leadership.” On that reading, what we said is definitely not right. Party leaders do not end up with the most extreme NOMINATE scores. In the 114th Congress, Mitch McConnell scored 0.404 and Paul Ryan 0.555, with plenty of members in both chambers to their right.

However, what we intended to convey was that those members far to the extreme are often conforming their voting records to the demands of their party’s hard-core bases—the kinds of people who write the platforms. (Leaders are often talented at fervently declaring their allegiance to this base even while cutting a more accommodating path in practice.) As we say, those on the far extremes may sometimes be justly described as “ideological,” but to identify “what Republican activists demand” with “conservative ideologue” is to engage in a purely circular logic. If American politics since 2016 has taught us anything, it should be that the power of conservative ideology as a controlling force has been grossly oversold, and in general collapsing the distinction between “partisan” and “ideological” is unhelpful.

It also requires an unjustified leap to say that because a member seeks to appease this constituency in their roll-call voting decisions, this shows that they are intrinsically ideological. Depending on the nature of their district, some members may see voting to please the base as much more important than others; whether this reflects their own internal beliefs, or their strategic considerations, is difficult to say.

To see why the picture is more complicated than the “extreme ideologues” interpretation suggests, let’s briefly look at a few examples. Are the members with extreme scores clearly “liberal” and “conservative” ideologues? How about Senators Bernie Sanders (-0.509), Cory Booker (-0.498), Ben Sasse (0.833), and Mike Lee (0.861)? The algorithm tells us that the two Senators on the left vote very differently than the two Senators on the right. Fair enough.

The ideological interpretation of the algorithm’s outputs tells us that they are among the members least likely to see eye-to-eye on anything. But here’s where it’s so crucial to focus on what gets left out of the dataset. As it happens, Cory Booker and Mike Lee have frequently teamed up in recent years, making serious pushes on a wide variety of matters including criminal sentencing reform, devolution of medical marijuana policy to the states, agricultural conservation, and stopping corruption in agricultural programs. None of those bills ever received votes. This kind of activity, which so clearly suggests that these members are something other than dogmatic ideologues, is simply invisible to NOMINATE. To the extent there are unrealized possibilities for cooperation on matters that transcend the positions locked into the parties’ platforms, the roll-call-based measures just aren’t going to tell us.

The examples of Sanders and Sasse are also instructive. Both have voting records to please their respective bases, but that hardly gives an adequate description of their respective places in their coalitions. Both are critics of their party establishments and are outside-the-box thinkers. The ideological interpretation of their NOMINATE scores seeks to deny the importance of these facts. As tweeters aplenty have suggested: if these members are so committed to different ways of thinking, why do they end up voting so conventionally? That reflexive belief that what really matters about a politician is what will show up in the roll call votes is myopic and limiting—as Matt Glassman eloquently argued in a slightly different context.

3.     Are Democrats and Republicans today more ideologically divided than ever?

As we note in the piece, DW-NOMINATE’s portrait of historic polarization in the current Congress is offered as evidence in support of the narrative that currently dominates political commentary. In short: whereas the parties were once ideologically mixed coalitions, they are today well-sorted along ideological lines, and each side (but especially Republicans) has come to embrace a more extreme ideological position over time. As a result, the prospects for political compromise are dim.

For this logical chain to hold, two assumptions are necessary. First, that policy positions retain their ideological valences indefinitely. Second, that the division captured by DW-NOMINATE in one Congress is comparable in magnitude to the division in any other. Both are obviously false. As David Bateman, Joshua Clinton, and John Lapinski argue, taking ideological continuity seriously over time would lead to the obviously absurd prediction that today’s Democrats would vote against federal protection for freedmen during Reconstruction. Similarly, we’d be led to think that divisions over the enforcement of the Voting Rights Act today are of comparable importance to the divisions over whether African-Americans should be allowed to vote at all. As they point out, fixing Democrats as always on the left, and Republicans as always on the right, gives NOMINATE scores a partisan meaning that automatically predominates over any ideological one. Where parties’ relationships to ideological positions are in flux, relying heavily on NOMINATE is likely to produce confused analysis.

The standard, NOMINATE-backed story also tends to put so much focus on interparty difference that it also tends to distract from the importance of intraparty divisions. When we seek to understand some of the leading issues of the 115th Congress, it is internal divisions between Republicans that have often been decisive.

On healthcare, Republicans came in having promised for half a decade to repeal Obamacare, and yet it quickly became clear that there was significant disagreement among Republican members as to how much this could be taken seriously or literally now that they were in power. Leadership failed to forge a major reform that could garner majority support, and eventually they opened the door to a member-brokered compromise. It (surprisingly) passed the House and came close to succeeding in the Senate—but it did fail, and of course it was not anything like a full repeal. Attempts to find out just how much change a bipartisan coalition of legislators would be interested in making have been successfully discouraged.

And on immigration, the reality is that neither Speaker Paul Ryan, R-Wis., nor Senate Majority Leader Mitch McConnell, R-Ky., nor Minority Leader Chuck Schumer, D-N.Y., tried particularly hard to resolve the issue. The reason? Both parties are deeply divided internally when it comes to immigration policy and forcing action on the issue would have only exposed those divisions. For this reason, party leaders refrained from doing so. They merely pretended to create the conditions for open-ended debate while actually ensuring that nothing with a chance of getting 60 votes would ever receive consideration. Gridlock over immigration can thus be interpreted as arising out of a leadership response to intraparty divisions, not ideological polarization.

4.     What role is issue suppression playing?

That brings us to the issue of issue suppression, which is central to our view of the current situation. Leadership shapes the agenda to exclude cross-cutting issues (or, as with immigration, to give them only nominal chances) in order to differentiate their partisan brand and thereby maximize their electoral advantage. (Or so the story goes…)

Let us offer an example where issue suppression has been remarkably successful over the last decade, during majority control by both parties. In the wake of the financial crisis, there were huge reservoirs of political energy looking for retribution against America’s big banks, who had profited from bad practices and then been rewarded with government support. Retaliation would almost certainly have been a political winner, whether in the form of breaking up the businesses somehow or dramatically raising their required levels of capital. Our major piece of post-crisis financial regulation, the Dodd-Frank Act, took half-hearted approaches on both counts (by imposing the modest and largely ineffectual Volcker Rule that bans banks from proprietary trading, and by vaguely pushing for higher capital requirements). The policy merits of the more dramatic moves are highly debatable, but that debate has rarely taken place in Congress, and certainly none of the proposed legislative vehicles for dramatic action ever received extended consideration. Neither the Bailout Prevention Act of 2015, co-sponsored by Elizabeth Warren (D-MA) and David Vitter (R-LA), nor the Terminating Bailouts for Taxpayer Fairness Act of 2013, cosponsored by Sherrod Brown (D-OH) and Vitter, ever made it out of committee.

From our perspective, this is no puzzle: Leaders can see that their members are internally divided on these questions, and they have no interest in seeing whether a complex, ideologically heterodox coalition could form. They might well offer policy justifications for their opposition, but the coalition-preservation explanation is almost certainly the real cause. As Lee Drutman explored, congressional leadership has generally done a masterful job suppressing issues that activate a pro- and anti-establishment cleavage, which cuts across the two parties. (Here is an attempt by Harry Enten to fit this concern into DW-NOMINATE’s framework—but note that labeling the second dimension in this way is just as arbitrary as labeling the first dimension as liberal-conservative ideology.)

Drutman argues that the political status quo they are protecting is overdue for disruption, for substantive reasons. But the case can also be framed in more procedural-institutional terms. A Congress that follows its leaders as they flee from the most controversial issues of the day, in the name of party unity, is not ultimately a healthy participant in our system of government.

We are hardly the only ones to think this way. Dougherty, Lynch, and Madonna analyze all House roll call votes from 1875 to 1997 and find evidence that restrictive rules are successfully used to reduce the dimensionality of recorded votes. They offer a number of citations to other work that explores how parties use agenda power to reduce observable dimensionality, and note Cox and McCubbins’ assertion that “the first commandment of party leadership” is, “Thou shalt not aid bills that will split thy party.”

5.     What is at stake here?

Are ideologues breaking our politics? Is the disappearance of moderate members the reason we seem so unable to compromise? Are American politics doomed to futility as long as “our” members find themselves across the aisle from “those crazies”?

To each of these questions, the ideological interpretation of contemporary polarization answers yes—and we would answer no. Rather than seeing deeply entrenched ideological polarization as the root cause of our political dysfunction, we see contemporary congressional polarization as a symptom of a misguided conception of politics that has come to dominate our discourse. We believe that difference and disagreement are the basic stuff of democratic politics—and that our Madisonian political system has, in the past, successfully worked through greater differences than we see today. But today our leaders seem too eager to redefine the polity in order to banish disagreement, either through respectability politics or manipulation of the voting electorate or just through a once-and-for-all decisive win in the next election.

Stay tuned as we work to develop all of these ideas, and a sincere thanks to all of our critics for your helpful comments.

Philip Wallach and James Wallner are senior fellows in governance at the R Street Institute.

 

Rethinking member ambition and the reelection goal

 Image source:  Lee Drutman/Vox

Image source: Lee Drutman/Vox

By Marian Currinder

That members of Congress are ambitious is a political science axiom. Getting elected (and reelected) to Congress requires ambition, as does the earnest pursuit of policy and power goals. Given this dynamic, the constant challenge for party leaders – particularly in the House – is channeling the ambitions of their members in ways that benefit both the member and the party.

This task is usually much easier for minority party leaders because their members understand that they cannot achieve many of their own goals in the chamber without first achieving majority status. For this reason, they are willing to put their own ambitions on the back burner and focus on the group goal of winning majority control. Leaders articulate the party’s message and members unite behind their leaders to promote it; if enough voters buy the message, majority status is the prize. Think Contract with America, the platform that Republicans embraced in the 1994 elections. Or the Democrats’ new direction platform in the 2006 elections.

But once they move from minority to majority status, members are ready to focus on their own goals. Party goals move to the back burner as they begin to chase down their own ambitions. This dynamic can present problems for the majority party. Worst case scenario: leaders lose control as their members go in different directions, the party fragments, and minority status once again looms on the horizon.

Traditionally, majority party leaders have tried to avoid this quandary by providing their members with plenty of opportunities to be entrepreneurial. They give them a shot at committee or subcommittee chairmanships, put them on committees where they can do things for their constituents or make use of their policy expertise, give them floor time to debate policy, make floor time for their bills, help them get pork for their districts, provide them with strong support agency expertise, and make sure they have the budgets to hire experienced staff who can help them succeed.

At least this is how it used to be. The problem? Most of these opportunities no longer exist for members.

Sure, members can still challenge for committee and subcommittee chairmanships … but the position is hardly what it used to be. Policy making has become centralized to the point where party leaders, not committee chairs, determine legislative language and strategy. Policy is not developed and debated in committee -- what’s the point if it’s not going to the floor? Most of what does move is rubber stamped by the majority without serious consideration given to the minority’s views.

It’s true that wielding the gavel allows a chair to set the committee’s agenda, but that agenda isn’t going anywhere unless the leadership allows it to. While this has more or less always been the case in the House, chairs at least used to be active participants in the process. Leaders collaborated with chairs on policy formulation and process and showed deference on matters requiring policy expertise.

In addition to chairs losing the lead on policy to their leaders, they’re also no longer afforded the opportunity to become serious policy experts because they’re limited to six-year terms. When Republicans instituted this party rule in 1995, leaders emphasized that it would give junior members a shot at chairmanships without having to wait decades. The rule would also ensure that new policy ideas continued to circulate in the conference. But by creating internal party competition for chairmanships every 6 years, leaders also ensured their supremacy in the process. In order to become chair, members would need to demonstrate their loyalty to the party and its leaders, via fundraising and toeing the party line. Today, would-be chairs compete by being party loyalists, not independent-minded policy experts. This system, as it turns out, facilitates centralized power. It also renders committee service less meaningful.

Entrepreneurial opportunities on the House floor are also scant. As fewer bills are brought to the floor for debate, members have fewer opportunities for floor (and camera) time. If there are great policy orators in the House these days, the public is unaware. Leaders, via the Rules Committee, maintain tight control and bring most bills to the floor under closed rules. Debate and amendments are severely limited, meaning that most members just show up when it’s time to vote. As for getting their own bills to the floor? That requires loyalty to leadership, as well.

There are strong arguments on both sides of the earmark debate, but doing away with them did remove another credit-claiming opportunity for members. And while there are other ways for members to steer pork to their districts, they don’t provide the kind of direct credit that earmarks did. Entrepreneurial members can figure out how to direct agency spending in ways that benefit their districts, but convincing constituents of how their efforts resulted in benefits is, well, maybe not worth the effort.

By cutting funding for the support agencies that help members do their jobs better, Congress has also cut its access to the expertise members need to serve effectively. CRS, CBO, and GAO exist to help members understand the intricacies of policy and oversight, as well as the nuances of congressional service. Today, there’s less value placed on mastering committee and floor procedure (why bother?) and members who want quick access to policy expertise are more likely to reach out to lobbyists who specialize in rapid response.

Experienced staff are absolutely essential to member success, yet Congress devalues their worth. Why else would they cut staff size and funding rather than invest in good help? Party leaders have congressional office and leadership staffs, but rank-and-file members must rely on a relatively small (and mostly underpaid) staff. It’s no wonder that experienced staff are leaving the Hill in droves to make more money elsewhere.

The bottom line is that congressional operations today seem to run counter to the reelection goal—at least in terms of how we’ve traditionally thought of that goal. Centralized power and self-imposed cuts to support agency and staff budgets means that members have fewer and fewer opportunities to be entrepreneurial. Is it time to rethink the political science mainstay that all members are ambitious, single-minded seekers of reelection? And that everything they do is done with the goal of reelection in mind?

Plenty of members are ambitious and most want to get reelected. What’s changed for many members is what drives the reelection goal. There is less and less emphasis on policy achievements (because there aren’t that many), committee service, and projects/pork secured for the district. Most members sit in safe red or blue districts, where emphasizing partisan credentials plays better—and wins more votes—than wonky policy accomplishments.

And those partisan credentials are earned by working in service to the party. That means voting with leadership, earning the support of party-aligned outside groups, parroting the party talking points in public appearances, and dialing for dollars. As Matt Glassman points out, there are plenty of these foot soldiers in Congress, people who don’t really care much about policy, don’t mind the day-to-day grind of Capitol Hill, don’t mind taking a backseat to leadership, and happily pursue reelection not expecting that Congress will ever be any different. It’s worth considering what kind of institution Congress becomes when this description fits the majority of those serving. Yes, they want to be reelected, but to an institution they’ve never seen operate any other way.

Rather than find ways to channel the ambitions of entrepreneurial members, the majority party’s contemporary strategy may be to simply shed entrepreneurial members. As Lee Drutman and plenty of others have recently pointed out, serving in Congress is miserable for anyone who actually wants to get things done. There’s a sense of absolute powerlessness that pervades; unsurprisingly, more members are choosing retirement over self-flagellation.

Fifty-five House members (17 Democrats and 38 Republicans) have announced their retirements—an unusually high number for this early in the election cycle. This includes 10 committee chairs, most of whom were up against term limits. The average retiring member served 14 years and won 64 percent of the vote in their last election. While some were facing tough races, most hold safe seats. In other words, most of these members are leaving Congress by choice.

What kind of member will replace them? I’d like to think that Congress still attracts people who are driven by a desire to be part of the policymaking process, to actively participate in policy debates, and to advocate for their constituencies. Congress needs members like this if it is to play a meaningful role in our constitutional system. But the challenge is less to get these members elected than it is to retain them. They’re not likely to survive in a Congress that rewards fealty to party and fundraising prowess.

Marian Currinder is senior fellow in governance at R Street Institute and edits the LegBranch.com blog.

ICYMI: Congress Indispensable

Wallach Congress Indispensable 01-2018.png

Philip Wallach writes in National Affairs:

"Congress is a mess. It seems incapable of passing major legislation; it is divided by bitter animosities, held in almost universal contempt, and without an apparent plan to right itself. So goes the conventional wisdom, and, as of early 2018, it is mostly right.
But saying that Congress is troubled is very different from offering a clear direction for reform. Strikingly few people — including among our elected officials themselves — have a strong sense of what Congress's institutional identity ought to be, or can say what a functional Congress ought to do in our 21st-century constitutional system. Taking up a long intellectual tradition running back through Woodrow Wilson, many intelligent observers have become convinced that Congress is obsolete, and the best thing it could do is just get out of the way.
Properly understood, however, Congress is no anachronism. The very features that would-be reformers find most exasperating — its messiness, balkiness, and cacophony — are those that render our representative legislature capable, in ways the other branches are not, of maintaining the bonds that hold together our sprawling republic. Critics of Congress are right to think that the legislature is a poor champion of efficient government relative to the executive branch, but they fail to realize the deeper goods and goals that representative government serves, namely promoting provisional coalition-building, generating trust, and creating real political accountability...."

Read more at https://nationalaffairs.com/publications/detail/congress-indispensable

ICYMI: #Resistance and the crisis of authority in American politics

Wallner law and liberty 12-2017.jpeg

James Wallner writes in the Library of Law & Liberty:

"When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.
"Regardless of what happens next in the CFPB matter, this episode illuminated a crisis of authority pervasive in American politics today. The dysfunction it laid bare tells us that we have forgotten what authority means and are thus no longer capable of identifying where it resides in our political system. The result is a post-political order that delegitimizes conflict and undermines the institutions on which we depend to resolve disagreement and forge compromise in a pluralistic society.
"If asked, most people today would likely equate authority with power. Power is rightly understood as the ability to compel obedience through intimidation and force. But unlike power, authority does not compel through such coercion. Rather, it is self-evident; people submit to authority voluntarily. Authority, properly understood, transcends the back-and-forth of political life. In that way, it resides outside the government...."

Read more at http://www.libertylawsite.org/2017/12/06/resistance-and-the-crisis-of-authority-in-american-politics/

Congress's Death Is Greatly Exaggerated

Chafetz Congress's Constitution 09-2017.jpg

By Matt Glassman

Lamenting the underperformance of Congress has a long history in American public life. Nineteenth century cartoonists portrayed Congress in terms familiar to modern observers: dysfunctional, corrupt, and unable to meet the needs of a modern society. Washington has been quoted as vowing never to go back to the Senate after procedural actions made his first visit there functionally useless. Robert E. Lee famously quipped (perhaps apocryphally) that the Joint Committee on the Conduct of the War was worth two divisions to him. And Andrew Jackson argued, as would most of his successors, that Congress was hopelessly provincial, a national legislature incapable of seeing the national good.  

Such criticism continues today. The laundry-list of alleged dysfunction is familiar even to the most casual observer of congressional politics.  The policymaking process is mired in gridlock. The appropriations process lurches from deadline to deadline. The budget process is completely broken. Members are divided into deeply polarized partisan camps. Capacity is on the decline, with resource and staffing cuts for Members and committees. Oversight of the executive branch has largely withered. Washington, DC is a swamp of crooks that must be drained.

The intellectual roots of most contemporary criticism can be traced to another president, Woodrow Wilson. He was among the first to propose the entire separation of powers system was a relic. The Founders had not anticipated political parties, and their rise overwhelmed Madison’s vision of institutions in competition, ambition checking ambition. Had American democracy bloomed a century later, Wilsonians argue, it would have been self-evident a parliamentary system—with a sovereign legislature and executive drawn from its ranks—was the superior arrangement. Unfortunately, such a system was a non-starter for the 18th century Framers, leaving us with a clumsy copy of Tudor England’s mixed system, long after the world moved on.

For such critics, a greater problem is that even within this second-best system, Congress can no longer compete.  Its power has been eroded by the other branches, which have shown themselves capable of adapting to the demands of modernity. Congress, meanwhile, has either passively stood by or, worse yet, actively aided the other branches in strategic attempts to shirk responsibility. This has, in turn, further reduced Congress’s power and prestige. What remains is an institution both vestigial and vital; a large, complex organ through which all the blood must flow but which serves little purpose for the body politic.

For Wilson, the solution was to graft parliamentary democracy onto our separation of powers constitution. Encourage disciplined parliamentary-style parties, strengthen leaders, eliminate anti-majoritarian roadblocks (the filibuster, committees), and shift deliberation and policy leadership from the legislature to the executive and the parties. Championed by generations of progressive intellectuals, this vision of responsible parties, presidential-centered policymaking, and a hollowed-out, majoritarian arena legislature continues to captivate contemporary observers. With everyone in agreement that Congress is useless at this point, why not take Wilson’s advice and reform this lemon into some lemonade?

In Congress’s Constitution: Legislative Authority and the Separation of Powers (Yale University Press, $45), Cornell law professor Josh Chafetz forcefully and persuasively answers these critics. Separation of powers is not antiquated, it is not second-best, and Congress is neither doomed to third-fiddle nor necessarily as far behind as often portrayed.  Chafetz, unsurprisingly, does not argue Congress has distinguished itself in recent times or that it is currently at an apex of power. Instead, he builds a conception of the separation of powers system that challenges congressional critics to reassess much of how we think about power within the system. Part of the problem, it turns out, is critics have been using the wrong metrics and frames of analysis. Seen through the proper lens, Congress not only has the tools necessary to compete with executive power, but actually does compete more often than it is credited.

Fundamental to Chafetz’s vision is what he calls a multiplicity-based view of our constitutional system. Unlike formalists who view institutional power as a predictable consequence of institutional design, Chafetz argues “political power is largely endogenous to politics.” That is, the relative power of the branches is contestable, varies over time, and is adjudicated through substantive battles over specific political issues. The Constitution assigns certain rigid static powers­—only the president can nominate a Supreme Court justice and the threshold to override a veto is exactly 2/3 of both chambers—but most of the important questions of power are not formal inquiries into mechanical authorities. Rather, they are substantive questions of informal power. “How much money should the government spend on hurricane relief?” and “Under what terms should the debt limit be raised?” are not discoverable by constitutional analysis.

Whether the answers are shaped mostly by the president or Congress is a function of the current balance of power, which itself has been shaped by the outcomes of previous contestations, and which will in turn shape a new equilibrium going forward. As Chafetz notes, in most interbranch fights there are many weapons available to each side and numerous opportunities to escalate or concede defeat. Congress can ignore the president’s budget; the president can veto appropriations acts; Congress can override the veto; the president can impound funds; Congress can seek court relief under the impoundment act; the president can assert the impoundment act is unconstitutional; the court can rule, perhaps for Congress; the president can ignore the court order; and Congress can impeach the president. 

Crucially, however, these power contests occur in the public sphere. The ultimate adjudicator is the voters. That no appropriations fight in history has resulted in an impeachment speaks to the public’s role. Actors in all branches seek to preserve the public’s trust; it not only affects reelection chances in the political branches, but also the future power of their institution. To impeach the president over an appropriations veto risks not only your seat, but also Congress’s public standing in all future fights. Properly gauging your current public standing and your ability to win a battle in the public sphere becomes paramount.

Thus, the key to increased institutional power is not aggressively asserting authority at all times, but judiciously asserting authority where it is both likely to prevail and likely to enhance your future power. Congressional power can easily be lost by overplaying your hand in the public sphere. Picking a fight you are sure to lose is not always bad politics, but skipping a specific substantive fight that might create a longstanding public precedent against you is often the correct strategic course for long-term power. Chafetz does not assert Congress has made particularly judicious use of its tools, but he does show that the inverse—Congress appearing to not make use of its tools in a particular interbranch conflict—is often interpreted as congressional impotence, rather than as wise strategic behavior.

Attentive readers will recognize in this strands of Neustadt’s Presidential Power (Wiley, 1960) argument.  The power of the presidency, he asserted, is not found in the written text of the Constitution. Instead, it is derived from skillful maintenance of professional reputation and public prestige, two public sphere resources that allow him to persuade others that their best interests lie in going along with him. Chafetz’s conception also recalls the American Political Development tradition within political science, with its overlapping institutions in conflict for authority and legitimacy, and its careful attention to how the strategic resources and choices of actors reflect previous conflicts and inform future ones.

Chafetz’s application of these arguments to the analysis of constitutional power will be jarring to many readers. After all, many of us were taught to believe that the Constitution, while open to interpretation, is a definitive adjudicator of political authority, not a set of tools for contesting a less tangible power that actually resides in the public sphere. Chafetz’s clear writing and careful argumentation, however, should convince even the most skeptical reader of the merits of his separation of powers conception. It also doesn’t hurt that he happens to be correct.

Much of Congress’s Constitution is an examination of the history, development, and application of six of the powers individual members, or chambers, of Congress have at their disposal as they engage in interbranch conflict. Chafetz divides these tools into ‘hard’ and ‘soft’ powers, the former composed of coercive powers (purse, personnel, and contempt) and the latter those that protect or enhance its reputation in the public sphere (freedom of speech and debate, internal discipline, and cameral rules). Each chapter follows a similar structure. The history of the power is traced from its origins in English legislative development through colonial and U.S. history. A structural discussion of the power, and its application in contemporary context, follows. The crisp writing throughout the volume makes for easy and enjoyable reading.

The detailed tracing of the English history is somewhat puzzling at the outset, but by the end of the first substantive chapter it becomes clear how much it enriches the structural discussion. First, it offers a glimpse of what legislative-executive relations looked like in a system where the legislature was substantially weaker in formal authority. Similarly, it strikingly places the contemporary powers of Congress on a developmental timeline, notably one that is not frozen in 1787. The American Constitution occupies something of a late midpoint in English-American legislative development, benefitting from the received wisdom of English history and colonial experience, but clearly still part of a transitional period. Finally, it provides numerous parallels between events that occurred 500 years apart. All of these things reinforce the underlying theme of a system in constant contestation, and the contingent nature of any temporary equilibrium.

The structural analysis is clear, methodical, and insightful. While some of the territory will be well known to those familiar with separation of powers, the presentation is top-notch and the connections to early English democracy make for striking revelations. Discussing the power of the purse, Chafetz illustrates it’s not inherently about control of the money, but about the annual nature, and therefore built-in sunset, of appropriations. Only positive action of parliament (or Congress) can provide the monarchy (or president) with war funding. And just as Parliament spent centuries fighting to reduce the portion of royal funds derived from prerogative taxation (funds that could be raised without Parliament), Congress spent the 20th century reversing that trend, in the form of mandatory appropriations. If a chief lever of legislative control is the need for positive annual appropriation, what does it say about congressional power and institutional strategy that three-quarters of government spending has been effectively removed from such control?

Throughout, such non-obvious connection between congressional power and visible action is on wonderful display. Indeed, one underlying theme is we’ve been looking for congressional power in the wrong places. Or, more precisely, the easiest places to look can be misleading. Chafetz notes, in the chapter on personnel, that the intense focus on confirmation of nominees obscures the larger superstructure. Congress creates the bureaucracy and positions to which the president nominates officials. Congress designs the civil service system, placing the vast majority of executive employees out of patronage or at-will control. Congress designs regulatory structures out of the reach of the president. But even on confirmations, analytic instincts can be wrong.  Most presidents get strong co-partisan congressional support for their nominees, but their nominees are endogenous to both their relative standing in the public sphere, as well as private information they get from Congress. A weak president will not necessarily have more rejected nominees than a strong one under unified government, but the idea that they share the same deference is a naïve assumption.

Readers of all ideological stripes will take issue with some aspects of the book. For liberals, the central conceit will be its faith in free and fair elections. The vision presented necessarily relies on the public sphere being able to effectively reward and punish parties. Chafetz makes the excellent point that any party which wins the consecutive elections necessary to dominate the government is inherently more trusted by the voters, and thus we should be less concerned by some of the often-derided features of unified government, such as reduced oversight of the executive branch. In effect, the rules of the constitutional game are flexible enough to be responsive to the realities of the public sphere.

But if the very rules of the constitutional game are determined in the public sphere, how can we possibly ensure debate that occurs in the public sphere is not itself distorted by corporate money or entrenched illiberal hierarchies of power? Or what if a unified government is able to manipulate the election laws and put a thumb on the scale in its favor? While Chafetz does correctly point out that what we call unified government in our system is hardly unilateral total control, many liberals in 2017 are likely to bristle at the idea the judiciary can be a strong bulwark against election manipulation by the political branches. If constitutional power is endogenous to politics, surely it is possible that fair elections are endogenous as well. These questions go unanswered.

Liberals and conservatives, and in particular legal originalists, may also react poorly to the public sphere understanding of constitutional politics itself. It will undoubtedly raise the specter of a constitution that is not itself an anchor for government, or a restraint on government behavior. If the Constitution’s framework is merely endogenous to politics, then it cannot be the rock upon which the church is built. And that may be unsettling. Even if a conception of the Constitution as stable scaffolding of assigned powers and strict limitations is a fiction, they may argue, it is a fiction worth preserving. Law professors and others who rely on strict textual analysis may be equally unsettled. But these quibbles pale in comparison to the explanatory power of the book.

The Trump presidency is providing a worthy testing ground for many of Chafetz’s claims about institutional power and the public sphere. Will a Republican Congress meaningfully restrain President Trump? Some tests have already occurred. The low standing of the president in the public sphere has emboldened Congress to act in ways highly atypical for a unified government in its opening months. An unusual number of executive nominees have been forced to withdraw while others have barely survived the Senate; Congress statutorily reduced the president’s sanction authority; and substantial investigations of presidential scandals are ongoing in both chambers. Other tests remain, some related to the soft powers described by Chafetz. Will Congress seek to augment its institutional capacity in the face of a hostile executive? Will any Members seek to create individual leverage in the public sphere over foreign policy by reading classified information into the congressional record or committee hearing transcripts?

Most notably, members of the Republican majority have criticized or refused to defend the president on numerous occasions, laughed off many of his policy proposals, and have often placed institutional concerns squarely ahead of partisanship. This was exemplified by Senator Grassley’s terse public letter asserting the need for executive agencies to respond to majority and minority committee oversight inquiries, as well as bipartisan subpoenas that have been issued in the Russia investigation. And more broadly, Congress appears to have taken on an agenda-setting role far greater than under previous first-term unified-government presidents. These applications of congressional power are revealed neither in legislation nor in roll call votes on the floor. Again, congressional assertions of power are often found in places people tend not to look.

Chafetz only takes an explicit normative turn in the final chapter, though the argument throughout well predicts his position as a defender of legislatures. For many, the final chapter may answer the most nagging question of the book: even if Madisonian government is still workable in the modern age, why go through all the trouble when the parliamentary systems seem fundamentally superior? Chafetz surveys three classic strengths of a separation of powers system—representation, deliberation, and tyranny prevention—and updates them in the language of his multiplicity viewpoint and public sphere contestation. The comparison to the parliamentary systems is unfortunately mostly implicit, but the important (if uncomfortable) upshot is clear: if politics is messy and contested, a system that reflects that has certain virtues, and a system that suppresses it comes with costs. 

Congress’s Constitution beautifully portrays a legislature not only well-equipped to compete with the modern presidency but, indeed, already competing more forcefully than casual observation would reveal. It forces the reader to consider that perceived failings of legislative government in a modern separation of powers system are part illusory and part consequence of poor strategic choices, rather than simply systemic failure of an outmoded system. There is no guarantee of a congressional resurgence or even an attempt at one. And the centralizing temptation of Wilsonian government is ever-present.  But the tools of power are available for Congress to compete in the public sphere, and as the 115th Congress unfolds, the equilibrium has been disturbed enough that the dust has been shaken off many of them.

Matt Glassman (@MattGlassman312) is a Senior Fellow at the Government Affairs Institute.

Why We Do Not Need a More Powerful Presidency

MCGA Washington Monthly 09-07-2017.jpg

Casey Burgat and Kevin Kosar write in Washington Monthly:

"Once upon a time, we had a legislative branch that could help govern. The House and Senate had long-serving leaders at the top and heading the committees who knew how to cut deals and make policy. Competent committee bosses like Sen. Carl Levin (D-MI) and Sen. Tom Coburn (R-OK) conducted rigorous oversight of both the government and the private sector, and were aided by professional staff who treated public service as a calling.
"Sadly, a great deal of that professionalism vanished over the past three decades. Newt Gingrich and other fire-breathers adopted the mindset that the Congress that governs least governs best (“The Big  Lobotomy,” June 2014 and “A New Agenda for Political Reform,” March 2015). Congress spent much of the past two decades diminishing its capacity to govern. The legislature has reduced the time it spends in Washington, cut its committee staff, and shrunk the number of nonpartisan researchers who work for the Congressional Research Service and the Government Accountability Office. It also entirely defunded the Office of Technology Assessment just as the internet was beginning to emerge.
"Lately, Congress has woken up to the insanity it wrought, and it has begun to reinvest in itself a little bit. In the past year, Congress has voted to strengthen the investigatory powers of Inspectors General and the GAO. It increased its appropriation to CRS by $1 million this year, and voted to spend a little more money on House of Representatives staff last year. But, the old “cut government” madness has not yet subsided. Legislation introduced this year to refund the OTA failed. Worse, this summer a few House Freedom Caucus members tried to cut the staff at the Congressional Budget Office and outsource the scoring of legislation to private think-tanks...."

Read more at http://washingtonmonthly.com/2017/09/07/make-congress-great-again-2/

The Perils of Potent Congressional Leadership

 Source: https://jebkinnison.com/

Source: https://jebkinnison.com/

Matt Glassman, formerly of the Congressional Research Service and soon-to-be at the Government Affairs Institute, writes:

"[T]he Wilsonian model of congressional reform is a dream scenario for the modern presidency. In brief, Woodrow Wilson was the first of many to articulate a parliamentary-style fix for separation of powers system: strong disciplined congressional parties that treated Congress like an “arena” legislature, merely a location of lawmaking, rather than a transformative institution that developed, negotiated, and compromised legislation. Under this view, parties and executive branch leaders would take over those policy functions, while chamber rules would be streamlined and congressional leaders strengthened so that the existing veto points (committees, filibuster, etc.) would melt away and allow for party government. Versions of this argument have circulated in the U.S. consistently since Wilson’s time, and can even be heard today: the path forward from gridlock is to kill the filibuster and strengthen the congressional leaders so they can ram through party policies, ending the gridlock.
"Whatever the substantive merits, this would be a disaster for Congress the institution. Maybe in the days of strong party leaders and a weak presidency, this might have worked. But under the trappings of the modern presidency, there is simply no chance anyone but POTUS would be the party leader in charge of such a majority, and the necessary hollowing out and streamlining of Congress required to grease the skids for party government would simultaneously all but end executive branch oversight. The scary thing for Congress is that the Wilsonian model is not just popular among many observers and practitioners when their party has unified control—that’s understandable situational institutionalism—but also has proven generally popular, especially under divided government. Take Gingrich in 1995. There’s just an incredible lure to centralizing congressional power. Certainly it has some internal positives in being able to move policy and get a party to look discipline and effective as passing legislation. But in order to achieve it, the hallmarks of congressional capacity must be abolished. And thus the Gingrich attacks to weaken the committee chairs, set aside CBO, damage the seniority system, and gut committee staff.
"There’s undoubtedly an allure here. After all, if you could centralize Congress to an absurd degree, you could bring the President to his knees. Centralization could create a more powerful Congress. Imagine a Congress with literally all power centralized in the Speaker. Everyone in both chambers will vote for whatever the Speaker wants. That would effectively abolish the veto, giving the President no leverage in domestic legislation. The Speaker could redesign the bureaucracy at will, adjust all funding levels by fiat, and even remove the president at any time. But it’s a pipe dream: centralization can never practically achieve that, and on it’s way to trying, it ends up killing congressional capacity"....

Read more at http://www.mattglassman.com/?p=4147

ICYMI: Coequal or Co-opted? How Congress Can Restore Its Rightful Role in Government

Former Rep. Mickey Edwards (R-OK) writes at the Ripon Forum:

"The problem is long-standing and difficult: it often appears that many members of Congress have no clue as to what the Constitution requires of them.  Perhaps some of these approaches might over time help redress the balance between the branches and return us to something closer to the constitutional model the Founders envisioned.   The Constitution did not make the Congress the principal repository of federal authority because its authors thought the Congress would be infallible.  Rather, in a hybrid governmental system, a republic in form but a democracy in the selection of leaders, the Founders believed that by giving Congress the power to tax, spend, and go to war, the ultimate authority would rest with the people themselves.  When members of Congress surrender this authority, it is not themselves they are betraying.  It is the American people.  That is why the balance of powers must be restored...."

Read more at http://www.riponsociety.org/article/coequal-or-co-opted/

Only Congress Can Save Itself

James Wallner writes at the Library of Law & Liberty:

"Restoring the Constitution’s institutional foundation, though, requires that all branches take an active part. Congress, the executive, and the judiciary must each act to defend its institutional role against encroachments into its sphere by the others. For starters, Congress must reassert its Article I authority vis-à-vis the President and the courts. Lawmakers must summon the institutional will to employ their considerable powers in defense of their primary role in making policy. Armed with the determination to act, Congress can conduct rigorous oversight of the administration to ensure that the laws it wrote are being faithfully executed. It can also use its power of the purse to prohibit the President from doing things it opposes...."

Read more at http://www.libertylawsite.org/2017/06/01/constitutional-restoration-a-diy-project/

Congress in Search of Itself

From Law & Liberty:

Christopher DeMuth had an interesting take on the election and its impact on our national institutions. In an essay for the Wall Street Journal, he wrote of the present inability of the political branches of government to function in a manner compatible with a national public good. Analyzing that failure, he pointed to what he believes is “a central purpose of the American scheme of checks and balances,” namely:

to draw out the distinctive strengths of the two political branches, executive and the legislature, while containing their distinctive weaknesses. The scheme has not been working well of late. The consequences are unbridled executive growth into every cranny of commerce and society, and a bystander Congress. We have lapsed into autopilot government, rife with corruption and seemingly immune to incremental electoral correction.

These pathologies were “a significant cause of the Trumpian political earthquake.” Nonetheless, DeMuth insists that Trump’s victory and the Republicans’ sweep in November “set the stage for a constitutional revival.” Unlike many observers, he is optimistic about the possibility that this election can reanimate the proper working of the separation of powers.

DeMuth pins his hopes on Congress as the branch of government that is likely to reestablish its institutional and constitutional purpose. Its current political malady is that its members have more and more

acted out of loyalty to party rather than to Congress as an independent constitutional branch. They support or obstruct administration initiatives along partisan lines, and when in support they receive fundraising and bureaucratic favors from the president in return.

Thus has “our scheme of separated powers” been “supplanted by party solidarity between presidents and their congressional co-partisans.”

In other words, the institutions are held hostage by a partisanship that has undermined the separation of powers. DeMuth argues that now, however, we may see a revival of the original understanding of the separation of powers. Congress “is bound to recover and assert many of its long-neglected legislative prerogatives.”

The new President and Congress are “poised to revive constitutional practices in their own branches,” one of them being “results-oriented policy making—so-called transactional politics—an approximation of what the Founders meant by ‘deliberation.’” Another, checks and balances, is “vigorous policy competition between the executive branch and Congress.” Both have “fallen into disuse in what had seemed, until now, to be a continuing downward spiral of dysfunctional government.”

I hope DeMuth is right, and the separation of powers can once again become the primary defender of constitutional government. But, it will not be easy to accomplish.

No doubt Democrats and Republicans alike will defend the partisan interests of their offices as they have come to be understood and incorporated into the Washington establishment. But, the question remains, what establishes the ground of partisanship in Washington? Are those political offices still understood in terms of their institutional purpose? Does the Constitution impose any limits on the powers of either Congress or the presidency, or is partisanship in Washington now understood on a ground established by the modern administrative state?

Read more at http://www.libertylawsite.org/liberty-forum/congress-in-search-of-itself/