Reviving a Constitutional Congress

Christopher DeMuth
Distinguished Fellow, Hudson Institute

Christopher DeMuthChristopher DeMuth Sr. is a distinguished fellow at the Hudson Institute. He served as president of the American Enterprise Institute from 1986–2008. A graduate of Harvard College and the University of Chicago Law School, he worked as a staff assistant to President Richard Nixon in 1969–1970 and as an administrator in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief under President Ronald Reagan. From 1976–1980, he taught at the Harvard Kennedy School of Government and directed the Harvard Faculty Project on Regulation. He has also practiced law, and was for a time publisher and editor-in-chief of Regulation magazine.

Now Congress could, if it wanted, get back into the action and become a fully functioning participant in our constitutional apparatus, by adopting the following Five-Step Plan for congressional restoration.

First, Congress should retrieve the taxing, spending, and borrowing powers it has delegated to executive agencies, and place all agencies on annual appropriations regardless of their sources of revenues. This will require statutes signed by the President, so the statutes should be strictly matters of constitutional housekeeping, unencumbered by confrontations over divisive policies. For example, the Dodd-Frank Act’s Consumer Financial Protection Bureau is funded by a share of Federal Reserve profits, entirely free of congressional appropriations. Many congressional Republicans loathe this Bureau and would like to clip its wings, but for constitutional purposes Congress should simply put the Bureau on regular appropriations—initially at the level the Bureau has already set for itself. Similarly, Congress should retake responsibility for the federal debt, now coursing north of $18 trillion, rather than pretending that capping the debt without limiting spending is a good tactic for extracting policy concessions from President Obama. In these cases and others, the immediate need is not to parade conservative bona fides, but rather to be sure that Congress is playing with a full deck in policy contests to come.

Second, Congress should exercise its appropriations power. It doesn’t need a statute for this—it needs only to follow the procedures laid down in the Budget Act of 1974, passing individual appropriations bills for the President’s signature on a regular basis. It would then be in a position to assert Republican priorities on spending levels and to counter selected Obama initiatives with appropriations riders. It could do so with moderately aggressive bills the President might sign, or with highly aggressive ones he would certainly veto—in order to dramatize policy differences, but without shooting itself in the foot with a threatened government shutdown.

Third, Congress should relearn the arts of legislating, and thereby recover some of the lawmaking powers it has handed off to the regulatory agencies. Congressional Republicans say they want to replace Obamacare with a program that achieves its goals more completely, at less cost and with less coercion. And they profess to be unhappy with the ways that Dodd-Frank, the Clean Air Act, and many other statutes are being interpreted and enforced, and with the inanity of the tax code and other statutes enacted by earlier Congresses. But they cannot be good to their word without stepping up to their responsibility for collective choice. Constructing two legislative majorities for such major reforms is tedious, unglamorous, often frustrating business—but it is the source of Congress’s constitutional might. Doing so in one or two high-profile cases, in the face of a certain Obama veto, would be the most politically compelling means of contrasting their principles with the President’s. At the same time, there are many cases where the Republicans could attract significant Democratic support for legislation to displace specific unpopular regulations of the EPA, FDA, and financial regulatory agencies without rewriting their entire statutes.

Steps 1, 2, and 3 describe a constitutionally engaged Congress and offer a few ideas for how to get there. But Congress’s recent confusion over immigration appropriations suggests that we have a long way to go. The journey will require some reforms of Congress’s internal structure and procedures, and these are the subjects of Steps 4 and 5.

Fourth, Congress should reconstruct an internal policymaking hierarchy. In the late 1960s and early ’70s, Congress dismantled its seniority system and structure of strong committee chairmen. Both institutions were in disrepute because the seniors and chairmen were mostly Dixiecrats who had used their powers to forestall civil rights legislation. Following the success of that legislation, northern backbenchers passed reforms that made Congress much more democratic. But the executive branch is specialized and hierarchal along policy lines, and a Congress that can counterbalance it needs to be specialized and hierarchal also. Today’s partisan hierarchies are no substitute—they suppress checks and balances when Congress and the President are from the same party, and replace them with flailing ineffectiveness when the branches are in opposition. Congress needs to complement partisanship with a strong meritocracy that emphasizes mastery of policy fields, devotion to broad political principles (different of course for the two parties), and skill at articulation, debate, and the arts of legislative negotiation. The committee chair in this conception would be powerful and capable of decisive action, but untenured and accountable for achieving results.

Fifth, the Senate should cut back to near abolition the filibuster (which effectively requires 60 rather than 51 votes to pass a bill) and the hold (whereby individual members can prevent scheduled motions from reaching the floor). In times past these procedures were rare and limited to cases of exceptional minority and home-state opposition, because employing them was onerous and discouraged by Senate culture. Today they are frequent, costless, and routinely employed. Conservatives tend to favor the current practices, seeing them as slowing the pace of lawmaking and therefore of government growth. But this construct is out of date. The great engine of government growth is now executive lawmaking, punctuated by spasms of legislation (e.g., Obamacare, Dodd-Frank) that propel new executive exertions which Congress is then helpless to moderate. The filibuster and the hold have become mechanisms of legislative passivity in the face of executive activism, and of the regression of Congress into a collection of solo practitioners.

Congressional lawmaking cannot hope to keep pace with executive lawmaking unless the Senate becomes a majority-vote legislature. Congress as a whole would remain a super-majority institution, due to bicameralism and the different electoral bases of the two chambers; and Senate super-majorities could be reserved for some exceptional cases, such as confirmation of life-tenured judges, in addition to those such as treaty ratification specified in the Constitution. But for regular legislation it would cease to be the kind of minority-veto assembly described by Alexander Hamilton in Federalist 22: “Its situation must always savor of weakness, sometimes border on anarchy.”