The Republicans’ Congress Problem Author: Christopher DeMuth Sr. January 13, 2015 4:00 AM The Republicans’ victories in the November congressional elections have gotten them into a serious fix. For they have acquired leadership of a branch of government that is strong in theory and in public reputation but has grown weak in practice as a result of decades of delegation and disuse of its constitutional powers. And the Republican 114th Congress will be facing an executive branch that has accumulated tremendous powers to make policy on its own and is now under the management of a leftist president who will continue to exercise those powers aggressively. The Republicans may nonetheless win some significant policy victories. On two of their top priorities, Obamacare and the EPA’s efforts to regulate greenhouse gases and carbon-based energy, the action has shifted to the courts and the states, whose constitutional powers remain relatively robust. Several legal challenges to the administration’s far-fetched applications of the Affordable Care Act and Clean Air Act will be decided in 2015. And both programs depend on the cooperation of at least a substantial number of states, which have become increasingly Republican and leery of federal regimentation. Reversals could oblige President Obama to seek Congress’s help in rescuing two of his most cherished legacies, opening the door to conservative reforms. Yet the Congress problem is serious, both for the Republicans’ immediate political ambitions and for the good health of our constitutional order. Shortly before the elections I wrote an essay, published by The Weekly Standard, that was addressed to the looming political problem but inspired by earlier writings on the constitutional problem (here and here). I had documented Congress’s wholesale delegation of taxing, spending, borrowing, and lawmaking powers to the executive branch, and viewed with alarm the growing concentration of power in a single branch and a single person. It occurred to me that a period of fully divided government, with one party controlling Congress and the other the White House, might provide an opening for institutional revival. To paraphrase James Madison in Federalist 51, the partisan interests of the congressional majority might be connected to the constitutional rights of the place. When the prospect of partisan division appeared on the horizon, I proposed a series of steps to make such a connection during a Republican-led 114th Congress. I will review a few of these proposals in light of subsequent developments in a moment, but first I need to acknowledge and emphasize a fundamental difficulty lurking behind the congressional power deficit. The modern age has worn down the representative legislature. The idea that we should be governed by elected representatives of local districts, who gather to make law by hammering out compromises among differing interests and values, began as an embodiment of republican aspirations against the prerogatives of kings and autocrats. But that was a very long time ago, when politics and government were naturally constrained by what economists call high transactions costs. When travel and communications were slow and costly, legislative gatherings were crucial occasions to learn of developments in other regions, to take the measure of far-flung political leaders, friend and foe, and to forge alliances and make compromises far from the gaze of hometown electorates. When political organizing was costly, interest groups were few and broad-based, and established civic and political elites, including legislative elites, held sway. When law enforcement and program administration were costly, the executive could perforce do only a few things. In that world, representative lawmaking was not beanbag but it was manageable, and central to realized democracy. Modern affluence and high technology have disrupted all of those functions. Legislators no longer need to schlep to Washington to find out what is happening around the country, to form positions on political questions, or to plot and dicker with their peers; all of this can be done instantly and at much lower cost through the media and direct communications. We now have thousands of well-heeled, well-organized lobbies devoted to every conceivable cause, whose abilities to monitor, reward, and sanction individual legislators have drastically reduced the space for deliberation and compromise. Relentless pressures for additional government interventions have overwhelmed legislative capacities and the disciplines of the committee system. Falling costs of administration have magnified the inherent advantages of executive action — hierarchy, specialization, and the ability to multiply functions essentially without limit. The basic congressional adaptation to these developments has been to transfer policymaking to executive agencies. Congress sets broad, generally uncontroversial goals (clean air, safe products, fair finance) and delegates authority for achieving them to agencies — which make the real political choices through rulemaking and other regulatory techniques. Legislators adopt a new business model: In place of the give-and-take of representative lawmaking, they shift to influencing executive decisions as individual, publicly licensed activists on behalf of national as well as state and district constituencies. The committee structure is supplanted by centralized party leadership devoted to supporting or opposing the actions of the administration. Regular order, especially in budgeting, taxing, and appropriating, collapses under the weight of a thousand worthy and unworthy causes clamoring for assistance. Although these changes are largely the result of apolitical (and on the whole quite wonderful) economic and technological developments, their consequences are not apolitical: They produce a legislature that is institutionally biased toward continuous government growth, and much better equipped for expanding than for restraining the public sector.
Posted on: Thu, 15 Jan 2015 21:19:23 +0000
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