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Will Discontent in Congress Spark Change?

Will Discontent in Congress Spark Change?

(Editor’s Note: This piece is coauthored by Philip A. Wallach and first appeared in Real Clear Policy on August 3, 2018.)

Congress doesn’t really legislate. Instead, its members assume the executive branch and federal courts will decide most issues. When Congress does manage to act, it’s because party leaders play a decisive role in both crafting legislation and shepherding it through the process. Members with short memories have difficulty imagining that the House and Senate could ever work without strict leadership control.  

Then again, nobody really believes that Congress is working as designed under the leadership-centric configuration we have now. Members are frustrated by the diminished role they now play and are embarrassed by their institution’s dependence on ginned-up crises to act. 

And so the House and Senate have been operating on a knife-edge in recent years. Members depend on the structure their leaders provide and revile it at the same time. They believe their victory in the next election absolutely depends on their fellow partisans holding the line. Even so, they wonder what the point of winning is if the cost of maintaining their coalition is the avoidance of the issues they campaigned to address. 

While members have continued to lean on their leaders, the resulting equilibrium is increasingly precarious. Congress is incapable of sustaining a stagnant status quo for long when its members, and their constituents, are dissatisfied. Indeed, past moments where members have effected institutional change illuminate the present potential for reform. 

For example, in 1959 House liberals created the Democratic Study Group to serve as a counterweight to conservative southern Democratic committee chairmen who controlled so much of what went on in the House. Similarly, liberal House Republicans formed the Wednesday Group in 1963 to provide a forum for like-minded members to discuss issues outside of the regular party meetings. And disagreement over both policy and legislative strategy prompted House conservatives to form the Republican Study Committee in 1973. 

Each of these groups was formed when the formal committee system and party organizations no longer reliably facilitated members’ pursuit of their goals — in both the policy and electoral arenas. Judging that the committee system put them at a disadvantage, members sought to devise workable alternatives.

Members who feel ill-served by the current Speaker-centric House have likewise pushed for a new model. In 2015, a few dozen conservatives, led by Jim Jordan (R-OH) and Mark Meadows (R-NC), formed the Freedom Caucus. The group draws its power from its ability to negotiate on behalf of a conservative bloc, and to back up words with uncompromising actions, even withholding votes on routine procedural questions to extract policy concessions from their leaders. When working through the established system has not satisfied the group’s members, they have shown a willingness to rock the boat — as when Meadows moved to depose Speaker John Boehner (R-OH) thus setting in motion a series of events that led directly to his resignation. A similar fear may have played a role in prompting Boehner’s successor, Paul Ryan (R-WI), to announce that he was retiring at the end of this year. 

Other members have followed in the Freedom Caucus’s footsteps. Moderate Republicans threatened to oppose the health-care bill in early 2017 unless changes were made to accommodate their concerns. And Republicans frustrated by the House’s inability to act on immigration tried to circumvent leadership and force the issue onto the agenda themselves by gathering signatures for a discharge petition. While their effort was ultimately unsuccessful, it nevertheless forced Republican leaders to schedule related legislation for floor action.

This all suggests that the House is currently transitioning to a new mode of decision-making. As in the past, this change is being prompted by a heterogeneous and fragmented membership, not highly cohesive partisans in a polarized chamber. That is, divisions among Republicans, coupled with the inability of a leadership-driven process to accommodate members’ legislative ambitions, have made change all but inevitable. The latest failed attempt to paper over differences was installing Ryan, a popular member, in the Speaker’s chair. With his retirement, it seems likely that significant structural changes will come soon. 

In the Senate, the impetus for change is much less clear. There, party leaders have never been more powerful than they are today. There are no obvious threats on the horizon to either the leadership of Mitch McConnell (R-KY) or that of Chuck Schumer (D-NY). This is somewhat puzzling, since individual senators have more power to act independently of their party, and the dynamic playing out in the House has certainly manifested itself in the Senate in the past.

Senators changed the institution’s internal power relations in the 1960s so they could better achieve their goals. In 1959, a number of liberal freshman Democrats refused to defer to Majority Leader Lyndon Johnson (D-TX) and the Senate’s committee chairmen. This was not because of some theoretical sense of how the Senate should work. Instead, as in the House, these members were motivated to change the Senate by new issues, like civil rights, that animated their constituents but divided their party. To circumvent the old system’s controls, they turned to the permissive and relatively more hospitable environment of the Senate floor to achieve their goals independent of their leadership and party. In doing so, they were the catalyst behind broader changes in how the Senate operates that played out over the following decade. They made the Senate much more unpredictable, but in so doing created the foundation for one of the most explosive periods of lawmaking in the Senate’s history.

Why are senators today so apparently unwilling to pursue a similar regime change? Perhaps they just have different goals. Members today are obsessed with maintaining electoral control and convinced that they can only do so if their party carefully crafts a national message. This fixation arguably makes sense if Congress is seen as a subordinate branch: If the real work is done in the executive and judicial branches, then the legislature’s most important function is confirming or blocking nominees. Senators may thus be more or less satisfied with the role they are currently playing, even if their leaders often effectively block them from doing meaningful constructive work on issues their constituents see as urgent.

McConnell and Schumer, at least, seem only too happy to cultivate this understanding of the Senate’s role. Consider McConnell’s reaction to Barack Obama’s nomination of Merrick Garland to the Supreme Court. He did not contend that Garland was unqualified, nor that Senators had an absolute constitutional right to block a president’s nominations. Instead, the majority leader declared that the Senate would “let the American people decide” in the 2016 election. This was a perfect encapsulation of the idea that everything ought to ride on keeping the party unified in pursuit of reelection — even when the nomination of a party outsider for the presidency showed just how disunited the coalition actually was. 

Did the strategy succeed? Well, Republicans did win the White House, and the focus on judicial nominations was an important part of their electoral strategy. But the Senate’s record thus far in the 115th Congress shows just how self-limiting such success can be. Promises that the party would finally deliver a long string of policy victories once liberated from Obama’s veto proved hollow. 

In some cases, such as health care, Republicans did make serious attempts to enact policy and but lacked the needed support. In others, however, such as immigration, leaders have mostly avoided allowing a real open-ended debate that might produce a broad-based compromise. They have argued — quite plausibly — that doing so would expose deep rifts within their own coalition, thereby jeopardizing future electoral success. Ironically, repeated application of this logic leaves Republicans with a meager legislative record to run on in the mid-terms. They are left to say, rather pathetically, that they need just one more round of electoral victories for the party to cement control and finally start cranking out the hits. 

If the 2018 elections show that the strategy of herding behind leadership as a means to electoral gains is self-defeating, we may begin to see senators follow their colleagues in the House and develop new tools to advance the issues they care about — as they have done in the past. We may also see members increasingly oppose legislation they believe is against their constituents’ interests or principles, even if it is supported by their leaders. 

Or we may simply see more of the same, but from the other side; perhaps Democrats will be eager to see whether Schumer can follow the McConnell playbook to achieve the same result in 2020.

That would be unfortunate. Ultimately, members yearn for the ability to shape our nation’s political life. As the burbling discontent in the House shows, their ambitions are likely to lead to a demand for a system that facilitates meaningful legislative participation among rank-and-file members — even if it diminishes the sense of majority party control. Even in the Senate, the refrain of “But think of the nominees!” can only win out for so long. It is only a matter of time before Congress changes once again — and for the better. 

Confirmation Wars and Constitutional Authority (Part I)

Confirmation Wars and Constitutional Authority (Part I)

Party Polarization Is an Illusion

Party Polarization Is an Illusion