Why Congress Refuses to Do Its Job
The House and Senate can't effectively govern the country. Or they won't? Either way, it's a national crisis.
Welcome back to What Went Wrong?, a newsletter about the failures, inefficiencies, and screw-ups that define 21st-century American life, written by Harry Cheadle. This is part of a series of stories about why the United States government isn’t looking so hot. You can read the last installment, about the Supreme Court, here. Photo of the US Capitol by Flickr user angela n.
In a parallel universe where a few protons have tumbled a different way, Congress has responded admirably to the economic catastrophe wrought by the pandemic. Though riven by disagreements in regular times, Republicans and Democrats engaged in a series of private but intense negotiations and found a compromise that left neither side perfectly pleased but secured enough votes to pass both the House and the Senate. The resulting bill, embraced publicly by leaders of both parties and President Mark Cuban (remember: parallel universe), provided some measure of relief to out-of-work Americans, businesses, and state and local governments. It cost a lot in deficit spending, but Republicans conceded that the times called for aggressive action and needed to look good during an election year. It didn’t do as much for as many people as Democrats wanted, but they were willing to take what they could get.
That it’s borderline delusional to imagine such a thing happening in our own universe shows you how poorly Congress operates as a governing body. Instead of the above scenario, what actually happened was this: As the expanded unemployment benefits included in March’s CARES Act approached their July 31 expiration date, Democrats in the House passed a relief bill that had zero chance of being considered by the Senate, making it nothing more than a bit of public negotiating theater. Senate Republicans, led by Mitch McConnell, seemed to be open to the idea of a second relief bill, but couldn’t agree with one another or the White House about what should be in that bill. When the GOP finally did put forward its HEALS Act, on July 27, just a few days before unemployment payments were scheduled to end, it didn’t include any assistance for desperately cash-strapped state and local governments. Predictably, it was a non-starter for Democrats, and the deadline for action came and went without any action being taken.
Then last week, Donald Trump signed an executive order to do what Congress wouldn’t and declared that he’d use his powers to boost unemployment payments by $400 a week, of which states would cover $100. One problem: It’s not at all clear that states can afford to do that. Another problem: It’s even less clear that Trump can legally order such an allocation of money, since Congress is the branch of government imbued by the Constitution with the “power of the purse.”
Many experts have said that Trump’s action was unconstitutional, but I think there’s actually a case to be made for him trying to do something. (Though he could have had a greater impact if he had focused on protecting renters from eviction.) As it has so often done, Congress has abdicated its responsibility to run the country—legislators let public benefits expire in the middle of a pandemic, causing unnecessary widespread misery because they couldn’t come to a compromise. Trump is only doing what Barack Obama did before him in trying to work around Congress’s ineptness, and if his efforts come off as clumsy or ineffectual that shouldn’t obscure the true failure here: Congress is incapable of doing the job it’s supposed to be doing.
A depiction of Preston Brooks’s famous 1856 attack on Charles Sumner on the Senate floor.
The United States Has a Weird System of Government
If you had to explain what “democracy” is to a child, you would probably tell them that it’s a system where the people vote on who gets to run the government, those leaders enact the policies they campaigned on, and if people don’t like how things turned out they can vote for someone else. (If the child is a pedantic jerk, they will tell you this is actually a “republic,” not a “democracy.”) A lot of nations have parliamentary systems where this is more or less how it works: Whoever wins control of the parliament (or whatever coalition emerges) runs the country for a while, and if they screw up someone else gets a chance.
But the US’s system of government is older and cluttered with more checks and balances. The writers of the Constitution worried about giving majorities too much power and therefore divided up responsibilities among different branches and components of government, which are elected at different times and through different mechanisms (originally, US senators were not popularly elected but chosen by their states’ legislatures). A party doesn’t just need to win the presidency and a majority of House seats in order to govern, it needs to win a Senate majority, and thanks to staggered elections that can take years. Very rarely does a party actually have enough power to implement its policies, even when a majority of voters support it. The result is that governing requires consensus, not just between both chambers of Congress and the president, but between the two major political parties.
The Founding Fathers didn’t anticipate how powerful political parties would become, but somewhat miraculously, for a while this system seemed pretty stable. Consensus-building was difficult, but possible—the gold standard in the modern era everyone always points to is the 1983 deal on Social Security struck between Republican President Ronald Reagan and Democratic House Speaker Tip O'Neill.
But in the past decade and a half, deadlock between the parties has become the norm, as illustrated by the failure of Congress to come to an agreement on COVID-19 relief, a far more urgent priority than Social Security reform was in the 80s. To whatever extent the system used to work, it pretty clearly no longer does. There’s a reason for that:
Congress Is Too Partisan for Its Own Good
In his recent book Why We’re Polarized, Ezra Klein runs through what has changed in Congress since the mid-20th century, when bipartisan consensus was far more common than it is now:
Democrats used to dominate Congress, which as Klein points out was partly due to Democrats in the South implementing a heinous, racist policy of one-party rule in that region. Republicans therefore had to compromise with Democrats if they wanted to get anything done; they had no prospects of actually winning power and implementing their policies. But now, with Congress up for grabs nearly every election, there’s little incentive to build consensus—why bother compromising with your opponents when you’re convinced that you can wait a couple years and vanquish them in the next election?
The parties have also gotten a lot more ideologically pure. When Reagan and O’Neill made that Social Security deal, O’Neill’s caucus included a lot of conservative Democrats who were inclined to work with the Republican president. The “boll weevils,” as those Democrats were known, have since gone extinct, and cross-party coalitions are extremely rare.
On a similar note, elected officials once were very concerned with how legislation would benefit their individual states; citizens in general had more pride in their states. Now instead of considering how a piece of legislation will affect their states, members of Congress generally follow the lead of their national parties.
Compromises were once greased along by “earmarks,” line items that would benefit a lawmaker’s district or state by providing money for some needed project like a bridge. That type of transactional politics is now regarded as dirty. In 2009, when Democratic Senator Ben Nelson got an extra helping of Medicaid funding in exchange for his vote on the Affordable Care Act, it was derided as the “Cornhusker Kickback” and he was persuaded to drop his demand. Since then, earmarks have been abolished altogether.
There are other obstacles to legislation. Leaders in one chamber of Congress can refuse to bring a bill passed in the other chamber to a vote, even if that measure would probably get a majority of votes. Most bills now require a supermajority of 60 senators (a quirk the Founders did not write into the Constitution). Even when some legislators are looking to compromise, their efforts often flounder.
One example I come back to a lot is the 2013 immigration reform bill. At the time, many Republicans had concluded, in the wake of Mitt Romney’s defeat the year before, that they needed to appeal to Hispanic voters. Four prominent GOP senators joined a bipartisan “Gang of Eight” that supported a deal that would provide a pathway to citizenship for millions of undocumented immigrants in exchange for enhanced security at the border. It eventually passed the Senate 68-32, with 14 Republicans voting for it. Conservative commentators, even those on Fox News, made noises about how important the issue was. But Republican House Speaker John Boehner, who publicly supported reform, wouldn’t bring the Senate bill up for a vote in his chamber. Instead House Democrats and Republicans tried to work out their own deal, an effort that fell apart. Then it became clear that many conservative voters rejected any kind of “amnesty” for undocumented people. These voters were likely in the minority, and had Boehner brought the bill to the floor it likely would have passed—but Boehner refused to break an informal rule that no bill get a full House vote without majority support among the majority party, in this case the GOP.
In the absence of congressional action, Barack Obama tried to enact what reforms he could, signing executive orders that protected some young undocumented people from deportation, along with the undocumented parents of very young US citizens. (The latter measure was effectively struck down after a 4-4 Supreme Court ruling in 2016.) Obama had entered office skeptical of executive action, but on immigration and a bunch of other issues, he ended up stepping in and doing what Congress refused to.
Congress Has Power, but Won’t Use It
A president unilaterally making policy on important issues like immigration clearly isn’t what the framers of the Constitution had in mind. But they also thought that Congress, not the president, should have the power to declare war, another duty that legislators have largely abandoned. Congress never declared war during the Vietnam War, making the conflict arguably unconstitutional; today the US military operates in a number of countries based vaguely on a 19-year-old authorization of military force (AUMF) passed after 9/11.
Legislators could revoke that AUMF and demand Trump come to Congress to get permission to do things like launch missiles at Syria, but they haven’t done so. In fact, Congress has seemed downright afraid to use its powers of war: In 2013, when Obama asked for a vote on a potential strike against Syria, senators breathed a sigh of relief when an agreement with Russia meant that the strike was off the table—they wouldn’t have to take a tough and potentially unpopular vote.
We should have some sympathy for these beleaguered members of Congress: Their voters demand ideological purity, the Constitution demands compromise, and it’s almost impossible to pass any legislation. It’s much easier to do nothing but block the other party’s priorities and let the president and courts set policy. Many of the most consequential changes in American life in the past two decades, from the legalization of gay marriage to shifting degrees of protections for undocumented immigrants to the enshrinement of gun ownership as a fundamental individual right, have come thanks to some combination of presidential decrees and Supreme Court rulings, not legislation from Congress.
The Founding Fathers might have imagined that enough members of Congress would have enough pride in their branch of government to resist overt challengers to their authority, but there has been little appetite for inter-branch conflict lately. If a president does something that tramples on congressional authority, legislators from that president’s party generally support it anyway. Though Republican Senator Ben Sasse called Trump’s recent order on unemployment “unconstitutional slop,” that sort of reaction was not widespread among the GOP; Senate Majority Leader Mitch McConnell said, “I support President Trump exploring his options to get unemployment benefits and other relief to the people who need them the most.”
Where That Leaves Us
These days Congress only acts when absolutely forced to by a crisis. In 2008, it took two tries for emergency relief legislation to pass amid the worst financial collapse in a generation. It required an even worse catastrophe for the CARES Act to pass this March. Given that history, it’s not surprising that Democrats rejected a proposal to extend unemployment benefits last week—they know that they only get one shot at legislation that would bail out states facing severe revenue shortfalls, and the fact that Republicans concede unemployment extension is necessary is leverage they can theoretically use. (Left-wing partisans have been demanding Democrats play more hardball for years.)
But even in moments when action is desperately needed, it’s hard to get Congress to do anything at all. There are too many barriers to consensus, too many ways for one faction to jam up the works. And the US electoral system provides no one with a clear democratic mandate: Trump and the Republicans won in 2016, the Democrats took back the House in the 2018 midterms, and today neither party can actually govern the country. They also can’t find a path to compromise.
One simple solution that is rarely considered because it is so extreme is to simply abolish Congress. The idea makes a certain kind of sense: Legislators have largely refused to do the job given to them by the Constitution and mostly just flap around on the sidelines. “Without Congress, you might ask, wouldn’t the president have completely free rein to act on his worst authoritarian impulses?” Washington Post columnist Catherine Rampell wrote in 2019. “But then again you might also ask: How would that be different from the situation we have now?”
If we have to have a Congress, legislators should obviously rediscover the lost art of compromise or whatever. But it’s not at all clear to me that effective compromise isn’t simply impossible under the current set of incentives. The parties have become more ideological, more partisan, than the system was designed to accommodate. With things being as they are, I’m not sure why Trump shouldn’t try to get money to unemployed people by unconstitutional means. What else can a president do when Congress won’t do its job?
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