Hello, World. Again.

August 22, 2017

Well, it’s been a long time since I’ve been at the helm of this ship. Here we go. Wheeeeeee….

I’ve been thinking a lot lately about congressional organization and capacity.  You can’t really swing a dead cat in Washington right now without hitting someone who’s writing about the decreased capacity of Congress or their plans to fix it. I also just finished reading Josh Chafetz’s magisterial new book, Congress’s Constitution, and he devotes an entire chapter to how internal chamber rules within Congress affect the external power of Congress in separation of powers battles with the President and the Courts.  And, of course, it’s also my job to write about this stuff.

But mostly I’ve been pondering the current state of affairs, in that we’ve found ourselves in a pretty unprecedented institutional situation right now: strongly polarized parties in combination with a strong institutional presidency. Now, we’ve certainly had polarized parties before. And through much of the 19th century we had polarized parties in combination with a weak institutional presidency. But in the age of the modern, powerful presidency—say, post-1939, after the EOP is created and the President has become the head of a large executive branch—we really haven’t had the sort of party polarization that characterized much of the 19th century. At least not until the most immediate past.

And this has all sorts of implications. Here’s three that I’ve been thinking about:

First, the institutional presidency seems relatively resilient to perceptions of failure or aggrandizement. And I think this is because presidential failure and aggrandizement tends to attach to the individual rather than the institution. I can so clearly remember in 2008 how many liberals were aghast at the state of affairs in the Bush administration—the wars, the torture, the rendition, the Patriot Act, and so on—but refused to see it as problem of the presidency and instead were convinced that it was a problem of the president. The thinking was that if they could just get the right man into the office, everything would be fine. And it was and it wasn’t. Obama certainly made them feel better about the presidency but, on balance, did precious little to hem in the national security state that had them so worried under Bush. It’s not hard to draw up a parallel both going into the 2016 election (for Republicans) and looking forward now for many liberals and a fair number of Republicans. If we can just get Trump out of office and [favorite candidate X] into it, everything will be fine.

Congress doesn’t really attach that way. Start with the Fenno paradox. Despite the absurdly low ratings of the institution, most people like their Congressman! When people say Congress is dysfunctional, they typically aren’t thinking that they have agency to replace a Member and fix it. They really mean Congress—the institution—is dysfunctional. The public is only dimly aware of Members beyond their own, but even in the case where leaders are treated as individual failures by the public, the solution rarely becomes a personnel change. It’s true that many people believe that a takeover of Congress by their party would improve it’s output, but this is almost always at the substantive policy level. I don’t know that I’ve ever heard someone say if we could just get [my preferred politician] into the Speaker’s office, congressional dysfunction will melt away.

And this imbalance between executive branch dysfunction being pinned on the person and congressional function being pinned on the institution has serious ramifications. If you take seriously—as I do—the idea of a public sphere of battle between the branches (as articulated by Chafetz and some others), this works squarely against Congress.  If the institutional balance of power hangs at least partially on the ability of the branches to muster their resources to affect public opinion about the proper division of power between the executive and Congress, the personification of the presidency and the dehumnaization of Congress in the mind of citizens will often lead to (1) hopelessness about Congressional power; and (2) continued belief that executive branch problems are individual flaws of the president; and (3) giving power to the presidency is ok so long as we personally find him competent/likeable/our guy.

Second, the 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.

The alternative mode of congressional reform is the obvious one: reinvest in congressional capacity to reshape the balance of power between the branches. Add committee staff and conduct more oversight; distribute power to create more veto points for the executive to navigate. Beef up non-partisan institutions to reduce reliance on executive and executive-allied information. Equip individual Members with more resources so they can promote homegrown ideas in the public sphere. Pay staff better to attract experts who can give serious scrutiny to external proposals, be it from the White House or from downtown. In other words, insulate Congress such that it can self-generate quality policy and reduce its reliance on the president. In any case, don’t succumb to the idea that a gridlocked policy process in Congress can only be solved by a hollowed-out Congress. It’s a trap.

Finally, I’d note we actually have a third dimension variable here right now with Trump. It’s not just polarized parties in the age of the strong presidency. It’s also polarized parties in the age of the strong presidency with a very, very weak president. I continue to believe that the Neustadt interpretation of the Trump presidency is the correct one: this is a very weak POTUS, who will have little ability (relative to other presidents) to achieve his policy goals, or to legitimate the actions does achieve. His professional reputation is terrible; no one in his party is scared to speak out against him, let alone go on TV and defend him carte blance. He has few friends on the Hill; if they aren’t quite rooting for him to fail, they aren’t exactly lending a hand. The White House is a mess; he’s fired a laundry-list of senior staffers with no sign of control coming, he has seemingly no control over the bureaucracy as a policy process or even just to prevent leaks. His skill set seems totally wrong for the job. And in a role where one needs hundreds of people to help you if only because they think it is in their best interest, more people are walking away than stepping up. And his public approval is in the garbage. This isn’t a recipe for significant power in Washington or policy achievements; this is a recipe for a complete failed presidency.

But I’m really not sure what this means for the presidency. I certainly think no one will blame the presidency for Trump’s shortcomings (see my first point above today); any executive failures in this administration are going to publicly attach to Trump for sure. The Democrats will undoubtedly make competence an issue in any election involving Trump, and don’t be surprised if there’s a Republican primary challenger to Trump—particularly a very conservative one—making much the same argument. But the larger question is really twofold: first, will the Trump administration makes such a dog’s breakfast of governance that a significant portion of the population comes to view it as not just a question of getting the right man in office, but also as a question of rearranging congressional/executive power because it has become apparent it’s too risky to put so much power in the executive. You can see the strands of this in congressional proposals to limit the use of the nuclear arsenal. In my mind, those aren’t really about Trump; those are about the realization, via Trump, that the presidency should have that power at it’s unilateral disposal.

Second, absent that sort of public clamor, is it possible Congress simply is forced to step up and assert power in the vacuum created by an incompetent White House? This goes less to hard statutory powers like nuclear weapons use and more to softer powers like control of the agenda. You see some signs of this in the health care debacle from last month; with the president MIA, the driving forces of the legislation were left to come from Congress. And they did and they didn’t. But I think in this instance, Congress was still a step behind the game; it was really the proof-of-concept that Trump wasn’t going to be able to lead a serious policy push, and would at best be a neutral factor, if not a negative one. And so it remains to be seen whether Congress steps up in the absence of the White House serving as driving and coordinating principle for policy. Maybe the White House will get its act together (I suspect they will do better on tax than health care), but I still find it hard to imagine POTUS himself being a driving policy figure in private or public. And maybe even if Congress did step up to a new sort of policy leadership role, it would only be temporarily. Unlike the nuclear weapons usage possibility, it’s entirely reasonable to think things might revert under a new presidency. But we don’t know; only time will tell.

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