In an earlier post, I suggested that the best way to improve Congress is not to yearn for the “good ol’ days” but to to imagine the legislature we want and then develop a realistic road map to improvement. This post takes the next step: sketching in broad strokes what we want — and should expect — from the first branch.
1) Pass laws that address the nation’s problems
Let’s start with the obvious: Our constitutional system gives Congress responsibility to improve the general welfare across a range of issues. This expectation has grown over time as both the national economy and the federal government became more complex.
The first challenge for Congress is deciding which problems need fixing. Agenda setting is the essence of politics, so it’s unlikely there is some purely objective formula for deciding which problems need fixing. But we can reasonably expect that Congress will use objective statistics and real science to identify problems.
One practice Congress has developed to keep its focus on major policy problems is periodic reauthorization: From education to farms to civil rights, major laws have built-in self-destruct clauses (often around five years) that force Congress to revisit and renegotiate its decisions. These reauthorizations push issues onto the congressional agenda.
But this is not a panacea: There are major policy areas without reauthorization deadlines to force action, such as immigration and banking. Congress often grants itself extensions on its deadlines, such as the six-year breakdown in federal highway funding from 2009 to 2015 marked by repeated short-term continuations of the 2005 law.
And if a crisis emerges between authorization deadlines, there is no guarantee that Congress will react. This has been the fate of the Voting Rights Act of 2006, which extended the preclearance requirements for states and localities until 2031. There is now no deadline forcing Congress to respond to the Supreme Court’s decision in Shelby County v. Holder, which struck down the formula used to identify which jurisdictions were subject to preclearance.
The second task is to design legislation that effectively solves a problem. This requires actual policy knowledge, but also an understanding of how people will react to a policy. Laws that are intended to help people purchase a good (education, homes) may simply allow sellers to charge higher prices. Citizens may respond to laws prohibiting or taxing some practice (say, drinking alcohol) by developing a black market or using a substitute good.
To this end, many congressional experts have advocated increasing the number of professional staffers in Congress. Congress will struggle to maintain its autonomy from the executive branch and the “swamp” of Washington lobbyists and interest groups unless it has policy experts staffing member offices, committees, and auxiliary agencies like the Congressional Research Service.
A third challenge for Congress is keeping up with the demand for new policies. During the early years of Congress, this was not difficult: Legislators had ample time to discuss the narrow set of problems facing the federal government while still producing legislation on time. However, as the range of issues before the federal government and legislators’ appetite for floor speeches increased over time, both chambers of Congress began to hold longer sessions and — particularly in the House — to streamline floor decision-making so the chamber made adequate progress on its pending business.
Decades later, chamber decision-making is still a possible constraint on Congress. At present, Congress could spend more time in the Capitol if necessary. Most weeks, both chambers only hold votes from Tuesday to Thursday, so lack of time per se does not seem to be a constraint on either chamber. The Senate, however, faces time shortages due to its cloture rule. Outside actors often focus on the 60-vote threshold for limiting debate, but the time delays imposed by the rule also slow down the Senate significantly.
2) Represent the American people
Congress’s second core function is to represent the people of the United States. Generally, this means that individual legislators should speak for, and act on behalf of, their constituents. And collectively, Congress should act like an enlightened microcosm of the general public, so that all segments, every industry, each locality has active agents explaining and promoting its interests.
One yardstick for representation is whether the membership of Congress “looks” like America in politically relevant ways, such as race and ethnicity, gender, profession, religion, and wealth. If members of Congress explicitly advocate for people who are “like them,” then Congress will better represent all citizens if its membership is a representative sample of the population. More subtly, legislators’ perceptions of policy problems and solutions will be influenced by their life experiences and social interactions.
Do legislators talk to their all constituents to learn about their lives and policy needs? Or do they focus on subsets that are especially relevant to their reelections, such as party members, interest group and community leaders, and donors? The narrower the set of constituents who communicate with a legislator and his/her staff, the harder it is for the member of Congress to represent them well. Furthermore, as communication narrows, constituents may be less likely to feel represented.
Last, but perhaps most important, legislators should represent the policy interests of their constituents. This does not necessarily mean blind obedience to polls, but it does mean identifying and advancing policies that improve the lives of their voters. To the extent that party loyalty or out-of-district donors sway legislators to subvert their own constituents’ interests, legislators represent poorly.
This formulation emphasizes local representation (senator-state, representative-district) because that is how our electoral system is set up. Alternatively, we might expect that Congress as a whole will represent the national interest. One might hope that the aggregation of well-represented local interests will advance the common good, but our system is not designed to ensure this is the case.
3) Preserving the first branch
The authors of our Constitution expected Congress to be the preeminent branch of the federal government, which is why it is the first and longest article. To maintain this status, it needs to do two things well: enact policies to solve national problems in a timely fashion (discussed above) and maintain autonomy from the executive and judicial branches.
Checking the executive branch
Obviously, oversight is a critical component of Congress’s job. This includes regular hearings to query administrators about their agencies and investigations of possible wrongdoing. Witnesses should be compelled to provide relevant information without stonewalling. And, ideally, congressional oversight would not vary with the partisan affiliation of the president because legislators share an interest in the integrity of the executive branch.
When writing laws, Congress necessarily delegates some discretion to the executive branch over how to interpret and enforce laws. In doing so, Congress should try to minimize delegation and not use it as a tactic to offload difficult political choices to another branch. And Congress should readily correct agency actions as necessary.
Checking the judicial branch
One of the Supreme Court’s advantage is judicial review, the power to make a final decision on the constitutionality of congressional laws. The other is congressional lethargy; like agencies, the courts have latitude to interpret statutes subject to congressional correction.
Congress has multiple options to respond to court encroachment, including constitutional amendments, new statutes, review of appointments, and regulating court structure and jurisdiction. Appointments receive a great deal of attention in the Senate, but it is worth noting that Congress can also respond to unfavorable decisions by removing issues from the purview of the courts.