Each Wednesday we feature an article from Capital Commentary, a weekly current affairs publication by the Center for Public Justice. To read more, visit http://www.capitalcommentary.org.
Labor Day weekend marks many transitions: the official (if not technical) end of summer, the return to school for children and teachers, a new term for college students and professors, and the end of August recess for members of Congress.
Many outside of Capitol Hill are unfamiliar with the rhythms of legislative life. As August nears each year, the United States Senate and House of Representatives send their members back to their home states and districts for a mix of work and rest. Much of the recess is time for legislators to reconnect with constituents through meetings, community events, site visits, and interaction with local leaders and activists. By the end of August recess, members of Congress will have heard a lot from their constituents, so local concerns will be fresh in their minds. When the two chambers reconvene after Labor Day, they will resume the Washington routines of crafting and debating legislation.
As members of Congress return to Washington, it’s a good time to reflect on the purpose and aims of this essential institution. What ideas animated the constitutional design of Congress? How has its role evolved? What current challenges face the institution and its members, and how might they be overcome?
The Purpose of Government and Law
Government is one of God’s gifts to creation. Like all human institutions in our fallen world, government is far from perfect, but it has essential purposes and functions that help us to survive and thrive. As Romans 13 reminds us, all authority is ultimately from God and therefore demands our honor and respect.
Government helps establish order and provide for the common good. Among its essential functions is maintaining the “rule of law.” Laws are the building block of political community. Ideally, laws should seek the general well-being of everyone, establish rights and responsibilities, and create clear boundaries for how people can live and work together peacefully. Laws serve the common good in several important ways. They set boundaries designed to restrain evil and maintain order and peace. They also set guidelines for the provision of “public goods”—those basic goods and services like infrastructure and education that benefit many people, meet significant needs, and are available to everyone equally. Laws also establish programs to meet the basic needs of the most vulnerable in society.
Since laws form the bedrock of good government, it follows that lawmakers are essential. In the United States, Congress is the institution with central lawmaking authority, and it is the branch of government most closely connected to the people.
The Origins of Congress
The first governing document of the United States, the Articles of Confederation, created a weak national government without permanent executive or judicial branches and a single-chamber Congress. It soon became clear that the government under the Articles did not have enough authority to govern effectively. Representatives gathered in Philadelphia in the summer of 1787, in a meeting we now know as the Constitutional Convention, with the intention of amending the Articles. They soon realized the futility of their task and drafted a new governing document instead. The result, the United States Constitution, established a stronger central government while still reserving important powers and authority for the states.
Article I of the Constitution created Congress. It is no accident that the document begins with the legislative branch. Given the essential role of lawmaking in a representative democracy, the Framers assumed that Congress would dominate American politics.
Because of concerns about an all-powerful legislative branch, the Constitution divided it into two distinct chambers, the House and the Senate. Article I establishes different qualifications, modes of selection, and term lengths for members of each chamber, and the House and Senate are each given some specific jurisdiction. Members of both chambers have the opportunity to contribute original ideas and bring their distinctive perspectives to the discussion, increasing the likelihood that lawmakers will consider a wide range of interests and concerns. In the end, however, the House and Senate must reach exact, word-for-word agreement so they can send a final version of proposed legislation to the president for a signature.
“As members of Congress return to Washington, it’s a good time to reflect on the purpose and aims of this essential institution.”
Although they recognized the importance of lawmaking power, the Framers feared that quick and dramatic shifts in policy could create too much volatility. In an effort to maintain political stability, they designed the system to be slow and deliberate. And history has borne this out.
They built other cautions into the system as well. Records from the Constitutional debates and other contemporary writings show that the Framers were suspicious of human nature and feared the dangers of unchecked power. In an often-quoted passage in Federalist 51, James Madison argues that government must include safeguards to counteract human self-interest:
Ambition must be made to counteract ambition. . . . But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Madison’s view of human nature mirrors a Christian understanding of sinful depravity. He is indeed correct that humans are far from angelic, and angels do not govern. While Government has many positive functions, governing institutions are also necessary to restrain evil behavior and its harmful consequences; those who govern need such restraint as well. The Framers created Congress and the rest of the constitutional system with these concerns in mind, crafting a government that protected the people from any one person or institution getting too much power. The end result was a system characterized by the separation of powers and checks and balances.
First, the system diffuses authority by establishing separation of powers. Governmental power is separated into three branches—the legislative that makes the laws, the executive that enforces the laws, and the judicial that interprets the laws. The government includes layers of elected officials, each selected in different ways, serving different constituencies, and given different enumerated powers. Power is further split into different layers of government (the feature we call federalism) that divide authority between the federal and state governments.
Second, the Constitutional design includes a system of checks and balances. No branch of government is completely independent; the Constitution gives each of them overlapping responsibilities to provide further checks on power. Consider the systemic checks on congressional lawmaking. Although the Constitution gives Congress central legislative authority, all laws require the president’s signature or a super-majority vote in both chambers of Congress to override a presidential veto. The Supreme Court can invalidate a law if it rules that Congress has overstepped its authority.
As we have seen, the Framers had concerns about the danger of unchecked power. They expected Congress to dominate American politics, so they created a system designed to divide and separate power. When practiced well, these measures help secure public justice by reining in self-interest and ensuring no person or persons wield too much control. But the balance of power in American government has changed dramatically over time in ways the Framers might not have anticipated.
Historical Evolution and Current Challenges
Historians often describe the period from 1800-1933 as the “Legislative Epoch” in American politics because Congress was the dominant force. However, as Timothy Sherratt detailed in an earlier Capital Commentary essay, power began to shift away from Congress and towards the president during Woodrow Wilson’s time in office. The presidency gained further institutional power under Franklin Roosevelt, whose leadership style and New Deal programs ushered in the “Modern Presidency,” the term presidential scholars commonly use for the era in which the presidency became the center of American politics. For much of the past century, Congress and the president have battled for power, and the president has usually won. The president now dominates, leading public opinion and setting the policy agenda in Washington. As a result, those closest to the people, the legislators, often have more of a reactive than proactive role in guiding government policy and securing the common good.
Congress faces internal battles as well. Structural differences between the House and Senate create points of tension and gridlock. Consider, for example, electoral differences. Because they represent entire states, most Senators represent diverse constituencies, and many Senate races are genuinely competitive. Members of the House, in contrast, represent equal-sized legislative districts, most of which are created through a partisan political process. As many as 378 of the 435 congressional districts created after the 2010 Census are not competitive; that is, the districts are drawn in such a way that the outcome is all but certain to favor one party. This creates a perverse incentive structure in which legislators have greater incentives to appeal to the party faithful than to make good public policy.
Widening party divides add another point of tension within Congress. Bipartisan cooperation used to be the norm; in recent years, however, legislators have been much less likely to work across party lines to sponsor legislation and move it forward. Part of this shift is a result of increasing ideological polarization. Party polarization in the House and Senate, a measure of the ideological distance between Democrats and Republicans, has reached its highest level since Reconstruction. Republicans are more conservative, Democrats are more liberal, and fewer legislators from either party are moderates. As the ideological differences between policymakers widen, legislators are finding it harder to find common ground and build bipartisan coalitions. The end result of these and other changes is a weakened Congress that passes fewer laws and does not fully uphold its role to legislate for the good of the people it represents.
Congress Resurgent? Upholding Public Justice in Contemporary Politics
As the branch of government closest to the people, Congress has an essential role in the American governmental system. As we have seen, the Constitution created a strong legislative branch designed to respond to the needs of citizens and craft and refine laws on their behalf. Congress needs to reclaim its legitimate powers again to uphold and provide for the common good as the primary purpose of its legislative tasks.
Perhaps the place to start is with greater internal cooperation between the two chambers. Constant gridlock does not serve public justice; it halts the necessary and beneficial work of government. The fundamental goal of legislative work should be lawmaking—writing new laws, and refining existing ones to address emerging problems and meet public needs. Since both chambers must agree before they can send a bill to the president, it makes sense that legislators should focus most of their time and effort on bridging gaps, finding points of agreement, and working toward proposals that have a chance of winning support in both chambers.
Members should also find ways to work with the president, seeking areas where compromise is possible to move policy in the right direction. While divided party control creates yet another check on power, many important opportunities for bipartisan cooperation remain. There is widespread agreement on a range of significant issues such as sentencing and prison reform, support for the working poor, and corporate tax reform. Members of Congress should take the lead in building coalitions to address these and other problems.
Congressional leaders will best assert their influence if they lead with their own ideas. The political process makes plenty of room for policy critique, and many members of Congress have devoted much of their careers to lambasting proposals and working to block them. Healthy and vibrant policy debate is important, but so is policy innovation. Legislators have significant resources to help them craft legislation, including knowledgeable committee staff with rich policy expertise. They should marshal these resources and reframe policy debates by introducing new ideas.
The policy process is incredibly complex, and legislative proposals take time to craft. Because legislators and their staff members can do so much of their work out of the media spotlight, they have more room to achieve cooperation, weigh different options, incorporate new ideas outside of public view, and even change their minds. They have the time and flexibility to analyze a wide range of options and deliberate over them. If members of Congress focus their time and resources appropriately, Congress could once again become a center of creative and effective lawmaking.
Meanwhile, as citizens, we have a part to play as well. We should pay attention to the work of our Senators and Representatives, following what is happening in Washington. We should contact our legislators, raising concerns when we think they are veering in the wrong direction and expressing our appreciation when we see them making wise decisions that uphold public justice. We can also keep lawmakers accountable through the electoral process, standing guard against belligerent partisans and rewarding cooperative lawmakers who seek the common good.
-Amy E. Black is Professor of Political Science at Wheaton College and author of Honoring God in Red or Blue: Approaching Politics with Humility, Faith, and Reason.