You Had One Job

Many pundits believe that the problem with Congress is ideological polarization. Democrats are so far to the left and Republicans so far to the right that they cannot come to an agreement on even their most basic duties. No doubt the two sides are farther apart than they have been in a long time, but an ideological divide in the legislature is not, in itself, an impediment to Congress’s accomplishing its business. Indeed, in Federalist 10, James Madison argued that a diverse legislature is precisely what will protect republican government from destroying itself.

Still, it is very rare for hundreds of strongly opinionated people to spontaneously come to a consensus among themselves, absent some external mechanisms to guide debates, votes, and so on. Thus, good rules of order are needed to govern their behavior.

The way to think of the rules is not simply as allotted speaking times on the floor and decorum during debate. The rules are much bigger than that. For instance, party organizations are not part of Congress itself. They are, rather, a set of rules that govern member behavior, with the expectation that they give coherence to the legislative will. So also are the congressional committees. They are, in effect, rules governing the division of legislative labor, instituted during the early days of the government to protect legislative independence in appropriating money.

Taken together, all of the rules and conventions serve as what political economists would call a “social choice mechanism.” In other words, legislators enter Congress with individual preferences for all manner of policy. The rules of Congress aggregate those individual desires into a social choice for the whole legislature, which is then expressed as law.

This offers us a way to evaluate the rules of Congress—via the fruits of legislative labor. If the laws it is producing are problematic in some way, we might think of reforming legislative rules.

It is pretty clear that something is awry in Congress. The first and most important function of the legislature is to spend the people’s money on behalf of the general welfare. And Congress has become chronically incapable of doing this in an efficient or sensible manner. Appropriations are rolled into massive “continuing resolutions” that fund large swaths of the government in a single go. Ideally, Congress should deliberate funding bills by type of expenditure, weighing the merits of each in a timely fashion, instead of being forced to accept all or nothing in a single instant, usually right before the government would otherwise shut down.

The main culprit in this continuing misadventure is arguably the Senate. The House has demonstrated a greater ability to pass such legislation. The challenge is corralling the requisite number of votes in the upper chamber, which perhaps is due for an update to its rules.

Unlike those of the House, members of the Senate have historically enjoyed greater freedom to act individually on legislation. This created an atmosphere of collegiality and compromise, which served as a nice balance to the more partisan and rigidly organized House.

But it is doubtful that these rules are a good fit for the present ideological diversity in the upper chamber. Collegiality and openness work much better when lawmakers are more or less on the same page, or at least not so committed to some partisan outcome that they will undermine the workings of the entire body. Those conditions no longer appear to hold, and so the rules governing Senate collegiality and deference should change to reflect that. Two alterations may be particularly useful.

First, the filibuster for appropriations bills needs to be eliminated. Like committees and parties, the filibuster is not mentioned in the Constitution. It is a creation of the Senate itself and can be a useful mechanism for republican government. By requiring a supermajority to end debate, it gives the legislative minority an opportunity to shape major policy changes. This is a good thing, considering that the country is clearly not committed to one side of the ideological spectrum or the other and that partisan majorities tend to be fleeting. The filibuster, in this way, reflects the pragmatism of the American people, forcing the two sides to compromise at least a little bit.

However, appropriations bills are an essential aspect of congressional governance and do not really amount to changes in policy but rather in funding levels. Ideally, it would be nice to retain minority leverage over appropriations, but that just seems impractical now—as the filibuster has been the tool by which minorities have upended the entire appropriating process to extract concessions on other issues from the majority. Eliminating the filibuster for appropriations, while retaining it for other measures, would be a way to maintain the rights of the minority while facilitating the Senate’s ability to conduct core business.

Second, the party leadership should have greater ability to rebuke members who do not aid the collective goals of the party. There are too many senators on both sides of the aisle who preen for the sake of their higher ambitions. The leadership should have greater capacity to constrain this kind of egotism—for instance by making it easier to remove recalcitrant colleagues from plum committee spots. If members can be made to pay a price for their truculence, they will be less likely to derail essential business.

These are just two suggestions; others might be better. Either way, those who cherish the Constitution need to start putting serious intellectual effort into strengthening the resolve of Congress. A legislature that cannot even fund the government is a fat target for progressives looking to redistribute its power to the executive bureaucracy.

Jay Cost is a contributing editor to The Weekly Standard.