To say that Congress is a “dysfunctional institution” is not exactly profound. As our federal legislature winds down yet another fractious and unproductive term, explanations for its decline are everywhere. Indeed, diagnosing the problems of Congress has become a veritable American cottage industry. Whether it is gridlock, partisanship, the decline of civility, the Republicans, the Democrats, lawmakers who keep their families out of Washington, the filibuster, committee system, earmarks, the lack of term limits, lobbyists, and big money, there is an explanation to suit every turn of mind and a supposed panacea to match it.
The reality, however, is that we have been trying to “reform” Congress for more than a century, yet we are as far from a properly functioning legislature as at any time in our history. Why is this? Contemporary reform efforts cannot adequately address the failures of this branch of government because they do not adequately tackle the core problem, which is the demise of Congress as a legislative institution.
The Constitution tells us that “all legislative power herein granted shall be vested in a Congress of the United States.” The Framers understood that there exists a legislative, or lawmaking power, fundamentally distinct from executive power and judicial power. Laws govern society by informing citizens what they can do, what they must do, and what they are permitted, but not required to do. It is precisely this power that Congress has abdicated over the past century. Sometimes, it simply does not pass legislation. This is especially true during periods of divided government and over contentious issues like immigration reform. But even when Congress is able to pass legislation, it consistently fails to make key decisions regarding the rules of action.
As an example, the Communications Act of 1934 instructed the newly created Federal Communications Commission to issue broadcast licenses as the “public interest, convenience, or necessity” required. But because Congress failed to define that, the agency made those judgments. Similarly, the Americans with Disabilities Act of 1990 required employers and educational institutions to avoid imposing an “undue hardship” on disabled individuals by providing “reasonable accommodations.” But what constitutes a “reasonable accommodation” or an “undue hardship”? Often, employers and educational institutions do not know until they are sued and a judge tells them what they must do to comply with the law.
More recently, the Affordable Care Act of 2010 requires that health insurance plans contain an “essential health benefits package.” But the bill does not define the benefits that must be in the package, leaving those decisions to the Department of Health and Human Services. In each of these cases, Congress has left vital decisions regarding the rights and responsibilities of individuals under the law to some other entity, be it an regulatory commission, department secretary, or federal judge. Congress has passed legislation, but it has not made law. As political scientist Theodore Lowi once noted, Congress no longer makes rules for citizens, it issues instructions to officials, which in turn make rules for citizens.
This practice was initially motivated by the laudable goal of trying to make effective legislation in a complex industrialized society. During the 20th century, however, lawmakers began to realize that delegation served selfish interests as well, as political scientist Morris Fiorina has observed. When Congress writes legislation, lawmakers make friends and enemies from among bill supporters and opponents, and the latter jeopardize reelection prospects. However, when Congress delegates, these difficult choices are left to others. Lawmakers can go back to their districts, take credit for protecting health care or the disabled, and blame others for the onerous rules necessary to implement vague legislation.
Over time, this desire to avoid difficult decisions has become a disease that has metastasized into every aspect of Congress. Legislative manpower, offices, and funding have shifted from policymaking tools into vehicles for helping constituents obtain social security checks and veterans benefits. Yes, oversight is conducted, but not for the purpose of making intelligent legislation or correcting real problems. Rather, it is now done in order to grandstand before the television cameras.
In the last decade, Congress has even abdicated control over the federal budget, instead passing endless stopgap continuing resolutions that fund everything. The power of the purse was the one mechanism Congress retained to control the federal bureaucracy. Now Congress cannot even bring itself to make those decisions, and the failure to do so means that bureaucrats will become even less constrained by our representatives and grow even more powerful. The expression of haughty contempt as Peter Strzok testified before Congress is the face of the future.
The dysfunctions of Congress observed by scholars and journalists are merely symptoms of a more profound disease in our government. Leaders from both parties are infected with the desire to abdicate their legislative power, and it has corrupted the whole institution. Until the disease is properly diagnosed and treated, legislative decline will only continue.
Kevin Portteus is a professor of politics in the Van Andel Graduate School of Statesmanship and director of American Studies at Hillsdale College.