All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
U.S. Constitution1
I have come to the conclusion that one useless man is called a disgrace, that two are called a law firm, and that three or more become a Congress.
Peter Stone2
The birthplace of federal law is a nondescript box—“the hopper.” The hopper is a creature of the House and, as befits its home, mindlessly democratic. Any representative can introduce a bill by simply tossing a stack of papers within. A bill to rename a post office or one to unwind the Affordable Care Act, the Wastebasket of Democracy accepts all without judgment. The only limit is bulk, with oversize documents consigned to the more capacious embrace of the House Clerk.3 The Senate lacks a hopper, because a functional furnishing would be déclassé, and thus unacceptable to the dignity of America’s “upper house.” Of course, the Senate is neither dignified nor, as it happens, “upper.” (It’s called the “upper house” because it once met upstairs, not because the Constitution makes it some Americanized House of Lords; “former attic people” would be just as accurate.) Never mind, Disneyfied pseudo-chivalry is the Senate’s cultural preference, and the chamber duly grinds along with the efficiency of a Bourbon court. To merely introduce a bill requires a senator to attract the attention of the body’s presiding officer at an appointed time, request leave to present, and pray that none of the other ninety-nine senators objects (which can trigger a delay; this is how Rand Paul briefly shut down the federal government in 2018).4 Only after this preposterous ritual concludes may the Senate Clerk receive the bill.
By these two systems, which effectively capture the different paces and styles of House and Senate, Congress proposes America’s laws. After proposition, a bill must be passed in identical form by both chambers, a failure-prone process of quarreling, reconciliation, and brute force. If the two chambers concur, the bill travels to the White House for signature or veto. In outline, the process described resembles textbook descriptions of federal lawmaking, a bit stranger in detail, true, though a certain weirdness should be expected from an institution that commissioned its first residence from a physician-turned-architect who believed he could reanimate George Washington’s corpse using warm blankets and an invigorating transfusion of lamb’s blood.5 While it’s tempting to pursue the Dracula on the Potomac motif (or to ponder the metaphor of the Capitol dome, a decorative shell that contains the smaller, load-bearing elements), we must press on to the actual workings of Congress. For it is in the details that Congressional reality departs radically from textbook models, judicial theories, and common perceptions, and where notions of a representative, deliberative legislature founder.
The general awfulness of Congress is a subject of near-universal agreement, though popular explanations vary in emphasis on partisanship, corruption, or plain incompetence. These explanations are not without merit, but they bypass the structural and historical reasons for Congressional dysfunction: Congress cannot produce satisfying, or even technically competent, laws, because it is trapped in an old framework whose anachronisms become more constricting and inapt each year. Unfortunately, that old framework is Article I of the Constitution, which is functionally unamendable; there can be no hard reset. All Congress can do is patch and improvise, and it has. Regrettably, the legislature’s workarounds are inherently compromised, undermining Congress’s ability to perform four crucial tasks: representing the public, crafting proficient legislation, checking the other branches of government, and making laws that are legitimate and command respect of the governed.*
When Congress first sat in 1789–1791, its structures and capacities stood in reasonable harmony with the duties of a small nation’s legislature. The task of being responsive and representative was assigned to the House, a chore which the original body could plausibly achieve. In the 1790s, with a complement of roughly sixty-five representatives against some 800,000 free white adult males and 3.2 million non-enslaved persons total, ratios of represented-to-representatives ran from about 12,300:1 to 49,200:1 (and lower still, counting only those eligible to vote).6 In numerical terms, a representative in the early Republic was not distant from today’s town councilman, close to his constituents and their issues. That changed with time; population grew quickly, but the House did not, so that by 2016 the ratio of represented-to-representatives degraded by ~95 percent to 740,000:1.7 By definition, representatives cannot enjoy anything approximating intimate knowledge of their constituents, undermining Constitutional assumptions.
The more dramatic violation of expectations belongs to the Senate. The Framers envisioned that body as a modest protector of smaller states against the predation of their larger siblings, and also a patrician, contemplative counterweight to the volatility of the House. Again, time eroded the Framers’ expectations. In 1790, the smallest states were overrepresented by a ratio not much worse than 10:1; today, the ratio is as high as 66:1, changing the Senate’s character from mildly counter-majoritarian to flatly antidemocratic.8 Meanwhile, Senate rules, originally drafted by Jefferson and still semi-operant, were designed to permit extended debate among un-elected patricians, not to be weapons at the disposal of directly elected senators, some hailing from states sufficiently tiny that private interests can sometimes dictate national policy.
These Congressional dynamics, already challenging, will only become worse. Though the number of representatives could be increased by legislative fiat, Congress has not done so in over a century; today’s House of Representatives hardly deserves the name. The composition of the Senate, meanwhile, cannot be changed save by Constitutional rejiggering, which small states can block, and as population disparities grow more severe, the Senate will be increasingly vulnerable to extortion and obstruction. Two brief illustrations suffice for how unbalanced Congress is: setting the Constitution aside, and allocating based solely on population, at least three states would have zero representatives each and California alone would have as many senators as the smallest twenty-one states combined.9 (To put it another way, the ten largest states, comprising roughly half the population, can be filibustered by coalitions of states representing as little as 11 percent of the population.)
While growth and the direct election of senators upended the Framers’ original assumptions and designs, the vast expansion in Congressional remit created a severe mismatch between the legislature’s responsibilities and its capacities. Congress’s original duties were fairly limited, focused on external policy plus a limited set of nationally important matters, like the Post Office and national defense. But in 1790, even national defense was a light burden: the Continental Navy had been disbanded and the army had just one regiment defending the frontier. Nor did citizens particularly expect Congress to intervene in daily life; lawmaking was understood to be primarily the responsibility of state and local officials. So while early Congresses did pass some momentous legislation (not least because any federal legislation would have been momentous in an era where none had existed before), the national legislature didn’t find itself overly taxed and legislative output was modest by contemporary standards.10
Almost everything has changed radically. The institution that once presided over a nation hugging a thinly populated rind of the Eastern Seaboard now governs over 325 million people spread across possessions stretching from Point Udall, Guam, to Point Udall, St. Croix, 9,497 miles apart. (The eponymous Udalls were brothers, both serving in government.) Supervising defense appropriations today is by itself more complicated than managing the entire nation of 1790: the number of Americans in uniform today greatly exceeds the enfranchised population when the 1st Congress convened. The public, previously content to be left largely alone by federal government, now expects Washington to provide retirement security, health insurance, and guarantee the smooth operation of a $20 trillion economy. To simply keep government open requires immense legislative maintenance. Yet in 1913, with federal responsibilities already large, Congress essentially froze into its present form, refusing to meaningfully expand even as legislators ordered up the New Deal and Great Society.11 The result is a body whose work far exceeds the capacities of 535 people.
To cope with its hugely increased mandate, Congress improvised. First, it outsourced, to presidents, judges, bureaucrats, staffers, and so on, though doing so stretched Constitutional boundaries and upset the carefully ordered balance of powers. However, there remained things only Congress could do. So Congress undertook an internal reordering, rewriting procedural rules to overcome the imbalances that had accumulated over the decades. Unfortunately, many of these internal reforms made matters worse, and Congress, already overwhelmed, found it ever harder to make laws responsively, deliberatively, and competently.
Many people deride Congress as a do-nothing body, which is partly true, though the bigger problem is that even what Congress does do, it doesn’t do well. The 115th Congress (2017–2018) provides a good example: it proceeded through 11/12ths of its first year without producing anything of real consequence, suddenly disgorged a messy tax bill, and then keeled over twice, first in a two-day government shutdown in January 2018 and, three weeks later, in a brief “funding lapse.” Yet, if the 115th achieved little in its first year, it was still active, mainly in failing to repeal/repair/replace Obamacare, an activity which consumed most of 2017 and left the budget in limbo for months.
The budget provides a convenient example of how even central tasks now outstrip Congressional capacities. Presented by the White House in March 2017 and due for passage before October 1, the budget was not enacted until March 2018. When Congress finally coughed up the outstanding bill (after various procedural crises), the document totaled 2,232 pages and was circulated to the House just a day before the vote (violating an internal House rule about due time for reading and deliberation). The bill was a black box directing money to places literally unknown, with one representative commenting that “[i]n all honesty, none of us knows what is actually in this bill” and Senator Rand Paul noting that his printer was still churning out pages less than eighteen hours before the Senate took up the legislation; nevertheless, the budget was approved by both chambers essentially sight-unseen.12 Nor was the FY 2018 budget anomalous; all big bills have become shambolic, last-minute affairs. The tax package of 2017, which immediately preceded the budget, was another exercise in hasty incomprehension. Congress drafted it so badly that a bill designed to cut corporate taxes across the board ended up hiking taxes on some businesses. The reason: while revising the bill (as usual, at the last minute), GOP legislators made a series of major miscalculations, and only barely hustled in partial corrections before presidential signature.13 Pelosi’s railroading of Obamacare through the House in 2009–2010 was positively contemplative by comparison, and if no one quite comprehended what was in the mammoth health care bill when it was passed, at least large chunks of the act had been previewed for weeks or months beforehand.
Monster bills are mercifully infrequent, but Congress must constantly wade through an enormous amount of stuff of greater and lesser importance—much more than it can be plausibly said to “read” or “debate.” (Not that legislators always get the chance: in March 2017, drafters hid their Obamacare revisions in a locked room, and when others, including some Congressmen, obtained access, the room was empty of everything but metaphor.14) Out of all this material, some 12,000 items per Congress on average, 85+ percent simply die, either on the merits or more usually out of sheer neglect. Of the remainder, ~7 percent pass as unpresented resolutions (essentially, matters of internal affairs or empty rhetoric of limited public consequence), leaving at most 5 percent to become actual law.15 In numerical terms, the 107th Congress was typical, with more than 10,700 items introduced, of which 383 became law, or 0.72 enacted laws per member.16 The pace may not seem torrid, but it’s more than Congress can handle. Modern bills average twenty pages, more important legislation sprawls over hundreds of pages, and all but the most basic bills contain numerous sub-provisions and amendments, some sufficiently substantial as to constitute bills in their own right. And marching behind all meaningful bills are reams of supporting materials, themselves bodies of quasi-law used by agencies and the judiciary to divine the meaning of the often-cryptic legislation to which they relate.
The little math exercise just presented is interesting because of what it disproves, and momentous because of what it does prove. The statistics disprove notions of a do-nothing Congress; many of those thousands of proposals may be trivial or inane, but each represents work by someone. And this leads to what the tally proves: whatever else a modern Congress is, it can’t be just 535 elected officials. A mere 535 people cannot write, ponder, debate, nor vote on that much material—not by themselves. Nor do they. Congress has an army of unelected helpers, roughly 20,000 people writing and researching bills, dickering over procedure, fetching coffee, or, in the case of House Chaplain Father Conroy, S.J., hearing some very interesting confessions.* 17
Notwithstanding its supporting cast, Congress still couldn’t manage as a freestanding institution. Simply reading, much less writing or revising, a small subset of the most crucial bills consumes substantially more person-hours than legislators and their staffs have. That leads to the further conclusion that Congress also relies on external “staff”: lobbyists, executive agencies, think tanks, and so on. Thus, whatever the Constitution says, America’s supreme legislature cannot, and does not, only “consist of a Senate and House of Representatives,” nor are all Congressional members “chosen” and “elected by the people.”18 The math puts paid to that idea. Various parts of the legal system pretend otherwise—to everyone’s peril—but there it is.
An army of staff isn’t alarming in itself. An expansive nation demands an expansive Congress; the real concern is how Congress managed its growth and what that means for republican government. Outsourcing reduced democratic accountability, as did internal reforms that dramatically altered the composition and organization of membership. Not all of these mutations have been well explained by Congress to the people it professes to represent, to the judges who interpret its laws, or even to many of Congress’s own members. This helps explain why Congress is the most hated branch of government; the modern institution diverges radically from popular conception. But Congress needs to be understood. We have already seen that Congress can no longer properly serve its representative functions or digest all the material passing through it. However, laws are passed somehow, so the next step is to examine the compromises Congress makes simply to enact legislation at all, and assess the price paid for those expeditious mechanisms, whether settled in the currency of Constitutional balance, institutional legitimacy, or jurisprudential integrity.
The Constitution vests in Congress “all legislative Powers.”19 That burden is at once heavy and light. It’s heavy, because the Constitution makes Congress responsible for all federal lawmaking. It’s light, because the Constitution does not require Congress to make any laws in the first place (aside from an implied obligation to authorize a census). Congress barely has a job at all, in the sense of enumerated tasks amenable to objective assessment. All Congress must do is: appoint its own officers, keep a journal, preside over impeachments, provide advice and consent to executive appointments, and “assemble at least once in every Year.”20 With a few exceptions, like slow-walking executive nominations, Congress does what little the Constitution specifically demands: a B+ job, at worst.
Naturally, people expect more than the Constitutional dead minima from their legislature, and there was a time when Congress delivered to the general satisfaction of the public. In 1937, people held Congress in reasonably high regard; 44 percent even ventured that Congress was “about as good a representative body as it is possible for a large nation to have.”21 In the following decades, various measures of satisfaction wobbled in a band of 30–60 percent, with fluctuations heavily linked to the nation’s martial and economic fortunes; not always stellar, but hardly terrible. But from the 1970s, faith began to waver, and after 2005, Congressional reputation entered steep and secular decline. No year since 2009 has seen an average approval rating higher than 20 percent, with November 2013 marking the lowest approval ever recorded: 9 percent.22 Perhaps more tellingly, net “trust and confidence” in Congress fell from 46 percent in 1972, to 2 percent in 2007, and since then has gone negative, averaging −27 percent since 2007. Notably, the share of people who entirely distrust Congress has risen from an average 6.6 percent from 1972 to 2007 to an average 19 percent since; if legitimacy is a core legal goal (as was argued in Chapter 2), this lack of confidence is worrying.23
Certainly, Watergate, partisanship, and cultural shifts account for some dissatisfaction. Yet, there’s also a technocratic, objective complaint: as an institution, Congress just can’t manage. Funding government is complex, but as central a task as can be imagined. Nevertheless, since 1976, when a change in budgeting rules made broad government shutdowns possible, Congress has closed the national shop twenty times, in total, at least 128 days of “service interruptions,” some partial and some complete.24 Unsurprisingly, doing more than the minimum proves beyond the abilities of many Congresses, and major new legislation has become near-extinct outside of extraordinary circumstances.
The public expects better. Surveys, including those by pollsters like the Wall Street Journal, reveal that roughly half of Americans want “government” to “do more to solve problems”; it isn’t simply the case that everyone prefers for government to stay out of the way.25 And whatever the Framers would have made of the CDC or Social Security, they also expected more. The Constitution’s refusal to task Congress with many specific chores reflects the Framers’ high expectations of Congress; Congress was granted great latitude to rise to new challenges, including the power to override many state laws, and to pass whatever laws are “necessary and proper” to the exercise of Congress’s powers.26 Congress was designed to be primus inter pares, the first branch, a mirror of public will, etc. It was also tasked with checking the ambitions of other branches—the presidency, which might tend toward authoritarianism, and the judiciary, which might act without democratic sanction. Alas, those ships, laden with Constitutional hopes, have sailed and sunk.
For several decades, Congress has not satisfied its role as a check-and-balance; instead of protecting its powers, Congress has been ceding them. This represents a break. For 150 years, Congressional ambition kept the system in decent alignment; legislators really did guard their prerogatives.27 The legal system presupposes that Congress still does, but this has been untrue since the 1930s, when Congressional “ambition” unraveled as the legislature’s work swamped its abilities—and when legislative ambitions faltered, the system of checks and balances that underwrite the republic trinity began to wobble.
Relinquished legislative powers can only go two places: the judiciary or the executive. Judges have always had a quasi-legislative function, mainly exercised by filling in gaps: e.g., making common law where legislatures hadn’t acted, or giving specific meanings to enacted law’s vaguer provisions. Beyond that, nineteenth-century judges tended toward passivity and the Court rarely contravened the direct will of Congress, finding unconstitutional fewer than one law annually between 1792 and 1919, on average.28 As the Progressive Era bled into the New Deal, the judiciary felt the Constitutional balance was getting out of whack (mainly as a result of bureaucratic expansion), and began to wield its veto more often and more consequentially, a process that was revivified in the Civil Rights era.*
Judicial vetoes aren’t always conclusive; while Congress cannot override vetoes to resurrect inherently unconstitutional policies, it can salvage technically defective laws whose general policy aims are not unconstitutional, or revise stale laws to bring them into line with court rulings and popular opinions. (In the latter case, the override isn’t so much a showdown as legislative housekeeping.) Through the 1990s, Congress often did just that, with judicial action facing legislative reaction—a classical check and balance.29 When 1980’s Mobile v. Bolden construed the Voting Rights Act to focus on discriminatory “purpose” (instead of discriminatory effect), Congress amended the VRA two years later, achieving the policy result legislators wanted.30 In 1988, Congress salvaged part of the Civil Rights Act along the same lines.31 And in 1991, Congress revived antidiscrimination legislation, overriding at least seven Court cases from the then-recent past.32 Not all overrides were dramatic; some were merely updates and tidying, but they reflected attentiveness and a certain Congressional attitude.
Since 1998, however, Congress has been wary, or politically incapable, of undoing/revising many judicial decisions, even when there’s a Constitutional path to do so and Congress is controlled by the party favoring the voided law.33 In the shrinking circumstances in which Congress responds to the judiciary, efforts seem halfhearted and tend to fail. The notable recent exception is the Lilly Ledbetter Fair Pay Act of 2009, which overrode 2007’s Ledbetter v. Goodyear.34 But the Ledbetter Act marked no renaissance for Congressional ambition. Ledbetter was 5–4, a relatively weak holding that Justice Ginsburg worked to make weaker still. Ginsburg dissented from the bench (a rare event bound to attract media attention), eroding the Court’s authority from within and all but forcing Congress to act.35 Ruling Democrats introduced the corrective Ledbetter Act, which stalled until candidate Obama made the Ledbetter Act a presidential, not Congressional issue. The previously becalmed repair suddenly sailed onto the new president’s desk. But those were extraordinary circumstances, and it was not really Congress checking the courts, but the president-elect—and no one could miss the symbolism: Ledbetter was the first act Obama signed.36 To be fair, Congress may not always have the votes to override the Court (or a presidential veto), but it’s not as if the stars never align. Rather, it just takes more time and will than Congress and its committees now have, making judicial vetoes more potent—vetoes that private litigants, from the ACLU to the Mercers, can ask courts to wield.
The Ledbetter story also highlights the more important transfer of power, not to the judiciary, but to the executive. When the same party controls the White House and Congress, the president generally leads and Congress follows. Formally, Congress retains its Constitutional powers, though increasingly it does not so much write blockbuster legislation as block or amend executive proposals; Congress has become less author than editor. This arrangement may seem natural, especially in an era where presidents dominate media coverage, only 35 percent of Americans can identify their own representative, and less than half the public can identify the party in control of the House or Senate.37 But presidential predominance is new, hardly older than the New Deal, and for good reason: an imperial/prime ministerial executive is Constitutionally anathema. If presidents and legislators mostly agree, as Pelosi and Obama often did, the consequences may be minor, though it is in those cases that presidents truly exercise prime-ministerial prerogatives. But even when parties split control of government, presidents can still drive policy, the prime example being the federal budget. Constitutionally, “revenue bills” (i.e., taxes) can only “originate” in the House—and appropriations (spending, essentially) must also be set by Congress. But today, the executive writes the first draft of the budget, and that draft defines the debate: the executive provides the default option, and many political battles are won by default.38
Tellingly, the White House didn’t steal budget-writing authority from Congress; Congress gave it away—a recurring theme, as we’ll see. As the budget is central to governance, it’s worth exploring how Congress transferred the power of the purse. Originally, budgets were approved piecemeal and ad hoc, in negotiations between Treasury and Congress; as government grew, that process became unwieldy. In 1921, Congress required the president to submit a consolidated budget and created a new entity (what’s now the Office of Management and Budget, or OMB) to assist him, but Congress did not similarly equip itself.39 Over time, it became clear that Congress had armed a nimbler opponent. Legislators therefore passed the Budget Act of 1974. That act forbade presidents from “impounding” funds (i.e., refusing to spend allocated monies, Nixon’s version of a line-item veto that prompted the Act) and established the Congressional Budget Office (CBO) as a counterweight to OMB.40 Yet, the Budget Act did not herald a dramatic return of power to legislators. Impoundments never represented a large fraction of spending, so that victory was of limited import. Establishing the CBO was more consequential, because it gave Congress resources to meaningfully evaluate a president’s budget and push back using hard data. Better still, the CBO has been a strong, rigorous, intellectually independent institution—emphasis on “independent.” CBO says what it wants, not what members want, and CBO’s analyses can profoundly affect legislative fortunes, as Republicans learned during their unsuccessful attempts to repeal Obamacare in 2017.41 So, while the Budget Act returned some control to the institution of Congress, it did so by creating a new locus of power, one not composed of actual Congressmen.
Leaving aside the budget—which a capable president controls, as OMB’s director reports directly to him—the other great power transfer between Congress and the executive has been to agencies, those acronymical subunits of the executive such as the VA, IRS, and FDA. Today, when Congress legislates, it mostly sets general goals (indeed, this may be as much as Congress is capable of). From there, the agencies decide the rules and provide the detail. Thus, the functional law, the law that citizens obey, is mostly written not by legislatures, but agencies. (This is why businesses and their compliance teams look to regulations first, not the enabling legislation.) That devolution of power, sometimes Constitutionally dubious, has become so important that agencies receive a chapter of their own (the next one, actually). What matters for now is that, by immediate impact and volume of law, agency lawmaking is at least as important as Congressional lawmaking. Agencies’ rules sometimes diverge meaningfully from those Congress might have written itself, and those rules are far more changeable in interpretation and application, as Scott Pruitt’s tenure at the EPA confirmed. Congress has given up more power than many people realize or than voters might like—an environmentalist may be able to vote a coal-booster out of office in two years, but could do nothing about a Secretary Pruitt. Agencies have also outright thwarted Congress, as in 2018, when the acting director of the Consumer Financial Protection Bureau, a Congressionally chartered agency, asked for a budget of $0, in an attempt at self-liquidation. The Constitution did not predict these developments, and it provides no direct means for citizens to undo these profound restructurings.
In theory, Congress can retrieve its Constitutional powers from the other branches at any time. In practice, this is exceedingly unlikely. Executives and the judiciary are more ambitious and energetic than Congress, less prone to division, and generally unwilling to return powers prior Congresses gave away. As for agencies, which arguably won the greatest powers from Congress, legislative reassertion is presently impracticable. Congress is outstaffed by almost 100:1 and Congress can no more compete with agency-land than Bermuda can repel an American invasion.42 Congress is so poorly equipped that, until recently, it was largely unaware that agencies often fail to comply with the Congressional Review Act, which requires agencies to report rulemaking for Congressional appraisal.43 A Congress that doesn’t carefully monitor the powers it delegates is not an institution likely to retrieve those powers.
Congress’s failure to adjust to new realities not only forced some legislative powers to be relinquished, it also made it very difficult to properly exercise what powers remained. To compensate for splintering caucuses and growing disproportions in small-state power, Congress has been forced to suspend standard operating procedures and concentrate power in a dictatorial leadership. The official headcount belies this; the Capitol still numbers 535 elected and roughly co-equal tribunes. Unofficially, ever fewer people control, or even participate meaningfully in, legislative activity; 150, at most, and not all of them elected.* Congress, already too small, has gotten even smaller.
The concentration of power in leadership breaks significantly from Congressional tradition. Congressional leadership now believes that quasi-parliamentary practices are the only way to ram legislation through a fractious Congress, in which many members are insulated from public opinion (by gerrymandering and otherwise) and belong to two increasingly heterogeneous parties. The price has been another state of emergency; long-standing rules and norms have been tossed aside, and committees, the traditional centers of power and competence, have been partly sidelined. Rule by a tiny cadre of leaders—Speakers, whips, majority and minority leaders—is the new normal, but it’s a remarkable breach, achieved by remarkable means.
From the 1840s to the 1960s, committees were the centers of Congressional activity, ruled by chairmen selected on a seniority basis who exercised substantial control over legislation in their areas of specialty. The legacy system seasoned its chairmen, affording them years to study their subjects and to practice writing technically competent laws. Insulated by seniority, and operating mostly outside public scrutiny, committee leaders were able to wheel and deal, and while this fostered some crooked behavior, it also let committees engage in the pragmatic and bipartisan trading that public contests among high-profile leaders now makes difficult. This worked while committee chairs reflected the broader sentiments of their parties, but in the Civil Rights era, this could no longer be assumed. Unity broke among then-ruling Democrats. Northern Democrats were more numerous and progressive than their Southern counterparts, but the Southerners were more senior, and that made all the difference.* Democrats found civil rights legislation tied up in committees led by party members from the South. However, Democrats, with a 60 percent share in both chambers and skillful allies in the White House (especially LBJ), were able to achieve their goals without blowing up the system.
By the early 1970s, Democrats had fewer votes to spare, and impatient with committee rule, they retooled the system. (Democrats dominate this telling because they controlled the House from 1955 to 1995, and their reforms prefigured changes under Republicans like Newt Gingrich.) In 1975, Democratic leadership ousted senior committee chairs. Going forward, seniority would only be one among several considerations for chairmanships. Leaders also opened up Congressional workings: committee work became publicly accessible and it became much harder to tally floor votes without attribution; now the public could know who voted for what and why. These (little-d) democratic reforms—embodying the whole PowerPoint lexicon of transparency, accountability, and empowerment—would make the House truer to its role as the republic’s more open, dynamic, and efficient forum. Or so the thinking went.
Like many ambitious overhauls, the reconfiguration of the House amplified old problems and created new ones. Weakening the seniority system was supposed to distribute power, but ultimately centralized it. The seniority system, for all its flaws, operated with mechanical objectivity, immunizing chairmen from leadership’s directives. In the elective system, seniority and substantive knowledge are now just two factors among many, the most important of which is ideological alignment with, and endorsement by, leadership. The usual price of a committee chairmanship is accepting leadership’s agenda, and because new chairmen may have little experience, leadership crafts much of a “committee’s” work. (This helps explain intensifying partisanship and its attendant gridlock; it’s not just ideological, it’s structural.) For example, Gingrich’s Contract with America, which set GOP priorities in the 1990s, bypassed the committee system almost entirely; so did Pelosi’s 100-hour plan in 2007. Stuck on the sidelines, committees have become less entrepreneurial and less powerful. Understandably, even meetings became less likely: American Enterprise Institute’s Norman Ornstein calculated that committee/subcommittee meetings declined from an average of 5,372 per Congress in the 1960s and 1970s to 2,135 in 2003 to 2004, and remain much less frequent than they were fifty years ago.44
The decline of committees did not quash dissent; it merely changed its outlet, requiring further reforms. The House’s customary “open” rules, designed to facilitate debate and amendment, became primarily mechanisms of delay. To slow down contentious legislation, dissidents attached amendments to everything, and the number of votes on amendments rose from 55 (1955–1956) to 107 (1969–1970) and then 439 (1977–1978).45 The docket congested and, with sunshine rules, became a public relations scoreboard. Savvy operators forced public votes on matters specifically constructed for embarrassment. A genuine bill to fund low-income housing could be saddled with a fraudulent amendment to euthanize puppies, and cynical legislators knew exactly how cynical local-TV anchors would spin things: not “Congressman X votes to save public housing,” but “Congressman X votes to kill puppies.” The House descended into theater—in 1979, live theater on C-SPAN.
As a result, the House found it increasingly difficult to move legislation along. In theory, stalls in the House shouldn’t be hard to overcome—indeed, stalls should be mathematically impossible in a body that operates by majority rule, has an odd-numbered membership, and draws from only two parties. It’s the last assumption that’s become problematic: there aren’t quite two parties anymore because the parties are not homogenous. Today, there is more than one Republican party (GOP-Classic; GOP-Tea Party/Freedom Caucus; Trumpists; whatever Rand Paul is), just as there was more than one Democratic party in the Civil Rights era and is today (the Warren/Booker wing; the Pelosi/Schumer axis; whatever Bernie Sanders is). And because the parties’ centers of gravity are further apart, there are fewer centrist votes to draw upon to counteract resistance from a ruling party’s more radical wing(s). This is not a problem when a ruling party has a huge majority. But when membership is closely divided, sub-factions become important and House leaders must assemble a working majority out of the parts on hand, just as coalition governments do in foreign parliaments. The problem is that as Congress—especially the House—has drawn closer to the multipolar world of parliaments, it failed to develop the customary tools and institutional knowledge necessary to make coalition government practicable, as Paul Ryan intimated in 2017.46 Coalition government in other countries involves dynamic power-sharing, semiautomatic dissolution in the event of major legislative failure, and the legal option to neuter obstructionists.47
One technique that was available to House leaders was to manipulate the rule book one step at a time. Each tactic used to thwart leadership was met with a rule modification, so that reforms designed to streamline legislation made procedures even more baroque, prone to manipulation and the appearance of illegitimacy. New complexities diverted politicians’ already limited time to procedure, not policy; mastering the laws of the House is not the same as mastering the laws of the nation. But that’s how it went, and leadership—which controls the rules, because the Speaker de facto controls the Rules Committee—kept tinkering.
The rules now exceed ready understanding, creating problems for the whole legal system. The rules were once reasonably comprehensible to legislators, judges, reporters, and voters—in part because the rules were mostly static (indeed, wholly unamended in the first twenty-odd Congresses). The House did not appoint a dedicated rules specialist until 1927, when it designated an official parliamentarian. Even with this help, representatives couldn’t manage their own procedures, codified in a rule book that eventually spread across 1,000 pages, further adjusted by endless precedential material.48 A parallel story unfolded in the Senate. Today, rules are so involved that even seasoned politicians live at the mercy of technocratic parliamentarians, another unelected power center inside Congress. Parliamentarians hold passive powers—they are judges, not legislators—though their (advisory) decisions can have immense consequences. In July 2017, the Senate Parliamentarian effectively derailed one of the Republicans’ various attempts to repeal the ACA.49 That parliamentary opinions occasionally surprise legislators, even when bills are high-stakes, suggests one way in which Congress mystifies even itself.
As the rules became unwieldy, leadership pursued the extreme. The Senate famously defanged certain filibusters, a step christened the “nuclear option,” but the fallout was limited to executive nominations. The House, seriously congested, went thermonuclear, essentially vaporizing its rule book as necessary. If the standard rules, whatever their other benefits, risked derailing legislation, those rules would be suspended. Suspensions were not unprecedented, though they had been primarily used to speed along uncontroversial or minor legislation where debate and amendment were unnecessary. Today, leadership relies on special rules to ram through almost everything of note: deliberation reduced to take-it-or-leave-it. Between 1987 and 2014, most major measures—important, complicated, and contentious legislation—were midwifed using special rules, for the simple reason that passage under “regular” order would not have been possible.50 Whether these laws could have been better made if gestated in committee, subject to customary debate and bargain, was no longer germane. Leadership believed that getting anything done, however badly, was better than getting nothing done at all.
Does it matter that Congress operates in a permanent state of emergency? Legislators say that they’re troubled by the death of regular order, and every Speaker since Gingrich has promised its return. But reversions to regular order never worked out and were always abandoned. The explanation is straightforward: the point of regular order is to protect the legislative power of minorities (including minorities within a ruling party, like the Tea Party). With population disparities and polarization granting minorities more power than the Framers anticipated, this is precisely what Speakers with slim margins cannot afford. Therefore, leadership staged a quasi-coup, and only a few players control nearly every significant piece of legislation that comes through the chambers, as well as the all-important party purse strings, which open and close for election funding depending on a candidate’s docility. It’s hard to know if the public understands or approves of these developments, though the perpetual appeal of the newcomer candidate vowing to “clean up Washington” suggests that voters prefer (or believe in the existence of) a system of distributed Congressional power. But all pledges of one-man revolution do, aside from win votes, is reveal that a candidate is ignorant of Congressional mechanics or a fully credentialed cynic about the electorate.51 In the House 2.0, only leadership can effect major policy change, and only with plenty of Senate friends, more than most Speakers have.
The Senate has long allowed minorities, even minorities of one, to achieve the sort of counter-majoritarian delay that the House’s special rules prevent. The most famous tactic is the filibuster, a tool of delay masquerading as debate. (Appropriately, “filibuster” comes from vrijbuiter, the Dutch word for pirate.) Although some bills cannot be filibustered, most can.* It requires a 3/5ths vote to end a filibuster, a threshold sufficiently hard to overcome that the Senate is now synonymous with obstructionism. Obstructionist rules have long existed in the Senate; what’s changed is the willingness to use them. Filibusters, comparatively rare before the 1970s, became routine by the 1990s, and are now a permanent variable in the political calculus.52 Even the threat of filibuster can crash the Senate or result in eye-watering legislative bribery. The effects leak beyond the Senate, because both chambers must pass the same bill for it to become law. Indeed, House reforms inadvertently made filibusters more potent; with the Senate now the key chokepoint, counting votes in the Senate has become an important job for the Speaker of the House. The results can be Constitutionally confounding. Revenue bills must formally originate in the House, but the House may have no choice but to pass whatever the Senate can agree on.53
It’s easy to deride the Senate as a sort of legislative gas chamber, responsible for Washington’s gridlock. (The 45th president disdained all of Congress as hopeless, but reserved special ire for the Senate.) The Senate is irritatingly slow—though in the Senate’s partial defense, the Framers all but designed the Senate to frustrate most voters, at least in the moment. The Senate originally served to balance a House made volatile by the latter’s need to cater to the masses.54 But as we’ve seen, the antidemocratic imbalance now verges on the intractable.
Even if Congress were suddenly reformed—by rebalancing representation, returning power to competent committee chairs, and adopting an efficient and comprehensible set of rules (a fantasy in itself)—there would still be a major problem: the membership. The Federalist Papers (by James Madison, Alexander Hamilton, and John Jay, but here, most likely Madison) fretted about this from the beginning.55 Madison particularly worried that short election cycles could make the House prisoner to populism, prone to high turnover, unstable policies, and a culture of inexperience—a responsive institution, perhaps, but not the wisest.56 This could be partially relieved by biennial (rather than annual) elections, but the weightiest counter would be the Senate, a body more insulated from electoral pressures and composed of intellectual patriots who would “study… the comprehensive interests of their country,” cultivate expertise, and develop prudent, sagacious laws.57 One supposes that Madison was an optimist.
Assumptions and reality parted company some time ago. In its first century, House membership was indeed volatile. While incumbents had advantages, around one-third chose not to run again, and of those who did, 10 to 25+ percent lost; approaching half of representatives could be freshmen in a given season.58 After the 1880s, incumbents had an easier time, and since the 1970s, voters have returned 90 to 95 percent of incumbents seeking reelection.59 Today, the average tenure of representatives is just short of a decade, and almost 20 percent of representatives have served more than sixteen years.60 Partisan gerrymandering helps cement representatives in place, though the trend toward long tenure predates many redistricting excesses. Meanwhile, the composition of the Senate is as stable as Madison could have hoped, but senators’ ideologies are more changeable: the advent of direct elections a century ago and the hotly contested intraparty primaries from the 1980s foster the sort of intellectual lability that Madison feared of, and was actually realized in, the House.
From Madison’s perspective, this would be the worst of worlds, of intellectual volatility mixed with professional incumbency. The potentially saving grace is that incumbency might allow legislators to master policy and write laws with greater technical facility. Has incumbency delivered those benefits? Doubtful. A decade of service today means something different than it once did. Even if incumbents can be reasonably sure of reelection, politicking takes enormous effort, greatly reducing time for the real work of government. Campaigning is now so intense and expensive that ex-Representative Tim Roemer suggested it consumes between 30 and 50 percent of a member’s calendar, and other Congressional insiders concur.61
The modest data we have on how representatives spend their time confirms Roemer’s estimate. One of the more on-point surveys suggests that representatives break their time into thirds, with campaign work running through most of it. The first third is spent on “constituent service,” a marriage of help-desk work and low-wattage campaigning that consists of answering letters and helping wrangle government benefits for voters.* Another third vanishes into humdrum administration and the grinder of media events, the latter a form of de facto campaigning. That leaves just one-third for core policy-making work, at best.62 This fraction, already modest, can be reduced further by random events, anything from illness (a serious matter for the many elderly members of Congress), to tragedies like the 2017–2018 assaults on Congressional members, but not, you will be gratified to learn, by jury service (an inconvenience from which Congress exempts itself).63
The many demands on representatives’ time make for a long apprenticeship. Buffeted by distractions, it can take representatives many terms to fully understand the legislative process, which is why senior legislators encourage newbies to stay quiet for a few years. Given leadership’s power, many new legislators follow this advice, unless they arrive in a wave that changes leadership itself, as happened with the Gingrich revolution in 1994. And once representatives understand policy and process, they may only have a few years to use that knowledge, given the Republicans’ introduction of term limits for their committee chairs. (Chairs who have termed out and face return to back-bench obscurity often decline to seek reelection, reducing the institutional capacities of Congress.)
Legislating is a difficult and novel job, and nothing about elections or Congressional mechanics ensures competence. Most professions, from medicine to hairdressing, impose minimum educational and vocational requirements; some also screen for ethical and financial probity. The legislative career, however, has no substantive filters: the Constitution requires citizenship, periods of residency, and minimum ages (25 for representatives, 30 for senators), but that’s about it.64 Stupidity, bankruptcy, or criminality may (or may not: Google “James Traficant”; it’s worth it) be political nonstarters, but they aren’t legal barriers. Therefore, the only certain thing about a new legislator is that he or she was more appealing than the alternative (and not even that in the case of ties, which some states decide by coin flip).65 A taxidermist today, a Congressman tomorrow—the Constitution shrugs. To compensate, one might expect Congress to provide new members with exhaustive courses on the legislative process. But Congress makes few gestures at training. New representatives take a seminar that lasts about a week and focuses on administrative topics like website maintenance, Congressional expense policies, and (cursory) ethics, with virtually nothing on the substance of legislating.66
The absence of training degrades the technical quality of law. There’s no perfect vocational analogue to Congress; like all specialties, legislating requires training. The ability to draft a law rarely features in campaign ads, of course, with candidates preferring to tout the special advantages their experiences will grant them in Congress. Such claims should be greeted skeptically. Consider military service, a popular legislative credential. A former SEAL might be more ambitious, patriotic, and have better knowledge of Navy special operations than the longest-tenured civvie on the House Armed Services Committee, but that committee deals with everything from base leases to missile contracting, at levels of great abstraction. A given term’s work may not touch on SEAL operations; it may not, for Constitutional reasons, even be able to resolve a problem the SEAL-turned-legislator knows to be urgent. In any event, leadership controls the agenda, so the SEAL’s committee toil may be fruitless. Indeed, it may not even produce a substantive education. Representatives serve on an average of 5.3 committees/subcommittees, while senators serve on 13.8, but if a committee conducts a two-hour meeting weekly, a legislator’s hourly policy budget can be exhausted simply by showing up.67 Should a backbencher eventually join the leadership, he will do so without having gained much policy experience.
Even if legislators somehow master a subject in their long (and frankly pointless) apprenticeship, they must still translate that knowledge into written law. For decades, the natural qualification was legal practice. Lawyers share a culture and vernacular, making it easier for lawyer-legislators to communicate with the overwhelmingly legal community that interprets law: judges, bureaucrats, tax lawyers—the lot. Lawyers also know the frailties of the English language, because to practice law is to appreciate all the ways words can fail, through manipulation or misconstruction, or by unintended interaction with other chunks of legalese. Having a Congress without a lot of lawyers would be as odd as having an embassy in Thailand without any Thai-speakers. This is one reason why lawyers traditionally made up more than half of Congress, ranging from 48 percent in 1809–1811 to 79.5 percent in 1849–1850.68 Despite lawyers’ natural advantages, there’s been a precipitous decline in lawyer-legislators since the 1910s, especially among Republicans (who substituted businesspeople for lawyers). Today, lawyers comprise just 36.5 percent of Congress, and while law is still the most represented profession, it’s at levels well below the historical average.
The effect on policy is subtle. Adjusting for party, lawyers and non-lawyers do not vote in significantly different ways, save on matters that affect the legal system directly. For example, GOP lawyer-legislators favored public legal aid more vigorously than party peers, and lawyer-legislators generally seem more supportive of judicial independence and the rule of law.69 The last two values are incontrovertibly important, though they are not the only loss. With just a third of Congress trained in law, the natural inference is that (however bad legal education may be) Congress has less institutional capacity to read or understand the bills it circulates. Non-lawyers may find concatenations of “provided, howevers” and “notwithstanding the foregoings” hard to parse, and fail to appreciate how sloppy commas and misplaced modifiers can lead to enhanced sentencing or costly litigation.70 Vampire Weekend asked (or sang), “who gives a fuck about an Oxford comma?” Maine’s dairy industry certainly does: in 2018, a $10 million dairy case hinged on the absence of an Oxford comma in a Maine statute.71
All of these structural incapacities make it hard for Congress to draft laws well, in accord with public expectations and jurisprudential criteria. Even legal specialists have a hard time understanding the results, and some judges (and academics) have either given up or retreated into fantasy. Justice Scalia sponsored a grand myth that the legislature, most of which is untutored in law and anyway overwhelmed, not only “authors” national laws, but does so diligently and in full agreement with Scalia’s own Latinate treatises on draftsmanship.* The work of law professors Abbe Gluck and Lisa Bressman started to put paid to that notion.72 But every thinking judge should have accounted for what Gluck and Bressman have started to prove, and to the extent Scalia & Co. did not, they were either silly or disingenuous. Equally, commentators at the other end of the political spectrum nourish the fiction that the nation’s artless laws, produced in a haze of compromise and procedural manipulation, can be rendered legible by casting the oracle bones of legislative history to divine “Congressional intent.” Well, what “intent” can 218 representatives and 51 (or 60) senators be said to have, when they barely glance at laws that are, anyway, written in a language legislators do not speak? As Gluck and others have shown, much of the “statutory interpretation” done by judges is, and can only be, aspirational fiction. Then again, judges feel they must do something to untoss the word salad served up by Congress.
Clearly, Congress would be better served if more of its members had proper training in the business of legislation. (This doesn’t have to be at the exclusion of other experience; people can have more than one job and postgraduate degree, and it’s not much to expect our leaders to be—to put it indelicately—smart.) Reversing the lawyer-legislator decline, or at least providing compensatory training, would help. But given the other dysfunctions afflicting Congress, perhaps this is beside the point, as legislators probably don’t read or write bills in the first place: staff do.
Perhaps no group wields as much influence over public life, with as little recognition (or scrutiny) as Congressional staff. Elected officials keep staffers away from the public gaze, lest citizens realize how little legislators “legislate,” though everyone in the broader Congressional universe appreciates the staff’s importance. Lobbyists, for example, treasure staff directories and compile detailed profiles of senior staffers, reinforcing anecdotally what we know mathematically: in important ways, staffers are Congress.
The staff-driven Congress is a modern innovation. In its first century, Congress had almost no staff; legislators did most things for themselves. Legislators who wanted assistance had to pay out of pocket. Few cared to do so, and other than some personal aides (often spouses, a practice now banned), the Capitol’s only helpers were some institution-wide professionals such as the Librarian of Congress, plus the odd committee helper. After 1885, Congress provided a modest staff allowance and assistants trickled in, though it was only after the New Deal and World War II that staff really expanded, in parallel with government itself.73
Most staffers are personal, serving individual members. A representative may hire up to eighteen full-time staffers, while senators can theoretically retain as many as they like within their budgets, though the average senatorial allowance of $3.5 million effectively limits staff to around fifty people.74 From the perspective of substance, eighteen staffers for a representative is not much, since almost half of the staff toil on public relations, constituent service, and administration, leaving at most ten staffers to cover the thousands of bills a member is expected to read and vote on.75 (Even fifty is not much for a senator.) The pressures are only partially alleviated by the modest institutional staff who serve specific committees, leadership, or the entire Congress.
Staffers are central to the legislative process, as it is they who review law, research the issues, and gather input from various interested parties, presenting findings to their bosses, who then gesture in general policy directions for draft bills.* Staff members write those, too—a combination of personal staff, committee staff (or staffs; sometimes more than one committee is involved), and the Offices of Legislative Counsel (OLC). Congressmen do debate concepts among themselves, though staffers often negotiate the all-important details with other staffers. Staff also prepare the whole Kabuki around a bill’s presentation, and many of the words spoken by Congressmen—speeches, questions at hearings, public announcements, and so on—tend to be staff-written. Staffers can have as much power over legislation as a member wants, short of voting on the bill itself. Functionally, many elected officials are the equivalent of Hollywood’s producers, the people who rarely write, edit, direct, or act in this year’s Best Picture but who will nevertheless be granted the relevant Oscar (or Razzie).
There is nothing inherently wrong with this system so long as constituents understand it and legislators are candid about the dynamics. Unfortunately, much of the legal system depends on the fiction that Congressmen know what they’re doing when they vote and speak. They may not: it’s not uncommon to see a Congressman on C-SPAN reading his statement for what is obviously the first time, chuckling at staffers’ canned jokes or stumbling over unfamiliar concepts. Nevertheless, the pantomime is deposited into the record, where bureaucrats and judges (the latter assisted by their own staff of clerks) digest the result as “legislative intent.”
Though dependency on staff is extreme, the prime worry is not that there are too many staffers; rather, the concerns are that staff are too few and too badly managed. Some 20,000 staffers may seem like a lot, but it isn’t, not for an institution legislating for 325 million people and spending $4 trillion of their money. This is especially so given that perhaps 6,000 staffers really participate in lawmaking, and only about a tenth of those are experienced, dedicated legal drafters.76 One would expect more staffers, yet Congress keeps cutting, so even as the national population increased by a third between 1987 and 2017 and the economy roughly doubled in size, staffer population declined by 30 percent.77 Cuts to substantive staff were perversely heavy, with notable declines in committee staff (in keeping with the effort to neuter committees generally) and to the Congressional Research Service, which provides essential policy studies for both members and the public. Only the Capitol Police, charged with keeping members secure, expanded.78 Cutting staff makes no sense, not least because staff represent the only part of Congress that can easily grow with the nation.
Quantity is not the only staff problem. The abysmal pay Congress awards its helpers makes retention exceptionally difficult. Staff assistants, the most common subspecies, earn as little as $30,000 to $33,000 per year, significantly below market wages.79 (As one reporter tartly noted, Congressional aides can make less than the Senate’s janitors.) Senior staffers make $100,000, and the most experienced staffers (mostly employed by leadership) collect $172,500, the maximum salary allowed.80 Even at the high end, staff salaries don’t go that far in Washington, D.C., and crucially, staff earn far less than they could as lobbyists, lawyers, or other private-industry actors. The consequence of low pay is that staffers tend to be younger and prone to turnover, so that while Congress’s elected members have become perpetual incumbents, many of its core workers lack experience and continuity.81 Congress could alleviate some of these problems by raising staff pay, not to market rates (various legal restrictions make that impracticable), but enough so that more important staff work becomes viable as a career instead of a pit stop.82
The Congressional culture of self-diminishment does not apply to lobbyists. Unlike Congress, lobbyists have no desire to reduce their influence and no restrictions on paying for the best. Lobbying was a sleepy affair until the 1990s, a small industry focused on trade groups, unions, and a few companies deeply affected by government action (telecoms, defense contractors, and the like). Lobbying has since expanded dramatically, and there are now lobbyists for everything, even lobbyists for lobbyists (the Association of Government Relations Professionals f/k/a the American League of Lobbyists). Today, lobbying is an industrial counterweight to Congress, with 11,545 registered lobbyists reporting $3.37 billion in expenditures in 2017; the actual totals being slightly higher because sunshine laws exempt smaller lobbying efforts from disclosure.83 Lobbying overwhelmingly promotes corporate priorities, with business outspending unions and public interest groups by more than 30:1.84
Corporate America defensively asserts that $3 billion is insignificant relative to the size of industry itself, which is narrowly true. Even bigger spenders like Alphabet (aka Google) devote a minuscule fraction of their resources to lobbying; the search company spent $15.4 million on lobbyists in 2016 (making it the eleventh biggest spender) against revenue of $90.3 billion.85 The better metric, however, is lobbyist spending relative to Congress. Total lobbying spend is at least 79 percent of Congress’s operations budget and there are also almost certainly more lobbyists than staffers working on substantive issues.86 Compounding their advantages, lobbyists can focus on specific issues and draw on their clients’ research resources, which collectively eclipse those of the Congressional Research Service. Lobbyists tend to know much more than the lobbied, and however knowledgeable the staffers at House committees may be, they will never know as much about cans as the Can Manufacturers Institute (CMI).87 The energetic can lobby busily writes to Congress, even POTUS himself, about all manner of issues—and it turns out that cans are constantly at risk from unintended legislative spillovers. Who knew? The can lobby, which is the point.
Lobbyists provide expertise that an increasingly inexpert legislature needs, but in keeping with the adversarial nature of the American legal system, lobbyists only represent one point of view. Although staffers know this—obviously, the Vinyl Institute wants what’s good for vinyl—it can be hard for overworked, generalist staffers to know the boundaries between fact and agenda. When the vinyl folks offer studies demonstrating the risks of switching from traditional, well-tested PVC ingredients to ostensibly greener, but less-studied inputs, does anyone expect staffers to offer intelligent opinions on the risks of hydrogen chloride and the wonders of chlorosulfonated polyethylene? Of course not, no more than anyone can expect staffers to know, without an alert provided by CMI, that a Section 232 “national security” inquiry posed grave risk to beverage cans.* 88 Lobbyists provide necessary education in arcane areas, but that education can be lopsided. Except in hotly contested matters, as when telecoms, Google, and consumer advocates first tussled over net neutrality, Congress may never hear all sides of an issue, much less from all interested parties. Congress will, however, hear from itself—or at least, its former self. Ex-legislators and staffers make up only a small fraction of lobbyists, but it’s a highly influential fraction, usually at a firm’s helm and able to get return calls from the Capitol. All this is perfectly legal, by the way, however much it gives off the appearance of impropriety.
Whether lobbying just looks corrupting or is corrupting is hotly disputed. The public seems to think the corruption is real, while legislators deny that lobbyists have much influence at all. The impartial academic research is mixed and will always be inconclusive, because the legislative process is too complex to parse statistically and legislators have no incentive to be overly transparent. Nevertheless, the general weight of the evidence suggests that the classic cases of lobbying corruption—in which lobbyists secure new legislation to their clients’ benefit—are fairly rare, confined to those high-stakes issues that command extraordinary spending. This can happen, as when chunks of lobbyists’ text are copied wholesale into bills (as happened with a Monsanto-sponsored GMO bill). Where lobbying seems to enjoy greatest success, however, is less in ghostwriting new laws than in achieving beneficial technocratic tweaks and, perhaps most importantly, preventing changes to old laws—a sort of for-profit filibuster.89
On the whole, lawful lobbying may not be as utterly corrosive as some believe, though it does cause problems, of which three deserve particular consideration. First, while lobbyists generally cannot effect major changes in the text of a law or its enactment, lobbyists can usually get officials to read statements into the record, allowing private actors to influence the legislative history that courts use to interpret laws. Simply reading a lobbyist’s gloss into the Congressional Record hardly seems like gross corruption, costs legislators virtually nothing, and if any political consequences arise, they’ll emerge years or decades after the fact when the original parties are safely distant. Second, lobbyist influence on formal legislation—acts of Congress—may be limited, but the influence on quasi-law, like regulatory pronouncements, is much greater; indeed, Congress sometimes requires bureaucrats to consider lobbyist input when making regulations. We’ll take that up in the chapter on bureaucracy. Finally, if citizens (and possibly legal actors such as judges) believe lobbyists corrupt the process, then lobbying degrades the legal system by limiting trust and reducing compliance. Lobbying may not be the fatal enemy that many sunshine groups decry and might even, in arcane matters, do some good—but there are always costs.
Congress has become a very different body than the one envisioned in Philadelphia in 1787 or described in classrooms today. It’s formally true that there are 535 members of Congress, that they constitute the nation’s supreme legislature, and that they write bills which, after debate, may be passed by both House and Senate and, if signed by the president, become federal law. In reality, the executive branch sets many of the most important agendas, and a concentrated Congressional leadership drives bills forward, relying on staff (and sometimes lobbyists) to do analysis and drafting. Quality ranges from low to nonexistent, and mistakes are frequent, but nevertheless, products are rammed through the House in a parliamentary-style dictatorship in flagrant contravention of “regular order” to await their Senate fates. Bills that escape the Senate then return to their true birth parent, the White House, to be signed by the president and distributed to the agencies that implement the law by writing quasi-laws themselves.
All the while, many Congressmen, judges, and some parts of media play Let’s Pretend, indulging the filmstrip ideal of How a Bill Becomes Law, a world in which Congress is still Congress. But the conventional understanding of Congress no more applies to the workings of Capitol Hill than Newton’s mechanics explain a singularity. Congress is less than it was, and catering to old schemas distorts the rest of the legal system that’s tasked with interpreting and enforcing Congressional will. It’s a tricky problem, compounded by Congress’s general incapacity, and one the ever-expanding administrative state has decided to resolve in the only rational way possible: by ignoring Congress.