Over the past year, leading members of Congress have delivered some stirring mea culpas about the demise of the First Branch of Government.
Speaker Ryan’s “A Better Way” agenda declares: “The people granted Congress the power to write laws, raise revenues, and spend and borrow money on behalf of the United States. There is no power more consequential …Yet for decades, Congress has let this power atrophy — thereby depriving the people of their voice.” Similarly, Senator Mike Lee last year launched the Article I Project on the premise that, “the federal government is broken, and congressional weakness is to blame … Congress has handed many of its constitutional responsibilities to the Executive Branch.”
Congressional Republicans who sounded these alarms about executive overreach may well have had Barack Obama or Hillary Clinton in mind. But as Donald Trump prepares to assume office, these calls for congressional re-assertion have become increasingly bipartisan.
All of which prompts the question: How much will Congress let President Trump get away with? The answer? Probably more than they should. Congress has grown weak relative to the executive branch, and Speaker Ryan is right: legislators, themselves, are largely to blame.
The men who designed our system of government took a dark view of human nature. They had, as the historian Richard Hofstadter put it, “a vivid Calvinistic sense of human evil and damnation and believed with Hobbes that men are selfish and contentious … They did not believe in man, but they did believe in the power of a good political constitution to control him.”
Hence the constitution produced by the founders aimed to thwart tyranny and protect liberty by diffusing government power. Any government action, they hoped, would necessitate compromise across many competing factions. One branch would check the ambitions of the other, but Congress, the First Branch, would be the first among equals. For proof of this, one need only consider how many powers the Constitution assigned to Congress and how few were given to the president.
In 1789, government was relatively small because society was considerably smaller and less complex than it is today. But over the ensuing centuries — and particularly over the last 50 years — society and government both have become significantly larger and more complex.
This has had major consequences for the balance of power. The executive branch has grown substantially, thanks, in part, to Congress’ addition of new executive agencies with their own duties. Investments in private lobbying have also grown, as hiring policy experts and savvy former Hill staff can pay handsomely.
But the legislative branch has lagged. Staffing levels have stagnated for decades, and congressional salaries are so low and hours are so long that few can afford to stay on the Hill for more than a few years. Once congressional staffers have children or grow tired of drawing low pay in one of America’s most expensive cities, they leave to increase their salary by going in to the executive branch or the private sector.
Legislative support agencies, which supply Congress with expertise and nonpartisan analysis, have atrophied. Since 1995, staffing at the Congressional Research Service and Government Accountability Office has declined 20 and 31 percent, respectively. House and Senate leadership offices have centralized power, reducing the legislature’s collective ability to respond to more than one issue at a time through its committee system, turning policymaking more and more into partisan one-upmanship.
Plainly, many current members of Congress are frustrated. It is puzzling, however, that their high-minded calls for congressional re-assertion, have not yet translated into significant actions to strengthen the legislature. Members of Congress can give speeches all day along about the importance of Article I and legislative supremacy. But those words ring hollow so long as elected officials continue to cling to the Cincinnatus myth of the citizen-legislator, who, with nothing more than good old-fashioned common sense, can come to Washington for half the year and competently manage a $3.7 trillion government with 180 agencies and global reach.
Governing in the 21st century is hard work. Immense quantities of complex information must be absorbed in order to make the difficult choices that will inevitably upset certain segments of the public — which is why Congress often passes such work off to the executive branch. To solve this problem would require paying significantly more to retain and hire the requisite numbers of experienced staff and reinvigorating congressional committees so that they become independent policy and oversight dynamos.
One might object to the idea that Congress should spend more to build its capacity. Congressmen are no more enlightened or altruistic than the bureaucrats and politicians who populate the executive branch. Won’t congressional resources be wasted on vain self-promotion or partisan wrangling? Some of that will surely happen.
Such an objection, however, overlooks Madison’s fundamental insight: A system of government that requires men to be angels is doomed to fail. Our constitution set up a dispersed system of competing power sources precisely to encourage deal-making. But this balance-of-powers system requires an actual balance of power. Power abhors a vacuum. If the legislature — the branch most directly connected to the people — is not driving policymaking and governance, another branch will.
Lee Drutman is a senior fellow in the political reform program at New America. Kevin R. Kosar is a senior fellow at the R Street Institute. They co-direct the nonpartisan Legislative Branch Capacity Working Group.