Aside from turnout and historical perspective, the 2020 election was not particularly unique. The U.S. has held national elections during previous pandemics, world wars, economic collapses, unrest, and a civil war. Cabinet members are not dueling on the Heights of Weehawken nor are members of Congress beating each other with canes. To my knowledge, Mr. Trump did not refer to Mr. Biden as a moral leper nor did Mr. Biden call the president’s mother a prostitute.
Our batting average is still high.
Nonetheless, we should feel inspired to reflect on trends in national politics and federal government and ask the healthy, important questions about the future. There is an unsustainable tension among the branches and hierarchies of government. The enumerated powers of the federal government have shifted away from the Founding Fathers’ intent and have divested the legislature, emboldened the executive, and unduly burdened the judiciary.
The next presidential campaign must unify the country around a single, bipartisan mandate: Make Congress Great Again.
Legislation by Litigation
Historical events have impelled Congress to voluntarily cede its constitutional powers. It has legislated away much of its policymaking role and been supplanted with the administrative state as the de facto fourth branch of government. The AUMF and PATRIOT ACT are remarkable relinquishments of Congress’s role in war and oversight of the executive.
The internal power politics of each chamber has made meaningful, substantive policymaking a zero-sum game and further crippled Congress. Absent clear majorities in both chambers, Congress is relegated to continuing resolutions and media soundbites.
Legislation happens through legal battles over executive orders and administrative regulations. Due to its failure to act, Congress now relies on the courts to weigh in and decide matters of society that are best left to the people’s representatives.
Abortion rights are a prime example. During her Supreme Court confirmation hearing, Justice Amy Coney Barrett was asked about her views and on the role of Roe v. Wade in abortion policy. In response, she reiterated Congress’s authority to act. A blunter retort could have been given, “Senator, I believe those issues are rightfully resolved by you, not me.”
The state of abortion in the U.S. is a product of Congress failing to act. Instead of addressing it substantively as a matter of individual right, abortion is litigated as a sub-component of public funding, employment rights, and insurance regulation. It is no mystery why judicial activism exists and judicial confirmation hearings have become so partisan. The end state is a growing view of the courts as a legislative body and judicial confirmations devolving into a minor league extension of partisan election politics.
Congress Must Self Correct
The next president may relinquish power to the Congress, but the institution itself must reform. The greatness of the US Congress compromised and major bipartisan legislation a thing of the past. The next president can start a trend in the other direction, but it will take a mandate from the voters, restraint by the executive, and sweeping reforms of the legislature. Simply put, Congress is not equipped to serve its own purpose unless and until it shifts its rules and processes from a power-driven to a service-driven model.
First, Congress needs term limits. For example, no representative may serve more years than the president (8) and no senator may serve more terms than the president (2). The 116th Congress has an institutional personality with an average age of around 60. The median age in the US is about 38 and the vast majority of Americans are under 65. Congress is not a reflection of the people. A mandated turnover promotes new, fresh minds, which will result in an evolution of legislative priorities and voting blocs. Just as the nation evolves, so must Congress.
Second, Congress should divorce itself from the private sector by restricting lobbying practices, particularly those by former members. While in office, members should divest themselves of their stock ownership and other interests in private businesses. The perception is that members are subservient to corporate interests over their own constituents and abuses have unfortunately surfaced far too often to support it.
Third, congressional investigations need to be altered. Hearings are mostly an extension of media interviews. Members rattle off prepared remarks with questions aimed to trap witnesses or bolster a narrative. Rules and processes for these hearings and investigations should promote thoroughness and informed witness examinations and deliberations. If not, what is the point beyond padding a member’s stats to say he or she served on a committee?
Fourth, oversight needs to occur. Congress needs to reign in the administrative state and assume its policymaking and oversight responsibilities. Standards and rules for implementing oversight measures should be adopted as an institution. Congress should check and balance itself to avoid misuse by harassing the executive and wasting taxpayer money. Regardless of which party is in power, how and when to initiate investigations and conduct oversight should be institutionally prescribed.
Finally, and most importantly, Congress needs to appropriate itself more money. Lee Drutman’s book, Doom Loop, touches on this directly. The president needs to increase the congressional budget substantially to enable it to perform its important functions more effectively. The entire legislative budget makes up less than half a percent of discretionary spending, which goes toward all staffing, administration, and operations. In FY 19, that budget was $4.8 billion. By comparison, the entire congressional budget is less than half of the procurement budget for the F-35 joint strike fighter ($11 billion in FY20).
The U.S. Congress is the most influential legislative body in the world. When it acts, markets shift around the globe. Yet, it operates on less money than one part of one program in the DOD. We cannot expect Congress to run efficiently so underfunded. Congress needs staff. It needs to be able to reach constituents, coordinate with the executive, and support the formation of clear national guidance, legislative priorities, and lead the country (and the world) on healthy, informed debate.
The Congress is crucial. The Founding Fathers envisioned it so, dedicating over half of the Constitution itself to defining the role of the legislature. The role of lawmaking is paramount to the other functions of the federal government. However, as Madison so eloquently put it, “In framing a government . . . 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.”
The next president should champion the constitutional roles of government and promote the revival of the House and Senate. He or she must promise to relinquish executive power, reduce the administrative state, and act with restraint. The next president must use the mandate of accountability and the balance of power, championing candidates who share this view and tying executive powers to needed reforms. Let us make 2024 the year that a president is elected who will actually restore balance and constitutional order to the federal government.
The present national impulse toward panic and urgency is misguided. The Republic will endure. But we must oblige our government to control itself.
Richard Protzmann is an attorney in Newport Beach, California, and a Captain in the United States Marine Corps Reserve. The views expressed are those of the author and do not reflect those of the U.S. Marine Corps the Department of Defense, or the U.S. Government.