The midterm elections are a month away, and while I have expressed my feelings on voting and the electoral system generally, I have also made several posts trying to boost specific policy ideas that should be more discussed. In the same vein, I’ve been thinking about which issues are top priority in this election, and whether any of them are actually as high impact as their popularity warrants.
The recent Brett Kavanaugh confirmation process, which I think everyone agrees was pretty circus-like from start to finish regardless of political inclination, seems to have sparked more voter enthusiasm in the midterms. And while I’ll grant that Supreme Court nominations have grown in importance, it doesn’t follow that SCOTUS nominations should be a major issue in this election. The oldest justices are left-leaning, and so unlikely to retire in the next two years. Perhaps if there is a fear that Justices Ginsberg or Breyer (aged 85 and 80 respectively) will be forced into retirement due to medical problems, then this election would matter. But the chances of that seem less than 50%.
There are other issues, like immigration, that are highly impactful and also well discussed. If there was a decisive turnover from Republicans to Democrats in Congress, we’d expect some of that to be realized in immigration policy, but unfortunately not that much. Even if Democrats took both houses, this election is still largely being discussed in terms of being pro-Trump or anti-Trump.
This is a problem. Only one party can control the Presidency. Moreover, there are competing ideologies within parties, with many fiscal conservatives frustrated with George W. Bush, many neoconservatives frustrated with Trump, and yes, even some liberals frustrated with Obama on foreign policy. So really it should be said that only one ideology gets to control the White House as well. If the Presidency controls so much about policy, then this is disastrous for representative democracy. Depending on how ideological or political people are, the majority of people will not feel represented by the President, even if the President wins a majority of votes (something that has only happened 3 times in the last 8 presidential elections, going back 30 years).
The solution is clear, but we have no incentive to achieve it: Congress should be the most powerful branch of government. Its membership is large so as to draw from a wide range of views and geographical areas. When it acts, it must find compromises and alignments of interests, unlike the President which acts as a single unit. That was the design in the original constitution, and technically, if Congress worked to assert its control, it could retake such a position in government. However, congressmen have little incentive to do so; going on the record for votes and standing on specific principles is politically dangerous. Better instead to move questions of policy to the executive branch, and leave Congress to simply grandstand politically, never having to be tied down to specific votes.
For example: Barack Obama unilaterally decided to grant legal status and eligibility for federal benefits to millions of illegal immigrants in the United States. I happen to think this was a good policy idea, but if the President can decide what laws to enforce and make his own laws with executive orders, then Congress is vestigial. President Trump actually took a pretty constitutional position and decided to end the DACA program and told Congress to pass the DREAM Act (would have crystallized the DACA program into law). He gave them six months, and they did not make the deadline, despite such action being pretty popular. This is unbelievable. Maybe too many people were playing politics. Maybe Donald Trump is incompetent in getting the legislation passed (he torpedoed a bipartisan bill), but that shouldn’t matter. Congress should be able to pass a bill that a majority of legislators agree with, but the will didn’t exist. No one wanted to be on the wrong side of the political divide of the Trump era, and so no bipartisanship could materialize, guaranteeing further partisanship in the future.
This cycle also delegitimizes Congress, making people look more often to the Presidency and to the courts. Congress is fundamentally tied to winning elections, so if people see Congress as unhelpful or unpopular, Senators and Representatives have even less incentive to do anything that might frustrate voters. That in turn also makes the courts increasingly important, which likely fuels additional democratic frustration, as the courts are still fairly removed from direct democratic influence. But if they are viewed as partisan extensions of the presidency, that just makes even more things rely on a single election where only a single ideology can win every four years.
I think there may be a way out of this mess if political parties made the midterms about Congressional vs Presidential Authority. It’s not always been true that Congress can only define itself in relation to the President, but it may be a useful way to couch constitutional authority in political terms. Reducing presidential power would be a concrete way to oppose Donald Trump, and perhaps even reach alleged small-government conservatives.
The Cato Institute lays out a platform for a resurgent Congress to run on: requiring votes on executive rule changes that will impose costs of $100 million on the economy (already introduced as the REINS Act), updating the Administrative Procedures Act to require courts to interpret administrative authority de novo or independent of the agency’s claimed interpretation (I’m horrified this isn’t already done), and require all fees and penalties collected by the government to be appropriated and spent by the Congress (right now, fees and profits are then spent by the collecting agency, with little oversight).
We don’t have to limit this approach to libertarian wishlist items. Kevin Kosar in Politico details additional approaches (and adds many more words in National Affairs), including an improvement to the robustness of congressional staffing; the executive has armies of bureaucrats working to provide the best information (and sometimes self-aggrandizing propaganda) to the branch (the Executive Office of the President alone includes some 4000 people). Congress has seen shrinking staffing for its oversight and accountability offices like the GAO. Congress should be the most powerful branch and so it should have access to the data and expert information on how best to oversee the actual implementation of policy the executive branch undertakes. Instead what we often have is Congressional staffers directly trying to research regulatory agencies, who are providing their own oversight information to non-expert politicians who often defer to the self-interested agencies. Kosar’s suggestion of a Congressional Regulation Office is also intriguing.
However, just because there is a way to do this, there is no reason to believe Democrats ever had an intention to follow this path during this midterm election. Nor does it mean Republicans will consider it in 2022 if the tables are reversed. Neither have an incentive to discuss constitutional authority when culture war issues are more likely to encourage their base to turn out. Understanding these public choice incentives doesn’t mean we have to live with them though. There is a nebulous role for real ideas in democracy, and it starts with having a discussion about the state of our politics.