Why Congress’s Decline Makes Bad Problems Even Worse

As Ezra Klein notes, our political system is dysfunctional, and Congress’s decline is a major part of that problem.

After a brutal week, from the murder of George Floyd to the riots in America’s capital and other cities, Ezra Klein compares our moment to the 1960s and laments that today’s dysfunctional political institutions make our social problems even worse:

But there was one thing the 1960s had, that we, today, do not: a political system designed to absorb conflict and find consensus, or at least stability. I do not seek to smother the age in nostalgia. That calm was often purchased at terrible moral cost, as in the union of Dixiecrats and New Deal Democrats that upheld segregation for decade after decade. But our divisions did not track our parties, and so they were muffled in our politics. What our political system could not solve, it suppressed. What it could no longer suppress, it sought to solve. When the Civil Rights Act passed, it did so with Republican votes, even as it was signed by a Democrat. Imagine legislation of such consequence passing without partisan valence today. The compromises of that era saved the country, but they ended that political system.

This is all true. But the conclusion that Klein draws—“This is the story of American political polarization”—is only part of the truth.

The last five-plus decades are also a story of Congress’s utter decline as the nation’s major policymaking and governing institution; today we are governed primarily by institutions outside of Congress. Instead of a legislature’s slow, deliberative, and compromising process to make laws such as the Civil Rights Act, our political energies are channeled toward the swift and unilateral decisions of administrative agencies, or the sweeping pronouncements of federal courts that stand athwart them.

Congress at the peak of our constitutional government. It’s a nice thought, at least.

This is why our entire political system hinges on the presidential election. Every four years, we elect someone to appoint the people who will actually govern us—the agency heads and the judges. Meanwhile, we elect people to Congress mainly to criticize or support the president’s administration. And upon taking office, as Yuval Levin observed in Commentary, those congressmen see Congress not as an institution for bipartisan compromise but a platform for partisan complaints. They assume that the real work of governance will be done by administrative agencies, or by the judges who block the agencies’ work. This dynamic amplifies and exacerbates the polarized and dysfunctional political system that Klein rightly laments.

Worst of all, the accumulation of lawmaking power in the administrative state—a problem that long preceded the 1960s, but which has accelerated since then—creates a feedback loop that makes reform even more difficult. Each time Congress vested agencies with more power over new matters, it created less incentive for Congress itself to legislate on that subject: the president’s team in Congress has much less incentive to compromise when their party can advance its agenda in agencies; and in turn his opponents in Congress, knowing compromise is unlikely, have much less to work toward compromises in the first place.

(But to the extent that Supreme Court justices are increasingly interested in revisiting the delegation problem, they are reliably and loudly denounced, in Klein’s Vox and elsewhere, as dangerous threats to American health and safety.)

Klein is right: the American political system’s utter inability to “absorb conflict and find consensus, or at least stability,” makes it even more difficult for us to grapple with our national crises. We need to look hard for ways to make Congress responsible for the actual work of governance, to function as a producer of consensus and stability. But to make Congress a responsible legislative institution, we must make it the institution that is responsible for legislating.

Adam J. White is a resident scholar at the American Enterprise Institute and director of George Mason University’s Center for the Study of the Administrative State.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.