The Price of Dysfunction
A Performative Congress and the Toll on American Democracy
It would be hyperbolic to say that the United States is facing more serious issues today than at other times in its history, but its current slate of problems is certainly consequential. Undoubtedly, these problems cannot truly be solved without action on the part of Congress. The results of a series of polls conducted by the Pew Research Center, published on April 7th, showed that most Americans (56%) believe that the United States is not capable of solving major problems. This is up from just a year ago when 57% of Americans still believe that it could solve major problems. The pessimism about the United States’ ability to deal with major challenges, is shared equally among Democrats and Republicans, at 58% and 52% respectively. The same survey indicated that over 60% of Americans disapprove of the job both political parties are doing in Congress.
The increasingly performative and ineffectual nature of Congress is self-evident. The Congresses of the 50s and 60s regularly passed over 1000 bills per session but the numbers have dropped significantly. No Congress since the 108th in 2003 has passed over 500. The number of bills passed is far from an exact measure of congressional effectiveness. The topics addressed and the size and scope of the bills passed are harder to measure. However, the most pressing issues of today never seem to be resolved or improved. Often this is the result of the once seldom-used but now standard filibuster. For example, there have been over 1000 bills or resolutions proposed in the House of Representatives and over 800 proposed in the Senate concerning immigration since the year 2000, and yet the issue has not been addressed in any meaningful fashion. In the 116th Congress alone there were over 90 proposed in the House and over 50 in the Senate, very few of which became law. The ones that do become law are generally too obscure for Americans to even know about, such as the Venezuela TPS Act, which granted Temporary Protected Status to some Venezuelan nationals living in the United States.
Meanwhile, investigations and oversight are growing more partisan. Oversight is a key function of Congress and has long contributed to the theatric side of American politics. Harry Truman’s participation in the Special Committee to Investigate National Defense Programs (Aka the Truman Committee) and Richard Nixon’s involvement in the House Unamerican Activities Committee were both great political theatre and major steppingstones in the careers of both men. However, the oversight of today’s Congress feels much less substantive. For example, the new Select Subcommittee on the Weaponization of the Federal Government. The concept could actually be a worthy endeavor if there was any faith that the committee would be used to do anything except weaponize the federal government in the very way it is claiming to investigate. Research has shown that a split in control of the presidency and the House has always led to an increase in oversight. This seems to have increased with the last few congresses. The Democratic oversight of the Trump administration, including two impeachments, has led to a series of revenge hearings that run the risk of creating a destructive pattern.
The increasingly performative nature of Congress is bad for America in several ways but two in particular stand out. The first is that it exacerbates artificial differences. Polls frequently show that there is more agreement on an issue than you would believe if you just looked at Congress. Because political performances are made to appeal to the most extreme groups on each wing of the parties it exaggerates the difference. This is dangerous because the ‘silent majority’ is essentially stuck watching. Elections are not won by finding common ground with your opponent, but by highlighting the differences. The never-ending election cycle in the United States has led to a need to highlight differences by finding them as frequently as possible. It is not uncommon to see the political parties completely swap positions without a hint of irony simply to oppose the other side. Culture wars are fomented and new issues on which to stoke the anger of party members are sought out to feed an exaggerated bunker mentality on both sides. The all-important election metric of voter turnout is driven less by support for one side and more by fear of the other.
Unlike in a system with multiple political parties where alliances and coalitions are frequently used and seen as necessary, the two-party system makes them seem not only unnecessary but for political parties they are undesirable. Politics, once seen as the art of governing, is essentially now the art of getting elected. The sad reality is that a solved issue is an issue that cannot be used in the next round of elections, so it is better to have an unresolved issue that can be blamed on your opponent than one where politicians must share the credit and the blame. Abortion, immigration, inequality, and a host of other issues could be addressed with some give and take, but if they were addressed in that manner, they would be unavailable as battering rams in the next election, and so they remain, and Americans are asked to pick a side in a series of stark false dichotomies. Dichotomies that don’t exist in the daily lives of Americans, but exist only in the halls of Congress and in news cycles and social media around elections. Political scientists Michael Barber and Nolan McCarty observed in their 2013 text, Causes and Consequences of Polarization, “As voters sort in response to elite polarization, the incentives for parties to take positions that appeal to supporters of the other party will diminish. This leads to greater partisan polarization and greater incentives for voters to sort.”
The second issue is less visible but may ultimately be more disastrous when combined with the first. An ineffective legislature creates pressure on the other two branches of government. The United States was designed at its highest level to be a system of three counterbalancing branches. When one of those branches is failing it creates immense pressure on the other two branches to compensate. Like a runner with a bad ankle, the knees and hips soon hurt under the strain of adjusting. Returning to Barber and McCarty’s Causes and Consequences of Polarization, “the decline in legislative capacity” leads to “presidents facing strong partisan and ideological opposition from Congress” who then are “more likely to take unilateral action rather than pursue their goals through legislation.” In addition, the decline “increases the opportunities of judges and courts to pursue their policy goals because such judicial activism is unlikely to be checked by legislative statute. The courts have become the dominant arena for a wide swath of policy issues, from tobacco regulation to firearms to questions such as gay marriage.” Both political parties are not just incapable of checking judicial power, they seem to have wholly embraced judges as a way around their own ineffectiveness. This is why the judicial nomination process has grown more hostile. Not only is the legislative branch not checking the judiciary, they are expecting them to fill the power vacuum they have created.
For an example of this, one needs to look no further than DACA. The Obama executive order marked a clear increase in Presidential authority that remains unaddressed by Congress. In fact, the only attempts to address it were in courts and competing executive orders with Congress simply being a cheerleader for both. With the election of Donald Trump, he simply followed suit and attempted to use executive authority to provide his own immigration answer, by diverting defense funds to the building of a wall. People more and more want a president with unchecked authority because it feels like the only way to get something done. According to Pew Research at the beginning of the Trump presidency in 2016 only 14% of Republicans felt like the President should have more power to address issues without Congress or the courts. By 2019 that had increased to 43%.
The Supreme Court is an interesting case because the current conservative court has begun pushing back with the Major Questions Doctrine which is a position commonly held by the conservative members of the court that questions of major economic or social impact should be decided by Congress and not them. In a healthy political system, the legislature should eagerly welcome an increase of its own power. Instead, it seems to enrage members of Congress. Despite reports and public outcry surrounding recent prominent decisions claiming that the Supreme Court had made abortion illegal or that they had said the federal government could not enforce environmental standards, in reality, what they said was that neither they nor the executive branch could decide those things without Congress.
The case of Abortion rights is a prime example. When the Supreme Court overturned Roe v. Wade they were essentially giving back the power for legislators to decide the issue. This would be true for legislators on the federal and state level. Quickly legislators posted responses filled with words of defiance, such as Representative Alexandria Ocasio-Cortez’s vow to “never stop until abortion rights are restored in the United States of America,” or Senator Chuck Schumer’s pledge to “not stop fighting back.” But one thing they did not do was attempt to meaningfully legislate with the authority given back to them. The most significant legislative proposal came from Senator Lindsey Graham and it was universally rejected. Even Graham acknowledged that it had no chance of passing. But for many, the concern was not the content of the proposal as much as its proximity to an election and its ability to impact the talking points. Pew Research shows that only 19% of Americans support abortions being available anytime without questions and an even smaller 8% support total bans. A Kaiser Family Foundation poll found that 69% of respondents want to protect some access to abortions. The topic seems ripe for some middle ground, as is frequently found on the state level, but instead, little progress is made toward any kind of national resolution.
Instead of legislation, two dozen Senate Democrats sent a letter to Biden begging him to do something. Following the pattern of increasing pressure on the executive branch to compensate for the inability to legislate. Biden, to his credit and much like the Supreme Court has pushed back, frequently encouraging Congress to do something even before the ruling was formally presented. However, he has taken as much executive action as possible to try and force states’ hands, triggering a round of lawsuits, where again the congress will be a bystander. And in a destressing recent addition to the process members of Congress, most notably Ocasio-Cortez, are encouraging the executive to ignore the judiciary on opinions they don’t agree with. An act of the legislative branch actively undermining both of its fellow branches of government.
So, what do citizens do about it? The answer is clear but difficult. Voters need to elect more politicians willing to work pragmatically towards actual solutions. Who ends up in Congress is increasingly decided by a smaller and smaller subset of the population. As more Americans register as independents, states with closed primaries are decided by more hardcore members of each party. Possible measures could be taken to improve participation to ensure that elected officials would need to appeal to a larger portion of the population. Possible solutions include ranked-choice voting or creating a national holiday. Unfortunately, those changes require the consent of the very people benefiting from it not changing. Voters need to be more willing to accept the messiness of democracy. The issues and challenges facing the United States are complex and require complex and nuanced problem-solving. This requires politicians with seriousness and nuanced thinking. However, nuance and seriousness are rarely rewarded by voters in modern politics. It is not hard to find tweets or comments that feature the popular refrain “at least I know where they stand.” This is rewarding politicians who lack nuance. Instead, voters seem to prefer politicians who never deviate from simplistic solutions and views that rarely adequately address the issues at hand.
The increasing visibility of the legislative process through all the available mediums of communication has made the legislative process harder. This seems to be compounded by members of Congress who are willfully or genuinely ignorant of how the process works. Compromise and tradeoffs are not a failure of democracy, they are how it is supposed to work. An effective Congress is not one that works fast or one-sidedly. An effective Congress would be one that willingly addresses the most critical issues and does so by creating some level of consensus. This requires actors to act in good faith. Promises of total victory for simplistic solutions, or at least total defeat of equally simplistic solutions from your opponents, is not acting in good faith. Tradeoffs and compromise mean the process is working, not failing. This takes time and space that current electoral politics rarely allows.
The United States is too vast and diverse to believe that simple and frequently extreme solutions can or should be found for the real problems it faces. With every election seemingly ending in a 50/50 tie, it is incumbent on Congress and voters alike to stop rewarding outrageous provoking of the other side and start embracing legitimate problem-solving. Members of Congress who are willing to stop appealing to the most vocal extremes and instead start trying to address issues in a way that reflects the diverse desires of a large nation would go a long way in ending a terrible cycle and restoring the intended balance to the government. As national and local leaders they should be leading the way to healthy discourse and problem-solving, and voters should reward them for doing so.
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Very well written and I feel more well-read as a result of it. You were successful in thoughtfully articulating what often seems too complicated to think about and too time consuming to become conversant in. You have helped me with both and I look forward to more, thank you!