During my brief stint as a Senate staffer decades ago, I would sometimes walk from the Senate office building into the Capitol itself. Virtually everyone—be they former anti-war and civil rights protesters, unreconstructed defenders of racial segregation, or purveyors of bizarre conspiracy theories—treated the place with reverence, dressing appropriately, speaking quietly, and obeying the many rules of decorum (such as no reading in the staff gallery). This, after all, was the cathedral of our civil religion. Years later, it continues to fill me with awe.
When hooligans ransacked the building in early 2021, I expected all members of Congress to be horrified by this assault on our nation’s sacred place. After all, this was a direct and violent attack on their institution. High time to defend that institution from angry mobs and the demagogues who urge them on. Time to reclaim some of the constitutional powers ceded to presidents, Republican and Democratic, in decades past. Yet this extraordinary moment quickly passed, leaving almost no institutional imprint.
We could not expect a party dominated by Donald Trump to favor limits on presidential power, at least as long as he might hold office. But what about the Democrats? They had majorities in both houses in the 117th Congress and managed to pass several important pieces of legislation. But none imposed significant restraints on presidents.
In late 2020, Bob Bauer, President Obama’s White House Counsel, and Jack Goldsmith, an eminent Harvard Law professor who had served as George W. Bush’s second head of the Office of Legal Counsel, published After Trump: Reconstructing the Presidency. They noted that during his first term, Trump had
operated the presidency in ways that defied widely held assumptions about how a president might use and abuse the powers of the office. … His words and actions exposed the presidency’s vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability. Trump was not the first president to raise these dangers, obviously, but he did so unlike any of his predecessors.
Bauer and Goldsmith offered over fifty proposals to constrain such abuse of authority, ranging from ethics rules to control over the Justice Department, from vacancies and civil service protection to pardons and delegation of emergency power. With but one exception, the Democrats who controlled Congress for two years ignored them. The 123 statutes that allow a president to exercise “emergency” powers—including the International Emergency Economic Powers Act of 1977 that Trump used to impose steep tariffs on friends and foes alike—remain in place. Warned of the dangers of a rogue president, Democrats in Congress devoted their efforts to enacting the program of a president from their own party.
One might have expected conservatives to show more respect for tradition, for restraints on executive power, and more disdain for overwrought rhetoric.
As Philip Wallach has shown, the current Congress has been even less willing to protect its institutional prerogatives than those in the past. The Trump administration has refused to enforce laws recently enacted by Congress. It has usurped Congress’s authority to tax and spend. Congress has routinely confirmed nominees who obviously lack the expertise, integrity, and credibility required of the office they seek to fill. It has ceded oversight of agencies’ performance to an ill-defined collection of young tech bros with little understanding of how government bureaucracies differ from those in the private realm. The fact that the official name of the only significant legislative accomplishment of the current Congress is “One Big Beautiful Bill” indicates how undignified and unserious the institution has become.
Wallach explores the question of whether Congress can recover from this “decrepitude” and become, if not the “first branch of government,” then at least a powerful counterweight to the presidency. He notes that during previous periods of presidential ascendancy, Congress did mount substantial comebacks. The presidencies of Theodore Roosevelt and Woodrow Wilson were followed by nearly two decades of congressional institutionalization and assertion. If Franklin Roosevelt dominated Congress during his first term in office, that was no longer true by his second (or third or fourth). The “imperial presidencies” of Lyndon Johnson and Richard Nixon were the catalyst for congressional reforms that produced a surge of legislative activism. The cyclical nature of congressional organization and activity was captured by the title of James Sundquist’s masterful book, The Decline and Resurgence of Congress.
Our Constitution, after all, does not count on altruism or virtue to protect separation of powers, but rather expects “ambition to counteract ambition”: “the interest of the man must be connected with the constitutional rights of the place.” There is no denying that most members of the House and Senate are ambitious. So in the long run, won’t they find it in their interest to protect the rights, powers, and responsibilities of their institutions? Perhaps, but we know what happens to all of us in the long run.
One could argue that Congress’s current dysfunction is the product of two unusual and possibly temporary features of American politics: partisan polarization coupled with the narrow and short-lived majorities each party has held in the House and Senate. Bipartisan majorities on major issues are hard to come by, so each party rushes to jam through its program in unwieldy omnibus bills before it loses the next election. Each hopes that this will finally be the year and these will finally be the issues that produce a partisan realignment and a permanent majority. Until that day comes, party loyalty will remain paramount, even among members who have serious doubts about the institutional and policy damage it does. As Daryl Levinson and Richard Pildes put it, “separation of parties” has replaced separation of powers.
Compounding this political problem is the federal government’s fiscal plight. In a time of peace and prosperity, we are running up huge, unsustainable debt. Since addressing this problem will require both raising taxes and cutting spending, neither party is willing even to admit the extent of the rapidly looming threat. Budgeting—the central task of Congress—becomes an endless game of evasion and obfuscation.
Perhaps Congress can revert to “regular order”—passing appropriations bills before the beginning of the fiscal year, reauthorizing programs on schedule, conducting serious oversight hearings, taking a hard look at the qualifications of nominees, applying pressure to presidents who ignore their laws, and allowing major legislation to go through the committee process and floor debate rather than being stuffed into gargantuan reconciliation bills—once one of the parties attains a comfortable and stable level of public support. Then again, maybe not. For there are other, equally substantial obstacles Congress must overcome in order to avoid “decrepitude.”
A central feature of a legislative body not dominated by parties is the gap between individual and collective responsibility. In the US, legislatures at both the state and national levels must put together diverse majorities in each of two houses—and even super-majorities in the US Senate. For such legislation, those in the majority can take credit once they return to their constituencies. But often it is more attractive to take credit for refusing to join a majority that endorses items unpopular among one’s general election or primary constituency. As Richard Fenno put it many years ago, members of Congress often run for Congress by running against Congress: “Reelect me so I can protect you from the 534 crooks up there.” Especially since the 1970s, running as an “outsider” has been a popular strategy, even among congressional veterans.
Social media did not create this dynamic, but it certainly exacerbated it. Today, media mavens such as Alexandria Ocasio-Cortez, Matt Gaetz, and Marjorie Taylor Greene can attract far more public attention than the old “whales” of the Senate or “committee barons” of the House ever could—or wanted to. For this growing breed, negotiating and producing legislation is not just a distraction, but a threat to their image. Once the iron grip of partisan necessity begins to relax, the hazards of policy individualism will loom large, as they did in the late 1970s.
Only now that centripetal force will be even stronger, due not just to social media, but to a phenomenon explored by Yuval Levin and Hugh Heclo: the broader cultural decline of institutional loyalty. Strong, resilient institutions, Heclo explains, establish not just a set of rules, but an ethos. They are, as Levin emphasizes, formative. They inculcate a strong sense of how one is expected to behave within this institution. In vibrant institutions, veterans pass this ethos along to novices—and impose sanctions on those who fail to conform.
Having seldom encountered them, our students have a hard time envisioning such institutions. Levin notes that these days “we don’t think of our institutions as formative but as performative,” most evident “when the presidency and Congress are just stages for political performance art.” But we need only to look back a few decades to discover a Congress that not only followed its own rules, but imposed a powerful ethos on members from different regions, parties, temperaments, interests, and political views.
The more visible political conflict within an institution, the less the public trusts it. And Congress is the most transparent branch of government.
Descriptions of the House and Senate from the late 1930s through the early 1970s by Donald Matthews, Ralph Huitt, Richard Fenno, Nelson Polsby, and others provide a wonderful picture of the informal norms that were passed from generation to generation: seniority, apprenticeship, specialization, reciprocity, civility, restrained partisanship, and institutional pride. “Be a work horse, not a show horse.” Liberals chafed under these norms more than conservatives, and often for good reason, especially on civil rights matters. Eventually, the liberal Democratic Study Group came to dominate the Democratic caucuses at a time when Democrats dominated Congress. The norms and constraints weakened as Baby Boomers and Watergate Babies took over.
Just as important (and more surprising) is the extent to which conservative Republicans, led by Newt Gingrich, went even further in denigrating Congress, its members, its norms, and its guiding ethos. One might have expected conservatives to show more respect for tradition, for restraints on executive power and policy individualism, and more disdain for overwrought rhetoric. But no—just the opposite.
As Wallach has explained in a 2020 paper, Republicans emerged from the political wilderness in 1994 with a deep antipathy toward Congress. They “took an almost punitive attitude toward the First Branch that they now found themselves controlling. They were determined to root out petty corruption, but more fundamentally their agenda was about cutting Congress down to size.” Thus began their love affair with presidentialism, which grew ever-stronger once the party remade itself as the instrument of angry populism. Democrats were once the party of insurgencies, iconoclasts, and norm-breakers. Now the GOP is the preeminent anti-institutional party.
The biggest question before us today is whether the anti-institutional forces we see operating in Congress are the result of a concatenation of temporary forces or the inevitable working out of American democracy and individualism. Little-d democrats, Tocqueville explained, are allergic to forms and formalities. They want their favorite policies, and they want them now. For better or for worse, they distrust career politicians. They mistakenly believe that politics and policy are simple, and that disagreement is a sign of corruption. They are, to use Jonathan Rauch’s clever term, “politiphobes.” The more visible political conflict within an institution, the less the public trusts it. And Congress is the most transparent branch of government.
As unpopular as it may be to admit, Congress performed best when it managed to remain, to some degree, removed from public observation and current opinion. Closed committee mark-ups and quiet negotiations among party and committee leaders can provide the degree of insulation that Madison considered essential for wise legislation. Except in a few corners of congressional activity—most notably its intelligence committees—modern communications have eviscerated that insulation.
Can Wallach and other thoughtful people help Congress escape from “decrepitude”? I certainly hope so and have learned never to bet against American revivals. But I am old enough to doubt that I will live to see yet another resurgence of Congress. For the foreseeable future, the political and cultural deck is stacked against it.