Civics 101: Understanding Congress, our government’s most dysfunctional branch by design
Editor’s note: This is the first in a series of essays by Fresno State political science and history professors on the theme of Civics 101 — a review the American system of government and how it is supposed to work. Today’s kickoff essay looks at Congress. The essays will be published once a month this winter and spring leading up to the June 7 California primary.
“It doesn’t work!” “They don’t listen to us!” “Tax and spend, it’s all they ever do!” The only thing Americans apparently agree on about Congress is that they despise it.
Recent polls peg public approval of the national legislature at just 14% (RealClearPolitics.com, Dec. 22, 2021), and a year ago, a mob of the former president’s supporters actually attacked the Capitol to prevent certification of Joe Biden’s legitimate win in the 2020 presidential election. Incredible! The branch of government closest to the people is trusted least.
There are two basic truths about Congress. First, while it was intended to be the dynamic, proactive part of our government, Congress was not expected to be overly productive. At least that was how James Madison and Alexander Hamilton sold it to people as they campaigned for ratification of the Constitution. Assuming politicians (like all people) would be self-serving, they designed a government to make legislating hard, because if it was easy it would be quickly captured and abused by ambitious politicians and political parties, all of which is evident in Madison’s own words from “Federalist 51” regarding the separation of powers.
“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary … we see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other … but it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates … Ambition must be made to counteract ambition.”
Of course, delegates to the Constitutional Convention did not intend to create a complicated two-chambered, or bicameral, Congress. Colonial legislatures had mostly been single-chambered, as was the Continental Congress (1774 – 1781) at the beginning of the Revolution, and so too was Congress under the Articles of Confederation (1781 – 1789). They certainly did not intend to duplicate the bicameral British Parliament. As many Americans know, a House of Representatives with two-year terms coupled to a Senate with overlapping six-year terms was the product of political expediency. Confronted with two plans for Congress, one with proportional representation based on state population (the House) and one with equal representation regardless of population (the Senate), Madison and the other founders did what politicians often do: They avoided the hard choice by embracing both proposals. The result was a Congress where two structurally dissimilar bodies had to vote to approve the same bills before they could become laws.
While the Congress of the 19th century operated in a surprisingly simplified manner under a dominant House of Representatives, the revolt against heavy-handed House Speaker Joseph Cannon (R-Illinois) in 1910 resulted in a shift of power out to the policy committees, and then to their subcommittees in 1973, giving each control over legislation within their jurisdictions. With the 17th Amendment (approved in 1913) requiring senators to be popularly elected rather than appointed by state legislatures, the Senate too became a much more active body, often frustrating the decisions of the House.
Perhaps most frustrating to Americans is the Senate filibuster, which was never intended to be a tool for obstructing legislation. In 1806, Vice President Aaron Burr, as president of the Senate, threw out the parliamentary motion to close debate before voting because nobody was using it. Although occasionally senators in the 19th century would use long speeches to delay votes on bills, there was no serious problem until 1917 when, after failing to get a vote to arm merchant ships in World War I, President Woodrow Wilson demanded senators find a new way to force closure to debate. The result was the “cloture motion” requiring two-thirds of senators to vote to end debate. In 1975 that was changed to 60 percent of members, which is 60 senators. Unfortunately, rather than compel senators to actually speak to sustain a filibuster, by the 21st century all a senator must do is indicate an intention to filibuster to stop legislation and confirmation of most presidential nominations.
The fact of the matter is that Congress’s complicated structure makes it far easier to stop legislation than enact it. Only when lawmakers are almost uniformly in agreement will we see major legislation pass. Should we expect more? No and yes, which leads to the second truth about Congress.
People complain that Congress is ideologically polarized, but so is the American electorate. While the plurality of Americans don’t affiliate with a political party, over a third don’t vote in presidential elections, and even fewer vote in midterm congressional elections. And it’s the independents who tend to be the non-voters. The result is a Congress that, broadly speaking, reflects the voting public. While there are distorting factors such as interest group lobbying, campaign contributions, and politicized social media, often the reason lawmakers fight to stop legislation is because a significant number of their constituents want them to. The dispersion of power in Congress simply makes it easy for them to do it.
We cannot expect Congress to address serious social and economic problems unless large portions of the voting public want to and agree on how. Party leaders have few tools to compel rank-and-file lawmakers to support bills like President Biden’s Build Back Better Act. Nor should there be any. Elected officials are supposed to represent their constituents’ views, not tell them what to believe. Agreeing to support the president’s agenda would probably require some lawmakers to go against their constituents, and that is unacceptable in a representative democratic system.
Yes, perhaps Democratic lawmakers believing in a progressive agenda should do a better job explaining the benefits to their constituents to gain their support, and Republican opponents should be honest about the advantages and pitfalls of such legislation, but the burden is on people to decide what we need, let our elected representatives know, and then vote.
If we want to see meaningful legislation passed, we the people must first tell lawmakers we want it. Congress will follow. That is how representative democracy is supposed to work.
Thomas Holyoke is a professor of political science at California State University, Fresno
