Published September 28, 2015
When Republicans took control of both houses of Congress in the 2014 elections, I (like others around here) thought they should use their greater if still limited power to advance a broad range of conservative policy ideas—passing them in the House and seeing most of them filibustered in the Senate but in a way that would help Republicans coalesce around some principles and policies and compel Democrats to actually go on the record opposing the most attractive parts of the conservative agenda.
Having made that case here and elsewhere, I also tried it out on many congressional Republicans, and the most common objection I heard, mostly from leadership members and staff, was that such an approach would unreasonably “box in” the eventual Republican presidential nominee. I’ve never quite understood why that would have been a bad thing early in this presidential cycle: Congressional Republicans boxed in the 2012 presidential candidates on Medicare, for instance, in a way that advanced the case for essential entitlement reforms, made their ultimate enactment much more likely, and made the party as a whole far more responsible. Testing out some potential agenda items before the presidential campaign really got going should have given congressional Republicans some influence over the party’s presidential candidates without really constraining those candidates’ options much.
Ultimately, whether for this or other reasons, congressional Republicans have chosen not to pass bills and force Senate votes on a lot of conservative ideas but instead to try to “prove they can govern” to the extent congressional Democrats and the president allow them to, which naturally has not been a very great extent. Now, facing a leadership election in the next few weeks, Republicans are once again thinking about what they want to try to do with the time remaining in this congress.
The presidential campaign having started in earnest, it does make a little more sense to worry about injecting themselves into what are now policy differences among announced and active candidates. That’s still not an overwhelmingly persuasive reason to avoid a substantive legislative agenda (even one that stands no chance of being enacted given this president), but it’s a more understandable worry, and makes it even less likely that the Congress will now begin to advance a flurry of conservative proposals.
But there is nonetheless an obvious and appropriate policy platform that candidates for the speakership should champion and that congressional Republicans should develop: an agenda of congressional reassertion.
The weakness of the Congress is the foremost problem now confronting our constitutional system. It is in part a function of the overreaching of the other two branches, to be sure, but I think it has much more to do with the under-reaching of the legislative branch: For decades now, under presidents and congressional majorities of both parties, the Congress has willingly ceded power to the president and to judges and has abided the erosion of its primary position in our system of government. Congress has done this for a variety of reasons, though above all because its members (of both parties) would rather avoid responsibility for hard policy choices and because members of the president’s party at any given time incline to think their policy preferences would be better served by an assertive executive who shares them.
A lot of the dysfunction of our constitutional system is a result of this ceding of power. Some of that is obvious: The president now sometimes acts as a super legislator (on immigration and environmental policy for instance) and the response of the Congress is generally to sue him. The Supreme Court can be found assigning meanings to statutes based on vague assertions of their general purpose rather than detailed readings of their texts because the texts are too often now written as broad delegations rather than narrow legislation.
Other consequences are less direct but no less important. For instance, every budget cycle now ends in a dramatic autumn showdown in large part because the two elected branches behave like they don’t really need anything from one another. The president has no legislative agenda he needs Congress to advance and Republicans have roughly one wish per year that they arrive at toward the end of the process. They offer it up as a demand and have nothing to offer in return except for continuing the status quo (since the president has asked for nothing they can give him), so we end up in a fight where Republicans offer to not shut down the government in return for getting something. Obviously that’s not an attractive offer to the president, who really has nothing to lose by shutting down the government and may have a little to gain. But they’re offering him the status quo as a prize because he’s not really engaged in pursuing any other plausible policy goals, and they pretty much aren’t either. President Obama bears a lot of blame for this—he has shown remarkably little interest in actually doing the job of the president as it has generally been understood—but Congress bears a lot too. Its willful weakness has invited aggression.
To bring our system back into balance, Congress must begin to reassert its position and reclaim its authority—not by using its power to threaten to paralyze the government but by using its power to make the laws that command the government. Arguing that these will be ignored won’t cut it: Congress is being ignored largely because it wants to be. The first step toward a recovery of its authority has to be the will and wish to recover it. And who better to make that case than the Speaker of the House, who is effectively the senior constitutional officer of the Congress?
So the candidates for Speaker should offer an agenda of congressional reassertion. Much of it could not be adopted at this point, no doubt, as the Democrats right now don’t think they need a stronger congress and this president certainly wouldn’t want one. But there will be other presidents whom Democrats might regard differently, and it’s important that Republicans not regard the next friendly president as a reason to give up on reasserting congressional authority but as an opportunity to pursue it. This is a good time to propose some ways to rebalance our constitutional system precisely because it would “box in” the Republican presidential candidates and also the Republican congress—drawing commitments to advance the cause of legislative preeminence in our system of government regardless of who the president it.
What might an agenda of congressional reassertion look like? I think it would have at least four parts. First, a reassertion of the power of the purse, not to be used as a weapon at midnight on the last day of the fiscal year but to be used as a means of constitutional control of the government. Congress should, for instance, prohibit any fee-funding of federal agencies, let alone the preposterous practice of having such agencies funded by the Federal Reserve. It should bring the entitlements into the budget process, and should break down that process from its 12 large pieces (which have lately been consolidated into one) into many smaller appropriation measures, giving the legislature more real say over funding choices rather than just a kind of reverse veto power. Federal agencies should also have to be authorized more frequently than they now are.
Second, and relatedly, Congress needs to change the defaults in the budget process to avoid showdowns and crises that are structurally inclined to empower the executive. When appropriations run out, an automatic continuing resolution should take over that funds the government at current levels for a few months, then makes across the board cuts of about 1 percent every couple of months until new appropriating legislation is enacted. Ohio senator Rob Portman has proposed one attractive form of this idea. This would take the pressure off budget deadlines, but in a way that made modest spending restraint the default. The Congress should also set the debt limit to automatically increase with appropriating legislation (since an appropriation under deficit conditions is unavoidably an authorization for more borrowing) but could pursue various ways of setting debt targets in the budget process. Showdowns do not make the Congress relatively stronger, and emergencies inevitably benefit the executive. Compelling the president to come to the table and ask for legislation would be better.
Third, Congress needs to rein in executive rulemaking and insert itself more in the regulatory process. This could involve a regulatory budget, with explicit overall net cost caps for new rules and individual agency caps (as Marco Rubio has proposed). It could involve something like the REINS Act, which requires the most expensive new rules to be approved by Congress. It could involve a new relationship between Congress and the inspectors general of executive agencies. All of these would restrain the executive’s ability to effectively make laws without legislation—which Congress has not only allowed but also encouraged for decades.
And fourth, Congress should rein in discretion by better defining it in law. This would mean statutory definitions of executive discretion that narrow the deference now given to the agencies and to the president, maybe the creation of explicit categories or levels of discretion for Congress to employ in legislation (and for the courts to then employ in statutory interpretation), clear definitions of prosecutorial discretion at the federal level, and a rethinking of the place of the “independent” executive agencies in the constitutional system.
Each of these would get at different ways that Congress has become weaker. I’m obviously not suggesting that Republicans could enact all of this (or much at all of it, if any) in this Congress, but I do think they should propose ideas like these to make the reassertion of the Congress a priority. They should want to identity the problem for the public. They should want to box in the presidential candidates on this front—forcing them to commit not to use the super-constitutional powers that President Obama has adapted for himself and to help rebalance our system if they are elected. And they should also want to box themselves in: This is a change we ought to want regardless of who is president and who runs the Congress, and it will be easier to commit to that by getting on the record now.
Reviving and modernizing the Congress will take more than this. The institution is now beset by a crippling nostalgia among more senior members for an old, centralized legislative process driven by leadership and oiled by earmarks that is simply not likely to (and should not) come back anytime soon. Making the new Congress work, rather than wishing the old Congress could return, will require some different ways of thinking about where and how legislation begins, how the various congressional support agencies work, what the role of the committees needs to be, and how outsiders should and should not inform the process. That will take a long time, and a generational change in both parties that has only begun.
But for now, focusing on the rebalancing of our constitutional system and a recovery of the prerogatives of the first branch should make for a very reasonable agenda for anyone who wants to be considered for Speaker, and for a party that wants to retain and enlarge its majorities.
Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center.