Congress: Don't just do something, sit there!
If it ain't broke don't fix it, but what if we don't agree about which part is broken?
Authors note: As they say in Jurassic Park (and that includes the first one and the upcoming 16th edition), “life finds a way….” to throw off your best laid plans. As a result, I’m a bit behind in terms of a follow up post, and not quite holding to my planned weekly-ish schedule (as well as endangering some of my own predictions about this very substack & my productivity). On the bright side, my inconsistency means that if you subscribe, I probably won’t overwhelm your inbox!
That said, I’ll invoke my own nuclear option and stop filibustering. On with the show!
Congress: We made it that way on purpose, please stop submitting “Bug Reports”
With regards to Congress, and particularly the United States Senate, I’ve often said that the inability to “get things done” and the plethora of veto points is a feature, and not a bug. That might lead you to believe that I’m pretty happy with how Congress works these days, at least when it comes to legislative output. However, things are a bit more complicated than that - Congress as an institution is pretty clearly failing at its role to “do politics” and provide a place to contest policy through the legislative process.1 Without this pressure relief valve, we’re ending up in a worse place than we need to when it comes to both policy and the tone of our discourse.
A recent, and somewhat abstruse, angels dancing on pins debate on this point between Jonah Goldberg and Charlie Cooke focused on this question of “productive gridlock” in Congress. This was something I’d been planning on writing about anyway and this provided a jumping off point for thinking through some of these institutional failures as I see them. Part 1 here will do some level setting and see if we’re really getting the gridlock we were promised, while Part 2 will look at the feedback loops and vicious cycles that are worrying even if you like gridlock from a policy point of view.
I recommend that you check out the discussion starting around 30:00 into this episode of the Remnant if you’d like to hear Jonah and Charlie directly, but feel free to take my characterization that follows as good enough for government work if you’d like to skip it:
To summarize Charlie (broadly, and at some risk of a strawman), there is a reasonable position that in a highly divided polity, a polity that lacks substantial and durable majorities, the net result of stasis is the optimal result. If this means bouncing back and forth between extreme and incompatible policy prescriptions, then so be it, things are “working”. As he described it, if one side is asking to build a wall & ban all immigration and the other side demands to have open borders, there isn’t really a compromise to be had, so doing nothing is quite reasonable.2
However much as I tend to enjoy his writing, accent, and principled thought, I must admit I part ways with the esteemed Charlie Cooke’s expressed position.
His approach vastly undervalues the importance of a few things: feedback loops, our current vicious cycle & the need to establish a virtuous cycle if there is to be any hope of improvement, and the “consequentialist” case for being concerned with the so called stasis – all topics I’d conveniently planned on tackling here anyway. But first, some background…
Level Setting: This one goes to 11
I think there is deep and troubling trend underway within Congress - we are in a vicious cycle of self-reinforcing feedback loops and the current lack of effective legislating actually makes the next iteration even less effective, with potentially damaging effects to both governance and our broader political culture3. I think it’s helpful to run through the current state of things to establish a baseline and make my priors clear.
To be clear, I should say that I don’t think anyone looks at some of our current members of Congress and says “Now, THAT is a serious person, who thinks deeply about the issues.” I’m also under no illusion that there was some mystical period in the past where everyone was an idealized James Madison or Thomas Jefferson, having calm and reasoned debates about the role of the judiciary or what have you.6
However, we are watching moderate members of the House and Senate decide to hang up their (rarely used) legislative pens and retire, rather than seek re-election. There are some newer members who have proudly built their staff around communications (and many others who haven’t done so as loudly), while Congressional capacity continues to decline.4 To some extent this makes sense - why bother with legislative staff when Congress has become increasingly leadership-driven5, odds of legislative success are low, and it just isn’t that much fun to do hard work?
And, to acknowledge Charlie’s point on polarization, legislating requires words to be written down thereby staking out a firm position where there is probably strong and incompatible opposition. So if you aren’t in leadership or, to a lesser extent, leading a committee you’ve got two options as a typical member:
Put out a stupid signaling bill that has zero chance of passage but is repetitive and vacuous fan service. This is the legislative equivalent of the most recent Star Wars
remakesequel trilogy.6Put together some actual legislative effort, expose yourself to charges of compromise from the base, fight through the committee process, beg & cajole floor time, take slings from members focusing solely on comms and small dollar fund raising, and probably have a bad time. Oh, and generally speaking, you’ve got little chance of passage, so your constituents wonder why you can’t even get a little hometown issue for the nearby National Park or whatever addressed.
So, it is at least understandable that the invertebrates of Congress choose Door #1 while frustrated Members only want to bang their heads on the wall for so long. I'm simplifying and I don’t think any of this is a particularly new or controversial insight, and many brighter than I have covered this in depth.7 So why does this matter? Because we aren’t actually getting stasis and feedback loops are actually making things worse over time.
Our current gridlock leads to dumber behaviors (& arguably, dumber members of Congress)
What Charlie misses and Jonah hints at is that our current equilibrium is unstable - it actually leads to a worse follow-up state. We have a feedback loop whereby the institution of Congress is being hollowed out through understandable processes. This leads to greater dysfunction, greater member dissatisfaction, worse candidates, more leadership consolidation, and greater public dissatisfaction with the institution… which strengthens the trend lines towards “outsider”8 candidates disinterested in governance who believe they are in Congress to “drain the swamp”, “heighten the contradictions”, put elites in their place, and stand upon rather than within the institution. Next, a few more moderates bow out, some future version of Rob Portman (to say nothing of the current one) says “I don’t want to run”, and we have a JD Vance vs Josh Mandel primary contest in Ohio.9 Rinse and repeat.
The broad “politics are downstream from culture” issues have been covered well elsewhere and can fill volumes, so I want to focus first on whether I think Charlie’s thesis of “stasis on net” is correct, then look at the impacts of our current gridlock on the institution of Congress, and look at how that reverberates both within and outside of those hallowed halls.
Part 1:
The Consequentialist Critique or: “How I learned to stop worrying and love the omnibus megabill passed on party lines under reconciliation that nobody read”
First, the simplest critique of the Charlie Cooke Contention, or CCC for short10, is that he’s wrong when it comes to proclaiming that we’re actually getting gridlock as our result. Depending on the framing, what years you look at, and how one counts, I think it is fair to say that the consequences of this supposed stasis looks an awful lot like a relatively steady progression of new Federal programs, greater spending, and “bigger and better” government. If, like Charlie or Jonah, you are temperamentally or otherwise some form of small-c conservative, this is not a welcome development.
There are three very large examples in relatively recent history that could call the gridlock theory into question: In 2009, in the midst of the financial crisis, the American Recovery and Reinvestment Act passed without any Republican votes in the House and a near party line vote in the Senate11. After losing the 60th vote needed to over come the filibuster in 2010, budget reconciliation was used to enact the Affordable Care Act (Obamacare), resulting in a messy and contentious fight over the next 10 or so years.
Perhaps there is an argument that pre-2010 is too long ago, and our current polarization has only really become effective in the post-Trump era. If that is the case, I’d like to introduce you to the $1.9 trillion American Rescue Plan, which passed via the reconciliation process in March of 2021, during the current 117th Congress, with no Republican votes. It contained a wide variety of policy prescriptions that are, at best, tenuously connected with response to COVID.
To loosely quote a friend12 who would love for the CCC theory to hold as true, and who put this pretty well from a conservative point of view:
This is why even though I completely agree with Charlie that I don’t want Congress to do anything, the theory that Congress is doing the job we “asked” them to do through do-nothing doesn’t work. Because in reality, Democrats are much more likely to squeak through a progressive, nation-altering law every once in a while in a way that Republicans either won’t (because of conservative temperament) or can’t do(because of incompetence). So Congress, under a small Democrat majority, even though generally gridlocked, will occasionally overcome that inertia to pass something big like Obamacare. But Republicans are utterly incapable (for all the reasons everyone more politically astute than me has stated) of overturning it.
Net result: we have a lot of gridlock, where not much gets passed in terms of legislative volume, but every once in awhile we pass a law that completely alters the relationship between citizen and government. So, while 1 out of 100 in theory looks like gridlock, in reality it’s not.
In addition to these large party line spending bills, if we take it as a given that despite Congress’ dysfunction Members like to at least occasionally pass things in order to claim credit and get re-elected, they are going to focus on two things that will have some bipartisan agreement on the margins:
Spending other people’s money
Avoiding tax increases (unless we can target “bad guys”)
I think these two principles have been well adhered to in the various omnibus megabills, while our gridlocked legislature generally avoids the more nuanced and difficult work that would involve reconciling tougher issues. That doesn’t seem like a big win for the “team stasis” to me, but I suppose you could make an argument things could be even worse otherwise.
There is yet another worry even if you are agree with the CCC Camp13: As the “new right” and “common good” crowd becomes more open to the expansion of government power (as long as they are the ones in control), the temptation to make use of this power will only grow. If (and hopefully not when) this temptation starts overriding the principled minority, a system that relies on this dubious form of gridlock becomes extremely dangerous from both a policy and a stability point of view.
Finally, and a little bit tongue in cheek, if Charlie Cooke thinks Congress is “doing nothing and therefore working”, I’m not 100% certain how to square that with Matt Yglesias’ contention that “secret” Congress is actually doing things and therefore working.
Next, in Part 2, I’ll tackle: How is our current form of gridlock actively making Congress worse off as an institution, how that dysfunction damages our political discourse, and why worse policy from Congress might actually be better for the country
I had intended to appeal to authority and reference a Yuval Levin line about the legislature being a place to channel disagreement from the streets to the halls of Congress, and thereby cutting down on the whole fist fights (or worse) thing… But I can’t find it, so ah well.
A very long aside on the mismatch between stated preferences, actual preferences, demands, and needs: You can have what you ask for, but it might not be what you want.
Democracy is somewhat good at delivering what people ask for, or at least delivering politicians who claim to work towards what you ask for. However we need to keep in mind that we don’t always ask for what we really want; in economic terms, our stated preferences don’t always match our revealed preferences.
Sometimes, when my kids are hungry, bordering on hangry, you can ask them if they are hungry and get a sullen “NO, leave me alone”. While there is no such thing as THE public, the public is made up of millions of these not-quite-rational actors who will declare their hunger yet turn down all offered food.
So, if we know that this tendency applies in our basic everyday interactions, why would we expect things to be different when it comes to electoral politics?
So, to take Charlie’s immigration as an example – there is a case to be made that the extremist positions now being staked out are not actually what people want, but IT IS WHAT THEY ARE ASKING FOR, at least the ones who are loud enough to be heard. This distinction between what people want and what they ask for is a crucial piece of democracy.
The TLDR version: Just because “we” as a polity are asking for something, doesn’t mean it is what we really want. It DEFINITELY doesn’t mean that we need that thing either.
This has big implications for how to think about electoral demands, issue polling, and all the rest - I think Martin Gurri’s The Revolt of the Public connects really well with Yuval Levin’s A Time to Build here, as they both explore a certain nihlism to demanding the destruction of authority and then being outraged when the natural consequences follow. But this is a subject for another time.
Credit to Yuval Levin’s A Time to Build here for covering this broadly with regards to our institutions (and others of course), but I just read his book so it’s fresh in my mind. That said, my goal is to add a bit more specificity here when it comes to Congress.
See the well researched Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform for much more on the topic.
I particularly recommend Lee Drutman and Timothy Lapira’s Capacity for What? Legislative Capacity Regimes in Congress and the Possibilities for Reform in the aforementioned book.
Seriously: Starkiller base, Rey Skywalker, stupid “blow up here” weaknesses, etc
Yuval Levin, Jonah Goldberg, the Congressional Research Service, Matt Yglesias, Robin Hanson, and many others. Probably even you, the reader.
If you doubt the ridiculous lengths candidates (who, unfortunately, often follow up the campaign by being elected) will go to position themselves as outsiders, keep in mind that we’ve got on both extremes the following “outsiders”:
Ted Cruz, play acting as the populist scourge of the elites: winner of the National Debating Championship, a Princeton and Harvard Law School grad, Supreme Court Clerk, former Solicitor General of Texas, married to Goldman Sachs managing director (and fellow Harvard Grad) Heidi Cruz, and now 9 years into haunting the United States Senate.
Elizabeth “I’m going to get me a beer” Warren, Outsider & hero of the downtrodden (particularly if this downtrodden person went to J school and took out absurd loans to pay for a degree with dreams of writing in the NY Times, when any old moron with a computer can make their own substack): from a less storied start than Senor Cruz, but, law school, tenured professor in 1981, a jump to the Ivy League (Penn in 1987 and then on to being Harvard Law School’s highest paid professor), followed by appointments within the Obama administration, a net worth over $10 million, and over 9 years in the U.S. Senate.
I’m not sure when exactly in these life stories you gain the “ELITE” label, but I’m pretty sure it should’ve kicked in, at least by the second Senate term…
I'm not a big Howie Mandel fan, but I keep hoping maybe he’s the one running instead so we’ve got at least one serious candidate.
Since I’m sure Mr. Cooke LOVES FDR, the Civilian Conservation Corps of the 1930’s and 40’s, and when President Biden purports to be just like FDR. There is actually a somewhat real point in using the CCC/New Deal connection as well, in that FDR had massive margins he used to drastically remake the relationship of the Federal government with American society, whereas recent (& historically large) governmental expansions have been accomplished on much closer margins which call into question the gridlock hypothesis.
In a fun alternate history, Senators Snowe, Collins, and Spector don’t cast the deciding votes in favor of ARRA, some much smaller piece of legislation gets put together, and there is no enormous Tea Party backlash…
Apologies for the editing liberties, unnamed friend. All errors in said block are my own.
Get it, CCC CAMP!?!? Gratuitous CCC Camp old-tymey story, because the headline is fun: Visiting Our Past: City boys, country lads and a tame she-bear mixed in at CCC camps
You've convinced me.
A good article! I agree with your assessment of Congress and also with where you come down on the debate between Jonah and Charlie.
“ To summarize Charlie (broadly, and at some risk of a strawman), there is a reasonable position that in a highly divided polity, a polity that lacks substantial and durable majorities, the net result of stasis is the optimal result. If this means bouncing back and forth between extreme and incompatible policy prescriptions, then so be it, things are “working”. As he described it, if one side is asking to build a wall & ban all immigration and the other side demands to have open borders, there isn’t really a compromise to be had, so doing nothing is quite reasonable.”
I listened to that episode and you gave a fair summary of Charlie’s position.
“ However much as I tend to enjoy his writing, accent, and principled thought, I must admit I part ways with the esteemed Charlie Cooke’s expressed position.”
Yes. He’s a joy to listen to as well, but I part ways too.
“ we are in a vicious cycle of self-reinforcing feedback loops and the current lack of effective legislating actually makes the next iteration even less effective,”
I hadn’t thought of it in terms of each Congress being less effective than the last, but when you put it like that, I think you’re right.
“ What Charlie misses and Jonah hints at is that our current equilibrium is unstable - it actually leads to a worse follow-up state.”
Yes! My problem with Charlie’s analysis is that I’d be all in favor of gridlock and nothing getting done if we didn’t have problems. But to take just his example of immigration, its a mess and the worst of both worlds instead of a stasis compromise position in line with the American people’s desires. If we have problems, we do need to be able to resolve them, not let them fester. But more importantly, the trajectory we’re on is not good and momentum is in a bad direction for the country, in which case, Charlie’s stasis in Congress is an unsustainable radioactive decay in the country.
“ First, the simplest critique of the Charlie Cooke Contention, or CCC for short10, is that he’s wrong when it comes to proclaiming that we’re actually getting gridlock as our result.”
Yes! You hit the nail on the head! We don’t have gridlock. We have gridlock punctuated by a massive encroachment by the administrative state. We get nothing and then boom another ratchet to the left bringing us further towards Tocqueville’s bureaucratic despotism. Then conservatives get in office and either do nothing or pass a tax cut. Meanwhile Medicare will collapse in five years. The ratchet effect. Which I’d be remiss in not pointing out, is always one way as Scalia was so fond of reminding us. All ratchet’s are “one way ratchets” so it’s redundant.
Your friend is pretty smart by the way.