Congress’s Constitution is a 500-page academic book about legislative authority, written over the course of a decade.
How fortunate for author Josh Chafetz, a professor of law at Cornell University and contributor at The Hill, that his topic has suddenly become rather trendy, as the general public takes a newly keen interest in the question of what leverage the House and Senate have over, say, a newly elected president.
Even America’s (one-time?) TV sweetheart is wondering who’s the boss in Washington?
Tune in to hear Reason magazine Editor in Chief Katherine Mangu-Ward talk with Chafetz about how what you learned in school about the balance of powers isn’t quite right, the story behind why filibusters are so common these days, and why former House Speaker John Boehner (R–S.C.) is underrated.
Produced by Ian Keyser.
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Katherine : Hi, I’m Katherine Mangu-Ward, and I’m here with Josh Chafetz to record the Reason Podcast. Josh is a Professor of Law at Cornell Law School. He received his B.A. from Yale University and his doctorate in politics from Oxford. He has a new book, ‘Congress’s Constitution: Legislative Authority and the Separation of Powers’. Thanks for talking with us, Josh.
Josh Chafetz: Thanks for having me.
Katherine : Everybody hates congress. Should congress feel slighted or does congress deserve it?
Josh Chafetz: I should start by saying everybody has always hated congress. Hating congress is an American national pastime, and I think partly that’s for reasons that we wouldn’t want to change, which is to say that congress is the institution where disagreement, and debate, and the good parts of democracy are most apparent, and it turns out that while Americans like those things in the abstract, they don’t always like seeing them. Right? They say they like compromise but they don’t like fighting and they don’t like unprincipled behavior. The reasons that we don’t like congress when we actually see it working are also the reasons that we say in the abstract that we do like things like democracy. I think it’s just inevitable that Americans dislike congress to be honest.
Katherine : Every school could learn that the separation of powers is one of the great things about the American system. You suggested that maybe we should complicate that idea a little bit. I think people have this idea that there are a list of things government does and it was divvied up among the branches, and the end, but that’s not right, is it?
Josh Chafetz: Yeah. My view is that the list of things that each of the branches does is not particularly static or written in stone, but there’s actually a relatively small number of discreet tools that each branch has granted in the constitution, and then how much power the branch has actually exercised in practice is largely a function of how successful they are at wielding those tools. That is to say how successful they are at engaging with the public. Over the course of American history for instance, the court system has managed to successfully convince Americans to allow it to wield significantly more power than it wielded in the late 18th or early 19th century. Since World War 2, the executive has also increased the amount of power that it wields, and again, this isn’t because it’s either of those branches is necessarily reaching out and doing things that violate discreet prohibitions in the constitution or that aren’t consistent with discreet powers that are granted to them, but rather because as they exercise power, if they exercise it successfully in ways that win over public support, then people tend to trust them with more power.
Katherine : You’re not exactly in a high trust situation in American politics right now. Congress isn’t the only branch that people are currently skeptical, weary, full of rage and hatred toward depending on exactly which platform you’re talking about. Can you talk a little bit about why it is that we focus so much on the accumulation of power in the executive and don’t talk nearly as much about congress and about the legislative generally? Is it just because there’s a guy behind the desk and it’s easy to personify that power and think about it that way or is there something else going on?
Josh Chafetz: I think that’s certainly part of it. I that’s certainly part of it. It’s easier to talk about an institution when you can identify it with a person, but I think it’s also more than that specifically when it comes to congress. We’re taught to think about congress in terms of passing laws, in terms of legislation, and that’s what congress does. It passes laws, and so then when you’re thinking about the power that congress has vis-a-vis the other branches, it actually seems like congress may have a fairly weak hand to play. Right?
If congress wants to check the president and all they can do is pass laws, the president can veto laws, and overriding vetoes is incredibly difficult and therefore incredibly rare. Likewise, if congress wants to check the courts, if all they can do is pass laws, then it turns out the courts can either interpret those laws down to nothing or strike them down, and it still winds up looking like congress doesn’t have all that much of a say in things. I think part of what my book is trying to do is actually expand how we think about congress, talk about all the things that congress does that aren’t just passing laws, and therefore, that do allow it to have a significant amount of power even if that power often operates underneath the surface. This goes back to your first question because sometimes the actual use of this power looks pretty unappealing to the public, so I’m interested for example in things like government shutdowns or refusing to pass appropriations bills or refusing to confirm people either to the executive branch or to the courts. Right?
Those often get talked about in negative derogatory terms as gridlock or dysfunction, but they’re also levers that the House of Congress can pull on to get agreement or to get compromises out of the other branches in collateral areas. Right? You’ve threatened to shut down the government, and in exchange, you get policy concessions from the president. That happened. For example, John Boehner led House of Representatives in 2011 shortly after a major republican gains in the 2010 election.
It came very close to shutting down the government, and in response, the eventual deal that was passed that kept the government open had all kinds of concessions to republican policy objectives, and even in areas that weren’t directly related to the budget, so congress has all of these mechanisms, but we’re not used to thinking of them that way because we’re used to thinking of congress as just an institution that passes laws.
Katherine : When congress threatens to shut down the government, that’s congress working appropriately?
Josh Chafetz: It can be. Again, I don’t want to be understood to say that every time congress uses one of these tools, it’s using it well or appropriately or intelligently. It’s frequently using them badly and stupidly, and of course, partly it’s going to depend on what exactly your view is on the policy goals that particular congressional actor are pursuing at the time. For example, in that 2011 near shut down, there were some things that the republicans were after that a lot of people might not think are good policy goals. Other people would think they are good policy goals, so the extent to which you think that what they were pursuing is a good thing is probably going to affect how you think about their willingness to potentially shut down the government.
Then also of course, frequently, when they use one of these tools, they use it in a way that undermines their own professed objectives, so it’s not just whether you agree with their objectives. It’s how smartly they’re using the tool. If you give someone a hammer, they could use it to hammer the nail, but they could also hit themselves in the head with it. Those are both uses of that tool, but one of them is perhaps slightly a better use of that tool than the other.
Katherine : It depends on which head I suppose. I don’t know.
Josh Chafetz: Exactly.
Katherine : Let’s talk a little bit about the tendency to say that things are worst than they’ve ever been, people are behaving more unethically than they ever have, people are more partisan than they ever have been particularly in congress. I’m generally skeptical of that kind of declinist or catastrophic account of things. I think your book certainly offers a look back across quite a long history of the semi-disastrous human interactions. Are things in fact worse than they’ve ever been from any of those perspectives?
Josh Chafetz: No. I absolutely don’t think so, and I don’t think anyone with a fair look back across U.S. history could possibly think that things are worse than they’ve ever been. If you look at one of the chapters in the book on congressional discipline as the power of the house is to discipline one another, talk about just this huge number of brawls that erupted between members in the 19th century. Right? Most people have heard of the Caning of Charles Sumner on the senate floor, but that’s just one in a long series. I call them ‘Small-scaled dress rehearsals for the Civil War’ because they’re almost all sectional in character.
Katherine : Right.
Josh Chafetz: In 1829, there’s a duel between two members where one member kills another. There was an incident a couple of decades later where a member pulls a pistol on the senate floor on anther member, so to talk about today’s incivility as being somehow extraordinary, and it’s not just in the run up to the Civil War. I mean, in the opening decade of the republic, the conflict between the nascent Jeffersonian faction and the federalist was intense, and the federalist thought that Thomas Jefferson wanted to reenact the French Revolution on American soil, and so there’s nothing uniquely incivil about this particular moment in American history.
Katherine : Was there any congressmen, any character that you came across when you were working on this book that you feel is underrated, somebody that people should know about either because of his prowess with the pistol on the floor or for some other reason?
Josh Chafetz: I think there are a lot of people that I find they’re at least fascinating. I don’t know about underrated. One person who … I think probably maybe isn’t underrated because a lot of people do know about him, but thinking about John Quincy Adams’ congressional career after his presidency and especially his fight against the Gag rule. The Gag rule was this rule that was imposed in congress in the mid-century to try to prevent any member basically from bringing forward any petition about ending slavery. The idea was, “If we just don’t talk about it, it’ll be easier to keep the peace between north and south”, and John Quincy Adams was a staunch opponent of the Gag rule, violated it on several occasions and faced down the house in doing so, and eventually succeeded in having it repealed.
I think more discussion of that is warranted in thinking about the way congress worked in the middle of the 19th century. A little bit later in the century, Speaker Thomas Reed I think is a really important character. We’ve lost sight of the fact that for most of the 19th century, it was actually the House of Representatives, not the senate where obstruction and delay were more common, and finally, in 1890 with which are called the ‘Reed Rules’. Thomas Reed basically did a House of Representatives equivalent to the Nuclear Option and essentially created the majoritarian house that we have today. Then, to make a much more recent example, I actually think John Boehner is underrated. Actually –
Katherine : Tell me more.
Josh Chafetz: He gets a lot of hate from both sides of the aisle. I think actually, given the hand he was dealt, he was remarkably successful at holding his coalition together. Right? I mean, you got a pretty good example in Paul Ryan where it turns out that this particular house coalition is really hard to hold together, and I think for most of his speakership, Boehner actually did a better job than Ryan has done, and I think he fairly successfully negotiated … Again, I talked about this 2011 near shut down. Boehner, despite the fact that his party controlled only the house, not the senate or the presidency, managed to get a fair amount of what House Republicans actually wanted out of that interaction.
Again, I think leaving aside any views of the desirability of the particular policy concessions that he got, I think that Boehner was actually a much more successful speaker and a much more successful leader of the coalition in the house than a lot of people have given credit for, and I think with the hindsight of a decade or two, I think more people will come to see that.
Katherine : Let’s talk about the budget process a little bit in particular because that does seem to be one place where at least in recent memory, there was a more regularized, a more formal approach. The budgets were at least somewhat more predictable in how frequently they arrived and were passed. Do you see that as a sign of congressional … Is it as a shift in the way that congress is using its powers?
Josh Chafetz: Yeah. I think it’s hard not to be … From a congressionalist perspective anyway, it’s hard not to be disappointed in the failure to pass budget resolutions in a number of years recently. Now, that’s not the case right now. We’re currently operating under a budget resolution –
Katherine : The fact that that sentence even has to be said like, “Hey, we’re currently operating under a budget resolution. That’s cool” tells us what the lay of the land is. Right?
Josh Chafetz: Right. What had happened is that a number of years during the Obama Administration, essentially the entire fiscal year had passed operating under a series of continuing resolutions, and the reason that that is disturbing is because budgets … The normal budget process, the process where both houses pass a budget resolution, and then pass out the appropriations bills that are consistent with that resolution, and then those individual appropriations bills go to the president and are signed, that gives congress significantly more of a say over both how federal money is expended because those appropriations bills passed pursuant to the budget resolution are much more detailed than a continuing resolution is, and they also as part of that gives congress the ability to change things that maybe somewhat collateral to the budgetary process, so that most importantly is what reconciliation bills are, the ability to change things that are not exactly about how much money is being spent, but are rather about what kinds of programs the federal government is pursuing. That’s a lot more complicated than that in many ways. The budget reconciliation bills have all kinds of restrictions on what they can actually do, but this general point is that in not passing a budget resolution and going through the normal budgeting process, congress does sacrifice a decent amount of its power that year over how the federal government is going to work.
Katherine : This is also a place where congress seems to be spectacularly bad at binding its future self. I mean, sequestration was an interesting case study in attempting to say, “Listen, we’re going to impose constraints on this process. We’re going to -“
Josh Chafetz: Sequestration, they actually have worked too well because sequestration, the idea behind the sequester was that it wouldn’t go into effect, that it was going to cut programs that were so near and dear to the hearts of so many different members that surely they would come up with some other kind of compromise before it actually went into effect, and then they couldn’t, and it did, so there is a sense in which it bound itself, just not in the way that it hoped it would be binding itself.
Katherine : Right. I guess that’s fair enough to say. The idea of sequestration was supposed to be a deterrent or an encouragement to better behavior, and instead, it just became the consequence of bad behavior. Are mechanisms like sequestration, do they crop up frequently in the history of congress’ attempt to constrain its own behavior or to set limits on what should and shouldn’t be done in the near future?
Josh Chafetz: There are some examples of congress trying to tie itself in that way. I mean, the most famous … The example that everyone points to as the success story is the Base Closing Commission in the ’80s where it was clear to everybody that we had too many military bases, but of course, any attempt to write a piece of legislation that closes down, particular military bases is going to really gore the oxes of certain members because it’ll just devastate their districts. Instead, they basically delegated the whole thing to a commission, and then setup a process where the commission’s report would come back to congress and it would have to either be voted up or down. There was no possibility of amendment. That actually worked.
Obviously, the people who lived in those particular districts, near those bases weren’t happy with the outcome, but they did wind up passing the measure through and it is in retrospect regarded as a success. I think those were in some sense subsets of a larger category of things which is each house in congress has the constitutional authority to create its own rules and procedures, and the ways in which those rules are structured often are intended to both empower and constrain the houses in certain ways, so everything from the way it sets up its committee structure to the Budget Act of 1974 which creates the budget process itself, the one that has been followed with a greater or lesser degree of success in recent years, these are all examples of congress in some sense empowering itself, but also in some sense, constraining itself. Anytime you create procedures for yourself as an institution, they’re going to both empower and constrain you in certain ways, but it’s also the only way that an institution like congress can act is by trying to create the best procedural rules that it can, and then working with them or when they become intolerable changing them.
Katherine : There’s a meme that’s now gone big on both republican and democratic sides of the debate which is those other guys, those other side in congress, they are being awful because they’re doing some variant of, “You got to pass the bill to find out what’s in it”. That’s a phrase that I’ve certainly heard now lobbed in both directions particularly about the healthcare bills that have been out there. Is that a fair criticism? I think congress has always delegated a certain amount of the nitty-gritty, the rule-making to bureaucratic bodies, but this also seems to be about congress having time to vet the actual black letter of what they’re passing as well.
Josh Chafetz: I think you’re absolutely right. There’s a whole bunch of different ways that could be interpreted, and I think we can disaggregate at least three different ways. In the original debate over the Affordable Care Act way back in 2010 when Nancy Pelosi said the thing that has in popular lore come down as you have to pass the bill to see what’s in it, what she was saying in context is the costs and benefits, which of course she was primarily talking about the benefits of this bill won’t become apparent to people until it goes into effect. Right? To really understand its effect, to viscerally understand its effect in the real world, you have to … It’s such a complicated machine.
You have to pass it and wait for it to go into effect, and that’s going to be inevitable with any particular complex piece of legislation. It’s just not going to be immediately apparent to people how it works until they see it in operation. The second way that this might be interpreted is the way that you mentioned, which is that almost all significant legislation delegates at least a significant amount of authority to administrative agencies to create the specific rules that will operate. In some sense, you don’t know exactly what the governing legal regime will be until the law is passed, and then the agencies go through their rule-making process and pass the regulations under the legislation. Then, the third way that it might work I think has been a little bit more apparent in the debates this year over the American Healthcare Act, the Repeal and Replace Bill for the ACA, which is for example passing things before there’s a CBO score so that really, nobody voting on it actually has a reliable estimate of what the costs of this particular piece of legislation will be.
I find the third one of those to be the most disturbing partly because there’s no good reason for it. People can argue about this amount of delegation to administrative agencies and things like that, but there is a least a rational reason why you might want to leave certain kinds of very specific rule-making up to certain kinds of administrative bodies, bodies populated by experts and things like that. It’s hard to think of a good neutral policy rule for passing a bill before your own in-house economist have had a chance to tell you what that bill will cost. I mean, there are obviously political reasons why Ryan wanted and why Trump wanted a win on that bill at that moment, but it’s hard to come up with a good public spirited reason why they couldn’t wait another two weeks to get a CBO score.
Katherine : Is that something that is new or have there been periods where the political hustle overcomes the process in this particular way?
Josh Chafetz: I mean, yes, there always have been periods in which the imperatives that can turn politics.
Katherine : Right. Hey, it doesn’t. Sometimes those politics influence what congress does is not maybe the most useful question but could, and so –
Josh Chafetz: No, no, but it pops up in different ways at different times, and to my mind, if I could get rid of anyone word in talking about American politics generally, it would be unprecedented. Almost nothing is ever unprecedented especially if you think a little bit more broadly about what the governing precedence are. CBO as an institution hasn’t been around all that long, but there have been other bills that have been passed with quickly. There have been other moments in history where the existing procedural rules have been cast aside in one way or another. I talked about the creation of the Reed Rules in 1890 that basically resulted from Speaker Reed who had a very, very, very slim majority at the time essentially saying, “I’m going to disregard this preexisting way we’ve always counted a quorum, and instead, counted differently so as to prevent the democrats and the minority from basically bringing the house to a halt”. Right?
That was changing the procedural rules at a moment’s notice because there was a sense that those procedural rules were being abused. Abuse of course is in the eye of the beholder, so from the democrat’s perspective at that moment, that was just an example of brute force casting aside the way things have always been done. I think there are plenty of examples of situations in which the normal procedural order hasn’t been followed for all kinds of different political reasons at different moments.
Katherine : I was struck because I was looking to the book at how often the word quorum comes up that that seems to play a much larger role in the way that we should think about the workings of congress, certainly the way that the very earliest congresses worked than I had previously understood, and obviously, this example suggests that that’s still going on even today. What is it about … Why is this system built in that way? Why is it that this check on so much of congressional action is how many people are in the room at that moment?
Josh Chafetz: I think partly it’s because you don’t want the legislative body operating on a skeleton crew, and there might be understandable reasons why it would try to operate on a skeleton crew. That is to say it simply can’t assemble all of its, or even a large percentage of its members at any given moment, and this was of course more of an issue with pre-modern transportation technology. Then, you’re also worried about manipulation, so you’re worried that someone might really quickly convene the chamber with only their friends present and try to pass something through, sort of pulling the wool over on the majority of the chamber. There’s significant debates about how many members should be required for a quorum, and the constitution took a pretty aggressive stance. In English Parliament, the quorum has always been a very small number of members at the House of Commons.
The U.S. constitution requires a majority of each house to be present for a quorum. What that means is that there might be again, especially in times of pre-modern transportation technologies, there might be times when it’s hard to assemble a quorum so the opening of the first congress in 1789 was delayed for months before they could get quorums present in both houses. Then, what actually happened in the 1890’s with the Reed Rules were that the democrats started using what’s called a ‘Disappearing Quorum’, which is to say the republican majority was only I think three or four members at that point, so if any republicans were out sick or home in their district or something like that, if all the democrats just refuse to respond to the quorum call, then there’d be fewer than a majority of the house present and the house couldn’t conduct any business. After the democrats had done this enough times, what Reed finally did is he just ordered the clerk to count all the democrats who are present even if they refused to respond to the quorum call. There’s this possibility for manipulation going in either direction.
The possibility of the unscrupulous speaker could convene the house with too few members and try to put something over, and that’s what the quorum requirement is meant to guard against, but on the other side, there’s then this worry that a too high a quorum requirement can be used an unscrupulous minority to try to completely gum up the works and hold up the chamber.
Katherine : You argue in your closing chapter for is you get a little a normative in there and you argue for why we might prefer what you call the ‘Multiplicity-based understanding of the separation of powers’. You say maybe it’s better for deliberation. It’s better for representation pass as it caught my eye though was tyranny prevention. Talk about that a little bit.
Josh Chafetz: Right. In some sense, that’s actually the most classic of this reasons for liking something like the separation of powers, as well as for liking something like federalism, the idea that you disperse power among multiple different institutions in the hopes that those institutions will check one another, and therefore prevent any one of them from growing so powerful that it could plausibly be said to behave autocratically or tyrannically. If you just have a situation where there’s only a president, it’s much more plausible that that president would wind up becoming an autocrat, whereas if you give significant amounts of power as well to congress and to the courts, and for that matter, to the states as well, then the hope is they all check one another through separation of powers and through federalism in ways that will prevent any of them from becoming overweening in that way.
Katherine : That traditional school kid understanding of how separation of powers works obviously, that general idea is what you learn. What do you think what is the texture that that account is missing or what else is going on that maybe is a subtle or fail say fun on the out of control autocrat?
Josh Chafetz: Those are great questions. I think they’re this back and forth, so you get this sort of … As you just commented the school kid version of it, and then you get a response that’s been increasingly prominent and influential in recent years which is people saying, “Yeah, but that doesn’t take into account political parties”. Right? Famously, the generation that drafted the constitution, even though they almost immediately participated in the formation of political parties didn’t at the moment.
They were drafting it, anticipate, or at least provide for political parties in the constitutional document, and so the response is yeah, but political parties swamp the separation of powers. That is to say you’re not going to get the ambition checking ambition because if congress is in the same hands as the presidency, they’re going to behave first and foremost as partisans, not first and foremost as members of congress. Right? Their ambition won’t be tied to their branch, but rather to their party. My response to that as an increasingly prominent argument is to say, “Yeah, but there’s one more step”. Right?
It’s not that I’m denying the partisanship is increasingly important. It’s just that when you diffuse power among all these different institutions, you increase the likelihood that both parties will have at least one institutional foothold. Right? First of all, even in the crude sense in which unified government means just control the presidency of the House of the Senate, it’s actually quite rare in American history. Obviously, it’s something that we have right now.
It’s something that democrats had from 2009 to 2011, but it’s quite rare and it usually ends pretty quickly. Even more than that, I think you think about all the ways in which power is defused. It’s even rarer, so democratic appointees now form the majority on most of the Courts of Appeals in the United States. There are obviously some states, although not that many under unified democratic control right now. There are always going to be institutions within the American governing scheme, but whichever party doesn’t have the presidency or doesn’t have congress, nevertheless has those institutions and can use the tools that those institutions provide to push back and to try to push for not only the policy outcomes that they want, but also to try to push to win over public support so that in the future election cycles, they can try to take over more levers and power, and it’s that kind of competition that incorporates parties.
It doesn’t pretend they don’t exist, but nevertheless says the structural schemes created by the constitution, separation of powers, also federalism and things like that do in fact play an important role in promoting a governing scheme that overall I think can be said to work fairly well in the grand scheme of things. I said at the beginning, we do like … It is a national pastime to complain about American government, but I think looking over this broad swath of American history, it has worked relatively well most of the time.
Katherine : A ringing endorsement of our system. There’s a certain line of libertarian thinking that says gridlock is good, and that line, the justification for that line sounds pretty similar to what you’ve just described, gridlock understood in the broadest sense to just be an elaborate system of interlocking checks and breaks on various entities. Do you think that that way of thinking is historically literate and do you think that it’s true? Do you think that gridlock understood maybe in the broadest sense is good or has been good for America historically?
Josh Chafetz: I don’t buy into that actually, and that’s because I think no matter what your political position is, whether you’re libertarian, whether you’re liberal, whether you’re conservative, there are things about the governing structure that you want to see change. Right? I imagine for example many libertarians are not entirely thrilled with the size and scope of the federal government and its regulatory authority today. If you want that to change, you need legislation. Right?
You need to pass things through congress to change the way things look in whatever direction you want them to change, so I tend not to think that really that any political orientation ought to be in favor of gridlock per se, but I guess the other thing that I do want to say about this is that I’m not sure that gridlock … I’m pretty sure that it doesn’t make sense to talk about gridlock as a phenomenon. Gridlock is, “What happens when the status quo endures?” Gridlock is what people who don’t like the status quo tend to say is going on when the laws they want to see passed aren’t getting passed or the nominees they want to see confirmed aren’t getting confirmed or whatever, but it seems to me that if we actually want to understand the American governing system, we need to think not in terms of gridlock, but instead, in terms of the conditions necessary to motivate government action. That is to say, “What degree of consensus do you need? How does that consensus need to manifest itself in order to pass some particular bill or in order to confirm some particular nominee?”, because do something isn’t a legislative program. Right?
I tend to think that people who are generally satisfied with the status quo generally don’t think that any legislation needs to be passed in a particular area. Then, they’re not going to call it ‘Gridlock’. Right? They’re just going to say, “Okay, that things are working pretty well there”. It’s only where they want to see things change and they don’t see change that they’re going to call it ‘Gridlock’.
That means I think that almost nobody should be in favor of gridlock because gridlock again is the word they used when a change they want to see happening isn’t happening, but instead, people should be thinking about, “What kind of change do I want to see happening? Is there actually public support for that change or am I just deluding myself because I want to see it happen?” Only if you can look around and convince yourself, “Hey, there actually is widespread support for this change” and yet, it’s not getting enacted, then, you might want to start talking about, “What structural features are preventing it from happening?” Right? Does it make sense then to talk in terms of some kind of democratic malfunction or dysfunction?
Until you in good faith convinced yourself that, “This isn’t just change I want to see, but actually change that there is democratic impetus behind”, it doesn’t seem to make sense to jump immediately to talking about gridlock with its implications that something has gone wrong.
Katherine : Another place for that language seems to come up where there’s that kind of divide is the use of the filibuster, and you described how the filibuster becomes routine or more routine in the ’70s and how one of the effects of that was to transfer power away from congress and to the executive. Can you talk about that a little bit, and in particular again whether people who didn’t like the things that were being filibustered on had a very different view of whether it was a sign that congress was function or dysfunctional?
Josh Chafetz: Right. The filibuster as you said becomes increasingly routinized starting in the 1970’s, and there’s a number of reasons for that, but one that’s pretty commonly put forward and that I find persuasive at least as a partial explanation is the creation of what’s called the ‘Two-track system’ which is to say something could be filibustered, but other business could then go ahead on the senate floor while it was being filibustered, so it was no longer this sort of Mr. Smith goes to Washington. You have to stay and keep talking indefinitely kind of thing. Once you do that, of course it lowers the cost of filibustering which then increases its prevalence so that filibustering which throughout most of the mid-20th century had been reserved for issues where there were especially intense feelings, and by the way, that usually not had been reserved for filibustering against Civil Rights bills. Then, in the 1970’s, the cost of filibustering goes down, and so its prevalence begins to increase to the point whereby the mid to late 1990’s and especially in the first decade of the 21st century, it just made sense to say the filibuster wasn’t a rule of debate at all.
It was just a super majority rule for getting things through the senate. One of the effects … It has many effects, but one of the effects of that is I think to transfer power as you said to the executive, and you can see that both in the context of personnel and in the context of policy. In the context of personnel, you see increasing or at least an attempt at increasingly aggressive uses of recess appointments. The Supreme Court came back and to some extent put a stop to that in the old Caning, but you saw unprecedented attempts by the Obama Administration to claim that the senate was in recess when it wasn’t.
You also saw increasing use of acting appointees in otherwise in a confirmed position, so people who are technically temporary, staying in office much longer than they had in the past partly as a result of how hard it is to get someone confirmed permanently to that position. Then, in the policy context, you see it in terms of the administrations of both parties, making increasingly expansive interpretations of existing statutory authority to try to do things through administrative channels when it became clearer that the filibuster was preventing them from doing them through normal channels. The reason I think this is slightly different than just the normal case of gridlock without the filibuster is that it allows presidents a pretty strong rhetorical ploy, one that they’ve used repeatedly and one that seems to resonate which is they wouldn’t even give this an up or down vote. Right? A mere 41 senators is preventing this from happening, and you saw both George W. Bush and Barack Obama make significant use of precisely those rhetorical tropes. Right?
They wouldn’t give them an up or down vote, and it was just 41 senators engaged in mindless obstruction. That I think allows presidents to make a stronger case to the public that, “Hey, you should trust me with this power instead”, and I think we’ve seen presidents doing that, and so I think the filibuster, I think some senators think of it as protecting certain senatorial prerogatives and to some extent, it does, but it also costs their institution something pretty significant and I’m not sure that a lot of members in the senate have fully internalized that.
Katherine : Is there a future in which congress is once again or I guess once again might not be right. Is there a future which congress is liked and admired? What would a popular congress look like? That’s my last question to you.
Josh Chafetz: I guess one thing I would say is I find it highly unlikely that there’s a future in which congress is really widely liked and admired again because it turns out, people just don’t like seeing messy processes, and congress is messy, is inevitably messy. You’ve got two large bodies of people who are going to disagree with each other about certain pretty significant things. It’s never going to look pretty, but I think there are potential futures in which congress is certainly more admired than it is now, and I think part of that just depends on how or it largely depends on how successfully it uses the tools that it has available. The theme of this book is that it has all of these tools. It is often engaged in using those tools, and then the question is just “How well is it engaged in using them?”, so how well does it do its oversight function?
In particular, if you have as we currently do a president who is very unpopular, who has approval ratings that are shockingly low for an early first term president, does congress stand up to that president in various ways? If it chooses to hold hearings, how well does it construct those hearings so as to make a public case for trusting it as opposed to trusting the president? Those are things that are under its control, and if you look at a recent high point of public esteem for congress, it’s in the immediate aftermath of Watergate where you’ve had a very unpopular president and you had a congress who stood up against him, and you’ve had a situation which congress publicly constructed an image of itself that held public hearings. It engaged with the public. It released information to the public in various ways, and that not only resulted in obviously in Nixon’s removal from office or his resignation from office before he was removed, but also resulted in a increased in the public prestige according to congress.
Congress then used that increasing public prestige to pass various statutes over the next few years that limited the executive in various ways going forward, things like the Ethics in Government Act. It started requiring confirmation of various White House officials that hadn’t required senate confirmation up to that point, so there was a way that there’s all kinds of intelligence reform that comes out of that period with the church commission and its report, and then the Intelligence Oversight Act. There are ways in which congress can behave publicly that then increases its trust that then leads it to be able to assert more authority vis-à-vis the other branches, and in some sense, an unpopular president is a gift to a congress that might want to do that, and then the question will be, “How congress uses that gift?”
Katherine : Thank you very much, Josh Chafetz for talking with us about your new book, ‘Congress’s Constitution’.
Josh Chafetz: My pleasure. Thanks for having me.
Congress’s Constitution
