This is a sneak preview of the upcoming January/February 2017 issue of the Washington Monthly.
Could it happen here? Could a democratically elected leader come to rule us as an autocrat? Citizens of a free society can never lose sight of this question, and—however complacent many of us have become—the election of Donald Trump has shoved it back out to center stage.
“A dependence on the people is, no doubt, the primary control on the government,” James Madison observed in The Federalist Papers, “but experience has taught mankind the necessity of auxiliary precautions.” These precautions are the separation of powers and checks and balances, enshrined in the Constitution. Citizens concerned about tyranny from the leaders they have elected must depend on the other branches of government to defend the republic.
In particular, the public must rely on Congress, the branch of government that Madison felt “necessarily predominates,” given its proximity to the people. Moreover, Article I of the Constitution vests in Congress “all legislative Powers herein granted,” as well as ample implied powers of oversight, and the power of impeachment should that become necessary. If a strongman government ever takes root in America, it will not be simply because we elected a president determined to establish it, but because Congress acquiesced in his designs.
But if you ask Americans whether they think Congress will perform its duties responsibly, expect incredulity or laughter in response. Quite simply, the public has lost faith in the institution. A recent Gallup survey found that just 9 percent of Americans said they had a “great deal” or “quite a lot” of confidence in Congress, compared to 73 percent who said the same about the military and 36 percent who felt that way about the presidency and the Supreme Court.
We can’t blame the American people for their disdain. Recent years have seen unprecedented levels of polarization, hyper-partisanship, and gridlock on Capitol Hill. Three years ago, Republicans in Congress went so far as to shut down the federal government for two weeks in a vain effort to repeal the Affordable Care Act, which prompted President Obama’s exasperated response: “[T]his is the United States of America, we’re not some banana republic!”
Alas, this is no longer so obvious, which makes the contemporary nadir of Congress all the more problematic. The next four years will be an extreme test of our constitutional system. Will it survive? Let’s use Madison’s framework to assess its prospects: “The great security against a gradual concentration of the several powers in the same department,” he wrote in The Federalist Papers, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”
We know that congressional Democrats will have these personal motives. House Minority Leader Nancy Pelosi and her caucus, as well as incoming Senate Minority Leader Chuck Schumer and his colleagues, will be quick to oppose the policies they find objectionable and any constitutional perversions Trump might foment.
But will GOP lawmakers also have the motivation and—more importantly—the guts to stand up to a president of their own party? And, if so, will they have the “constitutional means” to do it effectively? Or is Congress itself currently too weak and dysfunctional to check an out-of-control executive? (Spoiler alert: it is.) Hence we must also ask whether Republicans are willing to reform and bolster the institution they lead to enable Congress to carry out its constitutional responsibilities.
This is a daunting set of questions to contemplate, especially for liberals skeptical of anything constructive happening on Capitol Hill. But there are signs that the Republican-controlled Congress could have the inclination and wherewithal to play its part in Madison’s system—look no further than recent calls by leading GOP lawmakers for an investigation of Russian involvement in the election—and to rebuild itself as an institution worthy of public confidence.
Consider the many ways in which the substantial ambitions of GOP legislators could bring them into conflict with the Trump administration. While Republicans may find some common ground on issues such as tax reform and opposition to Obamacare, Trump’s priorities on other issues—such as trade, entitlements, infrastructure investment, and government spending in general—run counter to those espoused by many congressional Republicans, including House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.
Second, Trump and many of his advisers, like Steve Bannon and Kellyanne Conway, disrespect and dislike the GOP legislators and the institution they inhabit, seeing it as an independent center of political power that they do not yet control. Before Bannon came aboard Trump’s campaign, he was determined to use his platform at Breitbart News to drive Ryan from the speaker’s chair because of the latter’s free-trading globalism and Washington insider status. It’s no accident that Trump has become a devotee of congressional term limits. Trump executed a hostile takeover of the presidential wing of the GOP and now wants to bring the congressional wing to heel.
It’s a safe bet that the loathing is mutual. While Ryan’s eventual and lukewarm endorsement of Trump struck many critics as feckless, it is hard to imagine him taking any other course and retaining the speaker’s chair. And time and again throughout the campaign, Ryan sharply criticized Trump’s statements and actions as inconsistent with GOP and conservative principles—even after giving Trump his endorsement.
Ryan wasn’t the only House Republican who was profoundly ambivalent about Trump. A cheat sheet by David Graham at the Atlantic found that at least twenty-five members of Ryan’s majority—more than 10 percent—declared on the record that they would not vote for their party’s standard-bearer. This is a highly unusual development in an age of intense party unity—and not a harbinger of a majority that will serve as a presidential rubber stamp.
Though less apt to withhold their votes, the true believers in the House Freedom Caucus are another potential thorn in Trump’s side. Prominent members of this group have already challenged expectations that they will be passive passengers on the Trump train. “November 8th wasn’t the election of a monarch,” Kentucky Representative Thomas Massie observed. “It was the election of the head of a third of our government as envisioned by the Founding Fathers.” For his part, Michigan Representative Justin Amash has been upbraiding the president-elect on Twitter for his threats to curtail civil liberties and intervene in free markets. When Trump boasted about his negotiations with Carrier, Amash tweeted, “Not the president(-elect)’s job. We live in a constitutional republic, not an autocracy. Business-specific meddling should not be normalized.”
Over in the Senate, where the GOP holds a mere two-seat majority, and where individual legislators wield considerable power, there is even more reason to expect that Republican lawmakers will frustrate Trump. In a post–election day press conference, McConnell fired shots across the president-elect’s bow, reaffirming the U.S. commitment to NATO and pointedly stating that term limits would not be on the Senate’s agenda. “We have term limits now,” the Kentuckian quipped to the assembled reporters. “They are called elections.”
Other senators could also set Trump’s wispy orange hair on fire. Ten Republicans in the next Senate—20 percent of the GOP majority—publicly affirmed that they would not vote for Trump, including stalwart Never Trump Senators Ben Sasse (Nebraska), Jeff Flake (Arizona), Lindsay Graham (South Carolina), and Mike Lee (Utah). Maine Senator Susan Collins disavowed Trump in August. After the release of the Access Hollywood tape in October, Alaskan Senators Lisa Murkowski and Dan Sullivan condemned Trump’s actions and said they would not vote for him, as did John McCain, Colorado’s Cory Gardner, and Rob Portman of Ohio. With the Republicans’ narrow majority, a few defectors could thwart passage of a bill or a confirmation of a weak appointee.
But can’t we expect these lawmakers, like so many others who talked a good game, to wind up caving to Trump and his followers when the going gets tough? Perhaps. But a few things to note. Many vocal Trump critics, including McCain, Murkowski, Portman, and Lee, along with Senators Marco Rubio of Florida and Rand Paul of Kentucky, just won reelection. All of these members now have six years of relative electoral freedom to challenge Trump without facing the electoral consequences. Members of the House Freedom Caucus already show no reticence to do so. If we see scandals arise from the commingling of the public’s business with Trump’s enterprises, or a foreign policy disaster, expect other House Republicans to jump ship rather than face the electoral consequences. GOP Trump critics will also likely enjoy the behind-the-scenes support of the large swath of the donor and corporate class horrified by the potential chaos of a Trump presidency. The fact that Trump enters office as the least popular president-elect in modern history will lower the bar for Republican defiance—presuming his ratings stay low.
So GOP lawmakers may indeed have both the “personal motives” and the will to check and balance Trump. But will they and the Congress they control have the “constitutional means” to do so—meaning, the capacity to effectively exercise the powers granted to them? In theory, yes. In practice, Congress has undermined its own capacity to use them.
One of Congress’s more self-destructive changes has been the shift in power from the committee system to the party system. It is congressional party leaders and their inner circles that drive the institution, not committee chairs and members. This shift was originally prompted in the 1970s by liberal Democrats seeking to subordinate the power of their conservative southern colleagues, who held a preponderance of committee chairs in the Democratic Congresses of that period due to the seniority system. Former House Speaker Newt Gingrich doubled down on this approach when he took over in the 1990s, bypassing seniority in selecting chairs, imposing internal term limits on them, and centralizing power in the leadership. This will make it harder for institutionalists in Congress to check the Trump administration.
Another change familiar to readers of this magazine was the “big lobotomy” that the Gingrich Congress self-administered by reducing professional staff on committees by one-third and squeezing the budgets of the Congressional Research Service and the Government Accountability Office. Undertaken to reduce the size of government, this penny-wise but pound-foolish move has also made it harder for Congress to marshal the expertise it needs to develop legislation and check the executive branch.
This decrease in expertise, plus the increase in partisanship, has led the amount of oversight Congress undertakes to plummet. Oversight has also diminished thanks to a breakdown in “regular order”—where the once-normal processes of recurring authorizations and annual spending bills informed by oversight as a matter of course have been replaced by lapsed authorizations and giant omnibus measures and continuing resolutions that give lawmakers little opportunity or incentive to scrutinize government operations. What oversight that does exist tends to consist of “fire alarm” hearings after catastrophes have occurred, or political theater (think Benghazi) staged to harass or embarrass the other party, rather than “police patrols” done on an ongoing bipartisan basis to monitor and improve public policy.
But is it even conceivable that Republicans would push through reforms that would weaken their own leaders’ powers in favor of committees and buttress congressional capacity by hiring more investigative and other staff? Actually, yes. In fact, momentum has been building toward these outcomes for a while. Paradoxically, members of the House Freedom Caucus, often seen as poster children for congressional dysfunction, are at the forefront of this movement. Representatives Massie, Amash, and South Carolina’s Mark Meadows, charter members of the Freedom Caucus, have been outspoken in calling for the decentralization of power and more committee-based policymaking that gives rank-and-file members opportunities to legislate and conduct oversight. A bicameral network of GOP legislators led by Senator Mike Lee and Texas Representative Jeb Hensarling has also pushed similar ideas in its Article I Project. The animating vision of this plan and the legislative reform proposals coming out of it is to ensure that Congress lives up to its constitutional responsibilities and becomes “the driving force in federal policymaking.”
These concerns have, moreover, become one of the five core planks of Speaker Ryan’s caucus-wide “Better Way” agenda. In 2016, a task force led by several House GOP chairmen developed a set of recommendations on the Constitution. Their report is striking for its insistence that the time has come for Congress to return to the institutional elements of a decentralized Congress that is fully exercising its Article I powers: passing legislation that authorizes (or reauthorizes) all federal programs and agencies before they are funded; enacting annual appropriations bills in a timely way; fully and jealously exercising its law-making power instead of making broad delegations to executive branch rule makers; and conducting systematic oversight that holds agency heads accountable.
GOP legislators are not the only ones who want to revisit and bolster Congress’s ability to carry out its responsibilities. Many of their counterparts across the aisle would also like more room to maneuver than the current partisan trench warfare gives them. For example, a bipartisan group of thirty-nine House members recently cosponsored a concurrent resolution to establish a Joint Select Committee on the Organization of Congress, which would be charged with developing a comprehensive agenda for institutional reform—just like an earlier joint committee did in setting the stage for the Legislative Reorganization Act of 1946. This act reasserted congressional authority over an executive branch that had gained too much power and autonomy under FDR’s leadership during the New Deal and World War II.
And late last year, a bipartisan group of legislators proposed to Speaker Ryan that Congress reinstate funding for the Office of Technology Assessment—which was zeroed out during the Republican Revolution—“to once again give legislators access to the nonpartisan technical expertise we need to make prudent policy decisions.” Doing so would be a discrete yet symbolic and important first step toward reestablishing the in-house staffing and expertise that Congress must have to stand up to an overweening executive.
Fully undoing the “big lobotomy” is going to cost money, and if Republicans are serious about their Article I efforts, they will need to appropriate it. New America’s Lee Drutman has pointed out that Congress currently spends about $2 billion annually on its operations, which may seem like a big number but is an exceedingly small fraction of the $4 trillion federal budget. It means that out of every $1,000 the federal government spends, fifty cents goes to the legislative institution responsible for setting priorities, making trade-offs, and overseeing how the remaining $999.50 is spent. You don’t need a green eyeshade to see that investing more in this capacity would pay dividends.
One final note on the ultimate congressional power: impeachment. Given the rarity of it being used against the president, it has not featured prominently in congressional discussions about shoring up checks and balances. But Congress has used this power approximately every other decade since the 1970s. As with the story told by the musical that bears his name, Alexander Hamilton’s description in The Federalist Papers of when impeachment proceedings are warranted seems at once rooted in a past world and yet highly relevant today: “The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done immediately to society itself” (Hamilton’s emphasis).
Impeachment is an extraordinary power, to be sure, but we live in extraordinary times. Given Trump’s penchant for controversy and confrontation, the obvious risks of corruption posed by his business interests, and the multiple and substantive policy differences he has with GOP elites, it may be unlikely but is not inconceivable that, should the “misconduct of public men” become insufferable in their eyes, Republicans in Congress will dust off and wield this extraordinary power against him.
Will the GOP follow through on its plans to strengthen Congress now that a Republican is in the White House? Skeptics might take note of a post-election keynote speech that Senator Sasse gave to several hundred members of the Federalist Society, the influential association of conservative and libertarian lawyers. Sasse drew a rousing round of applause with this peroration: “When people stand up against power and they disagreed with that power, no one’s surprised. They all expected that. What’s glorious is when people believe in limited government and restraint, when we are the ones in power. And we now have the opportunity to model that restraint.”
Americans concerned about the president-elect subverting our democracy should follow and encourage the efforts of lawmakers in both parties to restore and fully exercise the powers granted to them by our Constitution. And we should especially hold congressional Republicans’ feet to the fire if there is any hypocritical backsliding now that there is a Republican in the White House. Rather than dismissing the Constitution’s “auxiliary precautions” as illusory in a polarized age, we need to appreciate them as the best tool at hand in the years ahead—and support the legislators who are determined to use them accordingly.