Democracy in America, part 5: What's wrong with Congress?

Obstructive members of Congress blame others, of course, the president in particular, but the failing institution in America’s constitutional system is Congress itself. Power has shifted. 

Stein Ringen
24 October 2014

American democracy has always been messy, rough and unruly. The political process has suffered under rampant manipulation, cheating and corruption. Even so, democracy has delivered and made America not only the world’s supreme power but also its lighthouse socially and culturally. Today, by common consensus, the American political system is dysfunctional and Washington bogged down in gridlock. This week's series of articles by Stein Ringen explores the state of democracy in America, covering gerrymandering and electoral fairness, presidential power and the use of signing statements, court activism and the Supreme Court, the incapacity of Congress, and the health of democracy overall.

The argument of these articles is that the present predicament is new. Dysfunction strikes deeper than good old rough politics. It is not only a matter of disorder in Congress, the presidency and the Supreme Court. Beneath is a problem of power. The disorder that is visible in governance is a result of power being sucked out of the constitutional system and of a political culture that has abandoned inclusiveness and fairness. In a recent interview in London, Hillary Rodham Clinton said (in a matter of fact way), “our democracy is not working” (with Channel 4 News, on July 4 no less). If so, is the consequence not only dysfunction in Washington but also decline for America?

The trouble with Congress is that it doesn’t do its job. It is not giving the country the governing it needs. That’s visible to the naked eye. However, the rot runs deeper than can be seen on the surface. Even though Congress is obviously dysfunctional, according to Thomas Mann and Norman Ornstein, the sharpest of America’s scholars of Congress, in the title of their most recent book, the real state of affairs is “even worse than it looks.” It is not only that Congress does not do its job, it is now an institution that does not care that it does not do its job.

Ever since the United States started to govern itself, the three great offices – Congress, the presidency and the Supreme Court – have struggled against each other for clout, as the framers of the Constitution intended. Now, however, that power struggle has been settled, as was not intended, and Congress has lost. The true story is not that Congress is gridlocked because members are unruly and quarrel with each other. It’s the other way around. Congress is without power and capacity and the terrible behaviour that is seen there, from the leaving of government shut down or sequestered to the lack of civility among members, is the inevitable display of powerlessness and frustration.

This series of articles started with gerrymandering. Around the country, local powerbrokers manipulate electoral districts in a way that makes nonsense of democratic elections and undermines Congress’s legitimacy – and Congress does nothing about it! In Washington, presidents have taken to cheating on the implementation of Congress’s laws with the help of signing statements, and to wrecking due legislative process, and Congress does nothing. The Supreme Court has empowered itself to sweep away legions of Congress’s laws and substitute laws of its own making, and Congress does nothing. Congress has ample powers to deal with these assaults on itself, but chooses not to retaliate.

Not only does Congress not check the other powers, it does not do its part of the joint job of governing. The budget is out of control with huge deficits. Congress complains but does not create order. The tax system is a nightmare that combines all the vices that are possible in taxation – inefficient in raising revenues, unfair, offensive to taxpayers and in the burdens of compliance it heaps on them, and distorting and discouraging to business – and Congress stands by and lets the chaos deepen. The tax code grew from 1.4 million words in 2001 to 3.8 million in 2010, in a continuous introduction of new loopholes. Social security is in financial disarray, but while most European governments have overhauled their systems to make them sustainable, American politicians are stuck in a fruitless debate for or against reform. The country’s infrastructure in transport and communications is poor and eroding, and Congress lets it slide. There is a desperate need for control in issues such as immigration and gun use, but Congress leaves disorder to prevail. Obstructive members of Congress blame others, of course, the president in particular, but the failing institution in America’s constitutional system is Congress itself.


Seal of the United States Congress. Public domain.

Some of the dysfunction comes from within. Various procedural rules impede Congressional capacity. Prominent among these is the filibuster in the Senate. Individual senators can prevent the Senate from getting to the point of decision-making on a matter by talking it to death or threatening to talk it to death. The filibuster rules are now byzantine beyond description. The threat of filibuster is often enough. There is “silent filibuster” where senators can filibuster even if they leave the floor. Effectively, the Senate now works under a self-imposed rule requiring 60 votes to act (the number of votes normally needed to break a filibuster), which means that a minority of 41 can prevent Senate action. The filibuster is a cause of ugly and disgraceful squabble in what should be a dignified chamber of legislation, not to mention a cause of gridlock. It was abolished in the House of Representatives in 1842. There is no excuse for its persistence in the Senate.

There has been a steady decline in what is often referred to as “congressional civility,” in the behaviour of members of Congress towards each other and towards Congress itself. This has been stimulated in recent years by vindictive hatred by some members of Congress of President Obama, no doubt grounded in a sentiment that cannot be spoken that he has no right to hold the highest office in the land. Members seem less able to see each other as colleagues and Congress as an institution. This has many causes but one contributing factor may be modern air transport. Members can now easily return home for weekends, creating a fly-in-Tuesday-fly-home-Thursday Congress. This contributes to shifting their attention from national to local politics and to eroding a collegiate culture of belonging among members. The reason Congress does not care enough about its own dysfunction is that members do not care enough for their institution.

Internal and external pressures on Congress have conspired to produce a predicament in Washington that goes under many names: paralysis, gridlock – Francis Fukuyama has named it “vetocracy.” Congress has allowed ever more irrational procedures to take hold and neglected itself and its culture so that everyone and anyone – speakers, majority leaders, minority leaders, committee chairmen, sub-committee chairmen, intransigent individual lawmakers, filibusterers, minorities – can prevent action and see themselves as entitled to prevent anything they do not like, or anything the president wants, and to have no duty of compromise in the interest of giving the country governance. Congress now is a legislature that prevents but does not do. In the Constitution, Congress is the doer, the president the executor and the Supreme Court the controller. Now, Congress is no more than a reactor to what others do, and a negative one at that.

Why has checks-and-balance become severely unbalanced? The immediate reason is that Congress has lost a grip on itself. But why has Congress so declined? Its working order is obstructive and its culture is intransigent. But these dysfunctions are parts of the predicament, not its cause. The deeper cause lies in power.

Power has shifted, firstly, between the constitutional offices, to the detriment of Congress. The Supreme Court ignores Congress’s laws and presidents refuse to implement them.

But even that does not explain the extent of paralysis in the system of government. The cause does lie in power, but not only in power relations in Washington. It is not only that Congress has lost power within the Washington system, it is also that the Washington system has lost power in the country. We need to look beyond Washington and more broadly to power relations in American society and economy. In the next and final article in this series, I will explore a reconfiguration of power away from the constitutional system. If the Washington system is a vetocracy, the American system is a super-vetocracy.

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