The following op-ed was co-authored by Kevin R. Kosar, vice president of policy at R Street Institute and co-director of the nonpartisan Legislative Branch Capacity Working Group.
In his short time in office, President Donald Trump has moved unilaterally to reduce environmental protections, pull the nation from international agreements, and hollow out the federal workforce. This summer, he threatened North Korea with nuclear holocaust and then issued an executive order that will encourage the construction industry to build more homes in environmentally sensitive and flood-prone areas—right before Hurricane Harvey hit. And that’s just the tip of the iceberg.
If ever the country needed a resurgent Congress, one that could counterbalance the president, that time is now.
But to those of us who would try to “Make Congress Great Again” through reforms, William Howell and Terry Moe say, “Don’t bother.” In their book, Relic: How Our Constitution Undermines Effective Government, and Why We Need a More Powerful Presidency (Basic Books), they write, “When it comes to setting the agenda, crafting coherent policies, and taking the lead in addressing the nation’s problems, it is the president—not Congress—who should be the nation’s steward.”
Moe and Howell are no cranks. They are pre-eminent political scientists at, respectively, Stanford University and the University of Chicago. Moe is particularly renowned for his work on bureaucracies, and Howell is expert on executive governance.
Relic was published last year, before Trump assumed the presidency, and the reader cannot help but wonder if Howell and Moe have rethought their thesis. This particular president certainly is cut from different cloth than Majority Leader Mitch McConnell and Speaker Paul Ryan, to say nothing of Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi. But is the office of the presidency actually superior to Congress? Under normal circumstances, it is not a crazy question: could a more powerful president (provided it’s the right kind of president) save the nation from political gridlock and pass the kinds of policies we need to restore the country to its rightful pre-eminence?
The crux of the Howell and Moe argument is that the Constitution is outdated and hamstrings members of Congress into producing parochial policies that do little to serve the country. Members constantly run for reelection, represent local constituencies, and are inundated by interest group pressures. As a result, Congress isn’t able to produce true transformative legislation even if it wanted to. And even when Congress takes action, “its policies tend to be ineffective due to all the compromises;” and “when its policies prove ineffective, Congress is unable to either fix or get rid of them.”
In contrast to parochial, myopic members of Congress, the authors write that presidents “are cut from a different cloth” and as such, “seek policies that are coherent, well integrated, and effective” and are focused on systemic overhauls and major plans. What makes the presidential cloth so superior? Presidents, say Howell and Moe, represent national constituencies and thus national interests. Additionally, presidents are heavily motivated by their legacies, incentivizing them to seek long-term policy solutions that members of Congress aren’t willing or able to pursue.
Certainly, Howell and Moe are right to criticize our national legislature for its failures. Congressional governance has grown much more difficult. Government’s burgeoning responsibilities and its fantastic complexities make legislature-based governance more challenging. America’s economy and national security agreements bind us to other nations. Polarization in Congress and the rapidly vacillating partisan control of the chambers has sharpened conflict and discouraged compromise. And let’s be brutally frank: many of the 535 individuals chosen to serve in Congress are better at politicking and fund-raising than governing.
But Howell and Moe offer exactly the wrong solution to solve these problems. To update our government for the 21st century, Howell and Moe advocate giving fast-track legislative authority to presidents by constitutional amendment. “More specifically, presidents should be granted enhanced agenda-setting powers to propose bills to Congress, which Congress should then be required to vote on without amendment, on a strictly majoritarian basis, within a fixed period of time.” Fast-track authority has traditionally, though rarely, been used when voting on president-negotiated agreements dealing with international trade. Howell and Moe call for its use to be available to the president on any legislation, effectively “moving Congress from the front seat of legislative policymaking to the back seat.”
Yet, giving up on Congress and relegating it to voting up or down presidents’ proposals throws out pluralistic, democratic governance, and replaces it with a quasi-elected monarchy. Imagine this power in the hands of Donald Trump. At bottom, Howell and Moe’s “solution” is more faith-based than rational by engaging in magical thinking about the nature of presidents.
We would not be the first to point out that the authors underplay the degree to which the presidency, like Congress, faces intense interest group pressures. Indeed, it is difficult to recall a president who was not accused of being in league with unions, corporations, and or some other powerful interest group. One need only look at whom the president appoints to lead agencies.
We also find ourselves agreeing with critics who point out that presidents do not leave ideology behind in pursuit of large legislative achievements. Lyndon B. Johnson, for example, pursued his ideology by erecting the Great Society. Ronald Reagan did similarly with his deregulatory agenda.
There are, however, other large divergences between the presidents Howell and Moe want and the ones we get.
First, the authors overestimate the similarities within presidential motivations. Howell and Moe contend because all presidents operate in relatively the same institutional structure, all presidents can be “expected to behave presidentially. All presidents can. They are all wired the same.” Of course, this is not true across the spectrum of presidents, as best evidenced by our current commander-in-chief. Trump clearly is the antithesis of Barack Obama; George H.W. Bush was different from Ronald Reagan. And nobody would conflate George Washington, John Adams, James Madison, or Thomas Jefferson with one another.
Second, Howell and Moe overestimate the link between presidential legacies and coherent policies. The authors write, “If there is one motivator that most forcefully drives presidential behavior, it is their concerns about legacy [which effectively] makes them champions of the nation’s long-term interests.” In order to secure their historical standing, presidents pursue grand, sweeping policies, such as President Obama’s desire to be the first in decades to pass healthcare reform. However, the authors discount the potential that unilateral, legacy-producing policies can prove wrong-headed, ineffective, or even dangerous. Even un-Trumpian presidents make spectacular mistakes. In 1952, Harry S. Truman directed the Department of Commerce to seize the nation’s steel mills to stop unionized workers from striking—a grossly unconstitutional action delivered in pique. President George W. Bush’s misguided belief that Iraq was fundamentally a secular nation that was ripe for democratic governance plunged America into a costly war and further destabilized the Middle East.
Third, the authors underestimate presidents’ ability to draft and budget large legislative efforts. Howell and Moe suggest presidents are incentivized to pursue long-term policy solutions that “are coherent, well integrated, and effective.” However, big, reform-minded policies are also those that are those most likely to produce unintended political and social consequences after their passage. There’s a basic trade-off involved: the fewer people who draft a policy, the fewer ideas it will reflect. The policy will be more coherent but also much less likely to represent a consensus view on what is right or fair. Regulatory agencies’ actions exemplifies this trade-off. Agency heads picked by presidents issue new rules after huddling with political allies, then everyone else gripes about the various ways that the proposed rules are wrongheaded or biased. Even if a regulation is brilliant, it is knocked for being undemocratic.
Seeing less to love in presidents than Howell and Moe, we cannot but be alarmed at the supposition that enhanced fast-track authority will improve governance. Fast-track authority, in fact, would undermine the very attributes of the presidency that Howell and Moe admire: the desire for big, legacy-defining policies. Fast-track would incentivize a president to offer small, empty, symbolic legislation to bump up his short-term approval ratings or to force legislators to vote on politically toxic measures. Do we want to live in a world where a new president sends to Congress the “cut overpaid legislators’ ritzy salaries” bill, or legislation more extreme than the Patriot Act in the aftermath of a national security incident?
This short-term politicking will be endemic during campaign seasons. Part of a president’s legacy is maintaining popularity, winning reelection, and expanding majorities in Congress. We remember the presidents who took huge midterm losses in Congress (i.e. Bill Clinton in 1994, or George W. Bush in 2006). We treat these losses as a referendum on the president and their agenda. These are part of their legacies, and as such, a president would have every reason to use fast-track legislative authority to pander to voters in swing states and to trash the opposing party in Congress.
Thankfully, Howell and Moe’s proposal is unlikely to go anywhere. Amending the Constitution is fantastically difficult, and no one is going to want to grant Trump fast-track powers to do anything. But Relic should provoke those of us who want to continue to live in a democratic republic to look long and hard at Congress. It is struggling, and the Founders never imagined that citizen legislators would need to oversee, let alone direct, a $4 trillion a year enterprise with 160 agencies and a global reach.
Hence, the better solution for the governance woes that Howell and Moe rightly diagnose isn’t to strengthen the presidency but to strengthen Congress.
Once upon a time, we had a legislative branch that could help govern. The House and Senate had long-serving leaders at the top and heading the committees who knew how to cut deals and make policy. Competent committee bosses like Sen. Carl Levin, D-Mich., and Sen. Tom Coburn, R-Okla., conducted rigorous oversight of both the government and the private sector, and were aided by professional staff who treated public service as a calling.
Sadly, a great deal of that professionalism vanished over the past three decades. Newt Gingrich and other fire-breathers adopted the mindset that the Congress that governs least governs best (“The Big Lobotomy,” June 2014 and “A New Agenda for Political Reform,” March 2015). Congress spent much of the past two decades diminishing its capacity to govern. The legislature has reduced the time it spends in Washington, cut its committee staff, and shrunk the number of nonpartisan researchers who work for the Congressional Research Service and the Government Accountability Office. It also entirely defunded the Office of Technology Assessment just as the internet was beginning to emerge.
Lately, Congress has woken up to the insanity it wrought, and it has begun to reinvest in itself a little bit. In the past year, Congress has voted to strengthen the investigatory powers of Inspectors General and the GAO. It increased its appropriation to CRS by $1 million this year, and voted to spend a little more money on House of Representatives staff last year. But, the old “cut government” madness has not yet subsided. Legislation introduced this year to refund the OTA failed. Worse, this summer a few House Freedom Caucus members tried to cut the staff at the Congressional Budget Office and outsource the scoring of legislation to private think-tanks.
Certainly, Congress would help itself govern a bit smarter were it to hire more staff and pay them better (their salaries have declined over the past decade even as D.C. housing costs have shot up). Structurally, however, this is not enough to remedy the immense asymmetries in expertise. The executive branch has legion scientists and experts, who earn their livings by working full-time on complex technological, scientific, and social scientific policymaking. Congress can never hope to rival this level of knowledge.
What else can be done to restore Congress as something resembling a co-equal branch of government is no easy question to answer. Nonetheless, if more Americans do not goad Congress to start asking itself this question, Congress’ slow slide into irrelevance will continue. And there will be no need for a constitutional amendment to give the president fast-track authority. Presidents will do as a matter of course what they so often do today: issue executive orders and memoranda and dare Congress and the courts to stop them.