Winning Elections Won’t Fix Our Broken Legislature
This shared outlook demonstrates that Democrats and Republicans have more in common than many presently assume. They agree that parties that win elections win the opportunity to make policy and that parties that lose elections lose that opportunity. While this view is correct to the extent that winning elections is a necessary part of lawmaking, it overlooks what happens in-between elections when lawmakers gather in Congress to legislate.
Partisan agreement on the importance of elections as the policy process’s primary driver is apparent in how Democrats and Republicans alike understood the stakes of the 2020 presidential contest between Joe Biden and Donald Trump. While they disagreed on which candidate should win, they agreed on the consequences if their favored candidate lost. The parties also agree on the importance of next month’s special elections to fill Georgia’s two Senate seats. If Republicans win at least one of the races, they will retain their majority in the Senate next year. However, Democrats will take control of an evenly divided Senate if they win both races, thanks to Vice President Kamala Harris’s tie-breaking vote.
There are, admittedly, important differences between the Democratic candidates (Jon Ossoff and Raphael Warnock) and the Republican candidates (David Perdue and Kelly Loeffler) in the two Georgia special elections. But it is not apparent that a victory of one over the other will have a meaningful impact on how the Senate, and Congress, function. This is because party control in a narrowly (or evenly) divided Senate will not significantly alter what senators do and how they do it. Absent other developments, the status quo will persist even though millions of people from across the political spectrum, and hailing from all walks of life, are frustrated with it and the gridlock in Congress that has become its defining feature.
Of course, this does not mean that the political status quo can’t change. Control of Congress and the presidency frequently alternates between Democrats and Republicans. And either party can influence the composition and direction of the federal judiciary if vacancies on the bench happen to occur when it controls the presidency and the Senate at the same time. But the bipartisan support that most of Donald Trump’s judicial nominations received over the past four years suggests that the rhetoric surrounding the confirmation process does not always align with its reality. And recent court decisions demonstrate that a party can’t guarantee how nominees will decide cases once the Senate confirms them. Still, Democrats and Republicans alike think the Georgia special elections are important because party control of the Senate impacts the institution’s ability to confirm the people that Biden nominates to serve in his administration and in the federal judiciary.
Reflecting the significance of controlling the executive branch and the courts, electoral politics has become the primary lens through which we see and understand politics. Consider how most lawmakers approach their job today. They typically view electoral competition and campaigning for reelection as the primary focus of their attention while in office. While the need for reelection has been a constant concern of members throughout American history, there is reason to believe that the nature of that concern has changed in recent decades. Where the need for reelection in the past may have been understood in terms of the individual member and his or her constituency, it is increasingly seen through the lens of the political party today. Maintaining (or regaining) the majority in the House and Senate appears to be the ultimate end of lawmakers’ efforts. Their actions (or lack thereof) inside Congress suggests that they subsume everything else under this need, including their policy goals and, in the process, the very idea of representative government.
Congress isn’t likely to change regardless of which party controls the Senate, because lawmakers no longer see the House and Senate as the preeminent venue where they engage in politics on behalf of the people they represent to resolve their differences and compromise. There appears to be bipartisan agreement that administrative agencies and courts in the federal judiciary are more appropriate venues for making controversial decisions. Lawmakers believe that letting the other branches of government make controversial decisions makes it easier for their parties to maintain unity and win elections. The reality of such an agreement is itself evidence that the locus of the government’s decision-making has shifted from the legislative to the executive and judicial branches.
This shift has profound implications for the health of the American republic. Far from being the preeminent branch of government originally envisioned by the Framers of the Constitution, Congress at present is a phantom whose presence is felt only by its absence. For example, contrast today’s House and Senate with the institutions described by James Madison in the Federalist 48: “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.”
Albeit in different ways, both administrative agencies and the courts make decisions by substituting bureaucratic expertise or a self-evident authority for the messy realities of self-government in a democratic republic like the United States. In doing so, they have the effect of expunging the concept of legitimate political conflict from politics altogether. Decisions made by virtue of expertise or pursuant to a higher authority are final. They require those who were on the losing side to accept the illegitimacy of their original claims.
When conflict and the underlying disagreement out of which it arises are no longer characteristic of government action, politics itself ceases and gives way to rule. At that point, the political process is transformed into a struggle for dominance of the government. When that happens, the American people lose their ability to inform their rulers’ decisions. This is because the people can’t hold officials in the executive and judicial branches accountable as easily as their elected representatives in the legislative branch. Conversely, officials in the executive and judicial branches are unable to legitimize the decisions they make. To do that, they need the active involvement of legislators in the lawmaking process. Without them, the link between citizens and their government is effectively severed.
The polarization cliche demonstrates that while Democrats and Republicans may disagree on many things, the things on which they agree — how politics works — are responsible for the gridlock in Congress. This is because they see elections as the policy process’s primary driver and try to minimize their intra-party divisions to win them. In doing so, lawmakers in both parties have encouraged Congress to shift its responsibilities to the president and the courts. While this may be expedient in the near term, it undermines representative government in the long term. And it makes it harder for people opposed to the status quo to change it.
Given these contradictions, electoral politics is by itself insufficient for genuinely changing the status quo. Overcoming gridlock in Congress instead requires looking beyond the daily posturing that characterizes lawmakers’ activities to better understand why they, either consciously or subconsciously, perceive the conflict that arises from genuine deliberation as something to be avoided at all costs. Lawmakers and the people they represent must change how they think about politics and the role conflict plays in making it work; the role it plays in facilitating compromise inside the House and Senate. The status quo in Congress will persist regardless of who wins elections as long as the Democratic and Republican parties agree on how politics works.