A Congress Too Polarized to Protect Itself

Photograph by Corbis, Illustration by Bloomberg View Close

Photograph by Corbis, Illustration by Bloomberg View

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Photograph by Corbis, Illustration by Bloomberg View

The U.S. Congress is on an extended election hiatus, yet there has been no noticeable decline in its productivity. As polarization and legislative gridlock have worsened in recent years, the nation’s great legislative body has withered, losing not only popular support but the ability to exercise its constitutional powers.

The result has been a troubling expansion of executive and judicial power. An example is President Barack Obama’s decision in June to end the deportation of some illegal immigrants who came to the U.S. as children. In 2011, he had rejected calls to circumvent Congress to bring relief to young immigrants. “You have to pass bills through the legislature, and then I can sign it,” Obama said at the time. His reversal may have been justified on the merits, but it can be rationalized only by congressional dysfunction.

Executive agencies such as the Environmental Protection Agency, which is poised to issue its own carbon- dioxide emissions standards for power plants, devise policy with little fear of being overruled by Congress (the courts are another issue). Environmentalists who think this is a satisfactory arrangement may want to contemplate how such executive power would be used in a potential Mitt Romney administration.

Parody of Gridlock

Even the Federal Election Commission, itself a parody of gridlock, takes the law into its own hands. If you wonder what legislation led to the explosion of undisclosed campaign donations to shadowy groups, the answer is “none.” In fact, the McCain-Feingold legislation, passed in 2002, requires disclosure of such contributions, and the Supreme Court’s Citizens United ruling explicitly presumed that disclosure would inhibit corruption. The FEC, however, had issued its own “interpretation of law” in 2007 that quietly gutted the law’s requirements.

The effects of congressional inaction radiate well beyond Washington. We have previously cited the economic costs of gridlock, including the blow to recovery delivered by last year’s debt-ceiling debacle, a black eye self- administered by the House of Representatives. Similarly, congressional gridlock delayed a Federal Aviation Administration reauthorization bill last year, costing the government $300 million in airline taxes and leaving 4,000 federal workers furloughed for two weeks. Tens of thousands of private-sector construction workers went without work or pay as well.

When ideology and incompetence combined to weigh down a House highway bill this year, state and local governments across the nation paid a price in stalled projects, heightened uncertainty and decaying infrastructure.

It’s no wonder some states prefer to bypass Congress on some matters. The Obama administration has issued waivers to more than half the states allowing them to opt out of provisions of the federal No Child Left Behind law passed by Congress and signed by President George W. Bush. What does Congress say about it? Who cares? The education law, a reauthorization of a previous statute, hasn’t been overturned or amended -- such efforts appear well beyond Congress’s abilities. Instead, it’s simply ignored.

Congressional Overrides

The executive branch and states aren’t alone in treading on congressional turf. Law professor Richard Hasen of the University of California, Irvine, argues that the Supreme Court, too, has been empowered by Congress’s institutional weakness. Hasen found that the rate of congressional overrides of Supreme Court statutory decisions has “plummeted dramatically,” from about 12 per congressional term in the period from 1975 to 1990 to fewer than three per term from 2001 to 2012.

“The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation,” Hasen wrote. “Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations.”

That power evaporates when a polarized Congress proves unable to function. Take the case of NFIB v. Sebelius, in which the Supreme Court decided the constitutionality of Obama’s health-care law. The court’s nine justices heard the case secure in the knowledge that they would have the final word. There was no chance that a divided Congress would pass a legislative response to the ruling -- no matter what decision the justices reached.

The Founders didn’t envision Congress as an inert slab of marble east of the tidal basin. They devised it to be the beating heart of representative democracy. The petty pursuits that have characterized this Congress -- the symbolic votes and cheesy partisan theater of the House; the formaldehyde atmosphere of the Senate, disturbed only by the occasional thumb twiddle -- are unworthy of its constitutional mandate, its history or even its current occupants, who are diminished each time the institution is brought low.

Regardless of who wins the presidency in November, congressional leaders of both parties need a new approach to their jobs and to their relations with one another. American government is complicated in the best of times, and partisanship is one of its mainstays. But there is no excuse for the pathetic state of Congress, an institution seemingly too weak to act affirmatively but just strong enough to wreak destruction. To restore the balance of power among the three branches, and fulfill Congress’s obligations to the public, congressional leaders must find ways to work together -- if only to raise their own institution from its knees.

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Today’s highlights: Jonathan Alter on why moderate Romney wouldn’t make it past Inauguration Day; Stephen L. Carter on our unprincipled politics; Jonathan Weil on why mandated audits should end; Dean Bakopoulos on the unpredictable Iowa voter.

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