The recent Supreme Court decisions would matter much less if Congress regularly passed legislation that reflected popular opinion. Instead, for half a century, Congress has hardly ever enacted ambitious legislation, even when the majority party has endorsed it. In that context, an activist court poses a particular threat to democracy.
In West Virginia v EPA, the court focused on the problem of vague delegation. The Constitution vests all legislative authority in Congress, yet the EPA asserted a right to regulate power plants based on vague statutory language. In my 2000 book, The Future of Democracy, I argued that it was undemocratic to give administrative agencies broad discretion. I was actually aligned with the central argument in West Virginia v EPA: Congress should make consequential decisions. However, I had not yet realized how badly the legislative branch was broken. In the succeeding two decades, Congress has only passed a few meaningful laws: the catastrophic domestic and international reactions to 9/11, the amendments to the Elementary and Secondary Education Act that were hyped as “No Child Left Behind” (and then substantially abandoned), and the tweaks on private insurance markets called “Obamacare.”
It is Congress’s job to regulate power plants. The public would support somewhat stronger environmental regulations, as would the party that currently controls the White House and both the House and Senate. Nevertheless, no one expects a new environmental bill to pass. At best, Congress could focus on that task but neglect its other goals. We face a Hobson’s choice: executive branch overreach or paralysis in the face of climate crisis.
The abortion decision is different: the court took away a constitutional right, applying an extremely problematic method for interpreting the Constitution. The court assigned power to the states, many of which will adopt policies that reflect their respective publics’ opinion. The problem with the abortion decision is not so much that democratic processes will fail at the state level (that varies by state), but that a human right has been rescinded.
Yet even here, it is worth noting that very few other countries protect a right to abortion in their constitutions or through decisions of their constitutional courts. Many more countries have enacted regular laws that permit abortions in various circumstances–broadly reflecting popular opinion. If we had a functioning Congress, then our national policy would depend on the congressional majority, and it might vary. Since I believe in a constitutional right to abortion, I would not accept such variation. Still, over time, there would usually be a national statutory right to abortion. (The current court might strike down a federal law on 10th Amendment grounds, but for now, that is speculation.)
Just 24 percent of experienced Hill staff agree that “Congress currently functions as a democratic legislature should.” Why not?
An obvious explanation for the current stalemate is the distribution of votes. The Democrats have just 48 members in the Senate, including two wildcards, plus two friendly Independents. However, neither party has accomplished very much–even with considerably larger majorities–at any time since the 1970s.
A proximate cause is the filibuster. That is certainly the immediate reason why a bill to protect abortion rights will fail in the Senate. However, it’s worth looking more deeply. After all, the Senate choses its own formal rules and creates its own culture. Why do senators vote for the filibuster even when it is so widely abused?
I used to believe the reason was money. An excellent example would be Joe Manchin’s financial ties to fossil fuels. However, it’s important not to overgeneralize from prominent anecdotes. The evidence that campaign finance affects legislative outcomes is not very compelling. To the extent that money talks, its impact would be weakest on high-salience issues, yet most of those issues are stuck. I’d add other explanations.
First, Newt Gingrich intentionally reduced legislative capacity, i.e., the expert staff support that enables legislators to develop bills. He did that less to reduce the size of the government than to centralize power in the Speaker’s office. Only five percent of Hill staffers surveyed by the Congressional Management Foundation and the Partnership for Public Service believe that Congress has adequate capacity today–a problem that is being discussed by the Select Committee on the Modernization of Congress.
Second, national cable news and social media encourage members of Congress to act like celebrities and pundits but do not reward legislative work. Professional reporters employed by city newspapers used to cover lawmaking regularly, focusing on their own delegations and issues of interest to their communities. Most of those reporting jobs are gone, and rank-and-file members of Congress receive much less overall scrutiny. At the same time, national cable networks fill hours with elected talking heads who opine on hot-button issues.
What about polarization? All Democrats fall to the left of all Republicans on standard, unidimensional measures of ideology. The disappearance of Dixiecrats and liberal northern Republicans has made it harder for a president to assemble a governing majority from components of the two parties. However, polarization should only create paralysis during times when the parties split control. When one party holds both houses plus the presidency, one would expect polarization to facilitate the passage of legislation.
I think partisan polarization is a somewhat misleading diagnosis. Even as candidates and voters identify with parties as labels, the parties have become extraordinarily weak institutions, with very little capacity to develop and implement coherent plans. Politicians are independent entrepreneurs with unique constellations of donors and local interest groups. Due to gerrymandering, they are much more concerned about fending off primary challengers than beating the other party in the general election. Working on a bill requires compromise and complexity that can backfire in a primary campaign.
Besides, both of the parties are cross-pressured. In this week’s New York Times/Siena poll, Democrats perform better among highly-educated whites than among people of color. No wonder the Democratic congressional caucus is “agonizing” over tax increases, which would hit a core Democratic constituency. The state with the second-lowest household income, West Virginia, seems out of reach for any kind of progressive Democrat. (Yes, West Virginia is 92.5% White, but that should not be the end of the discussion about why West Virginians vote conservatively in the 21st century.) Meanwhile, Republicans encompass low-education whites and many Latinos who wouldn’t benefit from tax cuts, plus business owners, who would.
A major ideology, such as Great Society liberalism or Reaganite neoliberalism, can orient elites toward a common end even when their grassroots constituencies are heterogeneous, but all ideologies are in rough condition today.
For me, it always comes down to civil society: how individuals join or form groups that can influence the state (or solve problems directly). Today, there are many dynamic and creative groups, and social movement participation may be at an all-time high. Thus, civil society is not in decline in a straightforward way. However, it is possible that groups are poorly configured to push legislation all the way through Congress. Ryan Grimm’s controversial piece in The Intercept about “meltdowns” in progressive organizing groups may or may not be fair and complete–I cannot tell. For me, the main takeaway is that major liberal membership organizations failed legislatively during the first year of the Biden Administration. Whether this is due to “meltdowns” or other factors, it is a problem. It is hard to think of examples in the past several decades in which membership groups have been more successful in the legislative arena.
One might still imagine that the current Congress will pass some significant legislation. But it is worth remembering how low our expectations have become. There is hardly any chance that Congress will address more than one urgent national problem by 2024. When the Supreme Court assigns responsibility to Congress, it is asking a dysfunctional entity to act.
See also: legislative capacity is not zero-sum; are Americans ‘innocent of ideology’?; a different explanation of dispiriting political news coverage and debate; and the social class inversion as a threat to democracy