Seeking policy resolution from the courts, when you have the votes to do it yourself, is the height of legislative folly.
When Norman Ornstein and Thomas Mann released their annual Vital Statistics on Congress this month showing that the 112th Congress passed a record low number of laws, tongues clucked among Washington’s class of chatterers and puritans about dysfunction on Capitol Hill. “The least productive Congress ever,” announced The Washington Post. But when James Madison diagnosed the ills of the American political system on the eve of the Constitutional Convention, paralysis was not among them. The problem was a limitless capacity to pass legislation.
Among the evils then of our situation may well be ranked the multiplicity of laws from which no State is exempt. As far as laws are necessary, to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion,which might be abused, their number is the price of liberty. As far as the laws exceed this limit, they are a nuisance: a nuisance of the most pestilent kind.
The “nuisance” was “pestilent” because it undermined the rule of law: Constantly changing rules were unknowable, especially by the average citizen. Madison wrote in Federalist 62 that every new law represented an opportunity for
[t]he sagacious, the enterprising, and the monied few, over the industrious and uninformed mass of the people. Every new regulation … presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said, with some truth, that laws are made for the few, not for the many.
In this sense, a Congress passing voluminous legislation may be contravening its duty. It is a mistaken impression of that duty—of Congress’ core function—that causes the tut-tutting in response to reports of low legislative “productivity.” The question is what Congress is intended to “produce.” Its job is not merely, as is supposed, to legislate. It is to deliberate and to represent. Sometimes, as a Capitol Hill staffer named Shawn Ryan wrote in a thoughtful rebuttal to the Post’s initial finger-wagging, Congress reasonably concludes that it best serves its constituents by inhibiting rather than facilitating action.
The problem is that there is a bias among pundits in favor of passing legislation just like there is a bias among journal editors in favor of positive research findings. But as every graduate student knows, a null result is just as illuminating as a positive one. Similarly, a legislator’s decision that no action is warranted is just as “productive” a conclusion to a deliberative process as a choice to push ahead.
This pro-passage bias is especially acute where polling data suggests that the public wants Congress to “do something,” which is in turn problematic insofar as the average Washington pundit is willing to drip condescension on every player in the political process except the voters who often most deserve it. The Constitution is not designed to give voice to the unformed desires of large majorities who are large precisely because their desires are so vague and unspecific that they easily elude such inconveniences as costs and tradeoffs. The result is a general impression that a Congress not passing laws is dysfunctional. A better formulation would be that a Congress unable to pass necessary and reasonable laws for which enduring rather than transient public support exists is dysfunctional.
Here Vital Statistics does provide reason for concern, in a metric far more illuminating than the volume of legislation: the percentage of votes on which majorities of the two parties stood in opposition. Ornstein and Jennifer Marsico write that the figure for the 112th Congress—a staggering 72.8percent—“approach[es] parliamentary numbers.”
There is, to be sure, nothing inherently wrong with ideological clarity. But polarization to this degree marks a decisive departure from the Framers’ design insofar as it bespeaks the demise of deliberative reflection in Congress. The fluid, shifting majorities on which Madison relies, for example, in Federalist 10 seem to have ossified into party caucuses marching more or less in lockstep on three of four votes and, one suspects, an even higher proportion of significant decisions.
If the multiplicity and mutability of state laws were among the vices that impelled the constitutional project, the inability of national majorities to attain national aims was an even greater one. Some legislation does need passing. Madison’s standard for political success in the “Vices” memo was not the volume of lawmaking but rather the need for it, which is sometimes voluminous but often not. The more typical case is a handful of larger challenges that require Congress’ attention and on which resolution seems increasingly elusive.
A Congress whose attention is so concentrated rather than dispersed might be in a stronger position to reassert itself constitutionally. It could also pass better policy. Madison believed most questions had good answers at which reasonable people deliberating clearly, freed from the muddying effects of passion, could arrive. Partisanship may have displaced passion as a new source of obfuscation. This is reason for concern. A low volume of legislation, of itself, is not. Provided Congress develops the capacity to do what it actually needs to do, Madison might even see “low productivity” as a sign of health.
Madison, “Vices of the Political System of the U. States”