By Anqi Wei, 2016 Rule of Law Fellow*
October 6, 2016

Since the establishment of the three branches of the United States Government, the legislative branch has been criticized for negligence and inaction, and the executive and the judiciary branches for overstepping their powers. The lack of clarity in Articles II and III of the American Constitution has been the reason for some of the unresolved controversies at the center of contemporary politics. An overwhelming majority of the congressional staff we met with during the 2016 J. Matthew Szymanski Rule of Law program sponsored by the US-Asia Institute believes that Congress could and should be doing more, echoing the sentiments of a large proportion of the American public. Over the four weeks of Rule of Law, various factors contributing to this phenomenon came to light. This essay summarizes and analyzes some of the main factors that I observed as impediments to Congress’ ability to pass laws. Further, it evaluates whether these factors were the Founding Fathers’ intended institutional designs within the Constitution.

1. Two-tier structure of Congress
Congress contains two entities, the House and the Senate, each with distinctive features while sharing the legislative functions enumerated and vested in the federal legislature. The House of Representatives and the Senate function quite independently. Even though legislation needs to be approved by both bodies before it reaches the desk of the President, these two bodies rarely consult with each other before they vote on the floor.

Only on rare occasions, such as when drafting annual budget bills, will the House Budget Committee and their counterpart in the Senate meet to establish the broad parameters for their budget plan for the coming fiscal year. In these cases, certain consensus needs to form within Congress before the Committees bring the bills to a vote. Needless to say, when the two bodies have to work with each other, the negotiation process is far more complicated as it confronts the shared and distinctive challenges the Senate and the House each faces. The outcome of a combined negotiation process is a balance of interests between the majority and minority parties in both the House and the Senate.

Then there is the process of garnering votes for each piece of legislation. In the House, comprised of 435 Representatives, the majority party is, more often than not, able to push through whatever legislation it wants. The Majority Whip shoulders a significant responsibility to keep track of over 218 members of its party, making sure they are on the same page of pushing the party’s collective agenda. Since there are numerous caucuses and special interest groups focusing on a wide variety of issues, it is much more important to establish grounds for common interests so that a bill may garner support from other Representatives in order to ensure the successful passage of the bill.

However, in the Senate, a much smaller total of 100 members renders more weight per each vote. The unique filibuster rule enables each senator to delay and hinder the legislative process if he or she feels strong objection against the current bill. Senate Rule XXII, however, known as the cloture rule, enables Senators to end a filibuster on any debatable matter the Senate is considering. It requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture rule instead of simple majority (Congressional Research Service, 2014). This means that even for the majority, bipartisan support is still necessary if they want to accomplish something and to bring the ongoing filibuster to an end.

2. Factions
In Federalist #10, Founding Father James Madison pointed out with profound vision that the biggest threat to American democracy was factions. (Madison, 1961). Factions exist because there are so many different groups of people with different interests. In Congress, where a small body of a few hundred members represents the larger republic that contains millions of individual Americans, factions greatly impact the efficiency and equitability of the legislative process. I focus specifically on political affiliations, constituency, and varied interest groups as examples.

2.1 Political Affiliation
The bipartisan American political system creates difficulties in the legislative process. Capitol Hill is a constant battlefield between two parties. With legislative elections every two years, the turnover between the majority and minority parties could happen just as frequently, though it usually does not. However, being in the minority party is not a declaration of defeat, but rather an opportunity to aggregate political capital for the next round of battle. Under such circumstances, political affiliation is critical in the decision-making process for each Member of Congress.

While Members are not forced to comply with general instructions and policy directions, the role of the Majority/ Minority Whip, the second highest ranking Member in leadership of each party, is to rally as many party members as possible behind the party’s agenda. If a certain issue on the floor is not of substantial interest to Members’ constituents, they are highly likely to follow the leadership and vote along party lines in exchange for expediency and support when they introduce their own bills. If there is opposition within party members’ districts, when the party needs votes, the Whip may still ask Members to vote along, and provide alternative narratives so Representatives can justify their votes to their constituents without jeopardizing their reelections.

2.2 Constituency
Each Member’s responsibility to answer to his or her constituency further complicates law-making. Unlike the Chinese system that features upward accountability, where government officials stay in power as long as the Chinese Communist Party is in power, the American democratic system features downward accountability. Members of Congress answer to their constituents who voted them into power. Members will hold meetings with their constituents on a regular basis to hear their concerns and to briefly report the work they are doing in Washington. Be it political considerations or actual aspirations to public service, the first question congressmen ask, when introducing or supporting a bill, is always: how will it benefit my constituents?

Naturally, when certain issues only concern a small constituency, it would be extremely hard to get support within Congress. For example, in the case of the issue of storing nuclear waste in Nevada, no congressman will strive to protect the Nevada environment at the expense of increased costs or jobs generated within his or her respective state. Therefore, Nevada had to ally with all the other states that enable transport trucks to pass through in order to garner enough constituents to increase the chance for their concern to be taken seriously. The diversity of requests and needs of each Member’s constituency means more work for the Member during the vote-seeking process.

2.3 Interest Groups
The rise of interest groups places further pressure on policymakers. The lobbying business today has transformed beyond the old-fashioned image of mercenary, soulless elites serving at the pleasure of big corporate money. Private sector individuals and organizations that work closely on public policy issues are representative of interest groups. For example, a self-autonomous lawyers’ association may “lobby” based on their observations on the defects of current legislation when practicing law, such as issues on how to protect children better in the foster system or how to prevent domestic violence. Think tanks, providing accurate information regarding the environment of investment to their customers, may also have a standing, hoping the Congress will enact certain trade policies to better facilitate international commerce.

The legislative process may be pushed forward by interest groups when they voice their concerns and the problem proposed is considered to be an actionable issue. The process could also begin within Congress and find its way back to interest groups. With the professional experience and input of think tanks and other interest groups, policymakers will be able to write and pass laws that better accommodate practical needs and address concerns.

While many criticize interest groups and their lobbying for holding the unfair position of big corporate vs. commoners in swaying public policy, the presence of factions must be acknowledged. From my personal observation, interest groups are the modern day version of factions. They are, beyond doubt, a very important way to hear the needs and concerns of the public. No policy should be made solely for the benefit of those who can afford their services, but it would be equally foolish to think that Members of the Congress will be well informed enough to make better policy without the research and input of interest groups. The power of such groups in affecting and complicating policymaking cannot be neglected.

3. Constitutional design
In the Framers’ view, the constitutional law of congressional procedure should accomplish a range of laudable aims. The relevant rules should promote well-informed, and cognitively undistorted legislative deliberation, ameliorate the principal-agent problems inherent in legislative representation, and make efficient the use of the legislature’s resources, especially in its compressed agenda space. Unfortunately, these aims cannot all be simultaneously attained in full, as the Framers were well aware. (Vermeule, n.d.) In the inevitable choice between efficiency of governance and preventing the abuse of power, the Framers clearly opted for the latter, so much so that they divided the power of ruling into nine little boxes—the legislative, executive and judicial powers of the federal, state, and local governments.

John Dalberg-Acton said that power corrupts, and absolute power corrupts absolutely. It is evident that the Framers shared Dalberg-Acton’s views in their deep distrust of any people in power. The entire system was elaborately designed so no action will go unchecked, which could mean more nuisances along the way, even for bills with overwhelming consensus. The mood might be more politically polarized now more than ever, but it hardly seems fair to accuse this Congress of not getting anything done when the system in place was designed to prevent any individual from abusing his or her power.

The Framers may not have foreseen the degree to which outside interest groups can sway policymaking; they may not have even planned for a bipartisan Congress of constant arm-wrestling. But the Constitution was designed in a way that would heal the country and its mistakes over time. Some call it a living Constitution—one that evolves, changes over time, and adapts to new circumstances, without being formally amended. (Strauss, 2010) It leaves some room for future Americans to decide what would be best for society, after jumping over all the institutional hurdles. Americans have chosen the system the way it is right now, within the framework and limitations of the Constitution. So far it has carried America through various obstacles and catastrophes. As for the rest, only time can tell.

Congressional Research Service, (2014). Filibusters and Cloture in the Senate. [online] Available at: http://www.senate.gov/reference/resources/pdf/RL30360.pdf [Accessed 12 Aug. 2016].

Madison J. (1961). Federalist No. 10, ed. Clinton Rossiter, The Federalist Papers (77-84). New York: New American Library.

Strauss, D. (2010). The living Constitution. Oxford: Oxford University Press.
Vermeule, A. (n.d.). The Constitutional Law of Congressional Procedure. SSRN Electronic Journal.

About the Author
anqiAnqi Wei, a law student at Tsinghua University in Beijing, China, was a participant in the 2016 J. Matthew Szymanski Rule of Law Program organized by the US-Asia Institute during the summer of 2016. Anqi is currently spending a semester away from Tsinghua studying at Notre Dame Law School.

The US-Asia Institute does not endorse the opinions voiced in the article above and is not responsible for the accuracy of content by the author or referred sources. This article was published by the US-Asia Institute to further respectful discussion of issues and views currently affecting Asia and US-Asian relations.

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