The Era of the Do-Nothing Congress

The recent Supreme Court ruling striking down “Chevron deference” promises to rebalance power between the legislature and the executive by giving bureaucrats in federal agencies less leeway to interpret regulations, pushing the responsibility for making these decisions back to Congress. But what if Congress doesn’t want it? What if our legislature no longer legislates—and has little interest in doing so?

This is not a new problem. Regulatory agencies have so much power in the first place because Congress kept delegating it to them. Members of Congress love to pass big legislation with grandiose goals that no one could possibly be against. They come up with names like the Clean Air Act—because who’s going to come out in favor of dirty air?

But implementing this broad legislation requires someone, eventually, to confront difficult tradeoffs and restrict vital economic activity, and generally make unpopular decisions. So Congress delegates those hard choices to bureaucrats in the executive agencies—and then members of Congress spend decades railing against the bureaucrats for doing the stuff they voted for but didn’t want to do themselves.

In recent years, though, we have taken this tendency to a new level. Congress has gone from passing broad and vague legislation to passing almost no legislation at all.

Less Action, More Talk

An NBC News report from early this year captured the problem in an exchange with a GOP congressman complaining about his own party:

When Congress began the new year, Rep. Andy Biggs gave a television interview and made a startling confession: House Republicans have done nothing they can run on.

“We have nothing. In my opinion, we have nothing to go out there and campaign on,” the Arizona Republican said on the conservative network Newsmax. “It’s embarrassing.”

Anchor Chris Salcedo responded with a bemused chuckle. “I know,” he said. “The Republican Party in the Congress majority has zero accomplishments.”

Then again, what if this is, from a purely cynical perspective, a feature? What if divesting themselves of the tiresome burden of legislating provides members of Congress with certain benefits?

A Reuters analysis looks at several reasons for the decrease in legislative productivity, including intense partisanship that makes it difficult to pass small bills, causing everything to be crammed into a few “must pass” omnibus measures. Another is a restricted legislative schedule, with lawmakers spending a lot of their time back in their home districts:

Representative Derek Kilmer, a Democrat who chaired the now-defunct House Select Committee on the Modernization of Congress, said the issue of Congress’ shortened schedule was the main thing he would fix if given a choice.

“Part of the reason why when people are watching C-SPAN and no one’s there, it’s because they’re on three other committees at the same time,” he told Reuters. “The dynamic that creates is members ping-pong from committee to committee. It’s not a place of learning or understanding. You airdrop in, you give your five-minute speech for social media, you peace out.”

But the causation here is backwards. Members of Congress are only spending the time needed to make a “five-minute speech for social media” because that is what being in Congress is all about these days. Another congressman tells Reuters, “I have somebody running against me (in the primary election) that agrees with all the votes that I make, he just doesn’t agree that I don’t scream and yell.” Perhaps this is because the screaming and yelling have become more important than the voting.

Like I said, the grandstanding politician is not a new phenomenon. Try looking up the etymology of “bunkum.” Then again, the congressman from Buncombe was shouted down for wasting Congress’ time just because he was desperate to get attention back in his home district. Today, this is increasingly the spirit of all congressional business. The person who was most ahead of his time on this was former North Carolina Rep. Madison Cawthorn, who boasted to his colleagues: “I have built my staff around comms [communications] rather than legislation.”

Consider in that light another factor NBC News cited last year as a cause of Congress being unable to pass legislation: “The challenge is accentuated by likely GOP presidential nominee Donald Trump making ‘retribution’ against his enemies, rather than shared policy goals, the centerpiece of his comeback bid.” Trump doesn’t really have an agenda. He has enemies, and he has bad things he wants to say about them and do to them. Trump’s style—and its success—have accelerated this new era, but we should ask ourselves whether he is also a product of it. He is the kind of politician who can only thrive when social media becomes more important than policy.

Secret Congress

This idea came to mind, ironically, in examining why some legislation can still get passed: the phenomenon of Secret Congress. The theory, in a nutshell, is that Congress can still pass important legislation, and do it with bipartisan votes, so long as nobody knows about it. The Congress that gets things done is a secret—shhh, don’t tell anybody.

But the moment an issue gets into the news and catches the attention of the cable TV pundits, it become a partisan football, and all progress grinds to a halt. One obvious example is the long delay this year in funding for Ukraine, which enjoyed bipartisan support until Trump chose to make it into a partisan issue. Or consider the ultimate example of our new do-nothing Congress: Republicans killing their own immigration bill precisely out of fear that it would solve too many problems, taking away immigration as a campaign issue.

If the theory of Secret Congress is that you can pass legislation so long as you don’t get yourself on TV, the flip side is: You can get on TV all the time, so long as you don’t care about passing legislation.

The logical extension of this is members of Congress who don’t focus on legislation at all and instead focus on the culture war. Changing the culture, which is the product of innumerable individual creative decisions by artists, intellectuals and entertainers, combined with the spontaneous responses of their audiences, is something Congress is fundamentally unequipped to address. There is no way a bunch of politicians can regulate us into a cultural golden age. But the culture war appeals to politicians precisely because it is something they can’t really do anything about.

In effect, members of Congress have become a real-life version of that meme about the person who doesn’t want a solution to a problem, he just wants to be angry about it. If that’s the case, then the best problems to be angry about are precisely the ones for which there is no solution.

When you look at it this way, you see the same roadmap spelled out in Oklahoma Sen. James Lankford’s complaint about his own party killing his immigration bill:

This is the pen that I was handed at that desk when I was sworn in to the United States Senate. And I signed a book that was at that desk with this pen, because I was becoming a United States senator, because the people at home sent me here to get stuff done and to solve problems. There is no reason for me to have this pen if we are just going to do press conferences. I can do press conferences from anywhere. But we can only make law from this room.

I suppose we can think of this as Congress embracing remote work the way every other white-collar business has done since the pandemic. No more arduous days sitting in smoke-filled rooms in Washington. They can do press conferences, or send tweets, or make TikTok videos from anywhere!

Amusing Ourselves to Death

There is a case to be made, of course, for Congress passing fewer laws and therefore meddling less in our affairs. Some of us might be tempted to borrow a line from the colorful House Speaker “Uncle Joe” Cannon and announce, “The country don’t need any legislation.”

But we’re not talking here about a sincere dedication to small government. As the war in Ukraine reminds us, there are very real problems that are clearly within the legitimate powers even of a limited government, and they require vigorous and competent legislative action.

Moreover, the failure of Congress to act on matters that ought to fall within its purview creates a power vacuum that someone else will be eager to fill. Think about how the ruling on Chevron deference compares to the Supreme Court’s decision on presidential immunity: One ruling limits the bureaucracy, while the other removes limits on the president. This is not a pro-liberty combination of rulings. It’s a combination that expands the power of the person in the oval office by ensuring he or she is less hemmed in by government institutions.

This is why we should want a Congress that is not fiddling around with symbolic issues while an imperial presidency expands its authority. Congress is the branch of government closest to the people and needs to jealously guard its powers in our constitutional system. That will require pushing back against the current temptation to put political infotainment ahead of the business of running the government.