Congress at a Crossroads: What Kind of Legislature Is This?

Congress is dysfunctional and deeply unpopular. This series began by noting the many headwinds facing the First Branch. Perhaps unsurprisingly, a recent Gallup poll found that a mere 10% of Americans approve of the institution. Its own members are retiring in droves, and frustration. The Supreme Court emphasizes Congress’s necessity for government to act while calling out its recurring absence.

Complaints abound, but little ink has been spilled on the question of how Congress could best be structured to act in our constitutional system. Here, we weigh a variety of models for Congress and compare them with its recent performance.

To start down the path of renewal, we must first know where we want the institution to go. What does a healthy and functioning Congress look like for the 21st Century?

Arena vs. Transformative Legislatures

To answer that question, it’s worth thinking about what style of legislature Congress was intended to be and what the alternatives realistically are. Political scientists describe two models for legislatures: arena and transformational.

Arena style legislatures are characterized by robust debate and combative rhetoric. Often there is a high degree of speechifying on the chamber floor where members express support or opposition for the pending measure. However, their powers are largely limited to just that: debate. They are institutions built around fueling and giving stage to political conflict without the trappings of legislative deliberation.

A transformative style legislature is the opposite. The legislative process of the chamber is deliberative in nature which allows members to substantively develop and alter legislative proposals through impactful committees, robust amendment processes, and an active consideration of policy alternatives. Coalitions must be formed and reformed constantly in order to enact a legislative agenda leading to a high degree of negotiation within and between parties. While debate and speechifying still occurs, it is more closely tied to legislative business rather than simply expressive political position-taking. Arena style legislatures typically exist in systems where the executive is part of the legislature, such as the British Parliament, or regimes where the executive is the chief policymaker and the legislature is little more than a rubber stamp, such as the Russian Duma. Transformative style legislatures tend to exist in systems where the legislature is a fully independent body vested with substantial policymaking authority, such as the South Korean National Assembly.

With their documented distrust and fear of the concentration of power, it is often argued that the Framers intended for Congress to be a transformative style legislature that relied on the deliberation over the competition of ideas to secure against the “mischiefs of faction.” A Madisonian legislature such as ours is thought to be “first among equals” when compared to the other branches of government. As two Congress experts write, “Congress is where we negotiate the non-negotiable. It is where our elected representatives debate our differences and tackle controversial issues. At least it should be.”

Though that may have been the Framers’ goal, Congress has vacillated between models throughout its history. At times, living up to its robust transformational roots and at other times taking a back seat to the executive and party leaders preferring an arena-style approach.

Defining the National Interest

Throughout our history there have been two main competing thoughts as to who gets to define the national interest. For James Madison and other founders, Congress was most able to represent the will of the people and the national interest by forging consensus through a robust legislative process. As Madison writes in Federalist 10, “…it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.”

A second camp of thought, arising in the late 1880s, believed only the president, by virtue of being elected by the entire nation, could represent and give voice to the national interest. As Woodrow Wilson wrote in 1908, “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit…but only because the President has the nation behind him and Congress has not.”1

The Madisonian camp of thinking is given voice through the transformative style legislature where local representatives debate and deliberate over the issues of the day and produce policy procurements that tend to the national interest. The Wilsonian camp favors an arena style approach with the president and their co-partisan leaders in Congress proposing legislative agendas that rank-and-file members have little influence over.

How do we measure a Healthy Congress?

Alternate models for organizing a legislature fulfill different purposes. Measures that identify healthy operations for arena style legislatures may simultaneously be bad for transformative style ones, and vice versa.

BPC’s Commission on Political Reform made numerous recommendations favoring a more transformative style legislature: active committees, ample amendments, and robust debate to foster bipartisan negotiation and agreement. The state of these norms and practices is tracked by BPC’s Healthy Congress Index made up of eight metrics based on recommendations in the Commission’s final report.

Where do recent Congresses fit in?

The 119th Congress, not unlike its recent predecessors, has been called chaotic. Some, such as columnist Paul Kane, identify the source of chaos as the inability of the Speaker and other chamber leaders to fully control the floor agenda. Others argue the chaos is the result of leadership keeping too tight a grip on legislative outcomes, preventing factions other than the majority party from acting. Each camp points to the same set of evidence, a rising number of failed procedural votes, the decline of the floor amendment process, and a rise in the number of filed and successful discharge petitions.

Both articulate alternative views of the model of legislature that Congress has exhibited. Kane describes the arena-style norms that have come to dominate the institution over the past thirty years through an increasingly centralized legislative process. Others argue for the rebirth of the transformative style model.

Congress is currently trying to operate under both styles and succeeding at neither. Party leaders struggle to enact their policy proposals without intense intra-party bargaining, and rank-and-file members, especially from the minority party, are routinely left out of the legislative process except for floor votes. Some might say the institution is stuck between the two modes of operation causing it to fail by any metric.

Scholar Phillip Wallach sees three possible futures for Congress. “Decrepitude,” in which the status quo persists with strong leadership prevailing over ineffective demands for deliberation and negotiation. “Rubber stamp,” where Congress slips fully into an arena style legislature, performing politics but responsible for little impact other than majority parties swiftly approving their presidents’ agendas. These both represent degrees of irrelevancy in Wallach’s view. “Revival,” however, imagines Congress reclaiming its representative and deliberative, and thereby transformative, nature.

Whither Congress?

As we noted in our first piece in this series, many are clamoring for a more responsive and active Congress. But the norms of Congress are constantly evolving, responding to dynamics both internal and external to the institution. Members of Congress, and the American people, must ask themselves what style of Congress they want. Only from there can we determine how the institution should be organized and what capacities it needs to function.

Woodrow, Wilson, Constitutional Government in the United States (1908), quoted in Wallach, Philip A., Why Congress (2023). ︎

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