Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.
Last week, 158 members of the House of Representatives, many of them already on vacation, gave their vote on the reconciliation legislation, known as the Inflation Reduction Act, to someone else. This proxy voting, initially established during the COVID-19 pandemic, is a perfect symbol of all that is wrong with Congress. People didn’t even bother to show up to debate and vote on legislation that many of them later described in statements as “historic.”
If you can’t show up for a historic vote, what are the chances you’ll show up to do the routine work of legislating?
It’s understandable. Now that congressional leadership is writing large, incomprehensible legislation in secret and presenting it at the last minute for a vote — the Congressional Budget Office didn’t even have time to score the legislation, which may be a first — what’s the point of making an appearance? You may as well stay home and tweet about the vote.
The problem is, of course, that such legislation — and the acquiescence of House members in the entire process — is a direct threat to the institution. The Constitution is direct and to the point: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
It does not say that all legislative powers shall be granted to congressional leadership, nor to a clique of senators, nor to any subset of Congress. It is also worth noting that Article I is found immediately after the preamble, to emphasize the importance the framers placed on the legislature. James Madison makes it clear in Federalist 51: “In republican government the legislative authority, necessarily, predominates.”
Unfortunately, the pandemic accelerated a very troubling trend in Congress. On our current trajectory, eventually (and sooner rather than later), the only really relevant vote a House member will take will be the organizing resolution at the beginning of a new Congress. How can anyone consider such an arrangement a truly functioning legislature?
The Senate has been spared this fate only because of the filibuster. But given the extensive and growing reliance on the reconciliation process to address legislative delays, and the likelihood that one or both parties will be careless enough to materially minimize the filibuster, it is likely that within a handful of years the world’s greatest deliberative body will be reduced to a group of influencers seeking clicks rather than accomplished men and women seeking answers to nettlesome problems.
The founders anticipated rivalries and factions both within the legislature and from the legislature’s external rivals. They could not have imagined that many of the legislators would simply prefer to hand over their power and authority to their party leaders.
This sort of deference to party over institution (or, even in some cases, voters) is contrary to the architecture of the Constitution itself, which relies on the separation of powers to limit and police the powers of the three branches of the federal government. In a moment in which party is everything (think about the endless party-line votes on the most recent reconciliation), separation of powers breaks down, and ultimately, members of Congress and their constituents are effectively disenfranchised.
What then can be done?
One immediate and obvious answer is to prohibit proxy voting. If you can’t be bothered to show up and represent your constituents, you shouldn’t be able to vote.
More importantly, senators and House members must reassert their commitment to regular order. Regular order ensures more durable, better, less contentious and more truly bipartisan legislation and minimizes the partisan pull. If members of Congress want better legislative process and outcomes, more control of their own destiny and the destinies of their constituents, and to give Congress some hope of continuing as a functional, co-equal branch of the federal government, they need to commit to not voting for any legislation — from any party — that has not gone through regular order. That means subcommittee and full committee deliberation, a vigorous amendment process on the floor of each body, and a restoration of the now virtually extinct conference committee.
It is the only way for lawmakers to arrest their own, and Congress’, long, slow, terrible slide towards obsolescence.
• Thomas Pyle is the president of the American Energy Alliance and the host of “The Unregulated” podcast.