In Defense of Congress

By Michael Kinsley

The U.S. Congress celebrates its 200th anniversary this year, and scolds say the old fool is aging disgracefully. It has declined, they say, from a serious, democratically elected legislative body into a self-perpetuating oligarchy engaged in a mad power grab against the Executive Branch, perverting the Constitution and paralyzing the U.S. Government. The Senate's rejection of John Tower as Defense Secretary and the deal forcing President Bush to give up all hope of military aid to the Nicaraguan contras are just the two latest examples. Other supposed mileposts on the road to megalomania: the 1973 War Powers Resolution, the Ethics in Government (special prosecutors) Act, the Boland amendment (which was supposed to halt aid to the contras but didn't) and the 1987 rejection of Robert Bork for the Supreme Court.

The theory is heard mostly from Republicans. We have settled into an arrangement in which the Republicans seem to have permanent control of the White House and the Democrats seem to have permanent control of Congress. The essence of the complaint is that Democrats are somehow cheating when they use their control of one of the two elected branches of Government to thwart the will of the Republicans, who control the other.

The constitutional debate cannot be easily summarized. There are conservatives -- and not just Oliver North -- who seriously argue that a President has constitutional authority to pursue a foreign war in direct contravention of a law enacted by Congress and signed by himself. And to lie about it. What can be said briefly about this and less sweeping assertions of presidential power is, first, that even the conservative Supreme Court has so far found them generally unconvincing, and second, that these imaginative readings of the separation-of-powers clauses come from conservatives who are great ones for "restraint" when it comes to interpreting the Bill of Rights.

What comes over strict constructionists, for example, when they contemplate the words "advice and consent"? Suddenly this rather clear phrase doesn't mean what it says. Instead, it means "Approve him unless he's a practicing alcoholic." Read literally, the Constitution does not require the Senate to show special deference to the President's choices for major offices. Yet in practice the Senate shows enormous deference, approving candidate after candidate it would never choose itself, even for lifetime court appointments, where the consideration that a President has the right to his own team does not apply. If an occasional nominee sticks in the Senate's craw -- based on a subjective judgment it can neither quantify nor promise to apply uniformly in the future -- that is hardly an abuse of power. Senator John Tower himself opposed several Cabinet appointees over the years.

The Wall Street Journal editorializes that the real purpose of toppling Tower was "to cripple a President fresh from an electoral victory. To demonstrate that the real power lies in a PAC-elected Congress immune from effective voter control." And ultimately "to dismantle the presidency" no less. Of course, 87% of the members of Congress are also fresh from election. But this doesn't count, the argument goes, because Congress has "less turnover . . . than in the Supreme Soviet," as former President Reagan has complained. Only six House incumbents lost re-election bids last year, and more than 85% of current members won by over 60%.

The reasoning from these figures to the conclusion that Congress is "immune from effective voter control" is peculiar. Why is it that Ronald Reagan's 59% landslide re-election in 1984 constituted a mandate but the 60%-plus landslides run up by most members of Congress constituted a scandal? Why is the apparent Republican lock on the White House considered to be a profound ideological message from the voters, whereas the apparent Democratic lock on Congress is considered to be a sign that the system doesn't work?

But wait (the theory goes on), those Democratic victories are tainted because of gerrymandering by state legislatures, most of which are controlled by Democrats. Gerrymandering certainly happens. But gerrymandering hardly explains why the Democrats have a large majority in Congress. Constituency election systems inevitably exaggerate majorities; that is part of their function. (How many times did you hear that Ronald Reagan carried 49 of 50 states? Yet he got barely 29 out of 50 voters.) In fact, though, the Democratic majority is not all that exaggerated. In 1988 in elections for the House, Democrats got 53% of the votes and won 59.7% of the seats. In the Senate, which is constitutionally gerrymandered in favor of the Republicans (two seats for Wyoming, two seats for New Jersey), Democrats got 52% of the votes and 55% of the seats up in 1988. In the Executive Branch, George Bush got 54% of the votes and all the seats.

It might be better if the U.S. had a parliamentary system in which the Executive and Legislative branches were always under the same control. Not only would that avoid paralysis through partisan disagreement; it would also prevent the evasion of responsibility that is the real cause of paralysis in our Government. Negotiations on the budget, for example, are more like thumb wrestling than arm wrestling: the opponents don't really disagree about the destination; they just know that whoever goes first loses.

We don't have a parliamentary system, which is why Presidents are always calling for bipartisanship, President Bush's favorite postelection mantra. But bipartisanship must mean more than Congress always giving in to the President's wishes. "The duty of an opposition," a hoary British political maxim has it, "is to oppose." When the opposition controls an equal branch of Government, opposition is a duty that can be pursued gaily and without remorse.