In a series of recent posts on this blog, a consensus emerged. It started with Beau J. Baumann’s call for LPE to adopt “a constitutional politics,” which he defined as “a movement or coalition’s core claims about who should wield state power and on what terms.” Surprisingly, Baumann wasn’t warning about, say, the perils of rich people ruling; instead, he advocated “restor[ing] legislative primacy and insulat[ing] administration from direct presidential domination.” Samuel Moyn, in a follow-up, set aside his commitment to contrarianism to embrace the call. “I can’t find anything wrong,” he sheepishly admitted. K. Sabeel Rahman, in a third post, was more cautious. Drawing on his own prior work, as well as arguments raised by Daryl J. Levinson, Ganesh Sitaraman, David E. Pozen and Jonathan S. Gould, and many others, Rahman emphasized that we must also address the ways “[c]onfigurations of political and economic power flow through and interact with our institutional structures.” Nonetheless, he was firmly on board with the bottom line: “this commitment to legislative primacy gives us an orientating north star.”
Congress should save us? Frankly, I’m a little perplexed. All three authors are incisive scholars whose work I admire. Their criticisms (here and elsewhere) of elite-driven, court-based change are compelling. And there is much to commend in the push to think seriously about how institutions construct and constrain power. I worry, though, that the push to premise LPE on legislative primacy is a dead end — worse, a wrong turn that could lead us far afield. It valorizes a deeply undemocratic institution, relies on a selective, schematic reading of the past, and distracts us from vital debates about the policies we should be pursuing and persuading others to support. A better way forward is to embrace the “institutional agnosticism” that Baumann dismisses.
To see why, look no further than the pieces themselves. Once the posters actually get around to describing “our national legislature,” they find little to like. Baumann concludes his otherwise staunchly pro-Congress piece by decrying its “myriad democratic shortfalls.” Among other necessary reforms, he suggests “abandoning the Senate filibuster,” “admitting new states,” and “increasing the number of representatives in the House.” Moyn, for his part, argues we must not only ditch the Senate, but also fold the entire administrative state into Congress, including “all of the adjudication currently relegated to executive auspices.” Oh, and while we’re at it, Baumann writes, we need a wholesale reform of campaign financing too. As Rahman forthrightly admits, “the Congress of today is hardly the Congress of an aspirational democratic future.”
If the precondition for Congress being worthy of our democracy is entirely remaking Congress (and much else besides), what could justify placing it at the center of our politics? Clearly not a constitutional command. As Moyn notes, Baumann’s advocacy for “constitutional politics” avoids invoking the “the big-C Constitution.” In this way, Baumann seems to go a step further than Josh Chafetz, whose earlier use of the same phrase was premised on “a field that is given form and structure by the written Constitution.” True, Rahman argues that “[t]he legislative power is articulated in Article I of the Constitution for a reason — the legislature has the primary claim to democratic sovereignty, above and prior to both the executive and the judiciary.” Still, I take it that Rahman’s intent is to emphasize the guiding principle of popular sovereignty, not to insist on a binding, text-derived institutional priority.
That’s for good reason. As is evident in the endless deluge of law review articles and judicial opinions, the Constitution is far from self-disclosing: it can be just as readily used to promote presidential power or judicial supremacy as legislative prerogative. And, as Nikolas Bowie and Daphna Renan have argued, there are real dangers to defending institutional arrangements in “legalistic terms” rather than by “political morality” or their relation to “substantive policy goals.” Doing so turns every interbranch dispute into a potential case for courts to remove from democratic debate. More fundamentally, it can lead us to argue that senseless killings, shameless corruption, or cruel deportations are bad simply because of their institutional origin, rather than their real results.
Perhaps, then, Congress is really just a last resort. Baumann and Moyn spend significant portions of their posts describing the depravities of the presidency and the Court as currently constituted. With those two institutions seemingly at the apex of their powers, it is tempting to consider the potential of the institution at or near its nadir. But that wouldn’t be a fair fight. Idealized institutions will always be more desirable than the fallen government we’ve got. So, to their credit, both want to go further. They argue that the President and the Court are always already threats to emancipatory, democratic ends. As far as I can tell, that is because whatever power they accumulate can be wielded by despotic occupants of the offices. “[A]uthoritarian capture,” as Baumann puts it, is the core concern.
Why isn’t that also a risk in Congress? One can imagine various reasons Congress might be less susceptible — its large numbers, its non-overlapping constituencies, its arcane traditions — and yet the posts never explain why members of Congress are immune from misusing their authority. Indeed, it is striking that the pieces largely lack a positive account of Congress as an institution or of the distinctive benefits of legislative primacy. In place of those arguments, there is a resort to history. The claim, especially in Baumann’s piece and Rahman’s earlier work, seems to be that, because Congress led the way during progressive moments in our national past, we must rely on it again. But Congress played a key role in regressive and reactionary moments too, embedding racial hierarchy in the New Deal, spurring the Second Red Scare, and sanctioning essential aspects of the War on Terror. Moreover, as the posters know well, complex historical struggles cannot easily be reduced to a how-to guide: if anything, Reconstruction, the New Deal, and the civil rights movement all underscore how fleeting positive change can be without sustained popular support, interbranch coordination, and effective policies.
So, finally, it is possible to understand legislative primacy as a means to an end. Rahman most clearly advances this instrumental rationale, though it seems implicit in Baumann’s piece as well. In Rahman’s telling, “without . . . radically transform[ing]” “the current institutional structure,” any progressive victories “will yield at best only temporary reprieve from the continued escalation of authoritarian and oligarchic dangers.” In other words, we must not only “rein in private power, secure basic civil rights protections and systems for social and economic inclusion, and much more,” we must entrench these changes in an institutional architecture that makes them resistant to roll back. Because traditional lawmaking through Congress presents the most efficacious way to make such changes stick, that should be our focus.
This approach risks putting our priorities backwards. Under it, the reason to rely on Congress is to ensure that, once we gain power, our preferred policies become permanent. As Moyn suggests, though, a virtue of democracy is that “nothing is formally entrenched;” policies are fixed only insofar as they remain persuasive to our fellow citizens. (Notably, one effect of the democratizing reforms the authors prescribe for Congress would be to make the laws it passes much more provisional.) Contra Rahman, this implies that our primary aim should be “to merely develop good policies” and convince others of their value. Some of these policies might require new legislation, others might be achievable through existing delegations, still more may turn on routine enforcement decisions. At least for the foreseeable future, Rahman seems to agree. Combating “concentrated wealth and private power,” he explains, “will necessarily require both legislative and executive tools, particularly . . . while we are still working with an imperfect, hobbled, and still significantly co-opted legislature.”
All this brings us back to “institutional agnosticism.” LPE’s strength, as a mode of analysis and a positive political project, ought to be moving beyond dogged attachment to a favorite branch towards pragmatic evaluation of which institutions can best serve democratic demands. There’s nothing that should pre-commit us to Congress, either in its current manifestation or its highest form; in fact, there’s no reason to narrow our focus to the American federal government in the first place. Already, LPE is providing resources for rethinking what can be done in the Mayor’s office and through the transnational monetary system and everywhere in between. All this raises the question: What are good policies? Should our aim be eliminating monopolies or reviving public control of them? Is the answer industrial policy or market socialism? Do we want rent control, social housing, both, or neither? Instead of prioritizing some dream institution, we should be spending our days figuring out what our governments should be used to achieve.
