Time to Revitalize Congress?

Scott kindly noted a couple days ago my appearance earlier this month at Yale’s William F. Buckley Program on the topic of James Burnham. While Burnham’s classic Suicide of the West was the main focus of the conference, in rereading the Burnham corpus before the conference I was struck by one of his neglected books, Congress and the American Tradition (1959).

Even in 1959 Burnham could see the capacities of Congress atrophying under the relentless advance of what only later came to be called “the imperial presidency.” In the final chapter, entitled “Can Congress Survive?”, Burnham returns to the central theme of The Managerial Society. See if this doesn’t sound familiar:

’Laws’ today in the United States, in fact most laws, are not being made any longer by Congress, but by the NLRB, SEC, ICC, AAA, TVA, FTC, FCC, the Office of Production Management (what a revealing title!), and the other leading ‘executive agencies.’ How well lawyers know this to be the case! To keep up with contemporary law, it is the rulings and records of these agencies that they have chiefly to study. How plainly it is reflected in the enormous growth of the ‘executive branch’ of the government—which is no longer simply executive but legislative and judicial as well—in comparison with that of the two other branches. Indeed, most of the important laws passed by Congress in recent years have been laws to give up some more of its sovereign powers to one or another agency largely outside of its control.

Voila—you have the perfect description of Obamacare, and Dodd-Frank, just to name two recent pieces of “legislation” that are really just a massive enumeration of administrative to-do lists.

But as in The Managerial Revolution, he didn’t reduce this, as our friends at the Federalist Society are wont to do, to a mere decay of the non-delegation doctrine by the Supreme Court, or the consequent breakdown in the separation of powers, or even just the aggrandizement of the presidency. He saw it as a manifestation of deeper trends of modernity going back as far as the Renaissance.

Here’s how he put it in Congress:

On a world scale the fall of the American Congress seems to be correlated with a more general historical transformation toward political and social forms within which the representative assembly—the major political organism of post-Renaissance western civilization—does not have a primary political function.

In The Managerial Revolution, Burnham put it this way:

The shift from parliament to the bureaus occurs on a world scale. . . The rules, regulations, laws, decrees have more and more issued from an interconnected group of administrative boards, commissions, bureaus—or whatever other name may be used for comparable agencies. Sovereignty becomes, de facto and then de jure also, localized in these boards and bureaus. They become the publicly recognized and accepted lawmaking bodies of the new society.”

This is happening everywhere in modern government, not just in the United States, which is why tweaks to constitutional law are not sufficient unto the day.

More from Congress about the importance of the budget:

Congress has let major policy decisions go by default to the unchecked will of the executive and the bureaucracy. The twenty-pound, million-itemed budget that is dropped annually into Congress’ lap perfectly symbolizes the paralyzing effect of too many details. Since that kind of budget cannot be comprehended, it obviously cannot be effectively controlled. . . . Congress keeps an illusory appearance of mastery in its own legislative house, but in reality loses control of basic decisions.

This is why I said at the Yale conference that if Burnham were alive today, he’d probably favor bringing back congressional budgeting earmarks with a vengeance. It is the only way to control the administrative state. But instead of piddly earmarks about a bridge or a vanity research center, we should have thousands of earmarks, directing in great detail how the administrative agencies are to implement the laws Congress has enacted.

The public holds Congress in very low esteem these days, but Burnham would probably say that the deeper reason for public dismay about Congress is the underlying atrophying of Congress’s political functions. His Congress book ends with a stark warning:

To date, of course, the American Congress, though fallen, is not dead. But its own history as well as the apparent trends of our age pose the question: Can Congress survive?

The question means: Can Congress survive as an autonomous, active political entity with some measure of real power, not merely as a rubber stamp, a name and a ritual, or an echo of powers lodged elsewhere.

If Congress ceases to be an actively functioning political institution, then political liberty in the United States will soon come to an end.

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