for the consequences of the acts of Congress. When they do so, they align their interests with those of their constituents. By avoiding doing so, however, they create a conflict between their interests and those of their constituents. They accept responsibility for the self-professed “hopes of Congress,” but not the unpopular consequences of the “acts of Congress.”
As agents of the people, legislators have a plain moral duty to make clear to us, their constituents, the unpopular as well as the popular consequences of their decisions whether we want to hear of them or not.23 Yet legislators are dishonest, even though they expect to be addressed as “the Honorable.” If they are to act honorably, as they should, they will need to stop the tricks that relieve them of personal responsibility for the choices that so profoundly affect our lives.
Their dishonorable conduct wounds us, their constituents. Having evaded blame, modern legislators have little reason to grasp, let alone discuss, what effect their statutes will have on us. In particular, they don’t need to analyze whether the government can actually deliver the benefits they promise and the scope of the burdens they impose upon us, or whether the benefits are worth the burdens. They also don’t need to design statutes to give us the most benefits for the least burden. They only need to know their talking points on bills, not what’s actually in them or how it will actually affect us.
Oscar Wilde defined a cynic as “a man who knows the price of everything and the value of nothing.”24 It is not much of an exaggeration to say that our legislators know the popularity of everything and the effect of nothing.
Legislators’ seeming cynicism makes us cynical about them. Approval ratings of Congress have dipped as low as the single digits. According to one recent poll, “Just 14% of voters nationwide think most members of Congress care what their constituents think.”25 Even though overwhelming majorities of Americans believe that most members of Congress don’t deserve reelection, most people like their own members of Congress in no small part because they provide services to constituents.
We cannot escape the tricks of Congress by looking to presidents for salvation. As I will show, presidents have often instigated the tricks that Congress uses. With the power to veto bills, the president usually has more power over legislation than anyone and therefore more responsibility. As the legislator-in-chief, the president is the trickster-in-chief.
The tricks poison the entire government rather than just the legislative branch. The executive branch’s primary job is to execute the statutes legislated, and the judicial branch’s primary job is to apply those statutes in litigation. Statutes once gave the executive more leeway, but to take full advantage of the blame-shifting tricks, the statutes enacted since the 1960s have imposed so many precisely specified duties on the executive branch that it has much-less leeway to rescue us from the bad decisions that statutes make. So, for example, in December 2008 the newly elected president, Barack Obama, asked Congress to pass a bill to stimulate an economy in the depths of recession by putting people to work on “shovel-ready” projects repairing roads and other deteriorated infrastructure. Later, however, he lamented that “there’s no such thing as shovel-ready projects.” The White House reported in February 2014 that the government could devote only 3.6 percent of the $832 billion program to fixing bridges, roads, and the rest of our transportation system. As Philip Howard explained: “The President had no authority to build anything, and most of the money got diverted to a temporary bailout of the states. The money was basically wasted.” Howard showed that the president’s hands were tied again and again by old statutes.26
Presidents are often tempted to circumvent Congress by usurping the legislative powers that the Constitution assigns to the legislature. In this, commentators on the left and the right see grave danger. For example, on the left, Bruce Ackerman, a prominent progressive professor of law and political science who had vigorously defended the growth of executive power during the New Deal, expressed alarm at more recent changes in our government. In The Decline and Fall of the American Republic, Ackerman noted presidents disregarding the decisions of Congress and daring the courts and Congress to do anything about it. He also predicted that someday extremists would have a chance to get the Democratic or Republican party’s nomination for president. This prediction, published in 2010, gained in credibility during the presidential primaries of 2016. To follow his prediction, Ackerman wrote, “We face new constitutional realities—on the one side, a potentially extremist presidency with the institutional capacity to embark on unilateralist action on a broad front; on the other side, a politicized [military] high command, which has assumed a powerful role in defining the terms of national debate.”27
Ackerman also warned that although presidents try to dress their unilateralism in high purpose,
in America, it is not enough to be right. Before you can impose your views on the polity, you have to convince your fellow citizens that you’re right. That’s what democracy is all about. So it makes good sense to require the president to gain the support of Congress even when his vision is morally compelling. He should not be allowed to lead the nation on a great leap forward through executive decree.28
Nor do the American people want their president to usurp the powers of Congress. Although opinion polls for decades have reflected disapproval of Congress, the public continues to believe that Congress rather than the president should make the major policy choices. I share that belief, because systematic studies show that nations with strong executives and weak legislatures tend to suppress political liberty, go to war more frequently, and suffer from more corruption.29
So we must fix Congress. At first blush, however, the barriers to doing so seem overwhelming. Although many members of Congress went into politics in the hope of exercising power responsibly, these legislators find that they must engage in trickery in order to have power to exercise. The reason is that many voters want something for nothing and will reject politicians who fail to promise it. So legislators are “running scared,” as the political scientist and professor Anthony King put it.30 Moreover, when they were first elected to Congress as junior legislators, these politicians found themselves in an institution that did business through tricks. They had to go along or become irrelevant. They found that using tricks to get credit and avoid blame was a recipe for getting reelected, and showing other legislators how to do the same was a recipe for getting the power to shape legislation within Congress. In sum, powerful evolutionary pressures have turned Congress into the trick-playing institution that it is today.
As a result, we can’t simply get rid of the tricks by ousting the members of Congress who join in using them. Their replacements would also feel pressures to deceive voters.
The 2014 transportation statute neatly illustrates these pressures. The statute might seem to have been a good candidate for stopping the trickery as newspaper articles on the left and the right noted the funding “gimmick” involved. Yet, even voters who read such articles would have seen only a small portion of the sleights of hand at work. And even those who understood all the sleights of hand at play in the 2014 statute would have had scant reason to feel injured by it. The costs that it left to the future added only a tiny bit to the total bill that the Money Trick had already kicked down the road. Besides, no one knew who would end up having to pay that tiny portion of the bill, or who might lose their pension because of the statute or when. In contrast, the contractors and unions that stood to gain from the transportation statute knew they would gain a lot and soon. So, most legislators would have gotten far-more votes by supporting the bill than opposing it.
Few if any voters would have taken the time to learn about all the sleights of hand in the bill and then criticize a legislator for supporting it. Even if they had, the legislator would have had a pretty-persuasive defense, which might have gone something
