Many Democrats are salivating over the prospect of using their new House majority to investigate President Trump. The more important constitutional question is whether they will use it to legislate and reassert congressional authority that has lain dormant for decades. They now control the most powerful and representative institution of government. House members wield the power to inhibit policies they oppose and to leverage that authority to insist on those they favor. Democrats should act like it rather than orienting themselves around the presidency as though it, and Mr. Trump, were the be-all and end-all of American politics.
There has already been loose talk about topics like impeachment. But Congress should be asserting itself institutionally, not simply limiting the presidency. House Democrats should beware the seduction of investigation alone. Mr. Trump’s threat of a “warlike posture” toward investigations should neither intimidate nor bait them. Their foremost job is to legislate.
A period in which Congress is itself divided may seem inauspicious for a revival of legislative authority. But because successful legislation would require compromise and moderation, the moment may be especially suited to that task. If members of Congress are willing to place loyalty to their institution over fidelity to their parties, which the framers of the Constitution anticipated, they can begin restoring its status as the first branch of American government.
The Constitution made Congress the subject of Article I for a reason. The most substantial powers of the national government are delineated there. Restoring congressional power — not simply through investigation or rhetoric but ultimately through legislation — would both transcend and serve Democrats’ partisan interests.
That requires a reassessment of the conventional wisdom according to which the party in power governs while the party in opposition checks it through tools like investigation. Even the use of this language to describe divided government — the White House is “in power” while a congressional chamber of another party is “in opposition” — suggests a constitutional scheme gone awry. Under both parties, the presidency has grown institutionally narcissistic while the legislature has become constitutionally oblivious. Some of this can be traced to Woodrow Wilson’s theory of presidential power as an agent of progress. Much of it has to do with the fact that serving in Congress has become an end unto itself as Washington has become a glamorous imperial capital.
It is true that Democrats will control only one chamber of Congress in the face of Republican control of the White House and the Senate. But to James Madison, the House was the locus of constitutional action: Congress was the most powerful branch of government, and the House was the most powerful branch of Congress.
To James Madison, Congress was the most powerful branch of government.CreditGilbert Stuart/Universal History Archive — UIG, via Getty Images
The reason was that the House’s unique authority over the finances of the national government created leverage over every other facet of policy. Madison wrote in Federalist 58: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon, with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
But that requires a willingness to exploit this authority. Madison simply assumed members of Congress would: There was no reason to seek an office except to use its power. Because Congress, and especially the House, fed most directly on public opinion, it enjoyed a natural advantage so overpowering that the framers feared it. In Federalist 48, Madison called legislatures an “impetuous vortex” swallowing up competing powers.
That prediction sounds odd if not laughable to modern ears accustomed to the legislature surrendering its authority. But Madison’s fear turned on the assumption that members of Congress, seeking power, would be loyal to their branch of government first. By providing a mechanism for cooperation rather than conflict across branches, political parties undermine that assumption. One of the profound ironies of American constitutional history is that Madison served as the great theorist of both the separation of powers and the party system. His Federalist 51 said the separation of powers would be maintained by institutional loyalty. But when the Constitution came into force, he observed a need to create political parties to organize public opinion against what he feared was becoming an abusive regime.
Today, neither party defends congressional prerogatives. Nancy Pelosi, the leader of House Democrats, declared that one of their first priorities in power would be to disclose President Trump’s tax returns: “That’s the easiest thing in the world,” she said. “That’s nothing.” Mitch McConnell, the Senate majority leader who was then leading Republicans in the minority, remarked in 2010 that “the single most important thing we want to achieve is for President Obama to be a one-term president.” Mr. McConnell was derided for partisanship but not for the denigration of Congress implicit in the suggestion that its most important function was to hassle the president.
The challenge now is for House Democrats to seize the reins of governance not because they are Democrats but because they are members of Congress — a branch of government that is more contemplative, less impulsive and more subtly reflective of the broad range of perspectives in American politics than a presidency with which one either agrees or disagrees. This is not about which party governs. Congressional majorities come and go. The question is which understanding of the Constitution prevails. Constitutional conservatives have traditionally valued the role of Congress over that of the presidency because it is more cautious and more prone to deliberation before acting. Congressional government is also better suited to overcoming our polarized politics because it better accommodates a range of views.
That does not mean Democrats shouldn’t investigate where doing so serves their institutional rather than partisan interests. Congress must often investigate to gather information for legislating or to ensure legislation is being properly executed. A truly independent legislature would not outsource investigations like the one being led by the special counsel, Robert Mueller, into the 2016 election. It would jealously use its ample authority to conduct them itself. Still, while oversight and investigation are vital roles of Congress, they are aids to its primary function of legislating.
Success in legislation, in turn, will require the fortitude to exploit Madison’s power of the purse and the flexibility to work with Republicans to restore legislative governance. If your party controls a single chamber of Congress, this power can be exercised negatively, such as by refusing to fund priorities of Mr. Trump like a border wall. But that negative power can also be deployed affirmatively by leveraging it to force compromise on, for example, a comprehensive approach to immigration. By contrast, prioritizing investigation alone would make legislating harder while suggesting that the real prize is not exercising Congress’s power right now but recapturing the White House in 2020. We need to play the long constitutional game, not the short electoral one. That game is about restoring legislative governance.
For their part, Republicans must elevate loyalty to Congress over fealty to a president of their own party. That may sound implausible, but if it is, the Constitution is already lost. As long as House Republicans see themselves as adjuncts of the White House, Congress will remain in orbit around a presidency at the center. If they decide there is nothing to gain in doing so, they must ask — as must Democrats who reach the same conclusion — the Madisonian question: Why seek a job obsessively only to perform it submissively?
Legislating from the limited position of House Democrats will not be effortless, nor should it be. The Constitution is designed not to facilitate easy decisions but to defer them until the public view, now volatile and divided, is settled. Congress should be judged not by the volume of its output but by its representation of the public’s views and its defense of its institutional authority.
In that sense, this moment is a stress test for the constitutional regime, which places Congress in the driver’s seat. The presidency can pull an emergency brake but was never intended to steer the vehicle.
The question is whether House Democrats will realize that control of the people’s branch places them in power rather than in opposition — and whether Republicans, behaving institutionally rather than ideologically, will join them in returning Congress to its pride of constitutional place. Both parties have professed a desire to restore constitutional norms. Reviving the power of Congress — something only moderation and cooperation can accomplish — is their chance to prove it.
Greg Weiner (@GregWeiner1) is a political scientist at Assumption College and the author of “Madison’s Metronome” and “American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.”