by Marvin McNeese – CBS Department Chair, General Education – on 9/10/11

Recently, reporter James Oliphant reawakened the chorus of media and academic voices claiming that Congress is broken, due to their inability to efficiently pass legislation that would solve some of the nation’s biggest problems.

Unfortunately, these critic’s frustrations have masked the truth. What appears to be broken, within Congress, is actually the way the Founding Fathers designed it to function. The Framers of the U.S. Constitution intended for Congress to be the primary political institution called upon to craft political solutions to the nation’s biggest troubles. This process was meant to proceed with caution and was to incorporate the viewpoints of various segments of the population.

The Framers made our lawmaking process arduous by utilizing 536 individuals in three distinct groupings.[1]   Each law must be passed by a majority in each house, the 435 members of the U.S. House of Representatives and the 100 members of the U.S. Senate. Then, it must be signed by the President of the United States of America. This onerous process was fashioned to incorporate so many people in the process that only the best of ideas, those that appeal to the most people, would become law, while preventing small groups of individuals from gaining tyrannical control over the lawmaking process.

Having rebelled against the concentrated nature of lawmaking in Great Britain, the Framers of the Constitution structured the infant Federal government to have three separate branches, the Executive, the Legislative and the Judicial, each with the ability to “check” or stop the lawmaking activity of the others.   James Madison, in The Federalist No. 51, explained why this system of checks and balances should keep government free of being controlled by any small group: “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Madison went on to further explain that the self-interest of human nature would motivate the individuals in each branch to keep the other branches from overstepping their bounds. Thus, the self-interest in one set of lawmakers (from one of the three branches) should motivate them to sometimes slow down or even stop the lawmaking process, protecting the process from being dominated by just a few Congressmen or the President.

Dr. Sarah Binder, political scientist and Senior Fellow in Governance Studies at The Brookings Institution, argues that Congress is not broken because of these constitutional features. She argues that Congress is broken due to electoral, partisan, and institutional pathologies that have developed since the Constitution was written.[2] She states that the way members of Congress are

elected have led them to favor pork barrel legislation (that benefits only a member’s district), and leads to delegating most of the lawmaking to the executive branch. Binder claims that the present two-party system has left Congress with few lawmakers who are willing to compromise with those holding opposing views. Lastly, she believes that within the U.S. Senate, the practice of filibuster, where a lone member endlessly debates a bill to prevent its further consideration, has allowed a minority of lawmakers to hold hostage the entire lawmaking process.

Unfortunately, Dr. Binder is underestimating the vision of the Framers of the U.S. Constitution. These men anticipated potential problems with undesirable lawmakers and incorporated one more method of checks and balances, the ability for the people to vote out undesirable lawmakers (House members every two years; the President, every four). The Framers not only anticipated political parties or factions, as they were called, but some successful compromises were reached in spite of several heated debates among themselves. Some of these divisions arose between the northern states and the southern states, as well as between states with large populations and states with small populations. Finally, the size of the Senate membership-based not on population but merely on status as a state-was settled upon as a way to protect the minority rights of the smaller states. Subsequent generations of U.S. Senators retained the pre-existing practice of the filibuster in order to protect the rights of minority groups during the lawmaking process.

Thus, the Framers of the U.S. Constitution knew precisely what they were doing when designing the lawmaking process. They designed Congress to be an institution that would guarantee opportunities for public opinions that can find representation, to be considered during the making of the laws of our nation. So we must be careful not to think poorly of the legislative process simply because it takes time to complete or results in compromises with which we may disagree. If anyone wants their opinions to efficiently become law, they should exercise their constitutionally protected privilege to vote for lawmakers who share their opinions. Complacency and lack of knowledge is the problem that needs to be fixed. Congress is not broken. It is constitutional and functions in the manner in which the Founding Fathers intended.

[1]   From the apportionment formula in the U.S. Constitution, the U.S. House of Representatives originally had 59 members and grew to 105 after the first census in 1793. Congress fixed House membership at 435 in 1911.

[2]   Her comments were presented at the conference entitled “The Madisonian System and Modern America: Is it Broken and Can We Fix It?” held October 21-22, 2009 at the Center for the Constitution at the Montpelier Foundation and The Brookings Institution. Found online at http://center.montpelier.org/brookings/madisonian/binder