Take Care is pleased to host a symposium on Congress's Constitution—an important new book by Josh Chafetz. Contributors will assess Congress's role in the separation of powers, with a focus on developments thus far under President Trump.
By Julia Azari, Associate Professor of Political Science, Marquette University
Josh Chafetz has written a book that challenges how many observers think about Congress. He argues that the Constitution affords Congress a number of powers that enhance its status and its capacity to check the executive branch. These powers include a suite of “hard” powers as well as an equal number of “soft ones.” The hard powers include the power of the purse, personnel, and contempt of Congress. The chapters on soft powers cover the freedom of speech or debate, internal discipline, and cameral rules.
Central to Chafetz’s argument is the idea that these powers can be used in ways that are sensitive to the politics of the moment. In other words, they can be used productively or destructively in terms of shoring up Congress’s power and legitimacy as an institution.
From a theoretical perspective, this excellent analysis left me wondering about the possibilities for actively structuring the politics of the time. What I mean by this is how issues are linked to symbols, grouped together, and linked with particular parties, ideologies, and interests in the course of political debate. When an issue, like health care or abortion or free trade, comes onto the public agenda, how do we decide what it means and how it maps onto abstract concepts like justice, national identity, or national security? News media and politicians often supply these frames. Such political construction applies to both substantive issues, like health care or national security, and to procedural issues like the limits of executive power or the filibuster. When Congress uses the powers depicted in the book, the political impact depends on how elites and the public receive and respond to these actions.
It is not a criticism of the book to point out that the author does not engage systematically the factors influencing the political climate; a book can’t do everything. However, a good book upends our assumptions and prompts us to ask new questions. And it is here that I want to engage with Congress’s Constitution.
In many of the cases that the book describes, either the president or, sometimes, the courts, defined the terms of politics, a fact that is generally treated as implicit. In this formulation, Congress is still in a narrow bind – little capacity to define the political situation or to define the meaning of its actions after the fact. Presidents are still in charge of defining the political symbols of the day, and Congress is increasingly symbolically reactive to the president, unable to shift the rhetorical stakes of the national conversation. Members of Congress can shape these matters to a degree, of course – and Chafetz hits this point most directly in the chapter on freedom of speech or debate, where members of Congress can influence politics through their floor statements.
However, the president and the judiciary both have a structural advantage when it comes to defining the terms of political debate. Judges write opinions, and presidents speak (or tweet). It is cliché but true: Congress’ voice is often cacophonous.
Scholars have debated for years whether presidents dominate the public agenda. A comprehensive body of research suggests that presidential influence on Congressional voting and on short-term public opinion is limited, mitigated by more structural factors. But while presidential speeches may have modest impact, the presidency itself – or, specifically the president – has increasingly become a symbolic focal point. Numerous scholars have contended with the presidential capacity to define – political goals, the meaning of political actions already underway, and even the binding qualities of the nation. Communication scholar David Zarefsky points to the president’s ability to define political situations, emphasizing, for example, the power of using a war metaphor to combat poverty (as Lyndon Johnson did) or the response to global terror (as George W. Bush did). Opponents and supporters alike had to contend with these frameworks. Presidents cannot always shape the narrative to their liking, but their ideas tend to be the origin point of political definition.
We see this most clearly with Trump, to whom elected officials of both parties as well as leaders in media and civil society must constantly respond. Much of contemporary politics is locating oneself in relation to the 45th president. Paradoxically, however, Trump’s ability to create definitions that achieve broad acceptance by the public has been very limited. Democrats and some skeptical Republicans have refused to accept his frameworks. Nevertheless, the frameworks he offers dominate news, his language has taken over political conflict – the ideas of America First, making America “great again,” the purposes and potential dangers of immigration. Trump’s reference to Confederate monuments in his reaction to events in Charlottesville on August 12, 2017, have thus far helped to turn the national focus to a debate about those monuments.
While Trump has been perhaps the most bombastic – and the most divisive within his own party – the centrality of the president’s role is not new. In several contemporary examples in the book, we observe this dynamic. In the chapter on the “power of the purse,” for example, Chafetz compares the 2011 House Republicans, coming off a midterm widely interpreted as a negative referendum on Obama, with the 2013 House Republicans, emerging from Obama’s reelection. While the politics of the moments were, I agree, quite different, in both instances the foundation of politics was response to the president. The politics of Congress between 2009 and 2017, especially on salient issues like government spending, were in large part driven by Obama – his agenda and the president himself. In Chafetz’s discussion of the speech or debate clause, remarks about national security and surveillance made by Ron Wyden and other Senate Democrats eventually led to influential journalistic investigations. But once again the politics of the debate about liberty and security were influenced by George W. Bush’s post-9/11 approach. Those terms of debate extended into Obama’s administration.
The presidency-centered nature of national politics is not an unintended consequence of Constitutional design, but rather a deliberate product of reform. The presidency has been empowered not just by Congressional inaction but also by the efforts of Progressive era activists who sought a more responsive government. Similarly, as political parties have been dismantled and delegitimized, authenticity and independence have been elevated as political virtues. These values and institutional changes bring advantage to the president and disadvantage to Congress. One crucial test will be whether Trump, who campaigned on promises of deals and action, will be able to blame Congress for inaction on a variety of key policy goals.
Although Chafetz makes a compelling argument that Congress’ powers can be used either to bolster or damage its institutional credibility, it is difficult not to wonder, especially with salient cameral rules like the filibuster, about the limits of this flexibility. If presidential narratives depict the filibuster as, for example, the obstruction of the president’s agenda, can Congress do anything to overcome the sides this framing creates?
Presidential dominance of political narratives predates Trump and will likely outlast his administration. But the question nevertheless seems especially relevant to the possibilities for Congress to constrain the executive branch during his presidency. Is Congress doomed to react to Trump, and to wallow in the political discourse he has created like a toddler in a soiled diaper? Or can members of Congress create their own counter-narratives about the meaning and stakes of policy and process?
Nationalized politics offer some promise in this regard. Congressional leaders can credibly speak to issues that go beyond their own immediate constituencies, and technology allows them to build national followings. Senator Ben Sasse (R-NE) has used Twitter in this regard, carving out a space to develop alternative ideas to those offered by the president. Through op-eds, Senator Jeff Flake (R-AZ) has challenged the president’s ideas about immigration, and his very fitness for office. On the other hand, the areas in which Congress has the greatest built-in advantages – rules-based gamesmanship, public spending – have been delegitimized in contemporary politics. It’s hard not to wonder if American politics has meandered too far down the road of presidency-centrism for Congress to successfully wield its full range of tools.