Editor’s note: This is the latest in a series “To the Republic: Rediscovering the Constitution.” Click HERE to read the series.
Before republics fall — from ancient Rome to modern America — their legislatures show signs of dysfunction. They avoid tackling the tough challenges facing their societies, defer to other branches of government, and fail in their basic obligation to represent the popular will.
In a representative democracy, power flows from the people by the ordered surrendering of parts of individual sovereignty — through elections — to the executive and legislative bodies. Those branches, kept in tension and accountable to the people by elections, provide legitimacy to the unelected judiciary.
In Federalist 47, James Madison wrote that: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Consequently, it is with great concern that conservatives and their libertarian allies watch as Congress steadily transfers its legislative functions and responsibilities to the executive and the judiciary, and, as a result, the American people find themselves under the thumb of an increasingly overreaching government run by unelected judges and unaccountable bureaucrats.
Created in the 1920s and 1930s and nurtured since then by successive presidents and Congresses of both parties, the professional bureaucracy (as noted by McIntosh and Hahn), ” … effectively exercises the entire range of government power, legislative, executive and judicial … many agencies write law through rulemaking, enforce it — increasingly with armed police — and then adjudicate it with an administrative law judge who works for the agency.”
The ineffectual legislature looks the other way while agencies collaborate with courts to make their decisions permanent and judicially enforceable through settlement agreements that bind the hands of the next set of elected leaders.
As philosopher Joseph de Maistre wrote, “Every nation gets the government it deserves,” so in a modern representative democracy, responsibility for the repeated failure of elected officials ultimately lies with those who support their campaigns and the voters who reelect them cycle after cycle.
For example, polls show broad voter support for improved infrastructure, immigration reform and health insurance reform. Part of the reason why those issues are not addressed is because party operatives, political action committees and legislators of both parties have preferred to use these issues to drive wedges into the body politic rather than draft and pass meaningful legislation.
These actors benefit from the growth of the bureaucracy and from drafting and voting for legislation they know to be incomplete because they can use such bills to stir up their respective bases.
Fortunately, we don’t need changes to our Constitution to break this cycle. Rather, we need a rededication of the electorate to their constitutional responsibilities. The electorate must stop voting for those who prefer to have issues on which to create wedges and raise money rather than build solutions. Voters need to start supporting legislators who tackle difficult topics using laws passed by elected officials rather than regulations created by the unelected and largely unaccountable bureaucracy. The American people want more cooperation in government, and they want legislators to do the hard work and strike the kinds of compromises these issues demand.
A good start would be to pass legislation that restrains the bureaucracy by requiring congressional approval of — or at least involvement in — major regulations.
Another good first step would be to quantify how much federal regulations cost the American public.
Part of the challenge is that a few megadonors drive narrow agendas instead of good governance. Over the past 20 years a handful of organized political donors have preferred to emphasize divisive issues rather than effective compromise. Some blame dark money and a flawed system, but these donors and the legislators they fund designed this system to produce these outcomes.
To improve governance, we need to change who runs for office, which in part means changing who funds campaigns. Increasingly, incumbent legislators find themselves outraised in a primary driven by one or two issues that appeal to the extremes of both parties rather than broader policies that might appeal in a general election.
Those who care more about making changes than winning for its own sake need to step up and give more resources, earlier in the process, to better candidates.
In Rome, the Senate never ceased to exist; it simply faded into irrelevance. Even when Octavian became First Citizen after Julius Caesar’s assassination, the Senate continued to function. One of the last meetings between senators and the emperor — they met about granting more privileges and money to the senators — occurred the same week as the last emperor was deposed in September 476. In the centuries between, Octavian’s successors concentrated ever more power in the imperium.
We so far have avoided the kinds of crises that doomed the Roman republic. But right now, our republic is in mortal danger, as power seeps out of the legislature and into the other two branches of government. Unless we give, campaign, and vote as if we care about a robust legislative branch, Congress — and the Republic — may continue to exist, but only as shadows.
• Richard Crespin is a senior associate at the Center for Strategic and International Studies and the CEO of CollaborateUp, working to accelerate collaboration on some of our world’s toughest challenges.
• Daniel M. Gade, PhD, is the former Republican nominee for U.S. Senate from Virginia and is a professor at American University.
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