Congressional Ambivalence: The Political Burdens of Constitutional Authority

Conclusion

Conclusion The Rewards and Risks of Power Loss for Members and Institutional Balance Of course, a country suffering through the immediate fallout from the worst terrorist attack on American soil ever is going to make some mistakes. To err isn’t just human, it’s a result of representative democracy. —Former Representative Robert Barr (R-GA), 2004 In recent decades, under different partisan regimes, Congress has delegated numerous powers and pared back its own prerogatives on policies spanning trade, base closings, war, and intelligence gathering. While not looking much like the institutional ambition assumed by James Madison ,as articulated in the Federalist No.51,a vote for delegation may make perfect political sense in the short term from member,party,and institutional perspectives as Congress faces tough decisions whose effects can aggravate risk in the election that always seems to be around the corner. While acknowledging these assumptions, this book goes further, arguing that congressional delegation of power is not as simple, consistent, or benign as these strategic theories suggest. Emphasizing public legislative history and rhetoric, I argue that Congress has suffered from an existential crisis revealed in cycles of ambivalence, where members first delegate power, then appear to regret the decision and attempt to nibble back power in various ways, and then finally, months or years later, opt to delegate even more. Previous chapters explored the institutional selfdiagnoses behind members’ (often anguish-laced) public explanations of their votes. Then, equally important, each case study traced the messy postdelegation policy iterations during which members can reevaluate their connection to their voters, their party, and their place in the separation of powers. As Davidson and Oleszek argued over three decades ago, Congress’s challenge on all these levels runs deep:“To say that Con- 162 CONGRESSIONAL AMBIVALENCE gress is held in low esteem by many citizens is no longer startling. . . . There is, one must confess, much to belittle. The hoary precedents and creaky structures that serve to knit together the disparate purposes of 535 legislators sometimes border on the ludicrous, and in any event are on public display. Behind the seeming majesty of presidential leadership or the solemnity of judicial decision making lie the same kinds of shortfalls and improvisations; but those institutions have been more successful than Congress at screening their inner machinations from public scrutiny.”1 Nevertheless, Congress is not always self-deprecating. After a power transfer expires or is perceived to go awry, members make a variety of limited or bold gestures to recover power over and primacy on an issue. Delegation is, therefore, more nuanced than it appears as changes over time can be charted through rhetoric, oversight, and new bill introduction to criticize and alter the policy course. Such individual and institutional inconsistencies may be politically expedient, but, when they occur repeatedly under a variety of political and policy circumstances, these curious moments tell a larger story. In these ways, delegation and the cycles of ambivalence are symptomatic of unending conflicts over the nature of constitutional interpretation. Members and leaders must constantly choose when, how, and why to utilize their arsenal of powers or to keep those powers shuttered. In recent decades, the electoral and policy ambitions of members and leaders often appear divorced from institutional ambitions as they use the legislative process to fight for smaller-scale policy powers to serve constituents (i.e., pork barrel crumbs) but then neglect Congress by punting policymaking away until the oversight stage. At a time when it is more politically safe, Congress uses and defends its oversight prerogatives but then does not follow through to regain power in actuality. Individual policy cycles become larger patterns within each area over time as well as between the issues and often transcend regimes in Congress and the White House. One key to these issues is congressional rhetoric. If we just count votes for or against a delegation of power and assume that each is cast for reasons of political strategy without attention to the members’ own explanations and descriptions of the moment, we miss the articulation of the vote decision, which can include the hope to regain power later. Yet oversight and down-the-road legislative power are also imperfect tools to turn back the clock on delegation. Even taking into account the hyperbole, pretense, and showmanship that is part of the House and Conclusion 163 Senate floors, each part of the cycle is interesting in the ways members...