Congress can make the legislative process work in a time of mistrust

A central fact of 21st century American political life is that we live in an increasingly distrustful society. Our distrust often manifests itself in the form of partisan enmity. But, as the struggle to install a Republican Speaker of the House clearly revealed, there is plenty of mistrust to go around — even between members of the same party.

Suspicion is embedded deep in Americans’ political DNA and our constitutional system was designed to deal with exactly this problem, if we will let it. The technology we need to cope with acute distrust is the legislative process.

In recent years, the House and Senate have relied on processes that spent down reserves of trust instead of building them up. Leaders of both parties ask rank-and-file members to trust in their tight control of the legislative agenda, arguing that a more open process would lead to the minority party making a mess of things. When faced with crises, real and artificial, leaders portray freewheeling debate as hazardous to the health of our republic. Members have mostly assented to these arrangements, but their cooperation comes at the cost of accumulating resentments, especially on the Republican side.

These boiled over in the speakership fight. While dissident Republicans did not ultimately overthrow Rep. Kevin McCarthy (R-Calif.) — and indeed, eventually gave way to his selection on the 15th ballot — the struggle that they forced into the open left no doubt that their party is beset by a lack of trust. Even McCarthy’s defenders went out of their way to acknowledge the depth of bad feelings in their party. Ahead of the ninth ballot, Rep. Brian Mast (R-Fla.) spoke on McCarthy’s behalf, by insisting that he was entirely different from previous GOP speakers John Boehner and Paul Ryan.

Some might think that, to escape endless infighting, Republicans need to build more trust immediately, maybe by strengthening their interpersonal connections. But that gets things precisely backward. Legislators can prove themselves trustworthy to each other by concentrating on specific actions that can improve the lives of their constituents, hashing out detailed policies, and then persuading their colleagues and the broader public of their merits. What is needed is not a leap of faith, but a willingness to work together on concrete actions notwithstanding abiding suspicion.

In the House, the much-mythologized “regular order” of yesteryear provides a sensible model for this kind of work, especially in its emphasis on committee work. It is in committee meetings — many of which, ideally, should take place behind closed doors — that members can approach each other candidly and reason together about which problems are susceptible to being addressed by legislation; what their constituents really care about most; and what common ground for action their shared concerns may create. No matter how well informed they may have been previously, legislators working in this system will end up drafting bills that they could not have foreseen before sounding out their colleagues.

Of course, many observers regard the Republican members who delayed McCarthy’s election as utterly uninterested in substantive policymaking — untrustworthy actors whose purported concerns about overweening leadership were opportunistic and insincere. That is almost certainly unfair, but the good news is that working the legislative process in good faith can isolate any actors who offer only obstruction, whatever their reasons. If they are given a genuine chance to engage in policy work with their colleagues, 20 Republicans may insist on making themselves flies in the ointment. But if they do, given the narrowness of the GOP majority, that should help convince most House Republicans that they must form a working coalition with reasonable Democrats if they are to govern.

The costs of failing to work through our problems of mistrust have been high. On immigration, for example, congressional inaction forces us to rely on a jury-rigged border policy built on a dubious pandemic-related foundation, each month waiting to see what federal judges and the Supreme Court will have to say about its legality. Restarting legislative reform efforts will be possible only if a deeply distrustful bloc of Republicans can be brought back into negotiations. Such efforts are more likely to succeed if these members are allowed into the front end of the process, with their concerns incorporated directly and their participation courted assiduously throughout. Deals parachuted in from the White House or a small group of senators will not move the needle.

Given the state of contemporary American discourse, in which our divisions are so sharp and so loud, it’s natural to lower expectations for our representative government. If Congress ends up fractious and nasty — well, it is representative, isn’t it? But that misunderstands the role that Congress ought to be playing in our constitutional system. By focusing on real problems and working through them together, our legislators could be binding the country together in spite of our persistent divisions and lingering mistrust, which aren’t going away anytime soon. 

A more open, more deliberative legislative process gives them the means to do so. Let us hope that, after the speakership fight, they will give it a serious try.

Philip Wallach is a senior fellow at the American Enterprise Institute.