Audio 10.16.2018 56:45

What’s The Matter With Congress?

The American Mind Podcast, Episode I

The American Mind Podcast is made possible in part by generous support from The Randolph Foundation.

In this podcast, Dr. Matthew Peterson, our Vice President of Education, is joined by three of America’s leading thinkers on Congress: Dr. Joe Postell, Dr. Michael Uhlmann, and Dr. Matthew Spalding. Recorded August 31, 2018.

Joseph Postell, Associate Professor of Political Science at the University of Colorado at Colorado Springs, directs the Claremont Institute’s annual program at the American Political Science Association. Postell’s latest book is entitled Bureaucracy in America:The Administrative State and American Constitutionalism. He recently wrote “What’s the Matter with Congress?”, a searching survey of scholarship on the question in the Spring, 2018 issue of the Claremont Review of Books.

Michael Uhlmann, Senior Fellow at the Claremont Institute and Professor of Government at Claremont Graduate University and a frequent contributor to the Claremont Review of Books. He reviewed Postell’s latest book in “Putting the Big in Big Government” in the Winter, 2018 issue. Listeners might also enjoy his essay entitled “Taming Big Government.”

Matthew Spalding, Associate Vice President and Dean of educational programs for Hillsdale College in Washington, D.C., a Claremont Institute Fellow, the author of We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future, and Executive Editor of The Heritage Guide to the Constitution. He has published widely on Congress in articles like “Make Congress Great Again” in U.S. News & World Report. Listeners might also be interested in his testimony to the Judiciary Committee of the United States House of Representatives: “Congress, Constitutional Government, and the rise of Executive-Bureaucratic Rule,” a condensed version of which was published by The Daily Signal as “Congress’ Constitutional Prerogative vs. Executive Branch Overreach Congress.”


The American Mind Podcast Episode #1: What’s the Matter with Congress?


“Welcome everyone, to the American Mind podcast, a production of the Claremont Institute. I’m Ryan Williams, president of the Claremont Institute and publisher of the Claremont Review of Books. This podcast is about ideas, principles, and American politics, usually hosted by yours truly or our vice president of education, Matthew Peterson. Our mission at Claremont has always been the recovery of the American idea—those timeless principles that have made America great since our founding. Visit our website for show notes, essays, editorials, debates, and more at americanmind.org and you can always reach us by e-mailing [email protected]. Don’t forget to subscribe to the American Mind on itunes or wherever you get your podcasts, spread the word to your friends and colleagues, and most importantly—thanks for listening.”

–Ryan Williams, President of the Claremont Institute

“I’m Matt Peterson, vice president of Education at the Claremont Institute and Editor of American Mind. Everyone knows that something is wrong with Congress, which is why it has lower approval ratings that either of the other two branches. In fact, as others have pointed out, Congress has a lower approval rating than hemorrhoids, Nickelback, traffic jams, cockroaches, root canals, and colonoscopies. But why, exactly, has Congress ceased to function as the founders intended? And what might be required to restore it back to health? In the following podcast, I explore these questions with three of the top minds on Congress in the nation. Dr. Matthew Spalding and Dr. Michael Uhlmann are Claremont Institute senior fellows with graduate degrees from Claremont University, and Dr. Joe Postell runs the annual panels the Claremont Institute sponsors at the American Political Science Association. In fact, this podcast was recorded with a few drinks in hand at the 2018 APSA Conference, after a panel entitled: ‘What’s the Matter with Congress?’ Enjoy.”

–Matthew Peterson, Vice President of the Claremont Institute

Peterson:   So first, just if we could go around and introduce everyone.

Postell:      Yes, Joe Postell. Occasional contributor to the Claremont Review of Books,  associate professor of political science at the University of Colorado at Colorado Springs, and for at least a few more days, visiting fellow in American  Political Thought at the B. Kenneth Simon Center for Principles in Politics at the Heritage  Foundation.

Peterson:    Yes, and we also should say you run the APSA panels for the Claremont  Institute.

Postell:       That’s right. This is my first year. So far, so good.

Spalding:   It’s too soon to tell.

Postell:       Results are mixed.

Spalding:    We’re about halfway through

Uhlmann:  Professor Postell left out perhaps the most important thing about him is that he is the author of a recently published and absolutely terrific book on the rise and corruptions of the administrative state.

Postell:            Thank you.

Uhlmann:        The book is so good I’m going to teach it.

Postell:            Thank you.

Peterson:         And who are you?

Uhlmann:        I’m Michael Uhlmann. I’m a professor of government at the Claremont Graduate University, senior fellow of the Claremont Institute, and currently unindicted.

Spalding:         That’s more than I can say.

Peterson:         And –

Spalding:         Matthew Spalding. I’m associate vice president/dean for Hillsdale College in Washington, D.C., long friend of Michael Uhlmann, and gave Joe Postell a job a long time ago, and started on his path to corruption.

Postell:            Therefore you take the blame for everything.

Spalding:         But I’m not responsible for anything he’s currently written or done,

Uhlmann:        Depends on how well the book sells.

Spalding:         Or how well the APSA panels go.

Peterson:         So since you’re in the hot seat, Joe, why don’t you explain to us or give us an answer to this question that you ask in your CRB piece, and that was the title of a panel today, this morning, at the 2018 APSA, which is “What’s the Matter with Congress?”

Postell:            Yeah, so I wrote a piece in the Claremont Review of Books as you just mentioned. Tried to at least assemble a bunch of political science research in the form of books that have been published over the last few years and even over the last generation on this question. I think the conclusion I came to in the piece, and the conclusion we came to in this panel this morning was, we don’t know what the matter is with Congress.

On the one hand, of course we know what the matter is with Congress. We know that it doesn’t legislate the way that it used to. We know that it delegates its powers. We know that it’s sort of an absentee landlord, paying some attention to the administrative state, but not really overseeing it in a systematic way. And that the institution is in decline. It doesn’t budget. I think Professor Uhlmann’s comments this morning at the panel were a good overview of all of the problems with Congress.

But I suppose what we don’t know is why Congress doesn’t do this anymore. And we don’t know, therefore, what can be done to fix it. And I think that’s – that kind of work really exploring those questions: why did this happen and what can be done to fix it? I think are really going to be important tasks for people who want to restore Constitutional government over the next generation. Because Congress plays such a central role in the modern state that its decline in participation in the modern state, I think is a huge Constitutional problem we need to try to address.

So that’s a long non-answer, I suppose, to the question. Maybe I’ll put tiny little amount of meat on it. The piece in the Claremont Review of Books tries to suggest that there are two alternative explanations for this problem, both of which can be true at the same time. The first explanation, and I think the predominant one in political science and in politics today, is the party leaders are the problem.

We used to have this great committee structure and all of these great committee chairs. John Dingell is always brought up in these conversations. And they used to keep the administrative state under wraps, and they kept it in check. And now we just have leaders that have usurped the power of the committees, which has disrupted regular order and all of this.

My piece, I think, tries to question that explanation by suggesting that the era of committee government was not a golden age for limited Constitutional government, and that we should think a little bit more creatively about what the problems are and what we should do going ahead.

Peterson:         Well, Professor Uhlmann suffered me in many a class. What did you say this morning?

Uhlmann:        Can I turn your final grades in?

Peterson:         I think so, they let me through somehow.

Uhlmann:        It’s a wonderful story.

Peterson:         So you spoke to this issue this morning. What did you say?

Uhlmann:        Well, I addressed the question what’s wrong with Congress? And my answer was, let me count the ways. Congress, as Joe said, doesn’t legislate very well or very wisely or very often. It doesn’t oversee the people to whom it delegates a large amount of its legislative authority. The big problem, one thing I wasn’t able to mention this morning, is the radical change of the current in the 1960s with the Great Society. The beginning of evil here was not the New Deal, it was the Great Society. And there were more agencies created in the ‘60s than existed in the entire history of the federal government before.

Here’s a simple analysis. There isn’t enough brainpower in the universe to regulate all the things that Congress wishes the agencies would regulate, period, that’s the problem. But no one wants to admit that, because there’s fun and profit to be in it.

Peterson:         It’s always possible.

Uhlmann:        Yeah, it’s always possible. That’s the difference between liberals and conservatives, right? For a liberal, it’s always possible. It isn’t. And that’s one of the things we’ve learned. And one of the things I try to teach my classes when I teach the administrative state is, alright, we’ve had nearly a hundred years, certainly 70 years of very intensive growth in administrative agencies. Well, what have we learned? And how would you – what would you change and how would you change it? Right. And that’s a nice way to begin.

And so my remedy, insofar as I have a remedy, I don’t think Congress will do it. I think the right kind of executive could do it. Is to take with the – start with a particular subject matter, let’s say highway transportation. What legislation has been passed touching this subject in the last 10 years? What regulations have been enacted pursuant to that legislation in the past 10 years? How much money have we spent on it? And what are the results? Congress, and the executive branch for that matter, seldom address the question of results. They measure the success of government almost entirely in terms of inputs, not results. So my suggestion is start with baby steps. You can’t take somebody off heroin flat immediately all the time. So what you do is take a relatively controllable subject matter, and you try to teach Congress what it has done and how it is doing it.

Further, and we can come back to this in a way. I don’t want to monopolize the point, I think if you really want to change Congress, you have to address the issue the great Weiner raised today when he talked about a new kind of argument for term limits. I’m not sure I agree with him, but it was a very interesting argument. The center of his argument is if you want Congress to change, you have to change their motivation.

Right now, their motivation, and it’s very much attached to reelection. There’s no reason for them to change the status quo, generally. It can be a pain in the rear to do all the stuff they have to do, but micromanaging the administrative state, tweaking regulations and personnel, and getting services out to individuals who are on entitlements, that’s the key to reelection. They’re not going to change unless you create some incentive for them to change. I have a few ideas on that front, which we can talk about shortly.

Peterson:         Yeah, we’ll go to that in a bit. So one thing, I mean we have a wealth of experience here and leading minds on this issue, and we’ve dived right into it. Most – a lot of people listening, they know one thing. They know that they don’t like Congress.

Spalding:         Except for 3% of them.

Peterson:         Yeah, except for people who we think probably can’t really understand the words.

Postell:            That’s the reason their staff.

Peterson:         So this is, even for Congress, a pretty bad period of time. Everyone knows that there’s something wrong. Most people have an inchoate understanding of why they think that. But so we still want to tease out this problem. Now, with Matt, I remember seeing you at one point talking to staffers from Congress, and ObamaCare came up, and they started talking about the courts. And I remember you gently – maybe even not so gently – with some exasperation, saying, hey guys, I think you can actually do something about this. Could you explain to our listeners – just talk about your experience with what’s wrong with that?

Spalding:         Sure, sure. And I mean part of this – first of all, I want to – I do want to commend Joe’s work, largely because this is an area where I think we – and I hear the – I use both in terms of the Claremont, but also broadly those of us of our system – have not done a great job. We’ve talked about Progressivism and how Progressivism has shaped things as if there’s this trajectory from 1912 forward. But a lot of politics occur between then and now. Mike’s – you referred to the Great Society. We have the New Deal. We have the kind of the regulatory debates of the ‘70’s, Reagan, the courts and Chevron. All these things happened, but we’ve not really done a really good study about what goes on in Congress. And so that’s part of it, I think this is a good way to get into that.

But to back up to a very broad point here, I think that what we need to keep in mind, and I think what we are trying to move towards, which itself is a radical idea, because it’s not the way most people think about it, is that we’re approaching Congress as a branch of government which there are three branches. They’re all doing different things. But the checks and balances, the separation of powers, things that Madison or Schoolhouse Rock talked about, right. And the problem is, that’s not the way most people think about it. We all remember when George Bush signed legislation. He thought it was unconstitutional but let the courts decide. We have the status quo now is –

Peterson:         You’re referring to campaign finance legislation.

Spalding:         Campaign finance.

Peterson:         Where he signed it, but then he said, part of this is unconstitutional.

Spalding:         But I’ll let the courts – so the problem is that we have two things going on. One is a transformation of how government operates over the 20th century, which we now have this new regime we refer to broadly as the administrative state, in which the courts are legislating. The executive is doing more and more whatever he wants. Congress is doing virtually nothing.

And in the midst of that, we’re trying to figure out Congress sometimes – most of the time, out of that context. Whereas I think what we’re trying to do here, what Joe’s trying to do is look at Congress and its role and how it’s changed over time in light of this larger transformation that’s occurred to government generally. Whereas most staffers and most people day to day, they’re working inside of that world, and so their natural reaction is, oh, we’ll go to the courts or we’ll defer to the executive or whatever it might be as opposed to thinking institutionally, which is the way Madison wanted to think about it, and I think the way we’re suggesting here.

But that itself is a radical shift away from not just the status quo, but just how to think politically. Which this kind of sounds like inside baseball about reform here and there, but this is actually a fundamental problem. I think the weakness of Congress now shows the fundamental problem with how our government is operating. And the reform of Congress is itself fundamental to recovering any semblance of Constitutional government, which is why this is so important but a radical idea.

Uhlmann:        Let me put this even more starkly.

Spalding:         And then Joe will make it more stark.

Uhlmann:        If it’s possible.

Postell:            It’s escalating.

Uhlmann:        Unless we get Congress back into the game of really playing – and playing isn’t the right verb – participating in the real politics and policy discussion, the separation of powers is dead. Right now, we’re passing mirror under its nose and can leave a mark, but there’s not a lot of vitality in the body. Congress is the key to this, and we have to get Congress back in this game or one or two things or both will happen.

One, the executive branch will assume extraordinary powers of prerogative. Because Congress doesn’t want to bite the bullet and make these decisions. The administrative agencies will, thanks to the courts, in deference to their decision-making, courts don’t second guess administrative – for the most part, administrative interpretations.

So Congress feeds itself, so to speak, politically, by as I say tweaking the administrative state. They generally, absent some scandal or something, get reelected if they choose to run again on this. And so the real business of policy and lawmaking is now in the hands of unelected bureaucrats and unelected judges.

So the real question is how do we go from a regime that’s founded on the idea of the consent of the governed to a regime in which quite literally 99% of all the federal laws are made by people who are not directly responsible to the people. That’s the philosophical, political philosophy problem here, and that’s what we at the Claremont Institute are most concerned about. How do we get back to the system where Congress can think of itself as a constitutional body, not just as a distributor of the goodies of the social service state.

Peterson:         Can we say even more about that just to make that clear? I mean, the idea being that Congress doesn’t act as an institution. I think for a lot of people, that kind of makes sense, but they know something’s wrong with Congress, and I don’t think there’s a lot of clarity.

Spalding:         It’s like the old saying, marriage is an institution.

Peterson:         Right, which is profoundly unhelpful.

Spalding:         They don’t think of themselves as a branch of government, right. The way it’s supposed to work is the executive does things, and he has to work with the legislature. The legislature checks the executive. And they think of themselves as something up against that other branch, especially the executive and the legislature on a regular basis. The courts were supposed to play a very important role, but an increasing role, unfortunately.

But Congress doesn’t think about that. I mean, when was the last time you had a member of Congress, Senate or House, that really thought institutionally. I mean, what Byrd, Senator Byrd, maybe? They rarely do this. Senators are now kind of these individuals unto themselves, and Congress – it’s like herding cats. There’s really virtually no consensus there at how it operates. They just don’t think that way, and so they don’t act as a group. And it’s especially a problem in the House, because the House is majoritarian, operates based on a majority. That’s where they get their authority from.

Postell:           Yeah, so Matt Spalding said something a few minutes ago that I think is really important, and for me is the starting point for thinking about all this. He said basically, people in our orbit have not done a good job of thinking about Congress. And I think there’s a really good reason for that. And little anecdote that always makes me think about this problem is a few years ago, there was a book written by a political theorist named Thomas Pangle called, I think, just The Straussians, or Leo Strauss, I think is the title of the book.

And at the last chapter of that book is a literature review of all of the contributions that “Straussians have made” in various fields of political science. The pages – the contributions on the presidency go page after page after page. You can think of Harvey Mansfield’s Taming the Prince. You could think of the work of James Ceasar and presidential selection. And then you turn to the courts, and the books that have been published by friends of ours on the courts are numerous, and we can name many of them. And then we turn to Congress. And there was nothing.

Uhlmann:        Was there anybody?

Postell:            Joseph Postett has written an excellent book on Congress.

Spalding:         Joe’s book, yeah, right.

Postell:            And that was all.

Uhlmann:        Let’s talk about that. I don’t mean to –

Postell:            Yes, so I think the reason for that is that the kind of analysis that we do in these, with these other institutions, matches up with what is in our wheelhouse – which is thinking about statesmanship, thinking about principle and political philosophy – works with the presidency, and it works with the course. Because these are – you know, the presidency is a sort of an embodiment of statesmanship, and action is an interpretation of Constitutionalism in the presidency.

The courts are where these grand principles of Constitutionalism are adjudicated and great opinions are written. Congress, on the other hand, the mode of analysis that you must use to understand Congress has a lot more to do with understanding incentives and political behavior and structure and process, the kinds of things that aren’t really in our wheelhouse. And so I think that actually, it requires us to descend into those rather mundane questions to really understand the institution.

Spalding:         I’ll push back a little bit in agreement, but yes and no, right. Especially when you start at the 19th century when Congress was at its – this strong institution, some of our greatest statesmen. You think of Henry Clay, Webster, right? They’re legislative. Legislative statesmanship I think has been devalued, and I think we’ve not done a good job in defending that. But I mean the idea of statesmanship playing a role in precisely doing what you’re talking about, building a consensus, the liberation argument, pushing things through, and acting as an institution.

There are great models of that when it comes to statesmanship, and I think we’ve neglected it partially because you have to also think about – and the extent to which the conservative movement, the politics of the day, right, in the ‘70s was focused on the presidency. And then you get into the focus on the judiciary. And I think for a lot of it, everybody assumed, Democrats are going to control Congress forever so we don’t need to work on that as much.

Postell:            Right, but I think the Federalists sort of previews this dilemma for us, right. That Federalist 70 is all about how the energy in the executive, unity in the executive will bring about the sort of energy and this sort of a simplicity. Like you know there’s going to be action taken when the executive wants to act. In Congress, even if we study these great examples of statesmen from Sam Rayburn in the 20th century who’s a completely different kind of statesman than, say, Thomas Brackett Reed, the great Republican speaker of the late 19th century, you always have to get into sort of, okay, how did they get people in Congress to do their bidding? And it’s required, oh, because they used the committee assignment process.

Peterson:      Many times, yeah, that’s a rhetorical and beautiful –

Postell:            So it’s the difference between House of Cards and West Wing. Maybe put it that way.

Uhlmann:        Well, that’s a nice way to put it.

Spalding:         At least on its face. Behind the committee doors –

Peterson:         And West Wing and House of Cards, I think someone needs to write an essay on that one just to show the descent into the American populous’ understanding of corruption. But significantly that’s about the presidency, it’s not about legislators. And to go to your pushback on that point about Congress, maybe part of the problem is maybe you need to go into the weeds into looking at the interests of many people and things get complicated looking at group dynamics.

But isn’t part of the problem, to go back to Bessette’s book, that a lot of that scholarship was a rational choice type, right? Everyone’s looking at their own interests. A lot of the scholarship on Congress besides with some minimal exceptions is it’s actually kind of boring and doesn’t seem to address these problems, historically. And that’s why Bessette’s book kind of jumps out.

Uhlmann:        In terms of the founder’s perspective and therefore the perspective of all sensible people. What do you do in a democracy, a republic if you like that exists over a large extensive territory with an infinite number of interests? If you want to produce a piece of legislation of any import, you have to coalesce those interests. Congress is pre-eminently the institution that should do that. And it performs a number of functions at once.

One, it educates the members. The farmers from Des Moines meets the guy from New York City ad infinitum. But they’re trying to do a bill together, the guy from Des Moines wants his corn subsidies. The guy from New York wants lower prices in the delicatessen. They have to work together to produce an ag bill.

When Congress works well, that’s what it does, and there’s a high-tone noun for this, it’s called “deliberative democracy” in which diverse factions who may or may not like one another, that is an essential. Just learn how to live with one another. And Congress in its procedures and processes taught members about workability of democratic institutions. That’s very important in getting legislative done. It may not always be the wisest legislation, but it’s always the most workable legislation.

Spalding:         But in some ways that was because they had to, right? Joe, you tell me because it used to be you had to pass the budget. You had to have hearings. You had to do these things, so you had to find consensus. Whereas now, they just – the budget is passed on –

Uhlmann:        This work was done in committees. Now it’s all done in leaders’ offices.

Postell:            But this gets back to the point about needing to study the procedures and the incentives.

Spalding:         How exactly it happened.

Postell:            And I think there’s a sort of –

Uhlmann:        We’re beginning to get a literature on this.

Postell:            Yeah. So I actually don’t think the political science is – it might be boring but I don’t think it’s useless. It is somewhat boring.

Spalding:         Joe likes boring political science.

Postell:            Even when I took Congress in graduate school, I didn’t really understand the move from the committee system of the ‘70s and the reforms in the 1970s by democrats to open up the institution to strip the committee chairs of power and to move power somewhat into the party leadership but really down into the rank in file. And so, one of the things I think we can do to really support this effort to restore Congress is simply to teach the history of Congress. You sort of get with the presidency the major turning points. You get the new deal as a turning point in presidential power. Nobody has ever really heard of the revolt of 1910 against Speaker Cannon, which I think is a fundamental turning point.

Uhlmann:        Tell that story.

Postell:            So this is, again, a history that’s very little understood. The late 19th century, and we kind of know this part of the history, is the history of parties. Parties are the government of the late 19th century. There is no government outside of parties. Which not coincidentally is why you don’t have very strong presidents because the parties discipline the presidency, they remove the bureaucracy as a major player in policy making.

Peterson:         And to describe this to people now, it would be saying this is the opposite of what we have now.

Postell:            Right. We’ve replaced –

Peterson:         You have presidents and congress is the essential driving force. It’s probably difficult for some people to even imagine.

Postell:            Right. And this is the system in Congress is very centralized. There’s powerful provisions for centralized leadership in Congress, and to take just the House, the three powers that the speaker has, this something Congress political science scholars have done a good job of talking about are the Speaker appointed all committees and all committee chairs. The Speaker was on and chaired the Rules Committee which put every bill on the floor. And the Speaker had the power of recognition which determined whether you could speak, whether you could offer a motion, an amendment.

And therefore anything you wanted, you had to get it from the Speaker of the House. This sounds to us like corruption. But I’ll mention several advantages that come from it.

Uhlmann:        Or Newt Gingrich’s dream.

Postell:            He tries to replicate and he’s unsuccessful in replicating this system. But the Speaker is the aggregator of the interests. I like to say this to my students in Congress class, there are two elected officials that are elected by the entire country in our constitutional system. They always answer the President and their second answer is always the Vice President of the United States.

Which is, I suppose, true. But when I’m thinking of the second person, I’m thinking of the Speaker of the House of Representatives who is indirectly elected by the entire country. Because they elect their members who choose their Speaker. And so the Speaker of the House of Representatives is the national representative, but in Congress.

And when you give him the power to aggregate all of those interests, to set the agenda to discipline members, you create essentially a political – not an administrative – power that makes these decisions. But a political power that is accountable to the national majority and has the discipline to enforce –

Spalding:         What happened in 1910 through, real quick?

Postell:            All of these powers essentially come crumbling down in a Saint Patrick’s Day massacre against Joseph Cannon that is one of the most dramatic scenes in my –

Uhlmann:        What year, remind them what year?

Postell:            1910. Two years before the great revolt against parties and the Presidential election of 1912.

Peterson:         And this goes to another issue that makes things more complicated and most people aren’t aware of which is that Congress can organize itself to a large degree however it wants. And it has organized itself in different ways throughout history. So what you’re saying is this era of the Congress collapses after 1910, the Speaker doesn’t have this power. And then we move into a new era. But what you’re saying is that political science itself, or at least in our circles, we don’t have a clear idea of what the key points are for the history of Congress.

Postell:            Political scientists have done that work.

Spalding:         It’s not that we don’t know the history and the details. And Joe’s point on the Presidency is right. We think of American history in terms of Presidencies, the Carter era, whatever it might be. We don’t think that we got Congress. I think part of this shows you the weakness of political science. They don’t think politically in the way that – we’re discussing it here in a way that I think they would find alien. Because the discussion about the speakership, the Presidency – these are the interactions of the back and forth.

One of the points I’ve made is as I study this, it seems to me that, especially in the second half of the 20th century, a lot of the battles of the administrative state are really between the Executive and Congress trying to control the administrative state, which is a back and forth of politics. And you don’t see that if you merely look at it in terms of Presidencies. But if you think about it in the interaction in the back and forth, and the fighting over politics, especially when you then add that sometimes Congress is controlled by one party and then sometimes by another party, it becomes a much more interesting story.

I think that tells a lot about how it actually works in light of these changes. And why it should be looked as a political institution which I think modern political science just doesn’t see.

Uhlmann:        Let me raise a question. As Joe was talking about the representativeness of Congress, what ran through my head was Nancy Pelosi. It’s Pelosi’s argument. It was Gingrich’s argument in the ‘90s. This raises the interesting question about the nature of the American regime. One of the questions I put to my students is who is more representative of the American people? Congress collectively or the President. The answer is both.

Spalding:         By intention. By design.

Uhlmann:        Yeah, by intention. We have this complicated system. Complicated on purpose, in which – Madison, especially – wants to introduce the idea of competition between different conceptions of the public good. And one of the essential purposes of the separation of powers is to reduce that head-knocking competition. What the administrative state has done, because Congress has given away so much of its power, is to diminish that function.

And as I said this morning, it’s reduced Congress in being the ombudsman of the social service state. You ask a congressman how he spends most of his time? It isn’t contemplating the fate of the world or the nature of healthcare.

Spalding:         Or debating about the common good on a day-to-day basis based on legislation.

Uhlmann:        You think that way it is not rewarded politically that way. What he thinks about is how do I tweak this regulation to get more money for my district? How do I get Mrs. Grundy’s check out of the veteran affairs administration? That’s the administrative state. The typical congressman does not think in terms of policy, and he doesn’t think in terms of constitutional conflict with the President.

James Madison famously said in the Federalist paper No. 51, that the interest of the man must be attached to the constitutional rights of the place. And he counted on that that congressmen would think like congressmen. The institution of congressmen mattered to them in fighting the President. That no longer is a matter of large concern to Members of Congress of both parties.

They think in terms of how do I enhance my power in being able to manipulate the flora and fauna of the administrative state? That’s the key to re-election.

Peterson:         And so another question, I’m just going to indulge myself here with a question I have and have had for a long time. My favorite story to describe democratic law making in all its naked glory is Jesse Unruh’s quote from California. Jesse Unruh before Willie Brown, master of the assembly, whose “Money is the mother’s milk of politics,” it’s a good one.

But his best one is when he says about legislators in Sacramento, he’s talking about, he says, “If you can’t come up here and go with the lobbyists and eat their food, drink their drinks, and dally with their women and wake up the next morning and vote against them, you don’t belong here.” And what he meant was most times you’re going to go vote for the people who are giving you money, you agree with them.

They are the interests you represent. But every once in a while, because you have an attachment, this is your duty as a lawmaker, because you have an attachment to the institution, you know that every once in a while you wake up the next morning and you vote against them. And it seems to me that we have a bizarre Kantian situation in which the way in which people talk about politics professionally have – that is a shocking statement.

You’re not supposed to say that. You either have goo-goo types who say look, everything should be great and it should be all about the public good and these wonderful causes, and nobody really believes them, especially now. And then you have other people who say well no, this is all just self-interest. And in between is the kind of thing that you were just talking about where most of the time you vote for interest, but you have an attachment to the body that you’re part of – the institution you’re part of.

And every once in a while you vote against them because you see this as in the interest of the common or public good. I’m curious what your thoughts are about that, and why is the case that you have this bifurcated view? It seems to me you either have goo-goo types talking in this abstract fantasy land, where everything’s going to be great and we’ll get rid of money and politics.

And on the other side you have the scholarship, this makes me think of Joe Bessette’s wonderful book Deliberative Democracy, you have the scholarship that says no, this is all just terrible self-interest, these atomistic individuals. Those are the two extremes you hear now. Why is that? Do you think it’s true what I’m saying that that quote would be shocking to most people? That they would be able to accept well no, of course, most times you’re voting for the interest, but sometimes you vote against them. Why do we have this bifurcated view of Congress?

Postell:            I think a lot of it has to do with the fact that there’s just something so plausible about both views. The first sort of more rational choice approaches, members from agricultural states and districts represent their constituents, and so of course, they’re going to vote up the ethanol subsidies even though it’s not according – that’s not what the common good demands.

On the other hand, there’s something plausible, and I think something we need to challenge in our own impulses, that there is still something plausible about the ideal of a bunch of citizen legislators, or even just representatives who aren’t these citizen legislators getting together in a chamber and having a debate. And we love this ideal of deliberation. We lament the fact that nobody listens to each other. There’s not even anybody on the floor whenever somebody gives a speech.

Jeff Flake gave his famous defense of the press speech earlier this year, I think it was, and I don’t think there were more than two senators on the floor to listen to it. I think in a sense there’s something plausible about both ideals, that there should be this exchange of views, and they should be thinking and open-minded. But at the same time they should reflect the wishes of the people who sent them there. I think that sort of bifurcation though, is really problematic because it’s two extremes without a mean in between them. And I think that’s a problem.

Spalding:         It’s dividing things that ought not to be divided. It’s not looking for a mean in the middle, I think the way it’s supposed to work is that Congress comes together and they do pursue their interests. And by representing their interest in common with other people deliberating about their interest, we actually come to a better understanding of the common good.

Because these things ought to be linked as opposed to be seen as opposites. And the problem we have today is as you’re saying are things that don’t go together. When in reality I think the Madisonian understanding is it’s no, no, they actually go together quite a bit, and your interests rise from your local interest to a national interest, and sometimes on occasion, and you should appeal to those interests. And there’s nothing wrong with that.

Uhlmann:        One of the virtues of the American system is that it operates under the assumption that freedom is a good thing. If you have freedom, there will be multiple interests. People saying I want this, somebody else says I want that. Congress is supposed to be the mixing bowl in which the ‘I want this,’ ‘I want that’ come together. And if you structure it right, you have head-knocking and people compromise.

I always analogize this when I try to teach this to my students, with your family. Well human nature is human nature whether it’s in Congress or in the family. In your family you have the aspect of love, it doesn’t exist in politics. But we understand the principle by which you come to common agreement. And you don’t try to take the head off of your opponent, you try to reach – what will work, how do I make this work?

This is the idea of deliberative democracy. And it teaches the participants something about themselves, something about life, and it produces a better result in the end. In a rough sort of way, giving all the crudity of politics that used to exist where what government did was fairly manageable in size. I keep coming back to this to say that I’m struck by this. The sheer quantity of what government tries to do reduces cynicism and indifference in Members of Congress. I can’t handle this.

Imagine to yourself a freshman in Congress who comes into office. You’re 28, 30, 35-years old, you want to change the system. And you’re supposed to be an expert on 25 subjects, 50 subjects – you can’t be. No one has that amount of time and that sort of intelligence. And you don’t have that sort of facility now in Congress to do that. So what do you do? You scratch around looking for those things that might be the key to your next re-election, and it isn’t making policy decisions about big legislation.

And the leader’s office says to you, don’t worry about that. We’ll take care of it. Here is what is in your self-interest. And this is the revelation in the leader’s office that’s occurred over the past 30 years. The leadership office basically tells members of both parties – it started with Jim Wright and Tip O’Neill. And the Democrats really radically institutionalized it. Both parties now institutionalize it.

So legislation that’s not built from the ground up, that’s the Madisonian system in which you learn how to give a little, take a little, deliberative head-knocking, a little coercion from time-to-time. But at the end of the day, what results in that bottom-up process is something that’s workable, democratic, and intelligent.

Top-down stuff is one size fits all. You vote with our party or you’re an enemy. And both sides do this, sometimes it produces good legislation. But it doesn’t produce very deliberative legislation. It is not accidental that many members really don’t know a lot about the details of what they voted on.  After it passes.

Peterson:         As Nancy Pelosi said about ObamaCare. So using that as an example to sum up what we talked about, we would describe that how? You have committees that are supposed to gain expertise on various issues that don’t have the power they used to. You have individual members who don’t have the staff they used to. To think deeply about what kind of legislation they should be crafting, and instead, they give all this over to the leadership offices.

And parties change power, and then they cram bills down everyone’s throats, and of course, most of this is coming from the Executive anyway – it’s coming from the President who has a great vision for America. And he’s sending that through the leadership office.

Uhlmann:        It’s not just the Executive branch that has the architectonic vision of what’s good for America, it’s the lobbyists. Whether the lobbyists are left to the right, they’re smart people, they’re well paid. They produce very good drafts and propose legislation.

Peterson:         And they write it.

Uhlmann:        And they write it. And those deals are negotiated in the Speaker’s office, in the majority of these offices, the minority of these offices – that’s where the deal making takes place. It doesn’t take place typically under the Members of Congress – underneath them in committee. That’s what produces good legislation.

Postell:            So the point about the federal character is interesting, because in some respects if we were to not think about the substance of the legislation, and just think about the process. And we were to not think about the deemed past nature in which it was enacted – a lot of ifs, I grant. That passage of that piece of legislation in some ways, and Dodd-Frank, reflected I think a Congress working correctly.

And I’ll explain why I mean that. Nancy Pelosi, in spite of the trajectory of Congressional development and party decline over the last 100 years, was a pretty strong speaker who kept discipline within the ranks, and who marched – I don’t know how many, but dozens of Blue Dog Democrats to their electoral deaths in order to pass this legislation. And it was crafted mostly on the Congressional side.  The myth is that Obama handed that bill over to Congress.

Uhlmann:        No, no, no. On the contrary.

Postell:            I think that Pelosi and the people in Congress held a lot of control over the substance of that bill.

Peterson:         Isn’t this also because of the expertise of Rahm Emanuel, knowing how to –

Postell:            I think it’s because of the shrewdness, in many ways, of Nancy Pelosi. Which just as an aside means that the Democrats should abandon her at their peril, if they wish.

Uhlmann:        Where does Congress go for expertise? They went to outsiders. Smart professors from MIT, guys in think tanks, lobbyists for healthcare corporations. That’s where all the brain power goes, and Congress does not have sufficient internal brain power to evaluate what’s presented to them. Sometimes they do. I mean they’re not dumb. But they don’t have enough people with enough expertise, so they delegate them out – tell me what I should do about this?

Postell:            So they lacked expertise to craft the bill. But once they got the expertise from outside, Members of Congress had enough control over the substance.

Uhlmann:        Then they could do the cramdown.

Postell:            They presented the bill to Obama. Obama didn’t dictate the terms to Congress. And granted, if we don’t even think about the substance of that legislation, in a way that’s the way it’s supposed to work. The Congress is supposed to be in charge.

Spalding:         But of course, we do have to think about the substance of legislation. It raises this point that coincidentally it so happens that the Democratic party when it controls Congress, actually knows how to use those levers of power. And they’re not shy about it. Whether it was Dingell or Nancy Pelosi, or if they take control of Congress, we’re going to see revival of the budget process and hearings and oversight.

But Republicans, for some reason, are completely incapable – amazingly incapable of dealing with these questions in a way that is organized or driven towards some objective. There is something about the parties that it’s affected by this as well, which is that Democrats seem to be the party of administrative states. When they control Congress, they know how to use the modern Congress shaped by the administrative state to advance the administrative state.

Republicans don’t know how to – they want to go in different direction, they’re divided, they don’t know what to do.

Peterson:         Can you drill into that a little bit, because Joe just went through Democrats knowing how to use Congress in terms of Pelosi and getting the bill passed. After it passes, there is a tale to be told on the Republican side leading up until the last two years of a failure to respond. Can you talk about what happened with the Republicans and ObamaCare then and recently in the failure to recraft it as an example of what you’re talking about?

Uhlmann:        Well it goes back to – ObamaCare isn’t a good example, but budgeting is even a broader example. Which is they don’t do it. My point is that the Democrats will do what is necessary to achieve their objective, beaming something is passed. They precisely did that because this piece of legislation advanced their objective of healthcare – broad healthcare is an aspect of the administrative state.

Which gave massive amounts of authority to whom, the Executive branch? The Republicans want to reverse this somehow. But what do they do? Well they don’t go through the committee process, they don’t have budgets that develop the normal ways. The finance committees, they don’t get involved in these things, they do a little oversight here and there, but nothing serious.

When in fact Congress has massive powers if they chose to use them. But they didn’t prepare and lay the ground. So they are taken off guard when a Republican is elected in 2016, and lo and behold, they have no alternatives for ObamaCare, having promised for all these years. So they have nothing on the table. Why? Because they have not done any of the legislative legwork – spadework to get it going.

And on the outside, the interest groups, which is the criticism of the big box think tank by the way, they didn’t do anything because all they wanted to do was repeal it. It was very impractical from a legislative point of view.

Peterson:         I feel like that moment was culturally very important, because for Republicans even after showing a dissatisfaction with the party and electing Trump, that was the moment when the Republican party and Congress was caught with its pants down.

Spalding:         It proved to me Trump comes in and Republican Congress, I think well this is actually probably going to be good for the separation of powers because there are enough people in Congress that want to keep an eye on Trump. So they’re going to do good on the budget. They’re going to do some oversight. We’re going to get some good things done.

The ObamaCare thing is, first of all, bad choice first thing out of the door. But it really shows I think that Congress, ultimately, was not serious, there’s a deeper problem here. And they just didn’t know what to do. And they’ve never passed a budget.

Uhlmann:        Here’s a problem that needs addressing. The administrative state is such that Congress, with rare exceptions, cannot act without the spur of an Executive stimulus. And if the Executive is not willing to take charge of an issue, Congress splits all ends up. It becomes a centrifugal body, rather than a centripetal body. It requires, unfortunately, a President to say here’s what I think you should do for the sake of the public. And they usually rally around the –

Spalding:         So Michael, is that because of the way things are now, or is that because of the weakness of the Speaker?

Uhlmann:        It’s both.

Spalding:        Right. The changes in Congress have led to this problem.

Uhlmann:        That means a President has to be policy conscious and has to have a team of people who are willing to execute his vision to Congress. Now Congress will moan and groan, and jump up and down, and complain and stuff, but they’ll take that direction. Congress is now so structured that Congress does not initiate anything. I can’t think of anything Congress initiates.

Peterson:         So this goes to the last ten minutes talking about reform, or what possibly could be done in the future. And your claim seems to be consistently look, be realistic. In this day and age it would take an Executive to empower Congress, or to save Congress? In a roundabout way –

Uhlmann:        It would take an Executive educated in the Claremont School who says I care more about my country than the constitution. What I wish to hand on to my successors in office is a re-stabilized constitution.

Peterson:         How would the President do that? If you had your dream candidate in the office right now, what would they do?

Uhlmann:        One of the things a President would do is to – I suggested this morning, take a half a dozen of the really nastiest regulations you could think of. And they’re out there. This is a duck shoot. And say these are regulations passed by agencies now that have the force of law. In virtue of authority delegated by Congress, and the President goes before them in a State of the Union a message, or a special message that says I’m not going to enforce this regulation, although technically I could.

And I’m not going to enforce them because I think they’re bad policy, and also I think they may be unconstitutional in the manner in which they were put together. Now, if you Congress wish to enact these as separate policy measures, I will consider it and exercise my duties of office whether or not –

Spalding:         Part of the key of that working is it’s got to be on small specific things. Because in an odd way, the current President, Trump, has done precisely that. He kicked healthcare back to Congress. DACA, this big debate on immigration, DACA, he sends it back to Congress. But they’re too big for them to do. It’s got to be more –

Postell:            This was a Mitt Romney’s strategy during the campaign where he said, I’m not going to enforce the Affordable Care Act. So he said basically, I will send the rules over to Congress. I will do the REINS Act voluntarily. And this is I think Michael’s proposal is a variant of you do the REINS Act, which is to force Congress to pass these things affirmatively. But you just do it as the Executive by sending it over to Congress and saying you’re not enforcing it until –

Uhlmann:        But you have to – it takes a President with a bully pulpit to articulate to the public what he is doing and why he is doing it. Congress will feel that pressure. But it has to be a President who wants to, in a curious way, diminish the role of the Presidency in the modern state. I want you, Congress, to act in a certain way, and then we could become friends by fighting with one another.

Postell:            But the curious thing is as Matt said, this is what this President has done in a way, by sending all these issues over to a feckless Congress that is very angry about it because they don’t know what to say. They’re very concerned because they don’t know where the President stands, and they don’t stand on their own two feet, that’s for sure. So your point is that there’s no way for them to get out of that morass without a President that gives a reasoning or rhetorical argument for why he is doing what he’s doing.

Uhlmann:        He has to create an incentive for them to change.

Postell:            I have a different vision, I think potentially. I think where Michael’s is more executive instigated, so to speak, again I go back to this point about that there are national figures – people who represent national constituencies inside the Congress itself. And they potentially even to do have a sort of bully pulpit.

We do tend to think of the leaders of the House and the Senate, of Paul Ryan and Mitch McConnell as, in some ways, national figures who when they speak, the public listens. They can give major addresses that the public will pay attention to. And so the alternative vision would be, instead of having the Executive induce action from without, to build the leadership potential inside the Congress from within.

And this goes back to, I think revisiting the conditions of the late 19th century Congress which was, for all of its faults, highly responsive to national majorities, deeply concerned about Executive aggrandizement, and deeply suspicious about Executive power which is why the Presidents of the late 19th century are hardly a Murderers’ Row of great Presidents.

And also in some ways, they conducted a politics of principal. You knew what you were voting for when you voted for the Republicans, you were voting for the gold standard. And when you voted for the Democrats you were voting for bimetallism. So then the majority got its way in that kind of a system. Now, there’s a huge downside I think from our point of view to that system.

That is that it requires empowering centralized party leaders who are always going to be at a position to moderate the wings of their coalition, because the impulse of any party leader is to maintain the majority, that means holding the center in American politics. So it means moving your right wing, if you’re Republican, back to the middle. Or moving your left wing to the middle if you’re Pelosi. And that I think has been the fundamental problem that Paul Ryan and John Boehner, and to some extent Mitch McConnell, have faced.

Uhlmann:        I think that’s a good point. One of the operational problems of leadership in Congress is that the leaders have very few tools to control their members. And the weakness of party which all the progressives – parties are bad things. And we’ve gutted our political parties. Whatever you think about them those guys with big cigars, who are overweight and have the watch fobs, have one great virtue. They knew how to count, and they knew they wanted to win.

And having destroyed that, where there’s no now intermediary body between Congress and the electorate. So what does Congress do instead, it goes to lobbying groups – left and right, raises a lot of money. They go out and play yahoo on this stuff and they demagogue the dickens out of the issue. And that’s not an enhancement of democracy. It really isn’t. I’m more in favor of re-empowering leaders, and re-empowering the parties.

Spalding:         So in an odd way, I think we all agree in this, is that we want to see more politics rather than less politics.

Uhlmann:        Yes, exactly. Well said.

Spalding:         The problem with the good government movement, which we see on both left and right, is they want to further neutralize all of these things. We can have these nice conversations and deliberations for them means let’s have a nice bipartisan conversation, and they win. Whereas I think we need more politics. We need more bashing of heads, we need more fights on these things. And we need to get used to it and revive those atrophied muscles that will bring new life to things like the separation of powers.

When you think of the stories of Dingell and all these powerful chairmen of the past, that’s still available if they would do these things. It’s amazing the extent to which they just don’t know how to do it, they don’t want to do it because they don’t see that that’s a possibility which might actually be to their own benefit and ambition.

Uhlmann:        And by the way, one of these things when you have these baronial committee chairmen –they would send these I demand that you send me this, that, and the other thing. It was actually something like Trump in opening better negotiation.

Peterson:         Right, not the final deal.

Uhlmann:        You negotiate it with them, they know how to play this game. You argue and fight and whatever. And they would get something out of it, and you would check your interest – that was the old political system which held through the 1970’s and 1980’s.

Spalding:         I was going to say which is why Trump in his way is a 19th century politician.

Uhlmann:        In a curious way, he is.

Postell:            But that medicine of more politics being accepting of the messiness and ugliness of politics is hard medicine for Republicans to swallow. And there’s a really interesting book about this that I don’t think is right on everything, but I think it’s an interesting hypothesis, very popular in political science – Grossmann and I forget the other author, Asymmetric Politics is the name of the book. That Democrats are basically an interest group coalition party. They do a really good job at trading off interest, growing the state in order to basically carve up the pie and hand it out to constituency groups.

Republicans are an ideological coalition. And it’s much harder to accept compromises and to broker agreements when you’re ideologically oriented. And so politics and ideology are a difficult thing to mix together. And we like to think of politics as a contest of principle and that statesmanship and political philosophy are the things that we need to employ in these fights over the constitutional regime that we’re contesting.

But then we also want to accept the role for politics in that. And how do we mix those things when we believe so much in the principles that we are clinging to? I think that’s a hard thing for us to do.

Uhlmann:        I’m not sure I agree. It’s not with you, it’s the Grossmann thesis. I think that the Democrats disguise their ideology in the form of I’m just making rules and regulations for the common good. Republicans are at a disadvantage in that context because we always seem to be saying no to something, which is actually a good term if you ever raised children. That’s a very good tool.

“No” is a very good way to regulate the pay of your children. But I take the point. But I think Republicans are often accused, especially by the media and academic types, of being excessively ideologized. I don’t think that’s true. Some of them are. Some of them are silly people.  But the Democrats have their share of silly people. But they’re just so much more comfortable with the processes and institutions of modern government. They can shove their ideology into the neutrality of administrative –

Spalding:         It’s also because a lot of the processes currently set up work in that direction.

Uhlmann:        They set it up – they prefer to be non-ideological.

Spalding:         The Republicans are more ideological on the face when they sense that conservatism today is very much libertarian economics, doctrinal, and check off the box. There is a lot of that which I think has actually weakened us considerably that Trump, whether you like him or not, he has revealed that weakness in a way that he pulled the veil back, and lo and behold, Republicans in Congress they are running around like deer in the headlights.

They are not quite sure what to do because they don’t know how to do politics anymore. Which is precisely why if the Democrats get back in control, boom, it will be like a turnaround immediately. The [inaudible] will go out the next day. No reluctance at all – there’s something about that.

Uhlmann:        Just as now, by the way, a number of my colleagues were in great distress when Trump was elected. They thought the world had come to an end. And I’ve been saying to them, even when we were in the minority, trust James Madison. Madison’s constitution will get us out – oh, you just deal with old dead white males. So with the election of Trump, all of a sudden a couple of my colleagues are now interested in the separation of powers.

Peterson:         Yes. Well, many of my friends in the left are very interested in federalism these days, as well.

Uhlmann:        They’ve got their old copies of The Federalist—they’re dusting them off.

Peterson:         So we should have our last question in a lightning round, and I want to start with Matt Spalding on this. It’s a slow lightning round, but it’s the last question of the evening. We all need to go party elsewhere after this. But I want to start with you, you made an interesting comment this morning and you’ve said it a few times today.

And the question is about how does Congress possibly reform itself? What is needed to happen in order for Congress to reform itself? Because at the end of Joe’s article, the very interesting article I mentioned, “What’s the Matter with Congress” in the CRB, you said Congress has reformed itself many times. We’ve talked about that today. And so it does respond to what’s going on eventually.

There’s enough pressure where it reforms itself, and then it has risen to the challenge in the past. Madison’s constitution has worked. But we need to think about how this could possibly happen in our day and age when it has the 3% approval rating of the people who are brain dead. So you mentioned one thing that I thought was interesting which is that if the Democrats win, that actually reinvigorates the branch of Congress because they’re good at what they do.

You have other things to say about what could possibly reform Congress. Do you mean that little point about if the Democrats win the midterms that they’re going to reinvigorate Congress, they know what to do with it? That that would actually help it institutionally?

Spalding:         I think one of the chief weaknesses going on right now, which I’m going to talk about on the Claremont Panel tomorrow, is the extent to which one party which is really stupid on politics. They just don’t know how politics works. And the other one actually has a pretty good understanding of it working within the context of the administrative state. But I think the point you’re getting at in terms of reviving Congress is to what extent – how do you arise Congress within the context of the separation of powers?

And I think it might be interesting – I don’t advocate this and I don’t know that it will work out well, but I think that the Democrats take back – first of all it’s likely they might the House, not the Senate – it wouldn’t be a full taking back. But how is divided government good for the separation of power, or is it not good for the separation of powers? I think it’s really out on that. I think it might get messier, it might have some effect on that. But I do think somewhere the answer lies in more politics.

Would you say this has got to be nationalized? It’s got to be a debate? We’ve got to pick fights such that more and more Members of Congress as an institution see it in their interest to go after and check an Executive. Doing it now in the context of impeachment, potentially, I think would be a mess. I don’t think that’s a proper way to do it. But I think those kind of large tectonic debates is what’s going to be the key to this.

Because then they are forced to think through what powers do we have? How do we use them? What can we do? How do we force this to happen? And that actually, oddly enough, might be healthy for our system.

Peterson:         So can you just before we –

Spalding:         That’s my lightning answer.

Peterson:         That was a good lightning answer. I’m just going to press you for just a little bit more on it. Just respond to the obvious objection of someone listening at home. I’m still trying to wrap my mind around why more politics would be good?

Spalding:         Well this is the Madisonian answer. What enlivens our constitution as opposed to most European constitutions, is it’s not really bureaucratic language and the written thing, it’s the life of it. It’s given life by the politics of it, and the back and forth of the constitution. And it’s through the back and forth that you actually create checks and balances, and that you separate powers in order to have that happen. That was Madison’s intention.

And in doing so, that actually is good for constitutional government because they keep an eye on each other. I think that’s the brilliance of the American system. I think that’s somehow where the answer lies there. The question’s how to get there? Well, I think the clearest way to get there now, somehow, is to get more politics into the system, not less.  And so if people object to Trump, let them object to Trump. Let’s have that debate.

And I think it would be good and healthy in our democratic system. And ultimately what happens if there’s a real disagreement, it comes out in elections. And that’s good too. And we’re at this point, our government is at this point, we have these two systems of governing – these two different regimes. I think we need to make a clear upfront consent-based choice about where we’re going. And not allow the administrative state just to slothfully – I guess not slothfully – continue on its growth. Trump’s opened up that possibility. I don’t know what happens, but more politics would be good.

Uhlmann:        Just drop a footnote on what Matthew just said which was very wise. It’s good for listeners to know the central premise of the administrative state is that politics is bad. “Neutral expertise” is good. In order to solve the problems of the nation we need to turn power away from politics, all those self-interested and dirty people, and turn it over to neutral experts who got their PhDs from Harvard, and that will produce a better body of politics.

That’s the fundamental problem. And they’re aided and abetted by the media who define politics as dirty and corrupt and awful. But in fact, actual political interest clashing is the central principle of a viable democracy.

Peterson:         So for you, one Michael Uhlmann lightning round how do we reform Congress?

Uhlmann:        What I’d like to do is to have a very long evening with the next Speaker of the House, to convince him or her to try and experiment. To take a subject matter in a policy area, whatever it is, and say have you thought about drilling down into this? Toward the end of empowering your body against the runaway Executive by actually mastering information and appealing to the public, to come to your point about having the Speaker use a bully pulpit, not just the leader of the House, but somehow developing a public personality and say we’re going to take a hard look at X, and we’re shocked.

Shocked to find the following things in the policies you’ve made, but we deemphasize the idea that we made these policies. And my appeal would be perfectly self-interesting, this is how you enhance your power as a Speaker. Drill down into a couple of subject matter – sexy subject matter, I don’t care what they are. And you designate X number of your members, and you hire a bunch of brainy people. Spend a couple of bucks, hire smart guys – lawyers and accounts and whatever to come in to really do this stuff. It’s doable and I would appeal solely on the grounds of political self-interest to a Speaker or majority leader.

Peterson:         Good oversight with brains would lead to good things for you. Joe Postell?

Postell:            So I think both of the previous responses, which I endorse, focus on motivations and the importance of bringing politics back in. I previously recommended – well, first I would say whatever the solution is, it should not look like the mid-20th-century Congress. It should not look like committee government, which I think was designed precisely to facilitate the growth and expansion of the administrative state. So a return to regular order, which I hear many conservatives call for, is not the solution I would advocate.

I’ve already recommended maybe going back to the pre 1910 Congress which had centralized party leadership. I don’t think that’s feasible because the parties are not sufficiently unified. There’s no way you’re going to get republicans to vest enormous powers in party leaders. There’s too much division inside the Republican Party for that, and I think we’ll see the same thing with Democrats.

So here’s an alternative to my ideal solution of centralized party leaders. And that is to accept the reality of coalition government that we have today under the guise of a two-party system. We essentially have many parties in Congress, not two. We have a freedom caucus that is increasingly at odds with its own party leaders, not just with Democrats. And so, I think for a coalition style government, you need a coalition style bargaining method. Namely, investing lots of powers in the leaders of the caucus to bargain and compromise and to take the result of that bargaining and compromise and throw it immediately on the floor under closed rules for up or down votes.

So let’s take ten issues, or five or however many. Immigration, healthcare, tax reform, financial reform, and basically create organizations where the caucuses through their leaders negotiate major legislative deals on those issues, and then the leader’s job is merely just to put it on the floor and let it go to a vote, and let the caucuses enforce the discipline.

Uhlmann:        And you do this under closed rule. No floor amendments. So the bargaining and negotiations of deliberative democracy takes place in the caucus.

Postell:            Right.

Uhlmann:        Well, that’s better than what we now have.

Postell:            Not the leaders because the leaders don’t have their own base of power. They are supposed to facilitate the action inside the parties. That’s, I think, an interesting alternative given the fractured party system we have right now.

Peterson:         Alright, well so far APSA – although Dr. Spalding is holding out saying it’s not over yet – has gone very well under the leadership of Joe Postell.

Spalding:         APSA is never over.

Peterson:         Sadly these political scientists still exist, irrelevant talking to themselves. The last word does go to you, Dr. Spalding, because I brought you in to correct them when they’re wrong. So if anyone said anything you think is incorrect, this is your time to quickly just correct them and then we’ll sign off.

Spalding:         The wise Mike Uhlmann always says the right things. Joe Postell is a great scholar and he’s on the right track and this work is excellent, so I commend both of them.

Peterson:         Alright, well thank you all for being here and we will take our leave. Goodnight.


“Thanks for listening everyone. This is Matt Peterson, Claremont’s Vice President of Education, encouraging you to rate and review this podcast, to share it with your friends on social media, and go to americanmind.org for additional information on this topic, plus more episodes and content. American Mind is an exciting new publication of the Claremont Institute that hosts serious discussion of the ideas that drive the daily headlines. We are a nonprofit that depends on the support of listeners like you who care deeply about America. Go to americanmind.org to contact us and find out how you can support our efforts. Thanks for listening.

Podcast Published: 10.16.18

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