Essay
01.16.2020

The Future of American Government?

“The situation of parliamentarism is critical today because the development of modern mass democracy has made argumentative public discussion an empty formality.” The forms of legislative deliberation remain superficially unchanged, but they no longer fulfill their accepted purpose; it is “as though someone had painted the radiator of a modern central heating system with red flames in order to give the appearance of a blazing fire.”

Sick burn, as the kids say. Form without function, noise without meaning. An apt description of what we often get out of our Congress—though, in fact, this quip is drawn from a different time and place. We will return to that shortly.

First, let us observe that a few of the members of our own House of Representatives sense the hollowness of their institution’s routines and want to do something about it. Namely: stop pretending that anyone’s mind is ever changed by floor debates, and simply allow members vote remotely, from their districts.

Unsurprisingly, one of the most prominent promoters of this idea hails from just outside Silicon Valley. Eric Swalwell, who briefly asked Democrats to nominate him for president because he was a Millennial, wants to get Congress up to speed in the new millennium. Selling his “Members Operating to Be Innovative and Link Everyone” (MOBILE) Resolution on public radio, he dutifully joked: “Voting in Congress? There’s an app for that!”

To be fair to Swalwell, if his acronym and sales pitch are rather clumsy, the substance of his bill isn’t so crazy at all. He observes that many of the House’s votes are conducted under suspension of the rules, which means that two-thirds of those present agree to put aside the chamber’s normal debate procedures and directly pass a bill.

Naturally, most bills considered under suspension are non-controversial. Swalwell asks the House to develop procedures allowing members to vote from their home districts on such “non-substantive, perfunctory” matters, which would give them a chance to spend more time among their constituents. He would also require committees to use video conferencing technology to allow members to participate from afar, and then allow members participating in that manner to vote in committee.

Such ideas are not only the province of Northern California Democrats, though. Indeed, a more ambitious vision was promoted by former Representative Steve Pearce of New Mexico, who served 7 terms in the 2000s and 2010s and is currently the Chair of the New Mexico Republican Party.

Throughout his tenure in Congress, Pearce called for a “virtual Congress” in which lawmakers could discharge nearly all of their constitutional functions remotely. As he told TownHall.com, “The lobbyists should have to work harder to see us, and our constituents should have to work easier. We’ve got it upside down.”

Pearce’s idea was enthusiastically taken up by Mark Meckler and Jenny Beth Martin in their Tea Party Patriots: The Second American Revolution (2012). Endorsing the idea of representatives spending more time among their constituents, they declare: “It’s time for power to come back to the people.”

Once we have emptied out the Capitol in this way, we would be well-positioned to effect a more ambitious transformation. The physical space constraint of the House chamber was the main reason Congress voted to cap its size at 435 with the Permanent Reapportionment Act of 1929. As one proponent of a much bigger House writes: “The thought of chamber capacity limiting Membership is an utterly ridiculous and hysterical excuse in the 21st century,” especially given “the room is almost always empty when you turn on CSPAN.”

And if the Galactic Senate of the Star Wars prequels had only 1,024 seats (according to the esteemed Wookiepedia), a fully virtual chamber could be much more accommodating. Demographics whiz Lyman Stone wants to see a House with over 6,000 members, which is what we would have if the nation had passed a constitutional amendment considered (and very nearly passed) alongside the bill of rights that required one member for every 60,000 people.

Stone follows Pearce’s lead, enthusing that remote voting would allow “Representatives to Represent their district in Congress without actually relocating to DC. This would truly make the House representative!”

Whose Representation?

That depends on what representation entails, surely. If you think that representative government merely involves transmitting the preformed views of constituents to Washington, at which point we count up votes and see who wins, then, sure, it isn’t clear why that transmission needs to involve in-person convening at all.

Nor, in our age of information overflow and social media, need we worry that a lack of proximity to Washington will leave representatives starved for information. Indeed, as Pearce’s comment about lobbyist access suggests, maybe it’s better for representatives to form their views surrounded by their constituents (and, of course, the internet) than within the fetid air of the swamp. Just listen, emote, and vote remote. Voila, representation!

That is a concept of representation, but it certainly wasn’t the one that America’s founders had in mind. They envisioned representatives embodying an aristocracy of merit, whose deliberations would offer the best realizable means for discovering the salus populi, or public good.

This system is not intended as some second-best substitute for an impracticable direct democracy, but as a superior form of government capable of cultivating epistemic and moral virtues in the process of governing. In Federalist No. 10, Madison famously rejects direct democracy in favor of republican government. The latter, he says, has the ability to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country.” The mediated nature of this system is seen as the best way to overcome the “mischiefs of faction.” In contrast, the immediate nature of systems that act directly on citizens’ wishes is seen as a fatal flaw that would inevitably lead to demagoguery.

Lingering loyalty to this far more demanding ideal of representation has kept the proposals for a digitized Congress from gaining much traction. Our legislators instinctively sense that face-to-face encounters between representatives should be at the heart of the legislature’s business. In their bones, they know that there is something wrong with the picture of disconnected lawmakers impersonally registering the views of their constituents while scattered across thousands of miles.

Is their resistance just an exercise in nostalgia? Are we just painting red flames on a central heating system’s radiator out of an aesthetic preference that has very little to do with how things really work?

Back to our critic quoted in the opening. In his view, the real action of public discourse has left behind the quaint encounters of representatives and now occurs predominantly in mass messaging that “relies on an appeal to immediate interests and passions. Argument in the real sense that is characteristic for genuine discussion ceases.”

There is no real persuasion going on—and so there is no reason to pretend that speeches on the floor of a legislative chamber really matter. “Important decisions are taken in secret meetings of faction leaders or even in extraparliamentary committees so that responsibility is transferred or even abolished, and in this way the whole parliamentary system finally becomes only a poor facade concealing the dominance of parties and economic interests.” In conclusion, “the institution itself has lost its moral and intellectual foundation and only remains standing through sheer mechanical perseverance as an empty apparatus.”

Those charges all come from Carl Schmitt’s The Crisis of Parliamentary Democracy, originally published in 1923 and reissued in 1926. Although his words are eerily descriptive of American practice in 2019, he was writing about the Weimar Republic that would collapse within a decade of his writing.

Schmitt cheered on that demise, but not because he was not rooting for the triumph of a system in which “the dominance of parties and economic interests” merely came out from behind its facade. In his view, the mass communications technologies of his day made it possible to welcome a plebiscitary system, in which the nation’s people could acclaim a powerful leader, who would then truly represent the people’s interests in a way that no bickering legislature ever could.

Though he would, infamously, fall in league with the Nazis, Schmitt’s working model as he wrote in the 1920s was the election of Napoleon III in 1848 and his subsequent consolidation of power in the Second French Empire. He thought democracy could be harnessed effectively for “conservative and reactionary” purposes (of which he approved) if only it shed the baggage of obsolete parliamentarism. Representation, he thought, belonged to the age of bourgeois capitalism that he thought had been self-evidently receding ever since 1848.

The Merits of Meatspace

Is all this to suggest that the proponents of remote voting are acting, wittingly or not, as agents of Bonapartism or worse? No, not really; they are symptoms of a decrepit system rather than any sort of cause.

They are reacting to the mundane reality of their own situations: flying across the country twice a week so you can get to D.C. in time for empty debates and then vote as your party instructs feels idiotic and pointless. Why not try to adapt some of the rules to reduce some of the most obvious kinds of idiocy, and spend less time on airplanes? (These folks almost always fly coach.) Unlike Schmitt, they’re not hoping to see parliamentarism fall away. They’re just observing how far it has fallen and calling for adaptation. They’re realists.

But then again, maybe not. If Schmitt was right about the fate of the Reichstag in his time, our vantage point from nearly a century on lets us see that his global cynicism about the future of parliamentary government was, at the very least, grossly overblown. Presidents and prime ministers have certainly gained at the expense of debating assemblies, but the pluralistic chambers have not fallen away.

One could argue that processes of sub-constitutional change are just very slow, especially when, as in the American case, the written Constitution gives so much leverage to the legislature. But it is more plausible to say that, at least at some moments in history, the possibility of real public debate over major questions has continued to make legislatures indispensable—perhaps in spite of themselves.

Just as today’s would-be reformers often talk as if the internet and smartphones have changed everything, Schmitt’s charge in the 1920s was that modern life had rendered the old forms of government anachronistic. The world was more complicated and dangerous in the era of the world war than in the days of the Concert of Europe, he insisted, just as today we tell ourselves that our interconnected world makes the problems of the 1920s seem quaint.

This rhetorical trope recurs over and over again, because it speaks to our need to see our own historical moment as pivotal. If something—the weapons of war, the means of communication, the forms of corporate power—has decisively changed, that gives us license to rethink everything, including our form of government.

There are, undoubtedly, some genuine novelties in our age of Republic.com (yes, there is really a Cass Sunstein book of that name). But questions about the merits of physically assembling representatives to make decisions are nothing new. Proxy voting is an old practice, which has occasionally become politically controversial.  (Republicans did away with it in committees after retaking Congress in 1994.)

In some ways, the appeal of remote voting was probably even greater when travel was much harder. Clearly, synchronized remote voting would have been impossible before the telegraph, but it would have been eminently possible to package a number of questions together and then post them to members in their districts, thereby saving them the difficulty of travel.

That such a system was never seriously considered ought to tell us something about why we have the sort of representative government we do. In their medieval origins, assemblies were about physically gathering notables whose presence would indicate consent in the actions of government, especially decisions to levy taxes. The point wasn’t to register whether a representative’s constituents liked the policy or not; it was to enlist their obedience through participation in a physical act of consent.

That all sounds pretty mystical or metaphysical for our current idea of democracy, which is largely about preference aggregation. Many people may just laugh off the idea that physical encounters have any relevance today.

They shouldn’t.

The “virtues of reality,” in Ross Douthat’s phrase, are many, and the legislature’s continued existence in meatspace preserves opportunities for a revival of republican government that would be lost in an emote-and-vote-remote regime.

If we want highfalutin’ social scientific confirmation of the obvious advantages of having human beings encounter each other in the flesh, they are there for the taking. But the durability of the tradition of assembly, much older than any modern nation, furnishes a much more compelling form of evidence. We need in-person debate to legitimate compromises that address the challenges facing our nation.

Face-to-face debate has deliberative virtues, too. As the dreaded comments sections constantly remind us, online debate makes it easy for people to treat each other as implacable enemies. Quite the opposite of “refining and enlarging” our views, internet sparring debases and narrows them. We are not, in truth, very good at opening ourselves to persuasion in any situation. But we are most likely to take our fellow citizens seriously, both as listeners and as speakers, when we encounter their undeniable physical humanity.

Painting flames on a radiator may be silly. But so long as we cling to the vision of representatives looking each other in the eye, earnestly weighing concerns brought from homes across the land, and finding a way to cope with the problems facing the nation’s people, there is yet time to tend the sacred fire of liberty.

is a senior fellow at the R Street Institute, where he researches America’s separation of powers with a focus on the relationship between Congress and the administrative state. He is the author of To the Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis.

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