Kevin Portteus’s essay, “Congress and the Collapse of Constitutional Republicanism in America,” is nominally a meditation on congressional dysfunction. But it’s much more than that. He offers a deep reflection on the administrative state and the breakdown of our institutions under its weight.

Portteus begins by accurately noting that Congress’s favorite activity is not legislating. Instead, it follows the other two branches of the federal government in governing by decidedly extra-constitutional means, including executive orders and actions, administrative rulemaking, and judicial meddling. As he says, “Through both positive action conferring legislative power on others, and the failure to address important issues through legislation, legislative power has steadily passed from its constitutionally-designated home to other actors.” Congress has voluntarily ceded its own authority. So much for James Madison’s argument in Federalist 51 that ambition will counteract ambition.

Legally speaking, any congressional delegation of power that articulates an “intelligible principle”—that is to say, anything that is not absurd—tends to be upheld by the courts. Portteus puts it forcefully: “As it is, there isn’t much reason for Congress to exist. They don’t legislate in the constitutional sense. [And] they lack the independence and expertise to serve as legislators in the Progressive sense.”

Furthermore, the power Congress delegates is brought to bear not by natural or hereditary aristocrats, but by those who have merely “credentialed” in our “elite” institutions of higher learning. These institutions simply serve to replicate progressive modes and orders, including hubris and incompetence. “From botched disaster responses to the inability of our military and foreign policy establishments to win wars or influence people, we have the worst elites. What they excel at is navigating the system and making it work for themselves and their friends.” Portteus cites Aristotle’s regime science: “aristocracy deteriorates into oligarchy: the rule of the few, for the sake of themselves, rather than for the sake of the whole. The progressives, though they did not intend it, set the nation on this path.”

So what are members of Congress to do in this now well-established closed system? They satisfy their attenuated ambition by other means. The peculiar turn of our institutions can be understood with the help of a little social science. The political science of “not legislating” is a subset of the science of the swamp.

Portteus mentions the work of Morris Fiorina, a mainstream political scientist. Fifty years before Donald Trump rode down an escalator, a decidedly non-fire-breathing academic identified the problems and brought the receipts, as we now like to say. Morris Fiorina was the original swamp theorist.

He showed not only that Congress was dysfunctional but that it was likely to stay that way. Fiorina gave an empirical, non-partisan, and non-polemical account of the origins of what he termed “the Washington Establishment.” To cut a long academic argument short, Fiorina chronicled a profound, statistically significant decline in marginal (or “swing”) congressional districts from 1948 to the 1970s. Members began to enjoy increasing insulation from national trends in presidential voting—and indeed national trends in anything. Low turnover and multiple terms in office have become the congressional norm, as has gerontocracy.

Congress itself became the immovable “Washington Establishment.”

What most accounted for this shift, Fiorina theorized, was the observable and systematic movement of members of Congress away from legislating and toward constituent service and pork-barrel spending. In this public choice model, legislating is a high-risk, low-reward activity. Setting public policy is dangerous—especially policy that might reduce the size of the administrative state and thereby gore the oxen of its beneficiaries.

By contrast, constituent service is all reward. Regardless of national trends and the party label behind a member’s name, all constituents appreciate an “effective” member of Congress. Members can be particularly effective in providing what Fiorina labels—with a somewhat awkward but amusing phrase—“bureaucratic unsticking services.” As he says,

If we have incumbents who deemphasize controversial policy positions and instead place heavy emphasis on nonpartisan, nonprogrammatic constituency service (for which demand grows as government expands), the resulting blurring of political friends and enemies is sufficient to shift the district out of the marginal camp.

Members act as ombudsmen for constituents who cannot face the administrative state alone. Ironically, or not so ironically, this is the very administrative state that Congress itself has created.

There is no way out of this progressive doom loop. It suits almost all Democrats just fine while ensuring that RINOs will forever remain RINOs. Democrats win by establishing major programs based on legislation drafted in general terms. Republicans win by “fighting the good fight” and raising money for the fight, without ever having to pull the trigger on administrative rule. In the meantime, Fiorina says, “All of Washington prospers.” The changes in Congress are permanent as long as the progressive administrative apparatus is permanent. And only Congress can kill this beast of its own making, which means the swamp will not be drained.

Furthermore, Fiorina suggests that because casework is “all profit, it is probable that at least some congressmen deliberately stimulate the demand for bureaucratic fixit services.” Not only is it in the interest of agencies to expand their footprint, but it’s also in the interest of members of Congress, both Democratic and Republican. Members are only free to take the general welfare of the nation into account on major legislative issues that are not salient in their districts. In Fiorina’s depressing but pragmatic phrasing, “The general, long-term welfare of the United States is no more than an incidental by-product of the system.”

Fiorina was not oblivious to shifts in voting patterns by the turn of the 21st century. Since the 1990s, congressional elections have to some degree undergone a “renationalization” insofar as control of the body has periodically shifted from Democrat to Republican and back again. But this “renationalization,” which tracks populist mood swings, has ensured only that members and parties do not control the legislative apparatus long enough to effect real change, even if they wanted to. This new reality is, as it were, ladled on an already risk-averse, do-nothing institution.

Outlines of a Counter-Revolution

Is there any way to make Congress great again? Sadly, there isn’t—at least under current constitutional forms. The solutions conservatives and classical liberals favor do not seem feasible, or even desirable. What, for example, of a reinvigorated non-delegation doctrine? Congress does not want non-delegation for the simple reason it would have to legislate again. And it would have to do so in excruciating detail given the mind-bogglingly vast state apparatus it has created. In politics, size matters. Non-delegation is simply too hard and would not be in the interests of Congress as a body or its individual members.

Furthermore, it’s worth pondering the fact that non-delegation might well be worse for the average citizen than our present extra-constitutional regime. In the current regime, the people at least retain some freedom of movement due to the give-and-take between government and citizens, facilitated by legislative half-men. The people can also hope for forceful executive actions by bold presidents who seek to check administrative despotism. A counterfactual world of black-letter law rather than administrative grayness might be more consensual while also proving more despotic. As Thomas Jefferson remarked in Notes on the State of Virginia, “[A]n elective despotism was not the government we fought for.”

And the problems of delegation and failure to legislate are not the only ones besetting Congress. It also suffers from a severe lack of cohesion. Many observers have noted the decline of strong political parties that might hold individual members to account. The steady weakening of parties is a result of several factors, both internal and external to Congress.

External factors include the successful progressive push for candidate selection via primaries rather than caucuses or conventions, changes in campaign financing laws that shift resources away from candidates and parties toward third-party PACs, and the growth of modern advertising and communications technology. When parties no longer nominate or finance candidates or control their messaging, candidates are free to run largely independent campaigns. And when those candidates win, they continue to run their own game in Congress.

Internally, we have seen the breakdown of the old committee system. Woodrow Wilson noted in his Congressional Government (1885) that “Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work.” This isn’t as true as it once was. Party leaders often work outside formal committees, relying on task forces and personal loyalties. This began in earnest in the 1960s as Democratic leaders bypassed recalcitrant Democratic committee chairs on civil rights questions. It accelerated after Watergate and has reached a crescendo with the communications revolution and the era of “celebrity members.”

Simply put, there’s no there there to Congress. The result is general dysfunction and popular alienation. Liberal scholars of political institutions have come to recognize this problem just as much as conservatives have. In this view, our problem is not the oft-talked-about “polarization” but “fragmentation.” We have no way to aggregate interests. We would be well-served by returning to the era of smoky back-room dealings and party bosses.

So while conservatives can temporarily take over the administrative state and indeed win some important one-off victories, it’s highly unlikely they can alter the recurrent dynamics of the Washington Establishment. As Fiorina notes,

[W]e have constructed for ourselves a system that articulates interests superbly but aggregates them poorly. We hold our politicians individually accountable for the proposals they advocate, but less so for the adoption of those proposals, and not at all for overseeing the implementation of those proposals and the evaluation of their results. In contemporary America officials do not govern, they merely posture.

This posturing is now hardwired. There is simply no way to rewire things without major constitutional restructuring, up to and including a Convention of the States under Article V of the Constitution. Such a convention could profitably consider ways to make the federal government smaller, Congress more representative, the Supreme Court less powerful, and the president better able to pursue the national interest.