The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Help Legislators Legislate Again
Legislative disfunction is at the root of many current controversies, and past legislation bears part of the problem.
Congress needs to get back into the business of regular and routine legislating. Chris Walker and I explored some ways Congress could facilitate that endeavor in "Delegation and Time." This morning, I have a brief essay discussing how well-intentioned legislation—campaign finance legislation in particular—has hampered the ability of members of Congress to do their job. The essay is part of "100 Ideas in 100 Days," an initiative of the NYU Democracy Project.
The essay begins:
Congress is failing at its most basic constitutional function: legislating. While our representatives usually manage to pass appropriations bills and avoid extended government shutdowns, the regular process of lawmaking has largely ground to a halt. This breakdown isn't just about passing fewer bills; it represents a fundamental erosion of Congress's ability to govern. Congress used to revisit and reauthorize foundational statutes on a regular basis. No longer. Old, obsolete laws remain on the books and new laws to address new or emerging problems rarely get enacted. The resulting policy-making vacuum encourages executive overreach and fosters litigation, as federal agencies try to apply outdated statutes to contemporary problems.
Congress is supposed to be a deliberative body in which representatives negotiate, compromise, and build consensus on the nation's most pressing challenges. True legislating requires assembling coalitions to build a majority and overcome procedural hurdles. This, in turn, requires mastering complex policy questions and developing relationships and trust across the aisle. Successful legislating requires recognizing that people of good faith can disagree and accepting that successful legislation rarely pleases everyone completely.
Many factors contribute to this legislative paralysis. Structural rules like the Senate filibuster often get blamed, but these same procedures didn't prevent meaningful legislative action in previous decades. The root causes of persistent obstruction and legislative inertia lie elsewhere. Some contributors are apparent, such as the increase in political tribalism. Others, less so, such as campaign finance rules.
As I discuss, campaign finance laws effectively require members of Congress to spend more time fundraising and less time legislating. The time spent in phone banks and fundraising events eclipses time developing expertise, caucusing with other legislators, and working the legislative process. Worse, these laws incentivize attention-seeking behavior that can attract small-dollar donors from across the country, and effectively discourage compromise and coalition-building. (Put another way, we can thank campaign-finance laws for the likes of Marjorie Taylor Greene.)
The essay closes:
The irony is stark: campaign finance rules designed to democratize political fundraising and reduce the influence of special interests have inadvertently made legislating more difficult. However well-intentioned, limits on individual contributions and party support have undermined the activities necessary for effective governance—relationship-building, compromise, and nuanced policy development.
Loosening existing contribution limits would not be a silver bullet. There are other factors that fuel performative politics and tribal division. But making it easier for legislators to do their actual jobs is necessary if legislators are to legislate again.
Restoring Congress's capacity to govern will require more than procedural reforms. It demands a hard look at how existing laws, including campaign finance limits, shape legislative behavior and undermine our capacity for legislative governance.
My essay is here. The full series of 100 ideas in 100 days, which features contributions from across the political spectrum, is here.
