The job of Congress: articulating norms

In earlier posts, I suggested the way to improve the US Congress is not to set back the clock to some earlier system of “regular order” but rather to define what we want Congress to do and then identify reforms that will change how members of Congress think and work.

This post focuses on one last expectation we should have for Congress as an institution: defending democratic norms.

One of the clear lessons of the past two years is that our system is based on norms as well as rules. “Tell the truth, or at least statements with some factual basis.” “Don’t threaten to lock up your electoral opponent.” “Presidents should respect the free press, the judicial branch, and the rule of law.” And so on. There is no rule against the president’s statements, but the unsanctioned violation of these norms means that our political system is much weaker, and that other actors are free to violate them as well.

After each Trump outrage, reporters often ask members of Congress for their reactions, with particular focus on Republican members because their criticism of the president is more costly, and thus more meaningful; because Trump’s reputation is increasingly synonymous with the Republican brand; and because Republican members need the donations and votes of Trump supporters to win reelection.

For example, New York Times did a roundup of Republican responses to Trump’s tweets criticizing the Mueller investigation on March 18. They ranged from anodyne (House Speaker Paul Ryan) to supporting Trump (House Whip Steve Scalise) to critical (Sen. John McCain). And there were simply a large number of Republican leaders with no response at all, including Senate Majority Leader Mitch McConnell.

But the varied responses of individual members do not speak for the House, Senate, or Congress as a whole. Once reporters have enough quotes and each norm violation fades from memory (often displaced by another), the lingering impression is the impotent silence of the first branch.

Congress can play a collective role in defending the norms and traditions of American democracy. Each chamber, or both together, can pass resolutions stating what our shared norms are and applying these norms to recent events.

There is a positive example of congressional defense of racial equality. After the white nationalist demonstrations and murder of a counterprotester in Charlottesville, Virginia, last summer, Congress passed a joint resolution condemning “the racist violence and domestic terrorist attack” and urging the president to “speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy.” Because it was a joint resolution, it went to the president for his signature, so Trump had to sign a resolution implicitly rebuking his own words. This resolution had no direct policy consequences, but it provided an option short of impeachment for Congress to express its disapproval of the president’s remarks.

Of course, it would have been preferable if both chambers held roll-call votes on the resolution so that legislators like Rep. Steve King (R-IA) had an opportunity to express their condemnation of racism, or to make clear how far they deviate from the American mainstream, but the resolution was a positive step.

This resolution illustrates a broader point: Through its internal deliberations and collective expressions, Congress can play a significant role in defining and defending democratic norms. The rest of this post suggests norms Congress should defend. First, though, a parliamentary point. Congress can consider three types of resolution:

• Simple resolutions, which are only intended for deliberation by a single chamber
• Concurrent resolutions, which pass both chambers but do not go to the president
• Joint resolutions, which pass both chambers and go to the President for a signature or veto

These resolutions provide a variety of options, allowing each chamber to make its own point, Congress to express a bicameral view, or Congress to force the president to support or oppose statements of norms.

Norms for congressional decision-making

One way Congress can promote democratic norms is by providing an example of appropriate discourse. Indeed, these norms are built into the rules of Congress, so legislators simply have to live by their own rules.

Discourse: Focus on policy, not personalities or motives. Both chambers of Congress require that members address their comments to the chair and not each other, and prohibit insults. However, legislators could go further and ensure that all of their public discourse is focused on trying to craft policies that will improve the country.

Truth: Legislating is an uncertain business. In the best of times, it can be hard to accurately assess a problem, and it’s even harder to predict the effects of policy proposals. In this atmosphere, legislators should be able to at least agree on basic facts, such as official statistics and scientific consensus, and to acknowledge expert projections of predicted policy effects such as Congressional Budget Office budgetary scores. When legislators ignore these shared facts, slander experts, and assert lies and opinions as if they are facts, they provide a poor example to the country.

Transparency: Congressional actions should gain legitimacy when citizens can observe their development and understand the justification for new policies. Several Congress watchers have suggested that transparency can be taken too far, since it may be more difficult for legislators to compromise or shift positions when they are being watched. But the regular process of debating a bill in committee and the floor — with adequate time for discussion and a real opportunity to offer amendments — serves a purpose. When party leaders craft a bill behind closed doors and rush it through both chambers, they invite suspicion of their motives and misunderstanding of their policies.

Defending democratic norms

Congress also has a vital role in promoting trust in the democratic process and respect for the norms of a free society. Some of the norms under attack over the past two years include:

Maintaining free and fair elections

Congress has two obligations. First is to enact policies that ensure (within the limits of federal power) that all elections are free and fair. This would include preventing states from imposing voting restrictions that disadvantage one party more than the other, or one racial group more than others. It also means ensuring that the voting process is legitimate and not tainted by foreign hacking.

Once Congress has ensured that the process is actually fair, it should also strive to preserve faith in elections as legitimate mechanisms. When candidates decry a “rigged” system or insinuate wide-scale illegal voting without evidence, they don’t just harm their opponents; they devalue democratic elections in general and the legitimacy of its outcomes. Congress could pass resolutions denouncing such rhetoric and affirming a shared commitment to the democratic process.

Accepting opposition parties as legitimate

One of the great innovations in American democracy is mass political parties. While the authors of the Constitution did not anticipate or care for political parties, the logical consequence of our political rules is organized competition between teams of candidates and supporters. A fundamental part of this system is accepting the legitimacy of the opposing party. The competing party represents a somewhat different set of principles, policies, and voters, but with ample overlap.

More important, the competing party represents a legitimate strand of American political tradition. As such, it is out of bounds to threaten to jail opposing candidates, to denounce the opposing party as the greatest enemy, and to welcome assistance from foreign governments for your campaign, and Congress has a collective responsibility to make this boundary clear.

Free society

American government is limited and checked by a set of individual rights. Around the globe, politicians have found sympathetic majorities willing to disregard those rights, only to find that they have embraced autocracy in the bargain. It is the responsibility of Congress and its members to defend the free press, religious liberty (not just for evangelical cake bakers), and equality for all under the law — even presidents.

In practice, the first venue for these challenges has been the federal court system, with individual judges bearing the brunt of public outrage. Congress could pass resolutions affirming the rule of law, and specifically calling for the FBI to continue an impartial and professional investigation into Russian influence in the 2016 campaign.

Oppose corruption and bias

In addition to the above, the Trump presidency has violated several clear norms, laws, and constitutional provisions with little response from the current Congress.

Racism and sexism: Our laws commit us to be a nation where all are treated equally. A Congress that represents all of this diverse nation can clearly articulate a vision of this country’s principles and its future direction, and condemn presidential statements and actions that challenge our shared commitment to equality.

Corruption and nepotism: The Constitution prohibits the president from receiving any “emolument” from a state and prohibits anyone from receiving payments from foreign governments without the consent of Congress. At some point, this may lead to new laws or presidential impeachment. Pending that, Congress has the option of clearly stating its commitment to public service and equal opportunity.

Transparency: There is no law that says presidential candidates must reveal their tax returns, or that the White House must reveal its visitor logs. However, Congress is in a position to insist that these norms be followed, including the right to unilaterally disclose the president’s taxes.

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