Congress in the Large


Review of The Imprint of Congress, by David R. Mayhew

New Haven: Yale University Press, 2017

Congress is the messiest of our governing institutions, David Mayhew explains in his masterful tour d’horizon of its impacts throughout American history. Weighing in at only 116 widely-spaced pages of text plus 40 pages of footnotes, it can be read in one enormously profitable sitting. Mayhew, an emeritus politics professor at Yale and perhaps the country’s leading specialist on Congress, explains that Congress’s characteristic “inconstancy, incoherence, and particularism” (108) are a virtue in the sense of being more-or-less inevitable features of its vital function: providing responsiveness and accountability in a balancing act with an executive power that is tidier and more Weberian-rational but is also potentially more dangerous to democracy.

Mayhew, tackles a pivotal question: how well does Congress actually perform this function? His answer is that it does rather well -- at least when compared with earlier periods of American history and with its international counterparts in both parliamentary and presidential systems. He acknowledges that his evaluative criteria are loose and others may disagree with his assessments, but in an area this complex, multi-factored, and normatively contested, more rigorous causal analysis is probably impossible.

At the outset, he lists the usual questions about Congress which he will not address – such as whether it is representative, fair, or efficient enough. (He says he also will not discuss its public popularity, but that 80 years of opinion surveys show a low average score, much volatility, and lower ratings in recent years, especially among elites). Instead, he will analyze “the effects of passing or not passing laws [which] are longer-lasting and more deeply-embedded than would be signaled by, say, the term impact.” (4-5, emphases original). Specifically, he focuses on 13 developments: launching the new nation; continental expansion; mid-19th century consolidation; building an industrial economy; taming corporations and the rich; the rise to world power; responding to the Depression; building a welfare state; post-World War II prosperity; the civil rights revolution; “neoliberalizing” the economy; addressing climate change; and controlling debt and deficit.

Discharging this magisterial task in so few pages requires an unusual methodology. It is worth quoting:

In each of a variety of realms, I ask first of all how the imprint of the U.S. government system as a whole has stacked up against those of peer countries; then, having done that, I wrestle with partialing out the possibly distinct imprints of the presidency and Congress. Nightmarish problems of tractability attend this enterprise, but the questions are fundamental. . . .I go large. I aim for patches of performance that have entailed large considerations of regime legitimacy, order, responsiveness, welfare, prosperity, fairness, state-building, or national survival or expansion in an often hostile international world. . . .For my inferences of responsibility [as between the White House and Congress], I look for a balance of initiative, attention, energy, and muscle. Who was apparently generating what? (10-15)

His analysis is based entirely on secondary sources, as he distills a rich scholarship of historical and international comparative analysis. His presentation -- remarkably breezy, informal, irreverent, even conversational – combines magisterial ambition with the insights of a renowned scholar delivering his valedictory about the institution to which he has devoted a life of scrupulous study.

The successful launch of “a new, ex-colonial, intentionally-crafted nation” (18) was -- both then and perhaps even more in retrospect – a most improbable venture. (“Absent Hamilton and his policies. . . one plausible counter-scenario would see the new nation as an agricultural backwater beset by debt, taxes, low growth centrifugal forces, Indian tribes, the Spanish and the British, and, if commercial development were to falter (as it likely would), mired even deeper in southern slavery than the country in fact came to be.” (20)) But the congressional role at the outset was equally important – as legitimizer of the system to the American people, partly through the Bill of Rights, channeling opposition to the Federalist dominance of the executive branch, approving the Washington administration’s extremely divisive Jay Treaty, creating a party system, and effectuating the peaceful turnover of power – the first in world history -- to the radical Jeffersonian opposition. In all this potentially ruinous peril, Mayhew notes, Congress was (George Washington aside) the legitimator, “the site of settlement.” (23)

Next, he explores Congress’s role in America’s continental expansion, noting that European states were also engaged in territorial expansion in other parts of the world during this same period. The executive branch led the way in acquiring the vast continent, “but Congress led in distributing it.” (27) Indeed, even before the Constitution was ratified, the Continental Congress laid out the terms of expansion in what Mayhew calls “synoptic planning at a maximum – a long-odds outcome for a committee.” (28) Then, in hundreds of congressional laws from the 1790s into the 1860s, Congress created systems of allocation and management, especially on behalf of war veterans, which accelerated the movement of land into economically-vital production.

As the continental expansion became intimately and tragically linked to the slavery issue, Congress managed to keep the Union together for decades through a series of remarkably improvisational compromises. Its instinct, Mayhew points out, was always “to make another deal” that could “preserve or update the legitimacy of the system among white voters across the regions. Both Massachusetts and South Carolina need to be appeased.” (32) Lincoln, he notes, won a four-party election in 1860 only because of the Electoral College – a kind of “virtual representation” of the black slaves that Congress had provided in another form through the anti-slavery speeches and maneuvers there by John Quincy Adams, David Wilmot, Charles Sumner, and others – a role that Congress continued to play, with declining success, during Reconstruction.

During the Civil War, Mayhew shows, Congress led in spurring economic development in many ways. He quotes David Herbert Donald for the proposition that “less than any other major American President did Lincoln control or even influence the Congress. . . .The President had remarkably little connection with the legislation passed during the Civil War.” The tariffs, the homesteads, the railroad, the college funding and other development legislation “had little connection with Lincoln aside from his formal approval of them.” (38) Congress also led in financing the Civil War, adopting greenback currency, enacting a temporary income tax, and establishing a new internal revenue bureaucracy. In the decades that followed, the executive branch (and the federal courts) played important roles in economic development, while Congress “pursued distributive politics – that is, the conferring of sectoral or individual benefits . . .and leaned toward inflation that favored farmers and the silver industry.” (39) It also maintained high protective tariffs. (39)

Mayhew’s analysis of the populist and progressive responses to Gilded Age and World War I industrial concentration makes an intriguing institutional point often lost in our traditional reverence for activist presidents. “This regulate-and-tax regime was dominantly congressional. . . . It holds not just for the less activist presidents; it holds more than one might think for the Progressive-style ones” like the two Roosevelts and Woodrow Wilson. (43) This holds true, he finds, for the early regulatory agencies, the Sherman Antitrust Act of 1890, later railroad regulation, food and drug laws, the Federal Reserve Act, the federal income tax, the Davis-Bacon Act, the labor laws that culminated in the Wagner Act of 1935 (“FDR, for his part, chimed in and championed the Wagner Act, but he was not an easy sell on it.”) (45).

In a brief discussion of foreign policy and the rise of U.S. hegemony, Mayhew emphasizes a very different congressional role. While the Constitution sanctions presidential initiative and leadership in the realms of diplomacy and national security, Congress has always played an important checking function as a force for insularity, typically skeptical of presidential efforts to expand commitments beyond our national borders. “In general,” he writes, “Congress, when it has differed with the presidency on foreign policy, has leaned toward inaction.” (48) In the 19th century, for example, it blocked many presidential schemes to annex or extend American rule over the Philippines, Nicaragua, Haiti, the Dominican Republic, and other potential colonies. Indeed, we were the only leading power to resist traditional forms of colonization beyond our continental reaches. This congressional resistance has continued to the present day, with Congress rejecting the League of Nations and membership in the World Court in 1935, and mobilizing opposition to the Vietnam and Iraq wars and to more robust intervention in Syria.

Mayhew’s take on policymaking during the Great Depression and World War II period reflects some of the recent revisionist historiography about the period. FDR garners much credit for promoting economic recovery, especially the decision to go off the gold standard and reflate the currency. But much of the New Deal legislation initiated and promoted by the first Roosevelt administration, he finds, probably retarded the recovery; its fiscal policy, according to Christina Romer, “contributed almost nothing to the recovery before 1942.” (58) Indeed, Mayhew synthesizes cross-national studies to show that “looking across a range of countries in the 1930s, austerity seems to have worked at least as well as a Keynesian countercyclical thrust.” (58) Congress, he argues, was entirely responsible for veterans’ bonuses (“a very big deal in the 1930s”), which were enacted over Hoover and FDR vetoes and, in contrast with FDR’s public works and relief projects, played an important role in the 1936 recovery. (59)

His discussion of welfare programs, both those enacted during the New Deal and those legislated in the Great Society period and thereafter, notes that our welfare state is distinctive in important ways compared with those of other advanced democracies. Although many others have made this point, typically criticizing the U.S. as a “welfare laggard,” his vast institutional expertise leads to some less familiar explanations rooted in Congress’s institutional character: its hostility to elitism and bureaucracy and to programs that constrain its powers over appropriations and interventions on behalf of constituents. And drawing on Monica Prasad’s work, he argues that our emphasis on a Progressive Era income tax system that is “vulnerable to opposition and erosion over time and is politically hard, except in the circumstance of wars, to expand” has produced less revenue for redistribution than the more regressive, lower visibility taxes favored in Europe: “On exhibit here is a pathway dependent irony. American social reform earlier possibly dampened social reform later.” (62)

Turning to the postwar period, he lists domestic policy enactments (71) which reflected Congress’s “surprisingly active lawmaking of a particular content and coalitional style [that] has not drawn a great deal of notice as such.”(74) In contrast, Congress’s contribution to civil rights advances “lagged behind [the courts and the presidency] in a familiar historical pattern” due to conservative southern domination in the House and the filibuster in the Senate. However, Congress led the way in enacting market-friendly (“neoliberal”) deregulation in many areas of the economy during the 1970s and 1980s. This was also true of environmental regulation, which vastly expanded in the 1960s and 1970s under presidents of both parties due to congressional policy leadership. But since the 1990s, as environmental regulatory initiatives have moved to the international stage, “Congress has been more passive or hostile. Probably one reason is that environmental reform has shifted toward being a quest for international commitments – ordinarily a hard sell on Capitol Hill.” (87)

Mayhew assesses U.S. performance in handling deficits and public debt, finding that we are about average in terms of public debt as a share of GDP, and that divided party control, which has prevailed more than 60% of the time since World War II, has not made much of a difference in this area, despite “the ugly optics of the enactment processes.” (90) The evidence that Congress is more fiscally irresponsible than the White House, he concludes, “is not clear cut.” (94)

In a concluding chapter, Mayhew rejects any firm conclusion about which branch has had a greater effect (“imprint”) on important policies: presidents sometimes take the initiative but Congress is often decisive. Instead, what most impresses him is “the system’s flexibility, its variety, its capacity to surprise—sometimes to turn on a dime. Who would have predicted Congress’s passion for progressive taxation a century ago or its lunge into environmental regulation in the 1970s?” (99) Earlier, he calls attention to the swift and large (compared with other countries) counter-cyclical spending legislation enacted in 2009. He emphasizes Congress’s greatest achievement is the enduring, hard-won popular legitimacy of the regime. Congress’s ability to represent and weigh voter preferences, persuade opponents, logroll, and transform these ingredients into policies is vital, “unlovely as they may loom in day-to-day performance.” (100) He reminds us that we are a far more diverse and inclusive polity now (“The vaunted nineteenth-century United States comes to look pretty nonparticipatory” (112)), and that today’s polarization is nothing compared with the discord that led to the Civil War and the crisis that led to the Compromise of 1877. Nor is it obviously greater than national divisions in the McCarthy or Vietnam eras. As for congressional inaction, which “partisans, intellectuals, and the media” constantly denounce, it often is a response “to an unresolved electorate with a perfect ear. Don’t! the public is in effect collectively saying.” (107)

This claim, like Mayhew’s stubborn optimism about today’s messier system, will strike many as Pollyannaish. To this reader, it is a bracing, much-needed antidote to the despair that has descended over the chattering classes today in the time of Trump. Mayhew insists that we have been through much, much worse and have come out a stronger nation. I share his belief that this will happen again.

Posted on 24 July 2017

PETER H. SCHUCK is the Simeon E. Baldwin Professor Emeritus of Law at Yale University. His most recent books are One Nation Undecided: Thinking Clearly About Five Hard Issues That Divide Us (2017), and Why Government Fails So Often, and How It Can Do Better (2014), both with Princeton University Press.