Brian Gongol Show on WHO Radio - February 23, 2019

Brian Gongol

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Breaking news to watch

Segment 1: (11 min)

BUT FIRST: The opening essay

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Segment 2: (8 min)

Totally Unnecessary Debate of the Day

I'm partial to Peeps, jellybeans, and Cadbury Creme Eggs, but what say you? Candy hearts are a pretty close runner-up.

Segment 3: (14 min)

Local-Option Sales and Service Tax

Drew Klein, Americans for Prosperity Iowa

Segment 4: (5 min)

The moral of the story:

Segments 5-8: Interview with Philip Wallach

When branches collide

[Brian Gongol]: As you might have been hearing in the news, there is a power struggle going on between two different power centers up and down Pennsylvania Avenue in Washington, DC -- where, coincidentally, all of the governors in the country have gotten together for the meeting of the National Governors Association and they're all there doing their business. So there's a lot of people who have opinions on who should be deciding things and who should be in the driver's seat, and they're all in Washington right now.

In particular though, we're curious about this power struggle now developing and emerging between Congress and the White House among other things. We are told that the President, having rejected, essentially, the deal that was made in the budgetary talks that got us through not having another government shutdown, decided that he was going to issue an emergency declaration in order to spend money to build things on the southern border. Now we're hearing that Congress is going to push back and revoke his power to do an emergency declaration and that, I think I'm hearing, may happen Tuesday.

And that's not the only struggle that's out there -- [like] who gets to decide trade issues. It's actually supposed to be Congress's job, but they have farmed it out to the Presidency for a long time. Well, now there's talk that we might be reversing roles on that. Instead of just me pontificating on the subject (which I'm usually happy to do), I'd rather talk to somebody who's got some expertise -- and in particular, we're going to talk with Philip Wallach. He is with the R Street Institute and specifically with their project at, talking about, well, making Congress great again. Philip, thank you very much for joining us here on WHO Radio.

[Philip Wallach]: My pleasure. Thanks for having me Brian.

[Brian Gongol]: Well, I am curious: With so much going on and so much of an interesting power struggle taking place now between Congress and the White House, maybe you can set the stage. I have a whole bunch of papers here that you have written in the last couple of months and they've been published in a variety of journals, in different places, talking about a variety of things -- one of the most recent of which is headlined "No, Getting Rid of Congress is Not a Clever Idea". Can you kind of set the stage for what is this power struggle that's taking place right now.

[Philip Wallach]: Well, that was inspired by a column in the Washington Post by Catherine Rampell who looked at all the ways that Congress has farmed its power out to the executive branch and sort of threw her hands up and said, "Well, what the heck, what on Earth are these people good for anyway? Let's just get rid of the whole lot of them."

And, you know, I can understand her frustration. It is frustrating that we have our Constitutional system where ambition is supposed to counteract ambition, and it seems like in many ways Congress is not ambitious to exercise power on its own behalf. It's anxious to relieve itself of responsibilities that the Constitution charges it with and a shift those over to the Executive Branch for a variety of reasons. That being said, you know, it's frustrating -- but our whole Constitutional architecture really depends on Congress stepping up.

We can't give up on them. We would really have to shift to a whole different system of government, similar to what some of the European countries have when the government really doesn't include the Parliament -- and it just sort of does everything. That's not the system we have, and given the system we have, we really need to make Congress great again. That's what we are about at R Street where I work.

It's tough going because the members themselves are reluctant in many ways, but they are of two minds: On the one hand, they're kind of disgusted with what their institution has become and they all realize they need to be more assertive and have pride of place as the first branch of government.

On the other hand, they're all so worried about winning the next election and they've attached existential importance to their party getting control of Congress in the next election. That makes them willing to put aside the institutional thinking and instead just focus on the partisan thinking and often that means -- for Republicans lately, that just means trying to get along with the President's administration as much as possible. And, even when you think what they're doing isn't right, just shrugging your shoulders and thinking, "Well, the President has the veto; we can't really do much about it, [so] let's move on."

I think for Democrats it sometimes means -- rather than actually trying to figure out how to change things in the here and now -- highlighting things in maximally partisan terms for messaging purposes: The better to set up the next election, rather than actually thinking about how they can change things.

So that's the dilemma we're in. It's not so easy to figure a way out of but that's what I'm putting my shoulder against.

[Brian Gongol]: You may be Sisyphus, trying to push that rock up a hill, but it's a rock well worth pushing, I think at the moment.

[Philip Wallach]: We must imagine Sisyphus happy.

Should the President set the agenda?

[Brian Gongol]: So here's what I'm trying to kind of get clear in my head. So I'm a late Gen-Xer, so I came of age recognizing -- I mean, Ronald Reagan was President for what I remember of my childhood. I remember the fall of the Berlin Wall. So we had a very prominent, very authoritative Presidential figure, but then we went into a series of Presidents who had different angles on things. George HW Bush -- extremely competent, but not necessarily the most charming guy in the world -- in the White House, followed by Bill Clinton, who was incredibly charming (but maybe sometimes charming in all the wrong ways) and then we went back and forth. And it we've had a series of presidents that -- as now I look back on it with a little more perspective and a little more of an adult perspective on things, I kind of look at this and think, "Wow, we have really been stuck for as long as I've been alive basically in this idea that the President drives the agenda. The President is the person who says what our priorities will be", and, hence, the fight over the State of the Union Address.

It's all about the President laying out "his" agenda for the coming year, and the more I thought about it -- with some perspective -- I thought, well, wait a minute: Article I of the Constitution sets up Congress and the President is first mentioned in Article I in his relationship to Congress. The President isn't actually in the driver's seat, even though culturally that's kind of what we do. What is wrong with us? Why have we been doing this for so long?

[Philip Wallach]: Well, I think I think it goes back a lot a lot longer than your lifetime or mine. I think all the way back to Teddy Roosevelt you can see the nature of the Presidency changing and finding ways to become the dominant agenda-setter in national politics. And then, more and more, to become the dominant mover of the permanent government, which got bigger and bigger throughout the 20th Century, obviously.

So I think in many ways we have to remember that this is not a dynamic confined to the Trump era or even the 21st Century. This is this is something that seems like a deep trend in American politics, going back well over a century.

I think it's also easy to forget [that] our Congress, because of our Constitutional structure, actually remains a lot more relevant and important than most legislatures around the world, in spite of its best efforts to handicap itself. In a lot of European countries, for example, the parliament really just sort of looks like a device that you can that you can use to change horses, right? It can cast a vote of no confidence and get rid of your government that it has it has previously been supporting, and that's a very important function. But it doesn't really involve itself in the ongoing work of governing as our Congress does to some degree, even today.

We shouldn't overstate the case. There was a lot of work that went into that appropriations bill and, after all, we're only fighting about the last, you know, what, is it $6 billion of an essentially $1.4-some-trillion spending package. So our Congress is still calling a lot of the shots.

But I think if we just go back and look at the Obama Administration, we see a lot of the same kinds of things where, when the President gets frustrated with Congress. The reaction these days is not, "Okay, well, I guess I have to reframe things", or "I have to wait until the next election", or "I have to negotiate and give up some other things that I might like". Instead, the reaction is, "Well, all right, you guys aren't going to do it my way? I'm going to circumvent you by figuring out ways to repurpose various executive powers that are lying around and I'm going to figure out how to get done what I want to get done."

[Brian Gongol]: "I have a pen and a phone" and his insistence that he would just do things by -- this was President Obama -- saying he would just do things by executive order because that was a way around it. Well, that's effectively the precedent that he said that now has President Trump doing the very same kinds of things when he's got a Congress that's hostile to him.

[Philip Wallach]: It really is remarkable. They say that where you stand depends on where you sit in Washington, and obviously there's an awful lot of truth to that. But it's still a little bit flabbergasting just how quickly people's positions change based on which party is the one doing the circumventing of Congress.

You had so many Republicans talking about the awful damage to the Constitution that President Obama was doing with things like some of the changes he made to the Affordable Care Act that seemed like they really needed Congressional action, or the DACA immigration fix where he said "Well, we don't want to be deporting those people, so I'm going to have this massive policy making use of my prosecutorial discretion", and there was so much talk of how outrageous that was.

You still definitely see some conservatives today getting upset about what the Trump Administration is doing, but the politicians themselves are desperately trying to hold their partisan coalitions together and they've decided that that mostly means they should pipe down, even if in their heart of hearts they have some grave reservations about how our Constitutional system is developing.

Are the branches of government truly co-equal?

[Brian Gongol]: I'm told a lot that we have co-equal branches of government. What do you say: Are they really co-equal or is there something different about the way that the relationship should be between them?

[Philip Wallach]: Well, we definitely have different powers assigned to each branch. And what co-equal means to me is that those powers are sort of inalienable from each of those branches, that they are permanently assigned. The other branches have their ways of checking those branches, but they cannot absolutely take those powers away. But the first branch of government is Congress, and when you look at its litany of powers in Article I, it really is the most powerful in many ways.

[Brian Gongol]: I don't feel like Madison was just screwing around when he put that in Article I -- that's supposed to be the origin of all of the legitimacy of the federal government, right? It's got the legitimacy of the people's vote in the House. And then at the time it was legitimacy of the state votes in the Senate, and it still carries on that tradition to an extent, but that's what gives Washington any legitimacy at all. We send Congress there to make decisions for us. Absolutely.

I'm just curious as people say "co-equal". I think a lot of times it's because they're just trying to claim that the legislative branches at least as equal as the executive I would argue that actually the legislative branch is first among equals. Can you give us kind of a teaser? How do people get so far off with their perspective on this? Is it all Teddy Roosevelt's fault?

[Philip Wallach]: It's a lot easier to think about the President in our mass-media treatment of government. We can tell a lot of really good stories about Presidents and it's a lot harder to tell about the messy politics that happens in Congress. So I think that has a lot to do with it; committees, I guess, probably aren't quite as sexy as the Oval Office, even though that may be where all the really good stuff is being driven.

Is the House too small?

[Brian Gongol]: We're talking about -- well, to borrow a phrase, "making Congress great again". That's what we're essentially trying to do, because I think you and I agree on this, Philip: that Congress has been...I don't know, there's some cobwebs, right? We need to blow it off, dust it off a little bit, turn it into what it is supposed to be, or reminded of what it's supposed to be.

Maybe I'm a hopeless Madisonian romantic for thinking that we can have a Congress that drives the agenda for America on a consistent basis, but one of the things that I've thought and have wondered about is, "Would we be better off if we just took every Congressional district and split it in half?" That's my crazy idea -- I feel like it might just work in order to push more of the agenda toward making Congress more responsive to local communities. I realize it may be a crazy idea. What do you think?

[Philip Wallach]: I mean, I certainly think the logic seems compelling. We had districts with tens of thousands of residents in them originally, and for a long time when we added more population, we added more members of the House of Representatives. Then we capped the number at 435 just because they didn't want to fit anybody else in the room.

[Brian Gongol]: National legislation as managed by Washington, DC, fire codes, right?

[Philip Wallach]: That was a hundred years ago now, so we've had 435 representatives for a long time, even as our country has probably nearly tripled in that time in our population. So it does seem like legislators in the House feel like it's harder than ever to stay connected to their whole District.

On the other hand, I have some concerns that if you if you have a try to have a chamber with 870 people in it, it starts to lose its ability to deliberate at all. I have this image in my head from the prequel trilogy of "Star Wars" where they showed the Galactic Republic and they have this giant column with levitating platforms that come out that allow people to talk, but the image is like that -- there are so many representatives here that they can't possibly know anything about each other. And there's something about that that seems to push towards centralization of power in some ways, [and] I think we're already suffering from too much centralization of power.

I actually have this crazy idea that we should make a third chamber of government. Maybe we should select the members by lot. That's one of my ideas.

[Brian Gongol]: Just by chance? You just get the lucky draw: You've been drafted to Congress!

[Philip Wallach]: We could have a third chamber with, like, 10,000 people in it and not give them too much actual responsibility, but see what they manage to come up with. I do worry that making the House itself bigger would in many ways just make it more and more dependent on the leaders. That's what I see Congress suffering from right now.

What happened to "Regular Order"?

[Brian Gongol]: How does this relate to what we've been told is "regular order"? We heard that phrase used a lot, you know about a year ago, and then I don't know if we're hearing it still or not. What does it even mean when they say we want the House and the Senate to operate under regular order? Was that saying we want everything to go through the committee process?

[Philip Wallach]: It means that we should go through the committee process. Regular order is really about giving more people the chance to be heard and the chance to try to amend bills as they work their way through the process. The conventional wisdom in Congress today is "regular order is impossible". If you tried to do regular order, it would just be one giant mess, we won't be able to get anything done -- not even keeping the lights on -- and all these people will bring up their special pet hobby horses and we'll never get anywhere. I'm skeptical of that. I think the sense that everything would just go to chaos has a lot to do with how we how far we've come away from regular order.

It is true that if you open up amendment process, for example, you do kind of get a flood of pent-up interests coming out through that gate because nobody's had a chance to raise their personal concerns for so long. But I think if we got back to a more open regime, I think it would be it would be manageable.

What is special about a legislature in the end? I think we have to remember that the point of the legislature isn't just to punch out law after law. The actual deliberating process is absolutely crucial in itself for maintaining the legitimacy of our government.

[Brian Gongol]: We need them to argue and we need to hear the arguments for it to be something that's really a public debate.

[Philip Wallach]: The arguments have to have some stakes to them. It can't just be that they get up and throw some insults back and forth at each other and then the real action all happened as the Speaker's office works out what's actually going to go into a bill that everyone's going to have 24 hours to look at before they're told how to vote on it.

That's the regime we're in and it reduces your average backbencher in Congress to nothing more than a vote-caster. And it's kind of demoralizing for the members themselves. They sort of say "Well, it looks like I'm just some interchangeable cog in my party's machine", and it kind of takes away their incentive to be responsive legislators who bring their own communities' concerns to the fore and try to build coalitions around solving those problems.

Making a better Congress isn't a partisan thing

[Brian Gongol]: That's where this idea of trying reinvigorate the role of Congress isn't a partisan thing. It's not about whether you're a Democrat or a Republican or an independent. It's about the institution itself. And maybe if we have the institution driving in the right direction, maybe those partisan affiliations might matter a little bit less. There might be a little more cooperation, a little more bipartisan work, because you're doing things that reflect your community. And maybe somebody else's community looks like yours, even though they've got a different letter behind their name, right?

[Philip Wallach]: Exactly. Yeah, and I think there is some push now, I mean probably not the kind of thing that made national headlines that most people notice but there was a group called the Problem-Solvers Caucus who went into the election last November saying there's a bipartisan group of about 40 members I think -- and they all said, "It doesn't matter which party wins in the House, we are going to not vote for the next Speaker unless they give us some serious changes to the rules that allow bipartisan teams of members to essentially advance their good ideas together more".

And the Democratic members of that caucus followed through on that promise. They told Nancy Pelosi, "We are going to vote against you on the floor unless you make some concessions", and so they did make some changes in the rules at the beginning of this 116th Congress.

There's some new mechanisms by which large bipartisan groups of Representatives can move legislation now, so that's an encouraging sign. They also created something that we're excited about, called the Select Committee on the Modernization of Congress, which is a bipartisan House committee that basically just has the power to write a big report this year. But that's a chance again for the members to think about the institutional interest, think about how they can get their House well, apart from the partisan concerns of the moment.

Is Congress doing its assigned job?

[Brian Gongol]: So let's take a real nuts-and-bolts issue here -- like trade, for instance. It feels to me like the mandate was given, in the Constitution, to Congress. It's supposed to decide all these things, and over time, a lot of that's been farmed out to the Executive Branch. They've said "Well, we'll let the President or the Secretary of Commerce or the Secretary of State do all this stuff and decide things on our behalf when it comes to trade because it's too much work for us to figure out on our own."

How does that balance work out? Do you see a reassertion of Congress saying, "We decide the trade rules because we control the trade rules! It's in the Constitution that we control this stuff." Do you see that happening or what would instigate something like that to happen or is that just a hopeless cause?

[Philip Wallach]: Again, it's a long story here. That didn't just happen in the Trump Administration or the last few Administrations. It goes back a long ways. Congress, basically, became almost ashamed of its own conduct back when it used to set all of the tariffs itself in a sort of giant log-rolling process, and it kind of realized that that process was not producing a very sensible-looking trade schedule.

So, moving the authority to negotiate trade agreements and to set tariff rates into the Executive Branch was actually a movement to promote free trade. And pretty much throughout the 20th Century, we had presidents who looked more supportive of free trade than Congress. All of a sudden now, we've got a reversal of roles: President Trump made running against the sort of establishment consensus on trade one of the central planks of his campaign. It seems to be one of the policy issues he really has the strongest views about. He's been making similar statements going back all the way to the 1980s.

[Brian Gongol]: That's nothing new for him at all.

[Philip Wallach]: Right. So he's committed to reviving the tariff as a major force for American industrial policy. Congress has found itself a little on its heels as he's used all these powers that Congress gave to impose steel and aluminum tariffs on our allies [and] ramp up a trade war with China. These are really consequential actions that probably have real important impacts on the economy.

And so I think there are some encouraging signs that Congress is looking at the ways that President Trump has been proceeding and saying, "Hey, well, I guess this is more or less our fault. We put these statutes into place that he's using, and maybe we'd better try to change them and at least have the fight to make the public aware of the issue."

So you've got some Senators -- Senator Pat Toomey of Pennsylvania being probably the leader -- trying to work through bills. Right now, they're focused especially on this idea that the President can impose tariffs to protect the national security, which is the justification he used on the steel and aluminum tariffs. Basically the logic that his administration has used is "Anything that hurts our economy is a threat to our national security, and we think these imports hurt our economy, so we're going to slap some tariffs on them."

Remarkably, the statute actually kind of gives them the room to do that. It's just a remarkably broad delegation of power. So there are some bills working their way through committees right now, [like] the Senate Finance Committee, where they're really trying to say, "Hey, that's not what 'national security' ought to mean." National security ought to mean actual threats to the homeland in a very direct sense, not just "Our economy might get hurt" or "This is our theory of how the economy works".

Congress: Down, but not out yet

[Philip Wallach]: So, I think listeners should be aware, Congress is down but not out. There are a lot of members thinking about ways they can change the rules and make Congress more central to making these kinds of decisions.

[Brian Gongol]: What is a curriculum -- other than, say, rereading The Federalist Papers -- that a conscientious American ought to be looking at today to figure out how to keep these branches all in order?

[Philip Wallach]: We think we try to provide a steady diet of reading at our at our website,, and there's a newsletter that interested listeners can sign up for with a wrap-up of important stories about Congress every week.

I actually think it's a tough question because so much of our popular discourse about American politics is so Presidency-dominated these days. I just wrote a book review recently [for] a publication called "The American Interest" about a book thinking about American history as progress forged by brave Presidents. And I said, you know, that's not really the way it works!

[Brian Gongol]: That's exactly what we're doing completely wrong. Philip Wallach with the R Street Institute, again, with, please check that out and follow them on social media. They've got information for you there as well. Thank you so very much for your time, Philip. We appreciate you being here with us.

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