Congress is broken — at least that’s what everyone seems to be saying these days. For decades the legislative branch of the American government has been less popular than either the president or the Supreme Court, even while members continue to be reelected at high rates (as illustrated in Figure 11.1 below). Citizens decry Congress as being filled with out-of-touch politicians who bicker endlessly instead of working together to pass the commonsense laws we need. Presidents and presidential candidates accuse Congress of playing politics and obstructing important legislation, sometimes threatening to use executive orders to go around it if it refuses to play ball. Even the members join in on the dogpile, often claiming that Washington is dysfunctional and that only they — and certainly not their electoral opponents — can fix it.
Beneath the dome of the U.S. Capitol, a marble statue of George Washington guards the corridor to the House of Representatives.
It is easy to look at Congress today and wonder why anyone ever thought it could properly function. Thomas Jefferson himself expressed some skepticism, admitting, “That one hundred and fifty lawyers should do business together ought not to be expected.” Yet the Founders who designed the legislative branch clearly expected it to “naturally predominate” (in the words of Federalist No. 51), influencing policy more than either the presidency or the judiciary would. Moreover, they clearly intended for it to play such a role, regarding it as a safer repository of power than either of the other two branches.
Figure 11.1: Congressional approval rating and reelection rates, 1974–2022 (Sources: Gallup, Open Secrets)
Many current traits and features of Congress were not anticipated by the Founders who originally formulated it, and would probably be regarded by them as negative developments. At the same time, much of what Americans dislike about Congress is also what the Founders expected and hoped would happen. Squaring Congress’s original purpose with its modern reputation requires an awareness of both how this institution was designed in 1787 and how it operates more than two centuries later.
Bicameralism
The Congress of the Constitution is an expansion of the Congress of the Articles of Confederation from one chamber to two: the House of Representatives, with 435 members (one per congressional district) and the Senate, with 100 members (two per state). The Great Compromise gave both large and small states something they wanted: proportionality in the House, equality in the Senate.
In crafting a bicameral (two-chamber) national legislature, the Founders had the British Parliament in mind, which also consists of two chambers (the House of Commons and the House of Lords). Many other world legislatures are bicameral, including Germany’s parliament (the Bundestag and Bundesrat), the National Diet of Japan (the House of Representatives and the House of Councillors), and the Federal Assembly of Russia (the State Duma and the Federation Council). Forty-nine of America’s 50 state legislatures are also bicameral, with Nebraska’s unicameral state senate being the only exception.
In most bicameral legislatures, almost all of the political power is concentrated in the so-called “lower” chamber, which is usually the larger of the two. In the United Kingdom, for example, the House of Commons is led by the Prime Minister and handles virtually all lawmaking duties, whereas the House of Lords debates policy and holds inquiries but does not play a direct role in the creation of laws. American bicameral legislatures are unusual in that their lower and upper chambers both have lawmaking authority. In Congress, both representatives and senators can introduce bills, and bills require the support of both chambers to become law. This extra step makes Congress less efficient than many comparable bicameral legislatures, whose upper chambers are often bypassed almost completely in the lawmaking process.
The U.S. House of Representatives and U.S. Senate differ in several notable ways besides the size of their membership. Representatives serve two-year terms and senators six-year terms, though neither are term-limited (except by their own mortality). It is the Senate, not the House, that votes to ratify treaties and to confirm presidential cabinet appointees, Supreme Court justices, and the heads of certain government agencies. The House has the power to impeach a president, but the Senate holds the trial and votes to convict or acquit the president once he has been impeached. In rare cases where no presidential candidate wins a majority in the Electoral College, the House (voting by state) chooses the president, and the Senate (voting individually) chooses the vice president.
The differences between the House and Senate reflect the Founders’ belief that the two chambers would play equal but distinct roles in the American government. The House, popularly elected every two years and with most of its members representing fewer constituents than senators do, was expected to be closer and therefore more beholden to average Americans. The Senate, with its six-year terms, was designed to remain more independent of public opinion. In fact, until the ratification of the Seventeenth Amendment in 1913, senators were elected indirectly by state legislatures rather than directly by voters. The idea was to strike the right democratic balance such that the people’s will would be accurately represented in the House while their passions would be held in check by the intervention of the more aloof Senate.
Congressional Leadership
The American two-party system extends to Congress, which is almost entirely elected by the plurality-rule process that mostly prevents minor-party candidates from winning. Of the 535 seats in the 118th Congress (which took office in January of 2023), only three are occupied by independents: Senator Angus King of Maine, Senator Bernie Sanders of Vermont, and Senator Kyrsten Sinema of Arizona (who was elected as a Democrat but left the party in 2022). All of the remaining members are either Democrats or Republicans.
The duopoly of the Democratic and Republican parties in American politics influences the leadership structure of Congress. The highest-ranking member of the House of Representatives is the Speaker of the House, elected by a vote of all members. The Speaker presides over the House while it is in session and is responsible for organizing its business. Technically, the Speaker can be anyone — even someone not in Congress — but the House has always elected one of its own members from the party which holds a majority of seats in the House at the time.
Electing the Speaker of the House is usually an uneventful affair. The majority party generally rallies around its highest-ranking current member as its candidate for Speaker, and the majority party members who cast protest votes for someone else tend to be too few to prevent the that candidate from winning.
The 2023 Speaker election was not so uneventful. With only a narrow majority in the House, the Republicans needed just about every vote they could get to cobble together a winning coalition for their leader, Kevin McCarthy. McCarthy ultimately won the speakership, but only after 15 rounds of voting and much negotiating with the handful of conservative Republicans blocking his ascent.
In addition to being the leader of the House, the Speaker is also the leader of his or her party within the House. On the other side of the aisle, the minority party is led by the House Minority Leader. There is also a House Majority Leader from the majority party who, ironically, does not lead his or her party in the House, instead serving as the party’s second in command in the chamber behind the Speaker. The Democrats and Republicans in the Senate are similarly led by a Senate Majority Leader and a Senate Minority Leader (in some order, depending on which party has a majority in the Senate), but the Senate does not elect a speaker.
California Republican Kevin McCarthy breathes a sigh of relief upon being elected Speaker of the House in 2023 after 15 votes, the most required to elect a speaker in over a century.
In the party-congressional pecking order, the member immediately below each of the four leaders is his or her party’s chief whip within the chamber. A whip’s job is to “whip” votes — to persuade members of his or her party to vote in unison. Whips become especially important when their chambers are closely divided on key votes. For example, if the Senate is about to vote on a major and controversial bill, and if the final vote is expected to be close, the Senate Majority Whip (with his or her deputy whips) will check in with majority party members to ensure they all plan to vote one way, whereas the Senate Minority Whip will deploy his or her deputy whips to convince minority party members to vote the opposite way.
Except for the Speaker of the House, none of these congressional leadership positions are specified in the Constitution. They, like the parties they serve, evolved naturally due to the rules of the institution. The major parties created these positions and maintain them today because they serve valuable organizational functions for the parties within Congress.
The Legislative Process
As a legislature, Congress’s primary duty is the making of laws. The American lawmaking process is long and complex, and not every law follows exactly the same series of steps. However, in general the legislative process proceeds as described in this section (and summarized in Figure 11.2 below).
Figure 11.2: How a bill becomes a law (simplified)
The process begins when a member of Congress introduces a bill in either the House or the Senate. This bill need not be written by the member who introduces it; often, bills are written by a representative’s or senator’s staff, by the president or other executive branch employees, or by an interest group, and then given to a member of Congress to introduce. Except for revenue bills (such as taxes, budgets, or tariffs), any bill can originate in either the House or the Senate.
Once a bill is introduced, it is referred to a committee and then a subcommittee for further review. Committees and subcommittees are small groups of members whose job it is to consider bills proposed on particular topics. A bill introduced in the House that would change immigration policy related to deportations might be referred to the House Judiciary Committee. The House Judiciary Committee, in turn, might refer the bill to the Subcommittee on Immigration and Citizenship. The subcommittee to which a bill is referred reviews the bill, makes amendments to it as desired, and votes on whether to send it back to the committee. Once the subcommittee approves the bill, the full committee has its chance to review and amend the bill before voting on whether to send it back to the full chamber for consideration.
When a bill is sent by the committee back to the chamber where it originated (after being approved by the Rules Committee, if that chamber is the House), all members of that chamber can debate the bill and propose further amendments to it. Eventually, the chamber votes on whether to pass the bill. After passage in one chamber (if not before), the bill must be introduced in the other chamber, where it follows a similar process of referral, amendment, debate, and voting.
The versions of a bill passed by the House and the Senate may differ from one another due to amendments made by the subcommittees, committees, or full chambers. If so, a conference committee consisting of members from both chambers is appointed to reconcile those differences and combine the two bills into one. The reconciled version of a bill hammered out by a conference committee is then returned to both the House and the Senate. For the reconciled bill to move forward, both chambers must pass it unamended (because an amended bill would have to be reconciled with the other chamber’s bill again).
Once both chambers pass identical versions of a bill, it is sent to the president, who can choose to either sign the bill or veto it. A signed bill becomes law. A vetoed bill is returned to Congress, where it can still become a law with a two-thirds vote of both chambers to override the president’s veto.
The many steps of the lawmaking process explain why Congress often seems slow or unable to pass laws: there are many ways a bill can fail to become a law. Most bills “die in committee” by failing to clear the committee or subcommittee stage. Other bills are voted down by the chamber in which they originate, or pass one chamber but not the other, or are so amended by one or both chambers as to make the two versions impossible to reconcile. Even a reconciled bill approved by both chambers can be blocked by a presidential veto if Congress lacks the two-thirds consent required to override it (which is usually the case). Given all of these potential points of failure, members must craft bills carefully so as to avoid displeasing any person or group of people with the power to scuttle them.
Despite the many pitfalls a bill can face on its way to passage, Congress does in fact pass many laws. Most of the bills that make it through the gauntlet, however, are relatively minor and uncontroversial: the renaming of a post office, the awarding of a Congressional Medal of Honor, the reauthorization of existing policies due to expire, and so on. Major bills — the ones most discussed by politicians and the public alike — have a much harder time, and a much lower success rate, of surmounting the many obstacles on the way to becoming a law.
Legislator Behavior
Representatives and senators are often referred to as legislators or lawmakers, in recognition of their primary role of making laws. It is true that much of what Congress does falls under the umbrella of legislative activity. However, members of Congress also regularly engage in activities less directly connected to the legislative process.
In keeping with their role of representing the people who elected them, members of Congress and their staffs often use their positions of authority to provide services to constituents on an individual basis. This casework generally involves members contacting bureaucratic agencies in the executive branch to resolve particular issues brought to their attention by their constituents. Many of the letters, phone calls, and emails representatives and senators receive from the people they represent are not demands for them to vote for or against bills but rather requests for help with personal matters — lost or delayed Social Security checks, stalled immigration paperwork or payments for government contracts, letters of recommendation to military academies, and the like. Each case may only really matter to a single person or family, but members nevertheless try to fulfill as many casework requests as possible to develop a good reputation as legislators who care about the folks back home in their state or district.
Congress also uses its power of oversight to check the executive branch. When a Cabinet department or agency fails to do its job due to incompetence or corruption, congressional committees issue subpoenas and hold hearings to determine the extent of the problem and how it can be remedied. Cabinet secretaries and agency heads embroiled in scandal often find themselves “hauled before a committee” to account for their actions or those of their subordinates. Congressional hearings are not formal trials where the accused is subject to legal punishment if found guilty, but they can embarrass the subpoenaed officials (and the presidents who oversee them) and may lead to firings or demotions.
How and how much individual members of Congress choose to make use of the activities available to them depends upon a complex interaction of competing motivations. Contrary to the stereotype of the out-of-touch politician, many members have strong desires to act as true public servants and to enact policies that are in the interests of their constituents and the country as a whole. However, they also have an interest in promoting the success of their party (both within the chamber and in American politics more generally), as doing so will help it win or maintain a congressional majority, earn coveted committee chair positions, and pursue policy goals. Furthermore, they have strong individual motivations — reelection, status within the chamber, fame outside of it, and sometimes ambitions for higher office or comfortable careers as highly paid lobbyists after their retirement from Congress.
The times when these public, partisan, and personal motivations conflict often provide the most galling examples of Congress’s “brokenness.” The House and Senate are often mired in gridlock, unable to pass even widely popular and clearly necessary legislation, because one or both parties are unwilling to put aside their other goals to legislate in a bipartisan manner. When Congress does come together to pass bills, they are often loaded with pork, discretionary spending on pet projects in specific states or congressional districts (a potato research grant in Idaho, a new tennis court in Connecticut, a teapot museum in North Carolina, and so on). These spending items often sound more like undeserved giveaways than wise uses of taxpayer dollars, but they allow members of Congress to brag about having brought federal funding back to their constituents the next time they run for reelection. Individual members will also sometimes buck their party’s position on controversial votes (to the chagrin of their party’s whips) to avoid taking a position that could cost them electoral support in their state or district.
The degree to which members of Congress seem to orient their behavior around the goal of reelection — skipping votes to campaign or raise funds, inserting “earmarks” into bills to bring pork to their constituencies, going against their party to avoid damaging their popularity back home — strikes many Americans as distasteful, selfish, or even unethical. But being reelection-focused does not necessarily prevent a member from being an honest or good legislator. Senators and representatives can only use their power for as long as they retain their seats, which makes reelection a prerequisite for most of their other goals. Moreover, the fact that members care so much about reelection can be a good thing if it motivates them to act in the best interests of the constituents they represent (and on whose votes their legislative careers depend). Reelection is not merely a mechanism for voters to retain good and effective politicians; it is also an incentive for those politicians to do a good and effective job legislating. In some ways, we should be pleased that members of Congress care enough about being reelected to behave in ways that enable them to keep their seats term after term.
Term limits for members of Congress are a perennially popular reform according to public opinion, and several states impose term limits on their state legislators. Supporters of term limits argue that forcing legislators to retire after a specified number of terms prevents them from becoming “career politicians” and allows for more electoral competition and fresh ideas. Opponents counter that term limits rob legislatures of experienced members and remove the incentive of reelection that promotes good behavior on the part of legislators.
The Antimajoritarian Congress
The basic structure of Congress, as befitting a democratic legislature, is majoritarian. Members are elected by pluralities or majorities of their constituents, and most committee and chamber decisions require either plurality or majority support to go forward. Some aspects of Congress, however, create opportunities for minorities to thwart majorities. Unsurprisingly, these same aspects are among Congress’s most controversial traits.
To begin with, the distribution of congressional seats to states is not precisely proportional to those states’ populations. Some disproportionality is inevitable with any legislature, but the equality of states in the Senate (each electing two senators) exacerbates this disproportionality. California (the most populous) has 67 times the population of Wyoming (the least populous state) but only 18 times as many members of Congress (54 versus 3). In other words, a Wyoming citizen has roughly four times as much representation in Congress as a California citizen does. In the same way that this disproportionality enables the Electoral College (as discussed in the previous chapter) to award the presidency to the popular vote loser, it allows for parties and policies supported by a minority of citizens to find majority support in Congress, even if each member of Congress votes the way a majority of his or her constituents would.
The disproportionate nature of congressional elections can be further manipulated by gerrymandering. A gerrymander is a district whose boundaries are drawn with the intent to influence election outcomes by including certain voters and excluding others. Most congressional districts in the United States are drawn by state legislatures, and a Democratic- or Republican-controlled state legislature can improve its party’s performance in congressional elections by cleverly crafting maps that maximize the efficiency of its votes relative to its opponent’s. Illinois Democrats used gerrymanders to their advantage when redrawing their congressional districts in 2021: under the squiggly new map (displayed on the right in Figure 11.3 below), Democratic candidates won 82% (14 out of 17) of Illinois’s U.S. House seats in the 2022 midterm elections, despite only earning 56% of the popular vote in the state.
gerrymander: A district drawn to influence election outcomes by including certain voters and excluding others.
Figure 11.3: Illinois congressional districts, 2013–2032 (Source: U.S. Census Bureau)
Because state boundaries are not periodically withdrawn the way congressional districts are to keep up with population adjustments, the Senate is immune to the gerrymandering that afflicts the House. But the Senate does have its own unique antimajoritarian quirk in the form of the filibuster. Under Senate rules, it usually takes a supermajority of 60 votes to invoke cloture — that is, to end debate on a topic and move to a vote. The minority party in the Senate can leverage this requirement to block actions supported by the majority, either by giving interminably long speeches (sometimes many hours long) or, more commonly, by simply refusing to vote for cloture. The majority party has some procedural tools at its disposal to get around filibusters, but these are used sparingly, generally only in extreme circumstances. Thus, for most Senate business, a simple majority of votes is not enough to proceed if the minority is sufficiently committed to obstruction.
Some antimajoritarian aspects of Congress are established in the Constitution, making them highly resistant to change. This is especially true of the disproportionate nature of the Senate, which is not only laid out in Article I but also buttressed by Article V’s insistence that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Others, such as gerrymanders and filibusters, are far more pliable: some states delegate the task of district-drawing to independent, nonpartisan commissions, and the Senate can choose to amend its rules to limit or abolish the filibuster. The fact that these aspects persist suggests that a sufficient number of those with the power to change them perceive some advantage in maintaining the status quo, even if it means curtailing majority rule.
The Broken Branch?
An old saying muses that, if con is the opposite of pro, then by the same logic Congress must be the opposite of progress. Such a cynical view may seem justified given how Congress works — or, perhaps more accurately, how Congress doesn’t work. Lacking both the quick, decisive action of the presidency and the impartial, detached aura of the Supreme Court, America’s national legislature can appear to be locked in a perpetual quarrel, one from which it only occasionally emerges to pass a major policy or two before descending back into dysfunction.
One might reasonably conclude from this that the American political machine is in need of repair. But Congress’s tendency toward inaction is in a way proof that it is working as designed. The Founders intended for the national government to be able to pass laws only with difficulty, and fashioning a bicameral legislature with many choke points to ensure that any laws which did make it through the convoluted legislative process would be worthy of enactment. A more streamlined policymaking system would make bad laws as well as good laws easier to pass; the Founders decided that the risk of the former outweighed the possibility of the latter.
This is not to say that Congress is perfect. The strength of today’s congressional parties, the increasing size of the federal budget, the democratization of the Senate through the Seventeenth Amendment’s introduction of popular senatorial elections, and the fact that the average representative today is expected to speak on behalf of over 700,000 constituents would all be regarded by the Founders as changes for the worse. Perhaps they would be right. Or perhaps they wouldn’t, and the features of Congress they favored — the slow, deliberate pace of lawmaking, the disproportionate nature of the Senate, and the ability of members to serve unlimited terms — should be done away with to modernize Congress.
Unfortunately, every congressional reform — both those enacted in the past and those that might be enacted in the future — involves trade-offs. Even a good or necessary reform will come with negative side effects. As with reforms of any kind, the trick to making Congress “work” (however we might define “working”) is knowing whether the cure is worse than the disease.
