What was the founders’ vision for Congress?

0:04Congress is really the central institution. I think it's very important to understand that two things, the framers assumed that the Congress was the core institution. But second, they didn't think that was entirely good news. There's a lot of worry and the writings of the framers and the Federalist Papers in their various letters, in the notes of the convention itself about the dangers of an excessively powerful legislature.

0:30That's a problem that strikes us now is a little weird because we tend to think the president is too powerful. Some people think the courts are too powerful. I think very few people now think Congress is too powerful. But the assumption of the framers, and you find this over and over in the Federalist. Is that what it means to live in a republic is ultimately to live under a government that is dominated by legislature, and that this creates the danger of majority tyranny. A constant worry for the framers, especially for James Madison. The Constitution does empower the congress, but it also divides its power and counterbalances it. The assumption was that Congress would be an arena for negotiation, an arena for contention. That it would really be the place where

1:15differences in society are worked out and represented. I think there are a few things to say about what that means for national unity. The American system is not a direct democracy, it is a representative democracy. That's how Madison understood the meaning of the term Republic, which was so important to the framers. Representation is not just necessary because our society is so large and not everybody can sit in the assembly.

1:38The representation is also a way of refining public views so that they become actually capable of moving government action. Representation is a way of elevating and refining the views of factions and a forcing them to negotiate with and contend with one another. That's the magic of republican government and it happens only in Congress. If we say negotiation is a core element of how we deal with differences, negotiation is not a characteristic of the executive branch as the framers understood it. The executive branch is unitary.

2:12Its purpose is action. Negotiation is not really a function of the courts either. The courts are fundamentally about interpreting the meaning of the law. They do resolve disputes, of course, but they resolve disputes about what the law means, not what the law should be. It's only in Congress that there is a process of negotiation that happens. I would say a regime that is an American republic that is dominated by Congress, is an American republic in which negotiation is how we solve problems. That when Congress is weak, as it is today, we've become very bad at negotiating through our problems. We tend to think about winners and losers in a different way than I think our constitution means is to think. Congress is central whether it likes it or not. When it's working well, our system is working well.

3:04When it's dysfunctional, our system is dysfunctional. Today, I would say a lot of the problems that we worry about the system attribute to an excessively powerful president or courts, or the growth of the administrative state. I think just about all of those ones, are actually the result of the dysfunction of the Congress. Congress not doing its job distorts the role of the courts, distorts the role of the president, and creates all other problems in the system and the core problem to solve. Really in a sense, the argument that I would want to make about how to help our system advance unity. The core problem is Congress and the renewal of congressional capacity and Congressional functionality is the chief problem we've got to fix. I think everybody agrees now that Congress has broken.

3:53That's an easy one. But what is Congress failing to do is actually a question that divides a lot of reformers, let alone a lot of citizens. Some people think Congress is just failing to pass legislation. It's failing to pass the stuff I want and that's very frustrating. But I think that the answer that the Constitution would give us is that Congress is failing to facilitate cross partisan bargaining.

4:15That actually pushes in almost the opposite direction from where saying Congress is failing to legislate would push us. If it's just failing to pass this stuff I like, then we need to get rid of the filibuster. We need to make it easier for the majority to do what it needs to do. We need to make Congress more like a European Parliament, but just empowers the majority for as long as it holds power. But if we think, as the constitution suggests, that the purpose of Congress is to facilitate bargaining across lines of difference, then I would say we actually need more mechanisms like the filibuster. We actually need more ways to make cross partisan bargaining necessary, rather than ways of making it less necessary so that more partisan legislation could get passed. There are certainly across partisan coalition of reformers of Congress. I'm in that coalition, but I think among us we disagree about what problem we're actually trying to solve,

5:07and therefore how Congress needs to change. That's had a lot to do with why it's been hard to get change to happen.