How to salvage Article I: the crumbling foundation of our republic.

• Author: Schoenbrod, David
• Position: The Federalist Society's Article I Initiative

I pledge allegiance to the flag of the United States of America and the republic for which it stands ... (1)

Article I is the first article of the Constitution because it was to be the foundation of our republic. "Republic" means the people's government rather than that of a king or an oligarchy. (2) To make the federal government a republic, Article I assigns the power to decide the overarching issues of policy to a legislature whose members are supposed to be accountable to the people. (3) The members of this legislature, Congress, would therefore bear personal responsibility to the people for the consequences of these pivotal decisions. This responsibility would tend to link the actions of the federal government to the interests of the people.

As I will argue, this linkage remained strong for over a century and a half--indeed grew stronger as the electorate came to include a larger portion of the population--until a half century ago when, members of Congress and Presidents of both parties began to evade Article I's foundational purpose. They devised and used new ways of drafting legislation that let them take the credit for promises of good news while avoiding the blame when government produces bad results. With five key tricks, elected officials now avoid accounting to us for many unpopular consequences.

Part I of my analysis argues that Article I's purpose of making politically accountable officials personally responsible for consequences is vital to the success and endurance of the republic. Part II shows how elected officials began to evade such personal responsibility a half century ago. Part III explains how this evasion of personal responsibility has led to bumptious promises, failed policies, and spiraling distrust of government as well as polarization, gridlock, and the increased influence of special interests. The ensuing distrust set the stage for outsider candidates such as Bernie Sanders and Donald Trump. Whatever the fate of the Trump presidency, the distrust is likely to build so long as the tricks continue. Part IV proposes a statute, the Honest Deal Act, which would change the ground rules of legislative politics to force elected officials to once again shoulder personal responsibility for consequences. We cannot stop the tricks by broadening the powers of the President, constitutional adjudication, or constitutional amendments. Part V argues that it is possible, surprising as it might seem, to get elected officials to enact a statute that forces them to shoulder responsibility.

1. ARTICLE I'S PURPOSE OF IMPOSING PERSONAL RESPONSIBILITY IS CRITICAL

   The people who met in Philadelphia in the summer of 1787 to draft a constitution for the United States were not all-knowing, but they did respond sensibly to the challenge of finding a way that a population with clashing interests could get along. They put at the heart of the country's new government a legislative process in which a House of Representatives and a Senate whose members would both represent different constituencies and made them personally responsible for the consequences of their legislative decisions by requiring them to publish the "Yeas and Nays" on controversial matters. (4)

   The Constitution assigned to this legislative process the most pivotal decisions, such as decisions to spend the people's money, take the people's money through taxes, or incur debt. (5) Those assignments put these legislators, including the President when acting under Article I, (6) in the middle of such conflicts as those between constituents who want more money from the government, constituents who do not want to pay more taxes to the government, and constituents who oppose debt because they fear that it will require cutting spending cuts or increasing taxes in the future.

   The legislators would thus be personally responsible for both the popular and unpopular consequences of their decisions. That, in turn would tend to generate open debate. If, for example, citizens of one city pressed their representatives to get Congress to spend money to improve their harbor, those representatives might run up against other representatives whose constituents would resent the cost and might garner support from still-other representatives whose constituents wanted to ship goods through the improved harbor. (7) Congress would thus collect information from far afield about the consequences of proposed legislative actions. So, however legislators resolved a controversial issue, the clash between them would tend to make evident to both representatives and constituents who would gain and who would lose from the proposed action and in what ways.

   Consider now the manifold advantages potential in a form of government in which politically accountable officials are responsible for both the popular and unpopular consequences of the pivotal decisions.

   1. A republican form of government

      The Declaration of Independence held that governments derive "their just Powers from the Consent of the Governed." (8) The personal responsibility of accountable officials for both popular and unpopular consequences rested the federal government upon the consent of the governed.

   2. Careful attention to the public interest

      The Framers were famously concerned about "factions," by which they meant special interests that, unless checked, would hijack government for selfish purposes. (9) Personal responsibility for both popular and unpopular consequences would mean that, the Framers hoped, faction would check faction. (10)

      This hope was borne out to a substantial extent. The open debate between clashing interests, together with the personal responsibility of legislators for both benefits to one group of voters and burdens on another group of voters would give them strong incentives to take into account the interests of both groups. This was the case, for example, during the early 1800s when domestic manufacturers of cloth wanted Congress to set high tariffs on imported cloth to protect them from foreign competition. (11) Others opposed higher tariffs because they would increase the price of cloth, and they told their representatives so. These representatives, as Daniel Webster observed at the time, were "afraid of their constituents." (12) Congress ultimately produced legislation that balanced the interests of both manufacturers and purchasers. (13)

   3. An informed electorate

      The drama of open debates would also educate citizens about the choices facing the government, even those who did not take to schooling in classrooms. The people desired this education. Once the states ratified the Constitution, voters insisted on transparency in the political process. For example, when the Senate violated the Constitution by keeping its proceedings secret, public pressure forced it to relent. As historian and professor Robert Wiebe stated, "The anger at secrecy, the demand for openness, was a functional response to situations that made democracy impossible." (14) In the decades after the Constitution was ratified, Congresses actually voted upon the great issues of their era, deciding the law itself on hot-button issues such as tariffs. (15) Legislators took positions on the hard choices; constituents understood. (16) The Constitution had made the government a drama.

      Desire to read about the drama contributed to an upsurge in literacy. From 1800 to 1840, literacy rates among white adults increased from 75 percent to around 95 percent in the North and from 50 percent to 80 percent in the South. (17) With a largely literate public, the United States had more newspapers in 1822 than any other country despite its smaller population. (18) According to historian and professor Daniel Walker Howe, "Foreign visitors marveled at the extent of public awareness even in remote and provincial areas." (19)

   4. A virtuous circle

      The open debate informing the public of who would gain and who would lose from a legislative proposal would tend to bring some moderation of demands on government. Given human nature, however, there would still be disagreements, but, because Congress would resolve the disagreements in the open with consequences in public view, legislators would usually be required to balance conflicting interests and voters could generally accept the system as fair. Win some; lose some. The Economist approvingly summarized the viewpoint of Nobel Prize-winning political economist James M. Buchanan as follows: "A democratic system can maintain legitimacy despite rancorous politics if broad agreement exists on the fairness of the underlying rules [of decision]." (20)

      The circle of repeated demand, feedback, moderation, balancing, decision, and acceptance induced by the responsibility of representatives would tend to foster virtue. This virtuous circle could, in the best of times, put the goodness in peoples' hearts into the heart of government. There were, of course, the worst of times, such as the Civil War. Yet, despite clashing interests, the nation not only held together, but its Congress could legislate on such sharply contested issues as tariffs in the early 1800s and civil rights in the early 1960s. (21)

2. HOW LEGISLATORS CAME TO EVADE PERSONAL RESPONSIBILITY

   Ironically, the skirting of Article I's purpose came from the success it helped to produce. In the mid-1960s, the federal government seemed capable of working wonders. It had gotten the country through the Great Depression, won World War II, invented the atomic bomb, built the interstate highway system, came to preside over the world's richest economy, and enacted meaningful civil rights legislation. Such successes understandably led voters to want Washington to deal with additional problems such as pollution and haphazard health care for the poor and elderly. Yet voters, of course, preferred not to feel the burdens required to satisfy their wants. That is human nature. Besides, as I can attest from witnessing the inception of the "Great Society," many...