Congress today is a weak, dysfunctional mess. For political scientists, this institutional weakness raises interesting questions. For professional Republicans and Democrats, it has created a still-unsettled matrix of partisan opportunities and challenges. But, for the American people, the weakness of their federal legislature—especially at this moment in history—poses a grave threat to the United States’ political health.

If the Constitution can be thought of as the anchor of the American republic—assigning the federal government’s branches specific, limited tasks—Congress can be thought of as the cable connecting the anchor to the ship. Congress has the power—and therefore, to my mind, the duty —to tether American government to its founding charter.

Congress’s exclusive constitutional authority to make law, levy taxes, and borrow and spend money on behalf of the people is more than enough pure institutional muscle for the institution to keep the executive and judicial branches, and the states, in their respective lanes. And Congress’s formal sources of moral and constitutional legitimacy—its transparent policymaking process, regular electoral accountability, and broad representative diversity mirroring the nation at large—remain intact.

Every two years, a new House of Representatives provides a decent approximation of national opinion, and a new Senate balances the fresh thinking of new members and the institutional memory of the “world’s greatest deliberative body.”

The pieces of a strong federal legislature—capable of forging compromise based on national consensus, reinforcing the separation of powers, and protecting minority points of view—are all there. And yet, Congress routinely fails in all of these tasks. The House and Senate are becoming constitutional after-thoughts.

Federal law is still being made. It’s just being made with less and less input from the American people’s elected representatives, which is to say, with less and less input from the American people themselves. This state of affairs, again, is more than grist for political science and historical research. It represents something like the moral de-legitimization of American constitutionalism, and imperils the uniquely stable and healthy republic it has supported since 1789.

That’s the bad news.

The good news, if it can be called that, is that the real source of congressional dysfunction and weakness is within Congress itself, not borne by social or historical forces beyond our control. No, Congress is weak today because most members of the House and Senate prefer the status quo—however ignominious—to any politically and constitutionally viable alternative arrangement. Though embarrassing, at least it means reform is relatively easy to imagine and implement.

This is not to say reform would be easy to accomplish. Powerful entrenched interests—not least, the majority of at least one party’s congressional delegation, and probably of both—stand ready to defend the perks of the status quo. And if history is any guide, those interests have reason to be confident.

But so do reformers, I think. For in recent years, congressional dysfunction has reached such depths—and earned such sustained and overwhelming public contempt—that the status quo is unsustainable. When something has to change, it will. And in the case of congressional weakness and dysfunction, the reason it’s going to change is that the rising generation of lawmakers, who want no part of their bodies’ toxic reputations, will look for ways to change it. And as they look, they will quickly see that what’s going on in Congress is really the same dysfunction that most of America’s largest private social and economic institutions have also recently faced, and largely resolved.

Take away the trappings of power and importance, and Congress is just the latest legacy, incumbent institution dealing with the rigors of information-age public expectations concerning transparency, accountability, and service. The main difference between Congress and, say, Tower Records is that the latter couldn’t raise taxes or print money to make up for customer dissatisfaction. Congress can, but not forever, and not without eventually alienating altogether the support of the American people, who are still actually in charge.

Over time, I believe these changing public expectations in our increasingly de-centralizing society and economy will change incentives inside Congress—as they already have begun to change—such that each new class of Representatives and Senators will inch closer and closer toward a new, more accountable and “open source” model of congressional leadership and federal lawmaking. And an active Congress is by definition a stronger Congress, which will lead inexorably to a healthier politics.

To begin, it must be understood that congressional weakness is ultimately a function of congressional dysfunction. They go together like a lock and a key or soil and seed. Under the Constitution, Congress has enormous power over both federal policy and its co-equal branches. But as a practical matter, that power depends on the moral and political legitimacy that comes from the deliberative process by which it makes decisions—public debate, amendment, compromise, and accountability—that are supposed to define Congress’s work.

When Congress employs that process —the old, “How-a-Bill-Becomes-a-Law” process—the resulting legislation carries with it an intrinsic moral legitimacy. In an ideal scenario, the entire country has a fair say in the process, minority rights are protected, and the majority prevails, with voters empowered to make a judgment about it all in the next election. Claims are adjudicated, and lines of responsibility are clear.

In the context of congressional weakness and strength, the traditional legislative process might be thought of as exercising the muscles endowed to Congress in Article 1 of the Constitution.

The routine exercise of those powers would so strengthen the legislative branch relative to the other branches that it would establish effective congressional supremacy for as long as Representatives and Senators—and, most importantly, their constituents—wished.

But like physical exercise for an individual, Congress’s legislative “workouts,” while rewarding, can be painful and inconvenient. It’s a question of misaligned incentives. The vigorous exercise of Congress’s legislative process absolutely strengthens the institution. But on any given bill, such a process might seriously inconvenience —even injure—individual members.

The open, inclusive, deliberative legislative process mostly boils down to debating and adjudicating proposed amendments—taking votes. This seems straightforward. Public position-taking is the instrument of accountability that gives Congress the public credibility to wield its vast legislative powers.

The problem is that from subcommittee to full committee to the floor, many amendments are not really intended to improve the underlying legislation at all. Rather, they are written to put certain members—usually those in the opposite party—on the wrong side of public opinion. To take two general examples, amendments raising the federal minimum wage might put swing-state Republican incumbents in a bind, while votes affirming Second Amendment rights could create trouble for their Democratic counterparts. Faced with such amendments, members are usually forced to choose between their party’s goals and their constituents’ opinions, potentially with the passage of the bill hanging in the balance.

Members always resent this nakedly political exercise. But it’s simply the price a majority pays to pass its agenda with the moral authority that comes with an open, fair constitutional process. In recent years, majorities of both parties have grown less and less tolerant of paying that price.

Changing political dynamics—specifically, real-time accountability via the Internet and aggressive political action groups who can leverage “tough votes” into viable electoral challenges—have turned the old-fashioned amendment process into a political minefield for members running for re-election. Most Representatives and Senators have decided that traditional legislating is now hazardous to their electoral health.

And so, they—we—don’t legislate. It’s not principally because of partisanship, or obstructionism, or incompetence. The fundamental reason is that members don’t want to take tough votes. So they cleverly and deliberately rig the legislative process to pass bills in ways—late at night, up against pre-fabricated crisis deadlines, after secret negotiations and employing parliamentary tactics to block amendments, rather than transparent votes—to protect themselves from the vulnerabilities that come with transparency.

The resulting inactivity inevitably leads to the atrophying of Congress’s constitutional “muscles.” On Capitol Hill, it inevitably leads to partisan sniping about who is responsible for the gridlock and obstruction, and grumbling from congressional leaders against the grassroots ideologues who hold their feet so close to the fire.

Out in the country, of course, the American people grow impatient, and ultimately hostile, toward their do-nothing Congress.

But elsewhere in Washington, all of Congress’s self-inflicted dysfunction—and its consequent weakening of the institution—creates a power vacuum for the other branches to fill. It also encourages special interests to turn their advocacy efforts toward the White House, the regulatory bureaucracy, and the courts.

So congressional weakness mostly represents Congress’s surrender of its Article 1 legislative powers rather than in the other branches’ usurpation of them. We have the power to make law. We also have unrivaled powers to check the other branches—the power of the purse, to confirm nominations, and impeach are orders of magnitude stronger than the powers of veto or judicial review.

Congress is weak because Congress chooses to be weak, because members of Congress think it politically advantages themselves for the institution to be weak.

This is a huge problem for 2016 America, for two main reasons.

The first pertains to the ideological sorting of two parties that has taken place in recent decades. In a political system in which elected liberal Republicans and conservative Democrats are rare, legislating becomes all the more difficult. For in such an environment—without natural inter-party but intra-ideological partnerships—even seemingly innocuous, prudential policy changes can take on the character of zero-sum ideological conflict.

In the Senate in particular, this makes legislating difficult, because a minority of just 41 members can usually prevent the majority from even considering, let alone passing, its preferred bills. The ideological sorting has also lowered the intra-party cost of those aforementioned “tough vote” amendments. When almost all progressives are Democrats and all conservatives are Republicans, ideologically pungent amendments have a partisan character, thus making them all the more attractive to party leaders. (And indeed, the rise of Tea Party legislators in recent years, whose amendment strategies often inconvenience both Democrats and Republicans, has made the traditional open amendment process unacceptable regardless of who holds the majority!)

But just because transparency and compromise have grown harder in recent years does not mean they have become less important. Which brings me to the second reason congressional dysfunction and weakness are so toxic.

The United States is changing. We are a more diverse nation than we were a few decades ago—though I think Charles Murray (Reference Murray2015) argues compellingly that this diversity is more a return to past norms than a brand new experience. We are more ethnically diverse, which is what people usually mean when they use the word. But we are also becoming more culturally diverse—in the sense that the differences between city life and country life, between church-going Americans and non-religious Americans, between the affluent and struggling, between traditionalists and the cultural avant-garde are widening in ways Americans could not have imagined in the decades when our current federal structures were first put in place.

I believe America’s political health—let alone any hope for a restoration of public trust in public institutions—depends on policymaking decisions reflecting that new and unfamiliar diversity. And I believe the public’s growing dissatisfaction with government, with both parties, and especially with Congress, is attributable to the failure of our public officials and institutions to adapt to that fact.

Thus, we have a toxic cycle in Congress today. Polarization and scrutiny have made transparent legislating painful for politicians, who in turn hand off policymaking to the executive branch and the courts—who are by their nature not inclined toward political compromise, consensus, and minority rights. Presidential executive orders, agency regulations, and Supreme Court rulings are by design one-sided, winner-take-all, one-size-fits-all, much more so than the transparent give-and-take of traditional congressional lawmaking.

And that’s not all!

For not only is the United States becoming a more diverse society; it is also an increasingly de-centralized society and economy. The information revolution has changed the way Americans do almost everything, and in almost every instance, the change has trended in one direction—toward more personal autonomy, more personalized provision of goods and services. Whether you’re talking about eBay or Amazon, smart phones or social media, or the sharing economy, Americans don’t really do one-size-fits-all anymore.

And yet, at this moment when American life is becoming more diverse and more personalized, Congress has handed national government over to the most unaccountable and inflexible branches of government!

For almost two decades now, market competition has forced businesses and non-profits to embrace this new way of doing things—online, open source, personalized, peer-to-peer, customized. The country is trying to force government to embrace it too—that’s ultimately what is behind the populist uprisings on the Tea Party Right, the Occupy Left, and the Trump-ist center. Congress has the power to reform federal laws to be more flexible, more reflective of our diversifying country, more amenable to communities and regions with differing values.

Here I don’t mean moral values, but values values. People in New York expect different things from government and businesses and schools and neighbors than people in southern Utah or the Honolulu suburbs. There is of course a federalism/subsidiarity argument that these differences argue for more policies to made at the local and state level and fewer at the federal level. As a conservative, of course, I am sympathetic to that argument.

But whether one accepts that argument or not, it seems to me that America’s intensifying diversification and decentralization certainly argue for policymaking to be done today by legislatures, and not governors, presidents, bureaucrats, and judges. Legislatures, unlike the executive and judicial branches are specifically designed to forge compromise, protect minority interests, and—just as importantly—walk away from the process and not set policy when consensus cannot be found.

And yet, in our deeply divided politics now, Congress’ failure—or refusal—to act on a particular policy is now used as a reason for the executive or the courts to do so, just without the innate constitutional and moral legitimacy of a transparent legislative process. With winner-take-all ideological policymaking-in-secret now the preferred course of federal action among the political class, at least, it’s no wonder the country feels disenfranchised, cut out of the process. They’re right!

There are ways to fix this—policy reforms large and small that would not by themselves move the ideological needle in Washington, for instance:

• • a reformed budget process that eliminated hard “cliff” deadlines that are used as excuses to avoid inconvenient amendments;

• • a reformed regulatory process that forced more congressional oversight of executive rule-making, either by way of a formal congressional regulatory budget or congressional approval of major new rules;

• • more specific statute-writing to curtail Congress’s habit of writing vague laws that simply empower the executive branch to make the real decisions.

But at the end of the day, the real change can’t come to federal law until it comes to federal lawmakers. Congress has to re-assert its Article 1 powers—and get back in the habit of doing its job.

Open House and Senate procedures which allow all members a fair opportunity to have their amendments adjudicated may not be convenient for vulnerable incumbents, but our constitutional system was not designed for politicians’ convenience; it was designed to establish and reinforce the legitimacy of the government, and therefore the happiness of the people. When the authors—or obstructers—of government policies and compromise trade-offs are clearly identifiable and accountable, the policies that follow may be better or may be worse depending on one’s point of view. But those policies must be more credible, more legitimate in the public eye than the current mishmash of secretive, unaccountable policymaking preferred today because such processes serve the interests of the political class at the expense of the constitutional sovereignty of the American people.

Congress’s failure to do its work is not only weakening the institution—it is tearing away at public trust and democratic credibility of our constitutional order.

Reform is possible, and, I think, inevitable. But for all our sakes, sooner sure would be better.