Copyright by Anthony Lister Ives 2018 The Dissertation Committee for Anthony Lister Ives Certifies that this is the approved version of the following Dissertation: Congressional Health, Congressional Failure Committee: Sean M. Theriault, Co-Supervisor Jeffrey K. Tulis, Co-Supervisor Lorraine S. Pangle Bartholomew H. Sparrow Eric Schickler Congressional Health, Congressional Failure by Anthony Lister Ives Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy The University of Texas at Austin May 2018 Dedication To Anthony and Dorothy, Lister and Charlotte, Ron and Joan Acknowledgements Who ought one thank after six long years in graduate school? One’s initial advisor, who offered sage guidance and without whom one would not have gained admission, passed through coursework, let alone comps? Or one’s dissertation co-supervisors, who have acted as pilots bringing a ship into port, while simultaneously acting as foremen overseeing the construction of that same vessel? Or one’s professors more broadly, each of whom added something special to one’s repertoire of skills (writing for analytic clarity), knowledge (of the greats, canonical or otherwise) or approach (writing fairly and sympathetically). Or one’s colleagues, who step outside the critical mold of “graduate students,” to offer scholarly advice and friendship? Or even the authors of the works cited within this dissertation? After all, without their writing (and all the people who helped them) one’s task would have been more daunting or maybe even impossible… Or most of all, ought one thank one’s spouse, whose loving generosity extends and expands beyond all reasonable bounds? Perhaps especially if one’s spouse has attained an expertise on eighteenth century tariff politics? As luck would have it, I am not forced to choose, and I thank them all. But maybe it is reasonable, fair (and just) to thank one above the rest, my spouse, Regina Mills, and nominate her as best. v Abstract Congressional Health, Congressional Failure Anthony Lister Ives, Ph.D. The University of Texas at Austin, 2018 Co-Supervisors: Sean M. Theriault and Jeffrey K. Tulis Abstract: The United States Congress is one of the most disparaged institutions in contemporary political life. Citizens and pundits decry it. Many experts also concur, calling that branch of government “broken,” “dysfunctional,” “decayed,” “disastrous,” and even, “a constitutional shrinking violet.” The institution is even attacked from within, by Members of Congress (MCs) themselves. Yet, amongst all this reasonable critique, something is missing: the standard of health against which one ought to assess the Congress. This work aims to remedy this gap in the literature by providing “a well-thought-through ideal which we can use to hold up to [the Congress] for comparison” (cf. Waldron 2009), along with evidence of the viability of that standard in empirical cases. To develop a comprehensive conception of congressional health, I turn to the Constitution. I argue that the constitutional design of Congress, including the Preamble, shows that the Congress was designed to remediate the flaws of the Confederation Congress and to better promote the general welfare of the nation. I thus find that the chief desideratum of legislative health is the tendency of Congress’s rules, structures and norms to foster a representative lawmaking process responsive a popular majority in a deliberate way. The constitutional approach to Congress is then enriched through a treatment of three historical cases, namely, the First Congress, the Antebellum Congress, and the New Deal Congress. These case studies provide particularly clear examples of institutional structures and vi norms that past congresses used successfully (or failed to employ) to meet the extensive challenges of a national lawmaking assembly in a large, diverse, federal republic. Returning to the present, armed with the appropriate positive standards for evaluating that institution, I find that the contemporary Congress’s rules and norms fail to consistently generate an effective and representative lawmaking process. The United States Congress avoids the sobriquet of “failure,” only through a limited respect for its dwindling norms held by a small number of MCs and the open acknowledgement of its difficulties by a wider group of legislators. A lack of independent institutional perspective, however, stands between the body and any realistic prospects for reform. vii Table of Contents List of Tables .......................................................................................................................x List of Figures .................................................................................................................... xi Introduction: “The Most Disparaged Branch” .....................................................................1 Chapter One: Scholarly Analysis of “The Broken Branch” ..............................................14 The Dimensions of Congressional Failure................................................................16 The Congressional Ideal ...........................................................................................26 The Policy Process: Assumptions of Congressional Functionality ..........................38 Constitutional Logic and the Prevailing Account of the Congress ...........................45 Chapter Two: A Constitutional Conception of Congressional Health...............................54 The Rejection of the Negative Articles of Confederation ........................................58 A General Welfare Orientation: The Attributes of a Healthy Congress ...................68 A Welfare Oriented House Debates the First Bank of the United States .................94 Chapter Three: The First Federal Congress .....................................................................103 Case Study A – An Ideal Type ...............................................................................108 Representation in the Lawmaking Process .............................................................113 Petitions as Guides to Popular Preferences.............................................................135 Rules and Norms to Encourage Deliberation .........................................................141 Conclusion: Delegation in Cooperative Separation of Functions ...........................156 Chapter Four: The Antebellum (33rd) Congress ..............................................................169 Case Study A – The Nadir ......................................................................................173 Historical Background: Sectionalism in America circa 1854 .................................180 Unrepresentative Committee Membership and Leadership ....................................186 viii Responsiveness to Party Rather Than to Constituents............................................194 Debate as Expressive Rather than Deliberative ......................................................204 Conclusion: An Abdication of Constitutional Responsibilities ..............................221 Chapter Five: The New Deal (73rd) Congress of the First Hundred Days .......................228 Case Study C – The Test of Modernity Amidst Crisis ...........................................231 Responsiveness and Energy in the First Hundred Days .........................................236 Deliberation as Division of Labor: Bicameralism Ascendant ................................248 Representation: Innovations and Limits .................................................................260 Conclusion: Executive Leadership in Context in the First Hundred Days .............269 Epilogue: The Contemporary (115th) Congress ...............................................................276 Representation: Limited Views Considered in Policy Initiation ............................277 The Electoral Connection Unyoked: Unresponsiveness .........................................285 Deliberation: Missing on the Floor .........................................................................292 Conclusion: The Congress on the Brink .................................................................303 Appendix ..........................................................................................................................310 References ........................................................................................................................312 ix List of Tables Table 2-1: Schematic Presentation of the Standards of Congressional Health ..............72 Table 3-1: MC Count by Geographically-Concentrated Interest in the First Congress ......................................................................................................117 Table 4-1: MC Count by Region in the 33rd Congress .................................................184 Table 4-2: Vote on the Kansas-Nebraska Act by Region.............................................185 Table 4-3: Committee Chairs by Region ......................................................................188 Table 4-4: Major Committee Chairs by Region ...........................................................190 Table 4-5: Selected Standing Committee Membership ................................................192 Table 4-6: Final Vote on Kansas-Nebraska Act in the House by Region and Party ....201 Table 4-7: Senate Deliberations on Kansas-Nebraska Act, January 30 – March