Congress Is Dying in Real Time

0:01This is The Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.

0:19I'm Michelle Cottle, and I cover national politics for New York Times Opinion. We are rolling into November, which I can hardly believe. And after far too many weeks apart, I have reunited with my fantastic colleagues, columnists Jamel Bowie and David French. Guys, it's so good to see you. Hey, Michelle. It's good to see you as well. Welcome back. Well, believe it or not, we are not going to talk about the elections that are happening on Tuesday. We're going to save our powder for next week when there will be lots of results and fascinating data to dissect. Instead, our conversation today is going to be about Congress.

1:01David, I'm so sorry. I know you would probably rather talk about something more upbeat, like how the courts are still actually doing their jobs. But you lost the coin toss this week, so we're just going to go with congressional dysfunction. Michelle, I'm all about this. I'm all about this topic. You're all about this? You're ready? I can do this topic at Joe Rogan length. I promise you that. So buckle up, everybody. Delicious. Buckle up. Because both Jamel and I have been writing this week about the sad, extreme dysfunction of the legislative branch. Whether we're talking about the House Speaker not swearing in a new member or Congress putting the hurt on millions of Americans with this shutdown.

1:44So let's just start here. We're taping on Thursday morning. So the government has been shut down for a month on November the 1st. SNAP benefits are going to just abruptly stop a program that provides food assistance to lower income households. David, Jamel, you've had time to process. What's your take on what's happening or not happening with this Congress? Are we seeing a difference in kind or degree from the level of dysfunction that we've all pretty much become accustomed to? I think this is a difference in kind. I think what we're seeing with how Speaker Johnson, especially is handling the House is something novel.

2:25He is keeping it out of session, right? He's essentially no one's meeting. And critically, there's not really any negotiations happening, nothing to begin the process of trying to wind down the shutdown. It's as if Speaker Johnson and House Republicans are acting as if they have nothing to do. And I mean, what I find not baffling, but just striking, is even as this snap cliff approaches, Republican members seem completely, by and large, seem completely indifferent to the fact that many of their constituents are about to lose food assistance. No matter what kind of old stereotypes they may throw out about who they think SNAP recipients are, the fact of the matter is that many people who are represented by Republican governors and Republican lawmakers are recipients of SNAP, and they're disproportionately children, disabled people, and seniors.

3:27So just observing how House Republicans feel no urgency about this and have taken no steps to try to negotiate as if they have no obligation to, I find genuinely striking. and something that marks us as a different kind of phenomena. David, what about you? I'm going to agree that we are dealing with a difference in kind kind of on two fronts here. So one is the absolute total subservience of the majority of the legislative branch to the executive branch. I mean, that is a thing that is a difference in kind. Sort of this idea that whatever the president says, we're going to snap into line and do, combined with an absolute abdication of the power of that entire branch of government.

4:18And so the impetus seems to be that so long as the president is ready to fight, there will be no real discussion here. There will be no compromise at all that this is going to all be about who gets to point at the scoreboard at the end of this whenever this occurs. And so you are looking at the absolute breakdown, at least so far, of anything approaching a legislative process. And look, this is not unprecedented to have differences between Republicans and Democrats in a budgeting process. And you know what happens is they typically, in year generations past, they would get in and hammer out, say, a 65-35 or a 70-30 compromise that would leave sort of people at the extreme edges upset, but a majority would be at least accepted, you know, comfortable with it.

5:08And now just that very word, that word compromise is seen as synonymous with defeat. It's seen as synonymous with humiliation and subjugation. And that is just, that is a difference in kind. And coming from a low baseline, I should say, we're not coming, this is not like a sudden change of an otherwise healthy and functional branch of government. This is like the utter deterioration of an already diminishing branch of government. I just want to add real quick to David's points that what's especially strange about the supplication of Congress, of the Republican-led branches to the president's kind of priorities and political stances is, you know, if you are a long-serving member of Congress, like the theory and what has been the practice in the past is that that actually provides you a bit of insulation from the president's political priorities, right?

6:03If you've been there for 20 years, from your perspective, presidents come and go, right? You're not the first president I've served with. You won't be the last one. So that gives you a level of, oh, I can break from the president here to an extent because I have a separate base of power from the president. And that's supposed to be even more true of senators who are elected on an almost entirely different schedule than the president. And what's striking, and this might be a product of the fact that so many members are relatively new, right? They've been there for one, two, three terms. But what's striking is how they really do fully identify their political futures with that of the president, even in circumstances where it's clear to me at least that like Trump is dragging you down, like substantially.

6:53Actually, the incentive here actually runs in the opposite direction, but they cannot break from him. Well, I'm interested in kind of particularly how Trump is impacting each team's behavior here. So my suspicion is that Republicans in Congress who ordinarily are worried that they're going to pay a huge price if they are participating in a shutdown or seen as obdurate are counting on the price. president to do whatever that weird magic he does is to blame the other team, make this all about how the Democrats are doing something horrible. I have no idea if this will work, but I do think that they've done the cost-benefit analysis and they find it, you know, less scary to risk being blamed by the public than to have to cross this president who they are absolutely terrified of.

7:50Whereas on the other side, the Democrats, if you talk about negotiations, the Democrats don't trust the Republican congressional folks to be able to stick to any promises they make because the Democrats have watched this president claw back stuff that Congress has already pushed through. So the idea that Democrats are going to agree to something with the confidence that it will actually come to pass is just out of, you know, out of the picture at this point. So I think it's become a very ugly, hardened situation. Well, absolutely, Michelle. And that does raise a really important question. What's the Democrats' endgame here?

8:34I mean, I think the Republicans, what's going to go forward is pretty clear to map out as far as the process. We don't know the outcome. The process is going to be they're just waiting for the king on the throne to raise his scepter in a particular way and to say, you know, make a deal, don't make a deal, hold the line, whatever. We know all Republican eyes are on Donald Trump. But what is the Democratic endgame here? Because, Michelle, you said it very well that they can't trust a deal with this president. I mean, you know, the president has taken a position on executive power that is, in essence, I get two vetoes.

9:10I get the veto that is in the Constitution, the one where I veto legislation and it can be overridden by super majorities in both houses. But also I have this other veto, which is just called executive power. And I get to choose which laws to enforce and which laws not to enforce. And so that then raises the question, what is the Democrats' end game here? If there is no deal that they can rely on, at this point, we seem to be in a situation where we're just waiting for someone to crack or break. And then in every day that passes, the cost of cracking or breaking to your own side becomes higher.

9:47Of course, something could pop very quickly and, you know, break the logjam. But at this moment, as we record, I'm not seeing how that happens. Yeah, I don't know how it happens either. I mean, this is what we're seeing. What we're seeing are the problems with this imperial notion of executive power. This is why this is bad, because it actually renders governance impossible to do. If there's no commitment to the broader rules of the game, one of the rules of the game being Congress does a thing and the president carries it out. And to the extent that the president has any wiggle room, it's if Congress gives him wiggle room.

10:25But absent that, we pass spending. You carry out the spending. But if you're not going to follow that rule, that's not going to be on the table anymore, then you can't govern anymore. The only thing that can happen is for Republicans to just unilaterally govern, right? And they don't want to do that either. So I don't know how this ends. And what I want to say is you can't have a forever shutdown for very practical reasons. You don't want every air traffic controller to quit. You don't want the properties owned by the federal government to fall into disrepair. There are actual things that have to happen for the country to run.

11:05And there is some wiggle room and redundancy over the course of a month, maybe if we're stretching it two months. But beyond that, it matters that the federal government is operational. It seems to me that the president thinks you could have a forever shutdown and that in the president's conception of things, the shutdown gives him more power through some magical, convoluted, transmogrifying mechanism that no one understands, the shutdown means the president is even more powerful. Well, I was going to nod to that because we are seeing him. I mean, he's been happy to use the shutdown as a tool for doing what he, I mean, we've seen Russ Vought at the OMB talk about how they're going to just take this and run with it.

11:48They're going to try to lay off federal workers en masse. And right now, the courts are currently blocking this. But this clearly is something that they're, you know, willing to experiment with. Trump has taken money from a rich donor to help pay the military, which, I mean, David, is that even legal? I mean, they're freezing congressionally appropriated funds for projects in states they don't like. Basically, anything that they can do to just kind of disrupt the whole functioning of government, especially in blue areas, Trump is going headlong into this. And his response is always like, you know, come at me, bro.

12:29Oh, I don't think there's any question that if Donald Trump could engineer a situation where Congress stays out of session or the House stays out of session for the rest of his presidency, I think he'd be totally fine with that. I honestly think that he has no real desire to work with Congress in any substantial way. Otherwise, you know what? He would have had a very different opening to his presidency. His party controls the House. His party controls the Senate. And instead of this flurry, this tsunami of executive orders, if he had an actual governing agenda to sort of dictate how America is going to be governed for the foreseeable future, he'd have had a legislative agenda.

13:07He'd have walked in passing actual laws. Instead, he came in with a giant amount of executive order vaporware. And so what you've done is you've created a situation where the president is more powerful than ever, but presidential actions are more ephemeral than ever because they're all channeled through EOs rather than using his power to actually shape and change the law. And so this is so unstable. It's hard to overemphasize how unstable this makes American governance. Yeah. How unstable, how unreliable. I mean, it's bad for business. Like, I'm not one to be super solicitous of the business interest.

13:46But if you are someone who makes money, this level of instability and inconsistency in government operations is intolerable. Like, how do you plan for the future, right? Well, globally, it's a problem, too, right? I think other countries cannot remotely predict what our foreign policy or trade policy or anything is going to be. But I wanted to say just a real quick comment about Russ Vought. But I feel like so much of the coverage of Vought is about how he's some kind of evil genius. And the photo they always pick has him with bags under his eyes and they're kind of bloodshot. He looks like a Sith Lord.

14:19Right, he looks like a Sith Lord. He looks like he's asking Anakin, has he heard the story of Darth Plagueis, right? I love that reference. That was for you, David. Thank you. so but like all he's doing is just breaking the law right all he's doing is saying i'm just not going to follow the law and it's like you don't have to be a genius to just be like i don't think the law counts anymore and i find it very frustrating that like so much of the coverage of him buys into this image of this like devious plotting scheming vizier when it's just like no he's just a guy who's decided the law doesn't apply to the president anymore right and that's all.

14:58And if there were a Congress interested in like enforcing its prerogatives, you could just cut that short in an afternoon. Right. You drag Russ Vaughn up for oversight hearings. Like, what are you doing? Do we hold you in contempt? Here's my question to both of you, which is that, yes, Trump is, you know, authoritarian curious, I guess we'll call it. But how much of this do we think is that either the people are around him or just like even some of the establishment Republican players knew that this Congress and the Congress in general for years has been basically abdicating its responsibility on all kinds of level.

15:39And so they were basically ripe for a takeover. I mean, you can certainly blame Trump for a lot of the extreme degree that we're looking at as to how far he has taken over congressional power. But Congress has been happily shoveling that out the door and letting the executive branch or the judicial branch do its job. And so if you're standing around looking from the outside going, you know, all it would take would be a really kind of strong man in the White House to take advantage of this and input whatever policies or changes I'm interested in. So as much as I like to blame Trump for what's going on, I feel like we should spend a lot of time here maybe smacking Congress as an institution as well.

16:27Yes, absolutely, Michelle. I mean, look, one of the trigger phrases, I'm not a big fan of like trigger warnings and things like that, but I do have a trigger warning for myself, which is the phrase co-equal branches of government. Don't say that around me. I'm going to remember that. Don't say that. It causes involuntary spasming because Because it's Article 1 for a reason. Like, if you actually look at the constitutional structure, it's not that the legislature is supposed to reign unchecked and supreme. It's just that, think of the legislative branch in the formulation of the founders as like first among equals.

17:01This is the one that you can't spend any money without it. It can fire the president. It can fire any member of the Supreme Court. You're not supposed to be able to go to war without it. I mean, all of the basic fundamental functions of government, you just can't do in theory without Congress according to our structure. And this is intentional because Congress is crafted to be the most representative part of our tripartite system of government. And so what we're seeing here isn't just congressional abdication in an abstract sense. What we're seeing is constitutional devolution, almost like a constitutional revolution, where Article 1 is receding down to, like, Article 3 level, and Article 2 is Article 1 now with a bullet.

17:45Yeah. And it's not the way the system was supposed to be created or administered. And it's putting huge strains on us, just huge, because if Congress is basically irrelevant and the presidency is decided really by the swing states in the presidential election, then the vast majority of Americans have no meaningful say over the core functioning of the American government. And that creates a real, again, all of these things, everything we're talking about, they're all destabilizing. So, Jamal, this is kind of leading directly into what you've been writing about this week. And before we jump in, I just want to note that I have done a lot of reporting on this among senators.

18:29And both sides know this is a problem, and both sides are really unhappy about it. It's just a question of how do you address it. And you have been talking this week about an imperial Congress being potentially needed to push back because we've reached such an imbalance at this point. Yeah, I feel like that's a term of art just for what David is alluding to, just like a very active Congress that is taking its role in the constitutional firmament very seriously. So I think I'm interested in writing quite a bit about is like Reconstruction. And if you're like sort of basically familiar with the timeline, there's two parts of Reconstruction.

19:11There's presidential Reconstruction under Andrew Johnson, and there's congressional Reconstruction basically after Johnson's impeachment. It begins a little earlier than that, but basically Congress sidelines Johnson and really takes the full reins of Reconstruction. It's Congress leading the pack. It's Congress spearheading constitutional amendments. It's Congress doing the kinds of close oversight and monitoring. It's Congress flexing its authority in really aggressive ways. And I think that is what I'm talking about when I say something like the Imperial Congress, a Congress that recognizes the full sweep of its formal and informal powers and then just uses them to try to shape things in the way that it wants to be shaped and engages with the public.

19:51And there's still room for the other branches to push back, of course. But the key thing is the other branches are responding to Congress, not Congress responding to the other branches. It changes sort of the direction of the energy in the system. So what – is there any practical path toward that, do you think? So I've been thinking about this. And some of it's structural, right? Like over time for a variety of contingent reasons, a variety of reasons that reflect the fact that this is like a big complex modern country, modern economy, power has siphoned up to the executive branch. I think a little bit of that is basically unavoidable.

20:30But I think some of this really is just the members themselves. I think that if a newly elected majority of the members said, we don't want this to be so leadership focused, then it wouldn't be. Right. If the Senate said we really want to be active, then they would be. And I do think that some of this is actually just like cultivating an ethos among members, among people who want to be members, to think of themselves not as passive members of a party, but like active members of a legislature. who have a lot of individual power. But I also think it reflects the absence of real ambition. Real ambition not simply to ascend to a higher office, but ambition to use the office you have in the most aggressive and maximalist way that you can.

21:21So before we get your take, David, I just want to throw in one of the things that senators have complained to me about in respect to this whole leadership-focused way that it's run is that fueling that problem in part is, unsurprisingly, the way that money is dealt with. The Senate leaders control huge campaign funds that they can decide who gets this piece of, things like that. And that is a very powerful tool in a system where money is just so vital to surviving in these campaigns. So, okay, that's just one piece of that. David, What is your thought on all of that? Yeah, I think we're going to be in a difficult position until there's a change in a certain fundamental reality.

22:11And that fundamental reality is that every Republican member of Congress believes that their entire career, every Republican member of Congress knows that their entire career, their place in that House depends on Donald Trump's approval. So I think even Mike Johnson, the Speaker of the House, if Trump came out and said, he needs to go, then Mike Johnson loses his job. And why do we know this? Because look at the last 10 years, how many people are left in the Republican Party that who Donald Trump has specifically targeted? I mean, I can think of one in the state level, Brian Kemp in Georgia. This is somebody, he's the Harry Potter, the boy who lived of sort of the GOP.

22:53He's feigned with a kind of magical reverence. Yeah, exactly. How did you pull this off? But this will not last forever. So I think there's two, a couple of things to point out here. Number one is, it's a mistake to think this will be a 50-50 nation forever. We've had the 50-50 moments in American history, and the logjam has always broken in a particular direction. One way or the other, the logjam tends to break. Like, if you go back and you look at American history, many, many times when you've had extreme presidential power and abuses of presidential power, that's been followed by a snapback by constitutional amendments or Congress acting in some decisive ways once the logjam is broken.

23:31And so I have some ideas for— You have thoughts? I have thoughts. I have constitutional amendments that I think could really help this. And I know that sounds pie in the sky because we have a logjam right now. But the logjam will break. And I think there are some lessons we have learned about the original 1787 Constitution that just lend themselves to abuse. And the Anti-Federalists spotted this coming from miles away. So, for example, the pardon power. The pardon power is a republic destabilizing vestige of monarchy that needs to be fundamentally reformed. That's one. Here's another one. The first sentence of Article 2 is, as George Clinton wrote as Cato in Anti-Federalist, vague and inexplicit, and that lends itself to lots of mischief.

24:21Can I interrupt real quick? When you said George Clinton, I was like, is he about to, quote, Parliament Funkadelic? Of course. Normally I would. He's thinking New York lawmaker George Clinton. Yeah, not Parliament Funkadelic. Yes. Okay. Let me just throw in. You guys are such geeks. I love it. Sorry. Continue. Continue. But, you know, here's another one that I think is an important idea. Expand the House. So I think there's a number of ideas of reform that are floating around out there that can help prevent this situation from happening again. But we have to get through this moment. And the real impediment here, the real impediment is the primary voters.

25:04Even something as grotesque as January 6th did not break that bond between Trump and the primary voters. And so in that circumstance, they think legitimately there are no lines that Trump can cross where he will lose the loyalty of the primary voters in the Republican Party. I do think we have to wait until this cult of personality has, however it's going to end, has ended before we can move on from this. that fever has to break. But then I do want an episode devoted entirely to David and Jamel's list of amendments and reforms. So I'm just putting my opinion on that. It's funny David said that because I myself have, you know, in a document, like me sort of putting together like an omnibus amendment.

25:54How do we constitutionalize a series of reforms that prevent this from happening again? What I throw in there is just, in the same way that the first lines of the 14th are basically overturning Dred Scott, I think we need to constitutionalize overturning Trump v. U.S., which is just a ruling that... Oh, totally agree. To be fair, I guess some reasonable people can disagree about that ruling, can they? But... Can they? Really? But at the very least, I think what we're seeing is that how a corrupt president interprets it is as a license to do whatever they want. And I think there needs to be some sort of constitutional clarification of the president's criminal liability.

26:35Okay, so I'm changing my thought. We're now going to have a whole series of episodes on this because clearly one's not going to do it. So now before we switch for our closing recommendations, I did want to take you guys back because we haven't been together since the magical renovation project of the East Wing began, which to me smacks of Trump trying to take us towards some kind of glorious, I don't know, It's got like old empire written all over, you know, a gilded ballroom or whatever. And I have been, I guess, pleasantly surprised or taken aback by how much this has really ticked off a lot of the country.

27:13Were you guys surprised by this? I'm not surprised that people were mad. It's crazy. It's a crazy. Listen, when he was like, I want to put up a ballroom, I was like, all right. I mean, it's ugly. It's like garish. but if it's just going to be like looming over the White House, you know, whatever. I don't like it, but whatever. I would prefer that he went to Congress and said to Congress, I need money to build this thing. Oh, well, why do that when you've got rich friends? When they would do it immediately, right? I mean, it's because this is like a— But he doesn't need Congress, Jamal. This is a pay-for-play operation.

27:48I would be shocked if a ballroom ever gets built. But then when I open up my computer and I see that they've demolished the East Wing as if it belongs to him, as if it's just something he can do. The White House is very distinctly not a palace, right? Yeah. Give it time. There's so much gold. The palace in the Capitol is the Capitol, right? The White House is a relatively modest executive mansion by design. And as imperfect as American democracy is, as often quite bad American democracy has been, the White House is this symbol of the relationship of the government to the people. It's open to the public for the most part, right?