THE FORTNIGHT SESSION

A proposal to restore republican government by ending political careerism.  

Sisyphus, by Titian. 

According to ancient Greek mythology, King Sisyphus was condemned to eternal torment in the underworld for having deceived Zeus. As punishment, he was forced to push a rock up a hill. Every time he nearly reached the top and an end to his suffering, the rock invariably rolled back down the hill, and Sisyphus would need to push it to the top again. And again. For eternity. 

It is hard to find a more fitting metaphor to describe the plight of the long suffering conservative voter. No amount of electoral victories, and no Congressional majority, ever seems to translate into meaningful conservative reforms. The conservative must always wait one more election cycle, only to see the rock roll down the hill again. Even the election of a disruptive outsider, such as Trump, only encourages both parties in Congress to close ranks and frustrate his efforts at every turn. Congress is deeply dysfunctional, and it is clear voting alone will never return Congress to its true republican form, as a deliberative institution of self-government, with limited powers. 

One of the few structural reforms that generates even a modicum of attention is a Constitutional amendment instituting term limits for senators and congressman.  The belief that new, honest people will materialize to sweep away the corruption in Congress is the same sanguine thinking that hopes we can vote our way out of this mess next election cycle. It is Sisyphus hoping for a new rock to push up the same hill. 

Instead of term limits for reelection, Americans concerned about the preservation of self-government should consider limiting the Congressional session. A two week session for Congress, meeting once every six months, would do more to drain the poison from our sick and sclerotic government than any other reform. A two week session, or Fortnight Session, would jumpstart civic engagement, control the size of government and the administrative state, and perhaps meaningfully resuscitate Federalism for the first time in the nation's history.  

The Mr. Smith Delusion

Senator Jefferson Smith, Mr. Smith Goes to Washington, 1939. 

There is a persistent tradition in  electoral politics of playing the humble "everyman" who promises to shake up Washington by bringing some common sense and honesty. This figure is best personified by Jimmy Stewart's character in the film Mr. Smith Goes to Washington from 1939. While this theme produces memorable cinema, it produces goofy candidates, who engage in recurrent election year spectacles of strained folksiness. Elections bring scene after scene of candidates with the obligatory rolled-up sleeves on their crisply pressed dress shirts, chomping on pork chops on a stick at the county fair (or stuffing a pancake into their face at the local greasy spoon), talking about how their daddy worked double shifts down at the plant, while dropping their "gs" from lines of their stump speeches like a bunch of a good ol boys.

Beyond the grotesque optics, the perniciousness of the "Mr. Smith"  delusion is that it leads to a vast dissipation of political will and energy on the increasingly useless enterprise of electoral politics. It is time to call off the search for the ever elusive honest politician who will fix Washington, as if the nation was simply lacking a critical mass of Mr. Smiths to make our government work properly again. If our elected leaders change over the years but Washington does not, perhaps the problem with politics is actually located deeper, at the structural and institutional level. Any reform should not focus on getting the right people or fresh blood into Congress, but instead structuring incentives and constraints that would oblige even the wrong people to act virtuously, or at least do no harm. This is the critical distinction between political reforms that will cure the system, and those that will fail because they misdiagnose the disease. 

The traditional conception of term limits, however conceived, is a misdiagnosis. Limiting the terms of Congressmen assumes that at bottom we face a personnel problem, but in truth, there is no point in swapping personnel until the structural constraints and incentives necessary for republican government are rebuilt. 

A Republic, If You Can Keep It

As things stand, America is not functioning as a republic. 

Consider that before Easter of this year, the President signed into law a spending bill that cost $1.3 trillion, but nevertheless failed to fund the policy agenda he ran on: border security, i.e., the wall. The legislation also failed to defund sanctuary cities, and actually reduced funding for ICE detention facilities. Besides funding the military, it did find money to give hundreds of millions to a sham tunnel project in NYC, fully funded billions in border security for several Middle Eastern countries, allowed half a billion dollars for Planned Parenthood, millions of dollars in development assistance to China as well as a bewildering hodgepodge of give-aways on worthless government programs and international boondoggles. Nearly every agency and program received more money than it requested. 

The wider import of its passage was to confirm the dismal state of lawmaking. The spending bill passed by Congress and signed by the President was made available to Congressman on the Wednesday evening before a scheduled vote around noon that Thursday, giving each Congressman 16 hours and 40 minutes to read and understand a 2,232 page bill, assuming they did not sleep or take any breaks. Congress, the branch of government tasked with making laws, no longer has the capacity or inclination to legislate in any thoughtful or deliberate manner. 

As the New York Times reported, Congressmen were straight-faced in casting an essentially blind vote on a $1.3 Trillion piece of legislation: 

“In all honesty, none of us know what is actually in this bill,” Representative Jim McGovern, Democrat of Massachusetts, said Thursday morning, just hours before House members were asked to vote on it.

In perverse, mindless paroxysms of lawmaking, the process renders Congressmen bystanders and pawns, and by extension, wipes out the political influence of those constituents who voted for them. When a Congressman actually votes without the exercise of judgment or deliberation, he cannot be said to be representing the interests of any political body of constituents besides the leadership in Washington or whatever cabal of lawyers slapped together the legislation behind closed doors. 

Republicanism is not just elections. It is a manifestation of self-government, even if it is channeled through constitutional checks and balances as well as elected representative bodies. Though a republic is not a democracy, it cannot be divorced from the popular will.  It assumes the exercise of a fiduciary duty. It requires elected representatives to make a good faith judgment on behalf of the public of the relative merits of the legislation under consideration. As Madison stated in Federalist 10 in his discussion of republicanism, Congress is not democratic, but was designed to

"refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." 

A Congressman cannot exercise discernment and long term thinking over what he did not read. Nor was he elected to simply follow the instructions from party leadership on how to vote in place of his own judgment. 

This type of abuse of legislative office has become standard practice. After the passage of Obamacare, many Congressmen and senators admitted to not reading the actual bill before voting on it. Max Baucus, the former Montana, senator told a constituent at a town hall meeting at the time that "I don’t think you want me to waste my time to read every page of the healthcare bill," assuring everyone that the legislation was written by experts (a.k.a., lobbyists). Recall that years later the healthcare bill was almost struck down by the Supreme Court for its sloppy, incoherent drafting. 

It almost goes without saying that Senators and Congressmen do not draft legislation. So who does? According to a 2002 study from the NYU Law Review, every Congressional staffer interviewed conceded that lobbyists were regularly involved not only in influencing bills, but drafting actual statutory language. Congress relies on a staff of lawyers, who in turn rely on outside interest groups to put a bill together. 

While reading and writing legislation might seem to a layman to be basic elements of being a lawmaker, Congressmen cannot be bothered with much of either, possibly because Congress averages only three working days per week, much of which is spent fundraising, not legislating. 

The Problem with Traditional Term Limits

Commentators ranging from George Will to Mark Levin have endorsed term limits to reform Congress. This solution assumes that a long serving senator or congressman left for Washington as one of us, but over time became one of them, a member of the ruling political class. More changeover in our elected officials, so the argument goes, will produce a Congress more attuned to the natural concerns and interests of the people they represent.

It is wrong however, to focus only on how congressmen become corrupted and entrenched over a period of time, as if there were a sell-by date for personal integrity. Many were corrupt before they got there, and the only check on their abuse was a limited opportunity.

Traditional term limits, however, do not make the dirty day-to-day business of Congress more virtuous, nor do they alter the institutional or political incentives of Congressmen to create more accountability. A politician who is not facing reelection has no political power to lose by betraying the voters. The founders believed that the prospect of facing reelection was an indispensable check on the power of political leaders and on their potential abuses, yet term limits would forfeit political leverage during the Congressman's lame duck term.  

In the same vein, term limits encourage short-sighted thinking and political calculation. Congressmen will prefer the easy short-term fixes that only delay a crisis, over the harder long-term solutions if they know someone else will be dealing with the mess after they have left office. 

Today, as things stand, Congress is almost incapable of addressing issues except when faced with a budgetary crisis, and even then, only producing a short-term fix or ill-formed half-measure, as has been discussed. Term limits may exacerbate this disfunction. A congressman facing term limits, with no power or prestige left to be squeezed from his position, can simply wash his hands of the shambles he creates or the crises he fails to address. While its members will rotate more often, Congress is left institutionally the same.

Term limit are appealing if you focus on the exit door. Everyone wants to see the decrepit Washington insiders go home where they will feel the boot of the state they've been wearing so long pressed on their own face. But the short-lived satisfaction of term limits is a mirage.  The problem is that we have a class of people whose job is to rule other people.Congress will still be operating the same way, as a professional ruling class, just with new faces.  If one hopes to meaningfully change Congress, one must reform the institution, not simply swap personnel. 

The Virtues of a Fortnight Session

The alternative to term limits is to strike directly at the professionalization of Congress. Instead of tinkering with the formalism of how long one can be a congressman, it is time to change the very nature of what it means to be a congressman. In short, end political careerism. The Fortnight Session achieves that end through four basic elements: 

1. Congress meets biannually for two weeks.

2. During each session, Congress is devoted to full-time deliberation, drafting, and law-making, including appointments, oversight, and impeachment proceedings. 

3. Service in Congress, due to the limited duration, is unpaid. 

4. Extraordinary sessions, outside of the two regular fortnight sessions, may be convened only for consideration of a formal Declaration of War pursuant to Article 1, Section 8 of the U.S. Constitution. 

Lawmaking will be slow and deliberate, but also prioritized. During regular working hours, all Congressmen must be in the chamber debating and considering bills, in committees, or drafting legislation. The Fortnight Session ends abruptly on midnight of the 14th day of that session. No bill can be considered again until the second session begins.  

Fortnight Sessions prevent the entrenching of an established class that is geographically and culturally isolated from the people who elect them. Congress will no longer receive a salary, benefits (including any type of pension or retirement) or healthcare plan, meaning they will not be economically sheltered from the laws that they pass. Your Congressman is still your neighbor. He still holds a day job. He lives under the laws he passes, not above them. 

We take it as a given that America must have a full-time professional legislature, but one must also bristle at the idea that Americans must be actively ruled, hemmed in and corrected with a new law at every turn, yanked at like some mistreated dog with a choke chain of new statutes. 

As Tacitus observed in ancient Rome, "The laws were most numerous when the republic was the most corrupt." Non-stop lawmaking is dysfunctional lawmaking. It augurs civilizational decay, not progress. A legislature that is always in session rules over people. It does not legislate on their behalf. A legislature that meets to consider laws a few times a year is a congress of popular representatives consonant with self-government.  

The inherent limitations of the Fortnight Session will slow the pace of legislation and produce gradual changes in law. Small scale, discrete pieces of legislation will be more common that sweeping, complex measures. Meeting only for two weeks at a time, congressmen simply will not have the time to craft thousand-page pieces of legislation. Likewise, the number of pieces of legislation considered would be reduced to a handful due the constricted docket. The shortened calendar places a premium on simplicity. The constrictions of the Fortnight Session properly reorder the legislative function. 

People would see and understand what Congress is doing. 

The Fortnight Session contains extended interludes between legislative action, where policies and bills would be debated and considered among the people before any possible vote. The interlude creates time and space for a virtuous public discourse to shape and inform the lawmaking process and the lawmakers themselves.

There is a clear and substantive contrast between this restrained legislative scheme and the current mode of perpetual legislating and changes in the law. This is consonant with the idea that a republic with inconstant and uncertain laws is not that far from the arbitrariness of autocracy. As Madison noted in Federalist 62: 

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

If the Congress met briefly only twice a year, the nation's attention would be more focused during those two sessions. Fortnight Sessions would be national events of civic engagement. People could know exactly what is going on in Congress because the agenda would be small, prioritized and comprehensible. If particular legislation did or did not pass, people would know exactly what occurred and why.

The country would benefit from slow, methodical, restrained lawmaking. It would be a healthy development if a bill was raised in one session, left for the public as well as lawmakers to consider for half a year, and then taken up again in a sober manner. 

If one objects upon the basis that lawmakers need more time than two weeks to do their work, one must explain what exactly they are doing now with their time that is so valuable.

Time to get a real job, folks.  (Photo Credit: Rep. John Yarmuth, D-Ky., via Twitter).  

The country does not need more hearings staged for television and sound bites. It does not need more Congressional investigations that go nowhere and produce nothing tangible. The truth is that the actual stuff of lawmaking has been so caught up in the theater of politics and in the ugliness of electioneering and fundraising that it can barely be considered a republican form of government. 

Why Voting All the Bums Out Does Not Work

Some may view the Fortnight Session as an extreme measure, and would prefer to simply vote our way out of our political crises. The recent history of American politics shows that the Fortnight Session is more coldly rational than hoping that we'll somehow miraculously vote in a majority of "Mr. Smiths" next cycle. The Tea Party Movement has been trying that for years. These people, the right people, the “Freedom Caucus”, Ted Cruz, Rand Paul, and others who rode subsequent waves of Republican victories, and took more than a few scalps of long-serving politicians, still barely made a dint in Congressional disfunction and runaway government. Republican leaders assured their voters that we are one more election away, but even with both legislative houses and the presidency, they have failed to deliver. the Sisyphean torture of American politics never seems to end.  

People distrust politicians, but still believe, or at least act as if they believe, that voting for the right person will meaningfully change government. This  keeps the confidence game going. The rational response is to assume you have, and will, elect a Congress composed of largely unfit people, and try to overcome it.

Milton Friedman believed that it was foolish to think that Congress could be made to do the right things by electing the right people to occupy its chamber. You can only make Congress do the right thing by making it “politically profitable” for the wrong people to do the right things. The only question is properly ordering the incentives of those who lead. A congressman's personal wealth, status, and way of life must be rooted in and connected to the community he represents. Congressmen should be obliged to find gainful employment in the society they would represent. The motivation for the prestige and honor bestowed by the office must be tempered by and tied to the fate of the community by ending professional politics as such.  

Swapping out Congressmen is like changing the bandages on a broken leg. First you have to put the bone back into place. The political order must be reset to have a functioning republic again.  

The Lobbyist Question

One of the recurrent objections to conventional term limits that may be similarly levelled against the Fortnight Session is that inexperienced lawmakers will need to rely on lobbyists. 

First, lobbying per se is a healthy political activity. People, corporations, non profit groups, trade associations, etc., are affected by legislation and have a right to have their voice heard, and which legislator is "in the pocket" of which lobbying group is in the eye of the beholder. If one wishes to argue that amateur legislators will become the puppets of wily lobbyists, the fox is already in the hen house. 

Secondly, spending huge sums on law firms and lobbyists makes sense if Congress is constantly producing legislation that can have large financial effects on your industry. New laws can create or preserve a monopolistic advantage, impose barriers to entry to new competitors, lift or impose new regulations, or allocate money to the advantage of specific interest groups or sectors of the economy. The more legislation that comes out of D.C., the greater the need for spending on political influence. At a certain tipping point of government intervention in the economy, rational actors will decide that every dollar spent on lobbying has a greater return on investment than a dollar spent on marketing, new employees, product development, or the like. The less legislation that comes out of Washington, the lower the return on rent seeking. 

With that in mind, the problem of lobbyists can be put into perspective. Concerns about lobbying are at bottom about influence, and therefore, money. Under the Fortnight Session, a Congressman's income, job security, and personal wealth, for the most part, does not derive from his political office. A Congressman's constant lawmaking does not completely define his wealth or position. To a great extent, his day job does. The influence of lobbyists and big money campaign contributors will not be removed from politics, as Congressmen will still fundraise to get elected and stay in office.  The extraction of Congressmen as a permanent elite in Washington D.C., however, and the end of professional elected officials, will at least mitigate such influence. While society cannot and should not do away with lobbying, the Fortnight Session will foreclose much of the rent seeking that draws lobbyists in the first place. Without the constant prospect of new law, and therefore, new monopoly, earmarks, or other government goodies, the lobbying trough will begin to dry up. 

Amateurism

Another objection is that the world, the economic system, and the workings of our government are simply too complex for amateurs (normal citizens) to understand all the issues at stake and create statutory law in the space of a few weeks. The country needs "professional legislators" who can devote themselves to understanding the legislative process and the intricate work of crafting well thought out legislation. 

Congressmen and their staff readily admit that they do not write their own legislation. As discussed above, interests groups (lobbyists) write the legislation. Congressmen often don't read the legislation because it is too long, too complicated, and they would need a team of lawyers to explain it all. In other words, Congressmen are already amateurs. Their profession, their skill-set, is fundraising, not crafting legislation. In this sense, the Fortnight Session takes Congress as it is, not as we think it should be. 

More to the point, legislators should rightly be amateurs in a republic. Political office should not be a "calling", or "career". If an individual feels being a senator is his calling or his job, he is no longer a part of the body politic he would represent. The ever widening dichotomy of values and economic interests between ruler and ruled is tied to this phenomenon of a professional political class.  

The Fortnight Session only seems crazy because people have a conception of Congress as a deliberative body of intellectually serious statesmen, who spend their days working on the people's business or debating back and forth in a clamorous chamber full of rapt, serious men and women considering the proposal on the docket. One can only dismiss the amateur legislator as a reckless phantasy while holding on to this equally pernicious myth. Ours is a Congress of hollow gestures by hollow men. The Senate on most days is empty or has one Senator speaking to an empty room. Even when occupied, it is full of mostly empty talk, lacking all substance, and directed not at other Congressmen but at the cameras. 

If given the choice, who would not choose to be governed by an amateur legislator rather than a self-promoter and professional fundraiser? 

The Fortnight Session will call forth citizen legislators. They can potentially serve as long as the pleasure of their constituents will allow, and will in their own way, gain the experience and expertise to do their work because they will be living and working first and foremost around their own fellow citizens, exposed to their daily troubles and hardships. That is the expertise of lawmaking that must be recovered; not memorizing talking points for a talk show or voting for thousand page pieces of legislation no one really had time to read or digest. 

In theory, a Congressman could serve indefinitely except that he would be spending most of his time in and among his fellow citizens, working and living with them, and not in the smoke filled rooms of lobbyists, in front of a television camera, or otherwise prostituting himself amongst the vast red light district that is our nation's capitol.

The nation is not a machine our legislators must run as engineers. The nation runs itself. Most of the legislation that Congress passes the country could do without. The most urgent laws today are fixes for problems that previous Congresses have created (which are legion). These usually fall into one of two categories: repealing or propping up failed legislation (Obamacare) or passing new laws because the old ones aren't being enforced (immigration reform). 

No one can argue any longer that Congress must be empowered because Congress must pass new laws to fix Congress's own mistakes. If they don't get everything done, it is all the more incentive to prioritize. Even if important legislation does not get passed, in general, that is a cost that we should willingly bear. Congressional action is almost always a worse poison than Congressional restraint. 

This proposal is a radical departure from current practice, but not from the common feeling of most Americans or the spirit of republicanism.