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CHAPTER 2

How Congress Is Supposed to Work—and Long Did

The people who met in Philadelphia in the summer of 1787 to draft a constitution for the United States faced a formidable challenge. They knew that most new democracies ended in tyranny or anarchy.¹ Yet, they designed a system of government that pleased most Americans until 1964. That year, as described in the introduction, an overwhelming majority still trusted our government to do “the right thing.” Yet, today most Americans distrust the federal government.

The drafters of the Constitution pinned their hopes for the new government upon representatives in Congress taking personal responsibility for critical policy choices. This would make them accountable at the polls for the consequences. The legislators’ accountability would force them to engage in open debate about those consequences.

Insight into the value of open debate can be gained by considering—strange as it may seem—how honeybees choose a new home. If a bee colony in the wild is thriving in the late spring or early summer, the queen bee and about ten thousand companions will depart from the hive in a swarm, leaving their original hive to the bees (and a new queen) that stay behind. That is how bee colonies multiply. The swarm will alight on a nearby tree branch and then choose a site for their new hive.

William Shakespeare suggested in Henry V that the queen bee rules her colony in the same way as a human monarch rules a country; the bard notwithstanding, monarchy is not how the bees pick a home.² The queen bee plays no part. If she were to be injured house hunting, the colony would perish. So, like American revolutionaries who rejected rule by a king, in locating their new hives honeybees must have a workable alternative to monarchy because making a smart choice is critical to survival.³

The bee colony leaves picking a new hive to several hundred worker bees. They spread out for miles in every direction to scout for potential sites. Each scout inspects a site, returns to the swarm, and performs a dance that communicates the location of the potential site and the bee’s degree of enthusiasm for it. Yet, the colony cannot simply opt for the site that draws the highest praise from an individual scout. The scouts vary in how much enthusiasm they show for the same site. That is understandable. The suitability of a site depends on many considerations, some of which are difficult to assess. For example, the hive’s interior must be big enough to store sufficient honey to keep the colony from starving over the winter but not so big that the bees can’t fight off the cold by huddling together. The hive’s entrance must also be small enough to bar raccoons and other honey thieves from entering. The small entrance means the scouts must estimate the honey-storing capacity of the interior in the dark.

While the colony cannot leave the choice up to a single scout, it cannot have every scout visit every potential site, either. The colony would starve before that could happen.

Here’s how the honeybees solve their problem of self-government: After the returning scouts initially report back to the group, they visit sites the other scouts have gone to, especially those that previously drew high praise from the others. When the number of scouts at a site showing enthusiasm for it reaches a threshold of around thirty, that site it is. These scouts communicate the decision to the swarm, which then flies to its new home.

Scientists have found that the bees’ method strikes a smart balance between the care needed to pick an excellent site and the speed needed to keep the colony from weakening from hunger while waiting. Evolution thus equipped honeybees with a smart search engine long before computer engineers ever wrote code for searching the Internet.

The genius of the honeybees’ search engine lies in using open debate about the comparative quality of competing alternatives to increase the group’s collective information, thereby overcoming a daunting set of difficulties including:

• many alternative sites

• multiple considerations applicable to making the choice

• many community members, without a single bee that can gather all the relevant facts in the time available and with many bees evaluating the same facts differently

The people of the United States would face analogous difficulties, as the drafters of the Constitution knew.

Yet people differ from the honeybees in a way that compounds these difficulties. Humans compete with one another for advantage and so have clashing interests. During the drafting of the Constitution, James Madison described the clashing-interest groups as “rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect.”⁴ In contrast, worker bees within a colony don’t compete. Evolution has seen to that because only through the colony’s queen can individual workers propagate their genes.

It’s human nature for voters to want government to further their own interests, for elected legislators seeking their own advancement to attempt to gratify such wants, and for both groups to tend to ignore the burdens that exchanging votes for benefits imposes on other people.

To deal with this whole array of difficulties, the drafters of the Constitution saw open debate as essential. The Constitution contains two features mutually designed to promote such debate. First, it gives responsibility for critical policy choices to a group called Congress, so named because it is a coming together (or congress) of members elected by widely varied interests. It assigns to this Congress the power to levy taxes, appropriate money, impose laws, declare war, and more. Second, the Constitution requires Congress to publish “the Yeas and Nays of the Members of either House” on controversial issues. In contrast, in Britain, members of Parliament were allowed to keep their doings secret, thereby shielding them from responsibility.⁵ These two features of the Constitution, together with the original expectation that Congress would legislate in a way that made benefits and burdens apparent, meant that voters could hold legislators accountable for the consequences of their choices.

The personal responsibility of members of Congress 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 but garner support from still-other representatives whose constituents wanted to ship goods through the improved harbor.⁶ Congress would thus collect information from far afield about the consequences of proposed legislative actions, much as the congress of honeybee scouts collects diverse information about the merits of potential homes for the colony, more than any one scout could collect separately. So, however Congress resolved an issue, the clash between representatives would make it evident to both representatives and constituents who would gain and who would lose from the proposed action and in what ways.

Moreover, the open debate between clashing interests together with the personal responsibility of members of Congress would mean that they would get the credit for conferring a benefit on one group of voters only if they also shouldered the blame for any harm the decision inflicted on other voters. This should 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 “the greatest evil—the arts and designs of rivals abroad.” 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,” and Congress ultimately produced legislation that balanced the interests of both manufacturers and purchasers.⁷

Moreover, the drama of open debates would educate citizens about the choices facing the government, even those who didn’t 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 the historian and professor Robert Wiebe stated, “The anger at secrecy, the demand for openness, was a functional response to situations that made democracy impossible.” In the decades after the Constitution was ratified, Congresses actually voted on the great issues of their era, deciding the law itself on hot-button issues such as tariffs. Legislators took positions on the hard choices and constituents understood.⁸ 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. With a largely literate public, the United States had more newspapers in 1822 than any other country despite its smaller population. According to the historian and professor Daniel Walker Howe, “Foreign visitors marveled at the extent of public awareness even in remote and provincial areas.”⁹

One might suppose that the combination of an informed public, open debate, and the selfishness inherent in human nature would tear the country apart. This did not happen because there is another side to human nature—the deeply seated desire to be fair to others in one’s own community. Learning how one’s demands will affect others, as happens in the process of open debate, sparks the desire to be fair. Modern behavioral scientists have found that people are less apt to try to grab for themselves something that a stranger leaves behind if they actually see the stranger.¹⁰

The desire to be fair can be seen in everyday events. When many people are waiting to, say, buy tickets for an event, they will usually line up to take their turn and newcomers will generally join the end of the line rather than butt in. First come, first served.

People also behave that way even in extraordinary events. After the Allies liberated Paris in 1944, Coco Chanel offered bottles of her famous Chanel N° 5 perfume to American GIs at a price even they could afford. The soldiers had grown up when travel overseas was a rarity and the Great Depression made money scarce. They could thus barely believe that they were in Paris, let alone that they had survived the Normandy invasion. Now, despite their scant pay, they could bring home to their wives, girlfriends, or mothers a luxury that epitomized Parisian glamour. That luxury was indeed hard to come by. When, the following year, President Harry Truman met with Winston Churchill and Joseph Stalin in Potsdam, Germany, he had to write home to Bess that he couldn’t get a bottle of Chanel for her.¹¹ Yet, as much as the GIs wanted the perfume, they lined up first come, first served—regardless of rank. Fair is fair. Standing in that line to buy a bottle of perfume for my mother, my own father, an enlisted man, saw the supreme commander of the Allied Forces in Europe, General Dwight Eisenhower, arrive at the Chanel store and go to the back of the line.

Photograph by David Schoenbrod, 2016.

FIGURE 3. The bottle of Chanel perfume my father bought for my mother during World War II.

Scientists see no paradox in seemingly selfish people desiring to act fairly, because in the millennia-long competition among societies, those societies whose members tend to treat one another fairly work better and therefore are more likely to thrive. Being fit to survive includes fairness as well as selfishness.¹²

Yet circumstances can make it tough to be fair. This, again, can be seen in everyday events. When, long ago, I started to take the Amtrak train from New York City to upstate New York, passengers dutifully lined up in the waiting room to board the train, but as the space became increasingly congested over the years, a few passengers, pretending that they saw no line, butted in at the front. Noticing that others were cheating, more and more of the passengers butted in. What had been an orderly line in time turned into a crush of individuals elbowing to get to the head, with most trying not to be too obvious about it. Most nerve, first served.

Thankfully, Amtrak put Charles John Jackson in charge of boarding the trains. He could see that passengers felt horrible about being put in this situation and set about creating circumstances in which people would act fairly despite the congestion. His solution: put up cordons to make the line plainly visible in order to communicate to passengers that “we do care about people waiting in line patiently.” He found that about 98 percent of people complied voluntarily and assigned three subordinates to stop those who didn’t. Now that passengers have become accustomed to circumstances that make for fairness in boarding the trains to upstate New York, hardly anyone tries to cheat. Behavioral scientists would approve of Mr. Jackson’s strategy. Some of them have found, for example, that people are less apt to cheat when they sense that others aren’t doing it.¹³ I saw an instance of the payoff take place on the day before Thanksgiving in 2014, when 649 people waited to board the midmorning Amtrak train. They formed a line seven hundred feet long. The line required six right turns to fit into the cramped and crowded station. And, as far as I could see, no one tried to butt in line.

The people who wrote the Constitution sought to structure the government to create circumstances that would encourage the fair side of human nature and discourage the selfish side. The Constitution gave members of Congress the job of taking responsibility for the benefits and burdens of legislation, and, as a necessary consequence, the job of educating themselves and their constituents on who would gain and who would lose from the proposed action.¹⁴ In sum, to do its job well, Congress needs to have open debate, just as the honeybees need to have open debate to find good sites for their hives.

There was open debate when Congress attempted to pass civil rights legislation in the early 1960s and the fair side of human nature won out with the passage of the Civil Rights Act of 1964. The act forbids discrimination on the basis of race, color, sex, religion, or national origin. Dr. Martin Luther King Jr. and President Lyndon Johnson as well as Congress deserve great credit for its passage, but there are other heroes who don’t get the credit they deserve: the ordinary Americans who supported the legislation because they wanted their country to be fair.

In the summer of 1962, Senator Hubert Humphrey of Minnesota, the most outspoken proponent of civil rights in the Senate, had nowhere near the two-thirds vote from the senators needed to stop the filibuster by Southern senators. His despair was palpable. I had the chance to talk with Senator Humphrey because I worked in his office as a summer intern.¹⁵ These Southern senators had no self-consciousness about their opposition to civil rights legislation. They would never relent. In 1962, Southern opposition to civil rights legislation seemed like an immovable object. That’s why its passage in 1964 was a surprise.

In 1963 came the March on Washington amid growing unease in the heartland of America about Jim Crow segregation. When the leaders of the march assembled on the high stage built in front of the Lincoln Memorial, they saw below them a host of marchers stretching out a mile along the Lincoln Monument Reflecting Pool. This host—of which I was a part—seemed to me like a community, a communion in the root sense of the word. It was vast and it was determined. The immovable object of bigotry had met an irresistible force.

Dr. King’s speech, and, in particular, the “I have a dream” passage, which he added on the inspiration of the moment, convinced the marchers that the irresistible force would prevail. As Clarence Jones, whom Dr. King commissioned to write a draft of the speech, stated a half century later:

If you read the text of the speech, while you might be impressed and moved by certain parts of it, you would probably think it was a good speech, but not necessarily a profound or powerful speech. . . . What made the speech an extraordinary speech was a combination of factors. [It was delivered] at a gathering of the largest group of people assembled anywhere in the country at any time in the history of the United States for any purpose, 25 percent of whom were white. [It] was in the capital of the United States. [It was] at the foot of the Lincoln Memorial one hundred years after the Emancipation Proclamation. . . . Dr. King, to me, spoke on that day in a way I had never heard him speak before, and had never heard him speak since.¹⁶

Dr. King’s words moved the marchers, and the marchers’ reaction moved King. Then, too, everyone there understood that the march would have a vast audience through television. As we listened, we knew that his words would sway the people watching at home. As Jones put it, “Once those words hit the ears of the listener at home, all that was left was to let their meaning take hold and stir the conscience of everyone who was tuned in.”¹⁷

Dr. King’s Dream, it seemed, would move the immovable object. And so it would, but not at first. Immediately after the march, King and other leaders met with President John Kennedy and asked him to put some real effort into getting Congress to pass the Civil Rights Act that he had endorsed. What they heard from the president was, in Jones’s words, “the March hadn’t done much for him. . . . [Kennedy] was more worried about his party’s chances come election day than about the Negroes’ chances for justice. Despite the rousing success of The March, he wasn’t going to give The Movement any genuine support.”¹⁸

In 1964, only five months after the march and two months after the assassination of President Kennedy, Dr. King and other key civil rights leaders met with President Johnson. The leaders walked into the Oval Office with little hope that the Civil Rights Act would pass soon, but by the time they left, they were confident that it would. According to Johnson biographer Robert Caro, the president needed a strong civil rights bill to secure the support of liberals in the 1964 election, but, more than that, he believed passionately in civil rights. Ironically, one tactic that President Johnson used to sell the legislation to the country is that its passage would honor John Kennedy.¹⁹

In the end, the Civil Rights Act got passed only because the Senate voted to stop the Southern filibuster, which had blocked the bill for fifty-seven days. In 1964, a motion to stop a filibuster required sixty-seven votes. The motion passed 71–29. Senator Humphrey, who was the floor manager of the bill, a diverse team of other senators, and President Johnson eked out this victory by winning over not only a few reluctant Democratic senators but also the overwhelming majority of the Senate’s Republicans.²⁰

Photograph by David Schoenbrod, 1963.

FIGURE 4. Some members of the “communion” listening to a speech at the March on Washington.

Because by 1964 the northern heartland of America had come to share the Dream, the Senate finally had the votes to stop the filibuster that year, where it had not in 1962. The bulk of the swing senators who voted to stop the filibuster owed their elections to voters who, as Caro described them, were “traditionally conservative midwestern Republicans”—and who increasingly supported civil rights.²¹ These voters wanted their representatives in Congress to vote for civil rights for African Americans. Their clergy told their senators so. The Dream had reached and touched Americans in most of the country because, in the end, most people want to be fair.

There was open debate on the Civil Rights Act. Members of Congress made clear the burdens as well the benefits. They not only promised the right not to be discriminated against in employment, schools, hotels, restaurants, and other public accommodations but also imposed the corresponding duties—duties not to discriminate—on employers, schools, and businesses that provide public accommodations. Businesses and governments that failed to do their duty would have to lay out large sums of money to comply with court orders and pay damages. By taking responsibility for the burdens as well as the benefits, the legislators produced an act of Congress rather than just a hope of Congress. They took real personal responsibility for important legislation.

I emphasize the role of Midwestern Republicans in the passage of the civil rights legislation because, today, some on the left view those on the right as devoid of the capacity to be fair, and some on the right return the favor. My point is that although the parties are different today, most citizens on both the left and the right have the capacity, somewhere down deep, to be fair. The trickery is one of the things that gets in the way. Based upon an exhaustive analysis of thousands of questions asked in polls over fifty years, political science professors Benjamin Page and Robert Shapiro reported that “people of all sorts, in all walks of life, tend to form their policy preferences not only on the basis of narrow self-interest but in terms of group interests and—especially—the public good, or perceived national interest.”²²

Trickery gets in the way of fairness because it masks the responsibility of elected officials and thereby lets them avoid the open debate that, as discussed throughout the chapter, educates citizens on how proposed acts of Congress will affect other people. The sense of fairness thus awakened can get people to moderate their positions. Human nature being what it is, there will always be many fights in Congress, but when Congress resolves the disagreements in the open, taking responsibility for the burdens as well as the benefits, voters can accept the overall system as fair and therefore accept the results. Win some, lose some. The Economist approvingly summarized the viewpoint of Nobel Prize–winning political economist and professor of economics 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].”²³

The circle of repeated demand, feedback, and decisions resulting from open debate promotes virtue. This virtuous circle could, as previously noted, put the goodness in peoples’ hearts into the heart of government.

With open debate, Congress’s function becomes like that of an orchestra conductor. By beating time and setting the mood, the conductor provides a context in which the ensemble can make music together even as its members express themselves individually. Analogously, Congress is supposed to provide a context in which society can prosper even as its members pursue their individual aims.²⁴ To do so, Congress must make clear what benefits and burdens it is enacting and thereby set realistic expectations of what people can expect from one another and their government. A Congress that does this job well helps people respect rather than hate one another.

In contrast, when a system seems unfair, as when people butt in line or Congress uses tricks to evade blame for the unpopular consequences of its decisions, fairness to our fellows goes out the window and harmony becomes acrimony. That is why the drafters of the Constitution were smart in putting stock in members of Congress taking responsibility and openly debating the consequences of its critical choices.²⁵

Open debate has produced decisions on behalf of the American electorate. As one visitor from overseas, the French aristocrat Alexis de Tocqueville, wrote in 1835, because “the people participate in the drafting of the laws by the choice of the legislators, in their application, by the election of the agents of the executive power; one can say that they govern themselves.”²⁶

Such government was a source of good will and pride. At Gettysburg, President Abraham Lincoln celebrated this government with his ringing conclusion that “we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”²⁷

Perhaps because this passage is so familiar, perhaps because we hear it in an era of tricky government, some are prone to dismiss “government of the people, by the people, for the people” as a Fourth of July pie-in-the-sky aspiration. For Lincoln, however, this people’s government was a present accomplishment rather than a distant aspiration. Otherwise, he could not have resolved that it “shall not perish.” It was a people’s government because voters could hold their representatives accountable at the polls and the voters included folk of modest means. In contrast, in Britain at the time, a property-ownership requirement kept the overwhelming majority of adult male citizens from voting. On this side of the Atlantic, almost every state had abolished the property qualification for voting. Thus, it was quite ordinary folks, We the People, who supervised high officials. In Lincoln’s view, what was missing from the people’s government was the inclusion of people of all races. Lincoln in the Gettysburg Address framed the Civil War as a struggle to pair the liberty that comes from accountable government with equality.²⁸

Lincoln’s celebration of the people’s government reached poor people as well as rich ones. Consider, for example, the teachings of Jane Addams, who established Hull House in Chicago to help poor immigrant families. Addams taught the aspirations and personal responsibility needed for people to move from the back streets to Main Street. In particular, she told poor immigrants that they had no less capacity for leadership than their supposed betters. In her view, ordinary people are entitled to the dignity of their own values and high officials should be accountable to them no less than to the elites. For this reason, she particularly revered Abraham Lincoln, whom she described as having taught that “democratic government, associated as it is with all the mistakes and shortcomings of the common people, still remains the most valuable contribution America has made to the moral life of the world.”²⁹ Jane Addams won the Nobel Peace Prize in 1931.

One of Addams’s early pupils was my mother’s father, Louis Marschak. My grandfather was six years old when Hull House opened in 1889. He, his six brothers, and his one sister frequented it. It was Hull House, I suspect, that taught my grandfather to revere the Gettysburg Address about one score and seven years after President Lincoln delivered it. Its message of equality and democracy must have had special meaning to my young forebear whose poor Jewish family had recently faced oppression in Europe. For him, “All men are created equal” and “Government of the people, by the people, and for the people” were not just pretty figures of political speech. When I was a tot and my own father was at war in Europe, my grandfather taught me to recite the Gettysburg Address by heart. I didn’t understand the words but knew they were sacred.

If you think “Government of the people, by the people, for the people” presumes that voters have more rationality than they actually do, consider this finding of professors Page and Shapiro: “Despite the evidence that most individual Americans have only a limited knowledge of politics (especially of proper names and numbers and acronyms), [the data] reveal that collectively responses make sense; that they draw fine distinctions among different policies; and that they form meaningful patterns consistent with a set of underlying beliefs.” They qualify this conclusion with the caveat that politicians can, by misinforming voters, sabotage their capacity to make sound judgments.³⁰ Misinforming voters is the function of the Five Tricks.

Photograph taken from the bio. Web site, http://www.biography.com/people/jane-addams-9176298.

FIGURE 5. Jane Addams in 1892, around the time my grandfather frequented Hull House.

Legal philosopher Professor Jeremy Waldron neatly captured the essential point of the current chapter when he urged us to

see the process of legislation—at its best—as something like the following: the representatives of the community come together to settle solemnly and explicitly on common schemes and measures that can stand in the name of them all, and they do so in a way that openly acknowledges and respects (rather than conceals) the inevitable differences of opinion and principle among them.³¹

This passage describes Congress’s most fundamental duty under the Constitution: to forthrightly decide issues of legislative policy and, as a consequence, engage in open debate. The open debate widens the information available for making decisions and insures that our elected representatives take personal responsibility for those decisions. This duty is so fundamental because its performance helps citizens who have differences of “opinion and principle” accept those decisions and get along with one another.

Open debate is the process through which Congress generally worked from 1789, when it first convened, through the early- to mid-1960s, a period of more than a century and a half. The differences of opinion and principle were not always pretty—in fact, sometimes, they were downright ugly—but the open debate helped.