To say that Congress is a “dysfunctional institution” is not exactly profound. As our federal legislature winds down yet another fractious and unproductive term, explanations for its decline are everywhere. Indeed, diagnosing the problems of Congress has become a veritable American cottage industry. Whether it is gridlock, partisanship, the decline of civility, the Republicans, the Democrats, lawmakers who keep their families out of Washington, the filibuster, committee system, earmarks, the lack of term limits, lobbyists, and big money, there is an explanation to suit every turn of mind and a supposed panacea to match it.

The reality, however, is that we have been trying to “reform” Congress for more than a century, yet we are as far from a properly functioning legislature as at any time in our history. Why is this? Contemporary reform efforts cannot adequately address the failures of this branch of government because they do not adequately tackle the core problem, which is the demise of Congress as a legislative institution.

The Constitution tells us that “all legislative power herein granted shall be vested in a Congress of the United States.” The Framers understood that there exists a legislative, or lawmaking power, fundamentally distinct from executive power and judicial power. Laws govern society by informing citizens what they can do, what they must do, and what they are permitted, but not required to do. It is precisely this power that Congress has abdicated over the past century. Sometimes, it simply does not pass legislation. This is especially true during periods of divided government and over contentious issues like immigration reform. But even when Congress is able to pass legislation, it consistently fails to make key decisions regarding the rules of action.

As an example, the Communications Act of 1934 instructed the newly created Federal Communications Commission to issue broadcast licenses as the “public interest, convenience, or necessity” required. But because Congress failed to define that, the agency made those judgments. Similarly, the Americans with Disabilities Act of 1990 required employers and educational institutions to avoid imposing an “undue hardship” on disabled individuals by providing “reasonable accommodations.” But what constitutes a “reasonable accommodation” or an “undue hardship”? Often, employers and educational institutions do not know until they are sued and a judge tells them what they must do to comply with the law. (Read more from “Congress Must Shed Reputation as Our Most Dysfunctional Institution” HERE)

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