These days, Congress, which hosted President Trump’s State of the Union address on Tuesday night, is often seen as the third wheel of the federal government, forever overshadowed by the presidency and Supreme Court, with a truly dismal approval rating.
But Kevin R. Kosar, a senior fellow at the American Enterprise Institute, thinks Americans might have gone a little too far in their Congress bashing. Congress — or at least the “secret Congress,” as he calls it — is not nearly as gridlocked or incompetent as its reputation suggests. The “toxic Congress,” on the other hand …
In a written conversation with John Guida, an editor in Times Opinion, Mr. Kosar explained the two faces of Congress — and the challenges the legislative branch faces in the Trump era.
John Guida: You recently called Congress “both deeply dysfunctional and surprisingly functional.” While it frequently fails even to pass a budget on time, it also does plenty of “valuable things that are nearly invisible to Americans,” like raising the compensation and benefits for veterans last year to keep up with inflation.
At the heart of your qualified defense of Congress is what you call the “secret Congress.” What is that?
Kevin R. Kosar: The secret Congress is the Congress that operates mostly in plain sight but that the average American simply does not see. This is not because our legislators are spending time squirreled away in a secret, plush room in the Capitol with leather chairs and covertly governing the country. (Although they do have some private rooms where they haggle.)
No, most of what the secret Congress does is readily visible, but most of us do not look. Very few of us, for example, surf to Congress.gov to see how many laws have been passed by Congress in recent weeks or months or spend much time watching hearings on C-SPAN.
A lot of the work of the secret Congress is rather boring. Right now Representative Ron Estes, Republican of Kansas, and Senator John Kennedy, Republican of Louisiana, are working to get around $39 billion in unclaimed savings bonds returned to the Americans who purchased them but who have not claimed them. That has entailed working to pass a law and then battling with the U.S. Treasury over how the law is carried out. It’s an important topic but not an especially exciting one for the average person to follow.
Guida: The flip side of the coin is what you call the “toxic Congress.” I take it that is where you identify the biggest shifts over the years in how Congress operates.
Kosar: The toxic Congress is the Congress we Americans are all too familiar with. It is the Congress that does not make much policy, and when it does, it passes laws by party-line votes. The toxic Congress is the Congress where legislators behave in truly awful ways to one another, where partisans openly speak of members of the other party as radicals and fascists. The toxic Congress is mostly what we see when we open X or Bluesky. It’s individuals refusing to do what Congress was built to do: bring diverse people together to bargain out policy the country can live with.
Guida: Who are the heroes of the secret Congress?
Kosar: Certainly Representative Tom Cole, Republican of Oklahoma, and Representative Rosa DeLauro, Democrat of Connecticut. These are not household names, like the right-wing firebrand Representative Lauren Boebert of Colorado and the democratic socialist Representative Alexandria Ocasio-Cortez of New York. Cole and DeLauro sit atop the House Appropriations Committee. They are in charge of initiating trillions of dollars in spending legislation. They are two very different individuals with distinct views about government, and yet they quietly worked together to get pending bills to President Trump’s desk, which he signed, and these bills, I’ll add, do push back on the executive branch in various ways.
There are many others who are workhorses, not show horses. And I should add that many legislators behave as both — raging partisans on high-salience issues that get lots of media coverage and that are core to the party brand (like immigration) and professional lawmakers on boring, low-salience, wonky matters.
Guida: How would you characterize the current partial shutdown? Is that secret Congress at work, toxic or some mix?
Kosar: I think that it is both Congresses at work. On the one hand, there are real policy issues at stake about how these immigration enforcement actions are being conducted. Congress should debate these things and bargain something out. They should not simply hope the administration changes its ways or turn to the federal courts for solutions.
That said, we are in an election year, and there are strong incentives for each party not to back down. While there is a lot of political posturing getting loads of media coverage, there also are legislators, particularly in the Senate, working behind closed doors to end the impasse and make sure all Transportation Security Administration employees and other workers are on the job and being paid.
Guida: Congress has taken a lot of criticism in the second Trump term for not standing up to very aggressive executive action in areas like spending. Tariffs are a good example. In oral arguments defending the previous tariff regime, the administration’s lawyer, D. John Sauer, characterized them as “regulatory tariffs” and emphasized they were “not revenue-raising tariffs.”
And yet this week the president himself boasted about the tariff revenue. He even mused that tariffs one day “will, like in the past, substantially replace the modern-day system of income tax.”
Kosar: At heart the question is: Why don’t Republicans, many of whom really do believe in limited government and the Constitution’s separation of powers, regularly indulge and even cheer for gross executive overreach?
The answer is that they believe rah-rahing the president is in their self-interest. For one, none of them want Trump to primary them. For another, American voters increasingly judge their legislators based on how they behave toward the president.
That is precisely why so many researchers, academics and writers are looking at alternatives to partisan primaries. They are not a representative sample of the public. Only about 20 percent of eligible voters participate. That is a big reason we see normal legislators behaving like far-left and far-right kooks: They want to please primary voters.
Guida: I’m curious about the tension between how the founders designed our system — with a separation of powers — and our current polarized political structure, dominated by our two political parties. Incumbents still have an astronomical re-election rate, unless, say, the president intervenes to seed a primary challenge. Do you see that kind of partisanship as an insurmountable challenge for Congress and its members?
Kosar: Yes. Prof. Frances Lee of Princeton has pointed out that over the past few decades, the competition between the two political parties has become very intense. The days when the Democrats were a nearly perennial majority in both chambers of Congress (1955 to 1995) are long gone. Now that each party thinks it might win or lose its majority in the next elections, that drives them to be very combative and to play a lot of team ball.
If there is a Democrat in the White House and the G.O.P. controls one or both chambers, well, the G.O.P. game plan is to jam the president with bills he does not want, block his appointees and grind down his approval ratings through nasty oversight hearings.
Guida: In his first term, Trump was largely surrounded by — and often constrained by — independent forces. He tried to work with Congress on various issues (the border wall, for instance). He often came away frustrated. In 2019 the political scientist Matt Glassman argued that “Republican leaders in Congress skillfully used a variety of tactics to minimize the president’s influence and maximize their own control over public policy.”
In Trump 2.0, he has largely governed through executive order. I mention this because it’s a shift that seems to be revealing who really applies the power in Washington.
Some in Congress have done a bit of pushing back, as you mentioned, particularly in the areas of appointees and spending. But is it because the president has governed largely by executive orders that their areas of intervention and effectiveness have been limited?
Kosar: Well, in the first year of Trump’s first term, congressional Republicans felt strong incentives to make Trump look good, which would make them look good.
In Trump 2.0, he was picking more appointees who were committed team players. A guy like Rex Tillerson, a secretary of state in Trump 1.0, is not the kind of guy you find in the Trump 2.0 cabinet.
And because Trump has been doing so much through executive action, legislators spent a lot of energy going directly to Trump to ask that he modify actions. We saw that a lot during the period when the so-called Department of Government Efficiency was wantonly canceling contracts and other forms of spending. G.O.P. legislators went to Trump’s people and said: Hey, those people you just fired were doing important things in my home state, and my voters are really mad. Please hire them back.
Guida: How would you assess Senator John Thune’s tenure as majority leader? He is not someone seen as a MAGA Republican (which, it’s fair to say, would apply to Mike Johnson, the speaker of the House). Is Thune trying to maintain a balance between what we think of as more conventional Republican lawmakers (say, John McCain and Mitt Romney) and more MAGA-inspired senators in the mold of JD Vance when he was a member of the body?
Kosar: Thune mostly embodies the secret Congress ethos, despite his prominence. The Senate’s very nature empowers each senator to be a veto player — a person who can slow or stymie legislative action. So he is forced to bargain quietly and often says banal things when questioned by reporters. To be clear, he is a Republican Party leader and raises a ton of money for G.O.P. candidates, and he is generally not going to hurt the team by directly criticizing Trump. But he does work quietly to correct administrative actions that foul up the Senate’s ability to approve nominations or pass bills.
Guida: Lawmakers can have enormous influence on public policy; some senators in eras past had as much impact on policy as a president. Why do we see so few ambitious congressional political entrepreneurs in the mold of Mitch McConnell or Harry Reid today? Do you think we will see that type of lawmaker again, or do you worry that the incentives are too strong on the side of executive orders and the urgency to just get things done rather than go through a legislative grind (which, to be fair, we did see not so long ago with the Biden administration and Congress)?
Kosar: I think part of the problem is that most media coverage focuses on the president, not individual legislators. For much of this country’s history, there were reporters from state and municipal newspapers who went to Washington to report on what their legislators were doing. Naturally, members of the House and Senate wanted to impress their local papers and, by implication, the voters back home. So they gave great speeches and tried to do great things. Nowadays there are very few state and local journalists on the Hill.
Another piece of it is that right now the average legislator faces huge hurdles to making policy. The “Schoolhouse Rock!” model of regular-order legislating has diminished. Introducing a bill, having it go to committee, getting it considered and reported out and then the chamber voting on it — that just does not happen as frequently as it used to. Increasingly, getting a bill passed means begging chamber leadership to slip it into an omnibus bill. That’s how Kennedy enacted that law to help connect U.S. bondholders with their unclaimed bond proceeds. He put it in a big must-pass bill. Meanwhile, Estes’s free-standing bill did not get a vote in Congress.
Guida: Let’s end on a question about the potential for congressional revival. Justice Neil Gorsuch, in the Supreme Court’s tariff decision, laid out a vision for restoring what he sees as Congress’s role in the founders’ constitutional structure. Many people saw it as a call to revive Congress.
He wrote: “Yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.”
Can Congress live up to that vision again? Or is that vision outdated or flawed in light of the developments you identified above?
Kosar: Yes, it can. Congress can reform itself. It did so in the early 1970s and the mid-1940s. Legislators grew tired of feeling like eunuchs in a presidential court, and they reorganized Congress and invested in its capacity. They changed their committee structures, altered their internal processes for getting things done and hired more staff and nonpartisan experts and the like. They did this both because they wanted to recover the Constitution’s essence — having a legislature serve as the vehicle for making policy — and because it made their jobs more enjoyable. Legislators who upgraded Congress got the benefit of wielding more power and getting things done. Reform is happening today. Little known outside of Washington is that the House of Representatives has a modernization subcommittee. Lots of small, internal reforms have been enacted, but there is a lot more work to be done.
Kevin R. Kosar is a senior fellow at the American Enterprise Institute and the author of, most recently, “Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform.” John Guida is a Times Opinion editor.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow the New York Times Opinion section on Facebook, Instagram, TikTok, Bluesky, WhatsApp and Threads.
The post The Best-Kept Secret in Washington appeared first on New York Times.
