Note 38. Models of Representation and Lawmaking, Briefly
Congress serves two, not always compatible, purposes – representation and lawmaking. Members of the House and Senate serve individual districts or states, yet they are entrusted to act collectively to make laws for the nation as a whole. Collective action on divisive issues entails bargaining and compromise – among the members of each chamber, between the House and the Senate, and between Congress and the president. For compromise to be possible, members sometimes must retreat from their commitments to their individual states and districts. Determining who must compromise – and how to get them to do so – is the essence of legislative politics. The process can be messy, even distasteful, but, if it is to serve the nation, it is unavoidable.
Models of Representation
There is no simple definition of good representation as it applies to Congress. Representation involves acting on behalf of others, but in a complex political system it is not obvious who represents whom. Members of Congress swear allegiance to the Constitution of the United States in their oath of office, but we can ask whether they should give priority to the districts and states that elected them or to the country as a whole. When thinking about either their local constituencies or the nation, should legislators give priority to the views of a majority of citizens or should they exercise their own best judgment? When acting collectively to enact legislation, should legislators count the number of districts and states that favor action, weigh national opinion, or rise above established views to define new policies? What we can do here is explore some of the relevant issues to show that representation in a large democracy is not simple.
Representation by Individual Legislators
Edmund Burke, a political philosopher and member of the British Parliament in the late 18th century, is best remembered for his Speech to the Electors at Bristol at the Conclusion of the Poll, delivered in 1774. At issue was an effort to have the electorate approve instructions to its member of parliament on how to vote on an important issue. Burke opposed instructions and gave this reasoning (at a time when only men could vote or run for office):
Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
Burke distinguishes two views of representation by an elected official. We might think that a representative’s job is to faithfully present (“re-present”) the views of his or her district or state in Congress and vote accordingly – that is, to serve as a delegate for his or her constituents. A delegate-legislator, however, does not have an easy job. His or her constituents often have conflicting or ambiguous views (or none at all) about the issues before Congress. Alternatively, a member of Congress might be considered a trustee – representing his or her constituents by exercising independent judgment in setting priorities and choosing policy positions. This is often called a Burkean view of representation.
As Burke implies, it is unlikely that a legislator can be both a true trustee of the public interest and a faithful delegate of a diverse constituency. The challenge of the politician who wants to be elected and then reelected is to behave in a way that navigates successfully among legitimate, competing expectations. In practice, legislators whose personal priorities and views correspond to those of the majority of their constituents are the most likely to be reelected and find service in Congress satisfying. For many legislators, however, constituency opinion may be their guide on some issues, perhaps the issues that are most salient in their home districts or states, while their personal interests and views guide their activity on other issues, perhaps as a result of their ability to educate or persuade constituents about the best policy. This hybrid style that involves elements of both delegate and trustee representation has sometimes been labeled a politico style, a term which reflects the influence of the political context on the approach taken by legislators.
Representation by Congress
Even if individual legislators can be considered good representatives for their own constituents, we might still wonder whether Congress can adequately represent the nation as a whole. Congress could be considered a delegate or trustee of the nation. As a delegate institution, Congress would be expected to enact policies reflecting nationwide public opinion, but it is not always obvious how to count public opinion over the wide range of issues on which Congress acts. Public opinion is often conflicted, ambiguous, or undeveloped. As a trustee institution, Congress would be expected to formulate policy in a manner consistent with its members’ collective judgment about the nation’s interests, whatever the state of public opinion. This is where commentators and theorists may hope that deliberation—thoughtful discussion among legislators with diverse experiences and expertise—would generate effective public policies. In practice, of course, members sometimes invoke public opinion (a delegate perspective) or claim that Congress must do what is right (a trustee perspective) in their arguments for or against specific legislation. There is no settled definition of how Congress should define its collective responsibilities, which, of course, leaves political actors to invoke whichever perspective serves their immediate interests.
In practice, the correspondence between the quality of representation at the district or state level and that at the national level might be quite weak. To see this, imagine an issue on which five legislators from different districts take varying positions. As Table 38-1 illustrates, even if the legislators are not well matched to their districts, they can collectively represent the nation well. That is, the congruence between policy and public opinion may be poor at the state or district level but perfect at the national level. In this cases, the average distance between a legislator and her district is 1.4 on a 1-5 scale (column 5), while the average legislator has exactly the same score as the average district (column 4). As a general rule, a legislative body will be at least as good a delegate for the nation as are individual members for their district or state.
The logic of the table does not guarantee that the House, the Senate, and the president will be able to agree on legislation. In fact, James Madison, the chief architect of the Constitution, hoped not. Madison argued that policy should not necessarily reflect the majority’s views. He justified the creation of an independent executive branch (the presidency) and a bicameral legislature (the two chambers of Congress) on the grounds that policy should not simply reflect majority public opinion. He gave the president and the members of the two chambers terms of different lengths, specified different means of selecting them, and gave the president the power to sign or veto legislation. Madison expected the two chambers and the president to reflect different interests, which would reduce the likelihood that a majority could capture all three institutions and impose its will on a minority. It would force compromise and avoid extreme outcomes.
Our attention to policy congruence does not exhaust how legislators and Congress represent the nation. Having legislators embedded in their districts and states may enhance their familiarity with the needs and interests of citizens, motivate them to take action in Congress, and provide a basis for holding individual legislators accountable for their behavior. Plainly, representation is a complex process that shapes the quality of governance in many ways.
Models of Lawmaking
Lawmaking, like representation, is a complex process often subject to controversy. Madison explained in Federalist No. 10 that he hoped representatives would rise above the inevitable influence of public opinion to make policy in the public interest. The selfish factions that naturally arise in democratic politics had to be checked by requiring law to be determined by an elected House of Representatives, a Senate selected by state legislatures, and a president selected by an electoral college. The Senate became subject to direct popular election in the 1910s and elections determine how state electoral votes for president are cast, but the republican principle—that representatives make federal law, not the people themselves—remains a foundation of the Constitution.
The Unitary Democracy Model
Madison’s views of lawmaking were closely connected with his Burkean view of good representation. Madison’s argument assumes that the common or public interest can be discovered by Congress through deliberation. In this view, the purpose of the legislative process is to discover those common interests through a process in which legislators share information, report a variety of perspectives, offer policy alternatives, and move toward a consensus on action to be taken. Building a consensus, rather than resolving conflicts by force of majority vote, is the objective of this process. Legislators are expected to avoid making unbreakable promises or pre-judging issues. Deliberative processes require a willingness to being persuaded on the basis of new information and arguments.
The emphasis on a common interest led political philosopher Jane Mansbridge to label this decision-making process unitary democracy.[1] This model calls for decision-making process that provides for much discussion, gathering and synthesizing new information, the participation of all legislators who have relevant perspectives and expertise, and the consideration of alternative proposals that emerge in the process. This is where a multi-member legislative body can excel, at least in principle, but the process can be a slow and untidy and yield outcomes that were not initially promoted by anyone.
The Adversarial Democracy Model
Hoping for a truly deliberative process may be too idealistic. Inherently conflicting interests may lead legislators to articulate those interests and decide controversies by the power of a larger number of votes—what Mansfield labels adversarial democracy. For advocates of strongly held policy preferences, deliberation would be viewed as causing needless delay to a majority that may have the votes to impose a policy of its choosing. This kind of majority emphasizes the importance of majority rule and efficiency in making decisions. Debate may serve the purpose of articulating the winning side’s reasoning, but real deliberation, in which minds might be changed, is not the real purpose of debate. This process, rooted in a competition of interests, can be labeled adversarial democracy.
Congress cannot easily harmonize the ideals of both unitary and adversarial democracy. Deliberation and consensus building may seem to be the preferred model of decision making, but time and the compromise required can frustrate a majority that is eager to act. In practice, as for representation, Congress makes trade-offs among the ideal forms of lawmaking. The modern Congress is quite adversarial and partisan, but, at least in some committees, considerable deliberation still takes place. Moreover, the two chambers of Congress need not make the same trade-offs. As we see in later chapters, the smaller Senate continues to look more deliberative than the larger House, in large part because of significant differences in the size of the two houses and the rules that the two houses have adopted over the decades to govern themselves.
The Tradeoffs of Representation and Lawmaking
The struggle to balance alternative models of representation and lawmaking never ends. Contending forces in American politics usually favor different models as they seek to define democratic processes that give them an advantage. An implication of our discussion is that most sides can find a philosophical justification for their positions – to better represent Americans in Washington (usually meaning to increase the influence of one group or another) or to reform lawmaking processes (also usually meaning to increase the influence of one group or another). This is not to say that common interests do not sometimes exist or that the nation as a whole cannot at times be better represented. It is to argue that the history of Congress is not one of smooth progress toward “better” representation and lawmaking processes. Instead, it is a history of political conflict as parties and ambitious politicians sought to appeal for votes and determine policy choices.
[1] Jane J. Mansbridge, Beyond Adversarial Democracy (Chicago: University of Chicago Press, 1983).