Day: August 13, 2025

It is an honor to respond to my colleague Philip Wallach’s comprehensive and depressingly persuasive overview of the self-inflicted irrelevance of Congress. As any reader of his essential 2023 book Why Congress will attest, Wallach is among the nation’s leading scholars of the legislative branch. My own perceptions of the institution’s contemporary strengths and weaknesses have been so thoroughly shaped by his analyses that I am inclined to simply nod in agreement as I read his essay.

Rather than quibble, then, I would propose a friendly amendment to his assessment, offered in an effort to understand the causes and motives behind the peculiar self-effacement he describes. It is, after all, a phenomenon in need of several layers of explanation. Why would ambitious politicians undermine their own power?

Part of the answer surely lies in the evolution of our political culture in the direction of rhetorical performance art rather than substantive legislative action. A more performative politics almost necessarily advantages the president, who, as a lone figure, is simply better able to carefully stage his actions and manage his brand, and better positioned to draw the attention of the nation. Legislators thus increasingly come to understand themselves as supporting actors in a fundamentally presidential drama, and to behave accordingly.

But another crucial part of the story, as Wallach suggests, has to do with the excessive centralization of power within Congress. That dynamic has left most members with too little legislative work to do, and put most of the agenda-setting authority in the hands of a few party leaders who tend to be closely aligned with presidents of their own party or implacably opposed to presidents of the other party. This has focused Congress’s attention on the presidency and has created less room for interesting differences to emerge within both parties. That in turn makes it difficult for strange-bedfellow coalitions to form in ways that might facilitate legislative negotiation both within and across party lines.

That such centralization has happened is beyond dispute. But that it should have led to a weakening of Congress in the inter-branch struggle for power is actually profoundly ironic, since the centralization of power in the hands of congressional leaders has generally been pursued with the intent of strengthening Congress and its members, not weakening them. A better grasp of why a more consolidated Congress has become a weaker Congress could teach us a lot about this constitutional moment.

The modern push for centralization began in earnest in the House of Representatives in the mid-1970s. It was driven in large part by a perception among younger and more progressive Democrats that their policy agendas were routinely thwarted by the power of committee chairmen—who were generally older and more conservative Southern Democrats. Congressional politics meant intra-Democratic Party politics back then, about halfway through what would ultimately be a four-decade stretch of Democratic dominance of the institution. The majority party in Congress felt itself stymied (and therefore also weakened in its struggle against a Republican president) by its own internal diversity.

In an effort to better distribute power in the institution and empower the increasingly dominant progressive wing of their party, congressional Democrats pushed to reduce the power of committee leaders in favor of party leaders in Congress. And this centralization of power (along with the consolidation of the budget process, which the same Democratic majority pursued at the same time) was also viewed as a way to concentrate and increase Congress’s power in relation to the executive.

That trend toward centralization, pursued with both of those aims in mind, advanced gradually over the subsequent two decades but was then supercharged by the Republican takeover of Congress in the mid-1990s. In an effort to strengthen the position of a Republican Congress against a Democratic president, the Gingrich Republicans sought to empower the Speaker of the House to more effectively wield their coalition at will and so command a power center that could compete with the president’s control of the executive branch. For this purpose, committees were further weakened, and party leaders came to exercise an unprecedented degree of control over the legislative process and the policy agenda of Congress. As had happened two decades earlier under Democratic control, these changes began in the House and then the Senate embraced them too, if a little more modestly.

The same dynamic was pressed even further in congresses under the control of both parties over the past 25 years. By now, members have come to think of the sheer managerial dominance of party leaders in Congress as a natural feature of the institution. But in historical perspective, it is actually quite unusual. And it has badly deformed Congress’s understanding of its own role.

That deformation has led to what now looks like an intentional weakening of the institution by its members. But that is as much an effect as a cause of Congress’s modern travails. The centralization and consolidation of the institution were intended to strengthen it, and even to give the average member more power (since party leaders are accountable to their broader memberships, while committee chairs are focused on narrower interests). But it has done the opposite, because it was rooted in an error about the fundamental purpose of our national legislature.

That error is a function of a progressive conception of Congress, which argues that Congress’s core purpose is ultimately to advance major legislation in pursuit of a coherent policy agenda on behalf of the majority party. This is not a crazy notion, but it reflects an incomplete understanding of the goals of our system of government.

If Congress’s purpose were merely to advance major legislation, it would be reasonable to attribute its problems to its radical inefficiency. Bills move too slowly, too many of them never reach the finish line, and the process of legislation is just too chaotic and unfocused. If that were the source of Congress’s weakness, then centralizing the institution might be a reasonable solution. By giving party leaders more power, reformers could improve the efficiency of the institution and get more done. Such a view would see the reforms of the past half-century as justified, and call for more moves in the same direction—perhaps eliminating the filibuster, or further consolidating the budget process in the hands of party leaders.

But the fact that changes in this direction have only made Congress weaker should cause reformers to reconsider their premises. And that fact is hard to dispute. Centralizing power in the hands of party leaders has left most members with little to do (sending them in search of cameras and social-media followers), and has driven Congress to view itself as structurally ancillary to the presidency. In other words, it has had exactly the opposite effect that the reformers sought when this trend toward centralization began.

The same is true of the modern budget process. The mechanisms intended to allow Congress to consolidate its strength in opposition to the president are now routinely used to render Congress a mere facilitator of the president’s agenda. This is particularly evident in the uses of budget-reconciliation bills, which have come to be understood as a way for a president to achieve key goals when his party has only narrow majorities in Congress—a repurposing that would have seemed utterly bizarre to the authors of the Congressional Budget Act of 1974.

Why have reforms of Congress achieved the opposite of their intended aims for decades? Because Congress’s most fundamental purpose is not to advance major legislation. It is to facilitate bargaining across factional and party lines. This is what the institution exists to do, and it is why the legislative branch is meant to be the focal point of political action in a system intended to sustain the political life of a vast, immensely diverse democracy.

Congress is intentionally inefficient so that getting anything done will require relatively broad majorities, which can only be achieved through negotiation across factional divisions. The system is intended to restrain narrow majorities, to maximize the legitimacy of legislative outcomes. But reformers who value efficiency above legitimacy have undermined the institution’s capacity to achieve its core purpose—they have tried to make bargaining less necessary, and in the process, they have led members to think of themselves as less necessary.

The failure to facilitate negotiation and bargaining is a key reason why Congress so rarely passes major legislation now. But that is one symptom of the underlying problem; it is not the heart of the matter. The weakening of rank-and-file members of Congress is another symptom of the same failure to facilitate negotiated accommodations. And so is the weakening of Congress in its struggles for power with presidents.

Properly understood, Congress’s strength, and the strength of each of its members, is a function of the institution’s plurality and internal diversity, and of its capacity to facilitate broadly acceptable negotiated legislative bargains. By losing sight of that source of its power and pursuing mere efficiency instead, Congress has lost the bulk of that power (without actually gaining much efficiency). And by continuing to misdiagnose its shortcomings, Congress now actively surrenders its power on purpose, and increasingly falls into what Wallach aptly describes as “an overwhelming sense of passivity.”

An unintentional loss of congressional power thus preceded the willful surrender of congressional power that we now see. In essence, reforms of Congress over the past half-century have operated on the premise that members are the problem and leaders are the solution. This has led members to recoil from power, and since congressional leaders are actually answerable to members and their priorities, that has, in turn, led Congress as a whole to recoil from power. Addressing this problem would require re-empowering the middle layers of Congress, and especially the committees. Reformers would have to recreate the possibility of members wielding power in order to reawaken the desire for it.

This suggests that any revival of the legislative branch would require members to become reacquainted with the sources of Congress’s strength, and therefore with the core purpose of the institution. Congress is a venue for negotiated legislative accommodations. Reforms of Congress that seek to render it stronger need to focus on making such accommodations more likely to happen, rather than on making them less necessary. Fifty years of reforms have fallen on the wrong side of that line.

The sorry state of the legislative branch, which Wallach so ably describes, is therefore intentional only in part. Ironically, Congress became weaker partly through reforms aimed at making it stronger. Those efforts backfired so badly because they were rooted in a misunderstanding of the fundamental purpose of the institution. Recovering a proper understanding of that purpose is key to Congress’s future.

A confident, hegemonic republic somehow begins to careen into chaos and civil strife. Its ruling class has been steadily concentrating the republic’s immense wealth in its own hands, ignoring the growing precarity of the less well-off. As instability rises, this class, which had also largely monopolized political offices, begins to lose credibility in the eyes of the rest of the populace. Demagogues, arising out of the ruling class but exploiting the popular hatred against it, flourish. At the same time, political corruption runs rampant, and political trials become frequent. Yet they often prove to be more a vehicle for entertainment or vindictive score-settling than a forum for justice. Transitions of power become fraught, irregular, and marked by violence. The dangerous logic of one-upmanship means that violations of laws and norms by one side all but guarantee worse violations by opponents when the political tides inevitably turn.

This is how Josiah Osgood depicts the last decades of the Roman Republic, clearly suggesting many worrying parallels between it and the contemporary American one. In his Lawless Republic: The Rise of Cicero and the Decline of Rome, he uses the rhetorical career of Rome’s greatest orator and philosopher-statesman, Cicero, to illustrate Rome’s collapse into civil war and tyranny. Rising from obscure birth to the consulship on the strength of his rhetorical skills and political acumen, Cicero also witnessed the final fall of republican liberty and fell himself in the rampant extrajudicial killings that marked it. His severed head, displayed on the rostra from which he had so often held crowds spellbound with his speeches, was a fitting signal that in Rome the era of rule by law and persuasion had been replaced by the rule of force.

Though much of the book is focused on illuminating the way late republican trials worked and the art by which speakers like Cicero could move audiences, Osgood also attempts to diagnose the causes of the republican order’s collapse. As the subtitle of the book subtly implies, he correlates Cicero’s ascent with Rome’s descent. Osgood is not heavy-handed about this: he does not assign Cicero a great deal of personal blame for Rome’s fall, and he even depicts the statesman in a semi-sympathetic light. But he does suggest that Cicero resisted the reforms that were needed to address Rome’s economic divide. Worse still from Osgood’s point of view is that, despite Cicero’s general principle of opposing political violence, he appears to have endorsed extrajudicial killings when the outcome suited his desires. To Osgood, this makes Cicero complicit in—and emblematic of—the blindness and hypocrisy of Roman elites.

Written in an accessible manner of a good storyteller, the book is an easy and engaging read. Bearing the marks of its origin as a set of true-crime stories of ancient Rome, almost every chapter of the book focuses on a different trial in which Cicero was involved. Osgood relates the salacious details that emerge in these trials—affairs, poisonings, bribery, treachery—with evident gusto. But he also uses these elements as jumping-off points to inform the reader about Roman history, institutions, and famous personalities. For anyone wishing for an easy but also informative and engaging introduction to the world of the late Roman Republic, this book would be excellent.

It appears less aimed at scholars, who would learn less from Osgood’s accessible presentation, and into whose controversies he rarely wades. Osgood’s diagnoses of the causes of Rome’s fall, summarized in the first paragraph of this review, largely tread well-worn ground. A partial exception to this is his focus on the wild nature of Roman trials and the Roman court system more generally. His narrative illustrates compellingly the ways in which Roman trials violate what we would today consider basic legal principles: flagrant appeals to emotion, nasty character attacks, outrageous counter-accusations to deflect blame—all often without the slightest shred of what a modern court would consider reasonable evidence. Lawless Republic shows how Cicero himself was a master of many of these tactics.

Expanding beyond biography, though, Osgood often points to these trials as both indicators and indirect causes of Rome’s decline, painting a picture of institutions fraying and collapsing. He also frequently calls attention to the more structural injustice inherent in them: the privileging of elite testimony over that of commoners and Romans generally over foreigners, the treatment of women and slaves, and how these trials often exonerated those obviously guilty of great cruelty and corruption.

Osgood certainly has a point. Rome’s trial norms would never pass modern muster, and Rome’s treatment of those outside the circle of elite male citizens is morally unjustifiable. But he also somewhat downplays how, from a world-historical perspective, the Roman trial system was a tremendous achievement for justice and liberty. After all, the principles of a fair criminal trial are not self-evident, and the Romans made great strides in developing what we would today call due process. For instance, the Romans held sacrosanct the idea that no Roman citizen should be put to death without a jury trial and an appeal to the people (provocatio). Roman trials had (admittedly flawed) rules of evidence and procedure. And although Rome’s oppression of those subjugated to it is appalling, one looks in vain for another ancient empire that established a court specifically to try those of its own ruling class who had mistreated its subject peoples. Indeed, one would find few modern examples of such consideration of foreigners’ interests, either. But that is exactly what the Roman extortion court—flawed as it was—did. Cicero’s successful prosecution of Verres in that court showed that at least sometimes, Rome would do justice by her subjects.

This is no small thing. Rome is perhaps the first great polity in world history to systematically attempt to restrain its own abuse of power—both of its elites against its ordinary people, and of the political community as a whole over others. The attempts at self-restraint were clumsy, inconsistent, hypocritical, and ultimately failed. But that Rome even tried distinguishes it from most historical analogues. Cicero himself would contribute to this project of self-restraint, articulating a theory of just warfare to limit the use of force, refusing the numerous opportunities to unjustly enrich himself when governing Rome’s provinces, and condemning unconstitutional concentrations of power at peril of his life.

The spirit of self-restraint, however imperfect in the Roman case, would be a good model for emulation in a modern hegemonic republic. This is especially so if Cicero’s own diagnosis of Rome’s decline is to carry any weight with us today. According to him, Romans began to lose their freedom as soon as Rome stopped upholding the principles of freedom and justice with others. In On Duties, Cicero contrasted the contemporary period of corruption and self-interested rapacity with a time when Rome functioned as “protectorate of the world,” when “the Roman people maintained itself by acts of service, and wars were waged for the sake of allies or for the safety of our realm[,] … the ends of which were marked by clemency.” To Cicero, it was no accident that the Roman toleration of injustice toward others ultimately culminated in injustice at home—no band of robbers can help but eventually start robbing each other.

Osgood shows how the waning Roman Republic was also marked by what some today decry as “lawfare”—the use of courts and criminal trials to attack political opponents. He seems somewhat to disapprove of Cicero’s participation in this culture of lawfare, yet he also shows compellingly that Rome was experiencing profound political corruption very recognizable to modern eyes: bribery, extortion, cover-ups, attempts to interfere with elections, violent resistance to transfers of political power, and more. Osgood also decries Cicero’s other, less frequent reaction to this: reluctant endorsement of political violence ostensibly to halt other political violence or to overthrow a tyrant. But as he himself notes, increasing violence brings one ever closer to a Hobbesian state of nature. So, what is one to do when peaceful political processes give way to armed mobs roaming the streets? Without trials or violence, one’s only recourse would seem to be surrender.

In fact, we might say that Osgood’s narrative and the history of the late Roman Republic illustrate that, as long as republican politics is going to produce conflict that extends beyond the ballot box and senatorial debate, it is far better that it be lawfare than actual warfare. What seems to have eroded the stability of Rome’s institutions is not so much that its elites were subject to politically motivated trials, but that they so frequently evaded justice nonetheless. Consuls could sell Rome’s foreign policy to bribe-bearing potentates from abroad, candidates for office could stir up mobs to obstruct election results, and tribunes could exercise their vetoes to protect obvious wrongdoers. The immunity to prosecution afforded by holding public office made gaining office a near-necessity for crooked elites, for which they might kill. And this security could in turn be compounded by using that office, once won, to enrich friends, rig juries, and otherwise ensure that even when a term of office expires, their corruption and malfeasance could go unpunished.

Osgood’s book is timely and very persuasively illustrates the way violations of political norms and principles of justice form a vicious cycle. When one candidate disburses a few bribes to win office, it justifies and incentivizes the next to offer bigger ones. When one candidate resorts to political violence and retribution against enemies, it only ensures that when his opponents gain power, they will do the same and worse. The book stands as a warning against that kind of tit-for-tat politics, and the tu quoque reasoning that so often justifies it.

Moreover, Osgood’s narrative of Rome’s decline serves as a powerful reminder that republican institutions cannot long persist if their elites can regularly evade accountability for their behavior. The power of rhetoric and demagoguery in any popular republic should give us reason to doubt that elections will serve as a sufficient check on elite misbehavior. We should count ourselves lucky to have a more developed and thick set of judicial norms and procedures than did Rome. We should zealously and scrupulously protect and revere these rules. They have a chance to save us from Rome’s fate.

A broad respect for the rule of law means that it is less likely (though not impossible) for an innocent politician to be convicted in a proper trial. And for this reason, we should perhaps be less squeamish about the idea of subjecting our political leaders to them when evidence of corruption or political misbehavior arises. To try a popular leader for political crimes may be dangerously destabilizing. But as the example of Rome shows, to allow popular leaders to get away with political crimes is in the long run far more dangerous.