Distrust of Congress (And Why It Matters)
It’s easy to joke about Congress’s public ill-repute, but it’s a serious problem.
A recent poll shows that public approval of Congress is still in the basement (though perhaps not flat on the floor, as it was before). This graph shows the trends:
But this poll on public “approval” doesn’t tell the whole story. Here’s one that asks instead whether Americans have confidence in key institutions:
The configurations are different in an interesting way. The “approval” measure had a long downward slide until 2006 and since then has been pretty stable (except for a momentary uptick right after the financial crisis). But the “confidence” measure actually rose from 1994 to 2005 and then has been in a tailspin ever since. Another poll asks about “confidence” in Congress, and it shows stability until about 2005 followed by a decline of 50% in the past decade.
It’s not entirely clear what to make of these different results, but one interpretation is that people started to be unhappy about Congress’s performance by 2001, but Congress was able to retain a core of 10-20% of the population who at least liked its output. But even those people, it appears, no longer have faith in what Congress might do in the future. In other words, most people apparently aren’t pleased with the legislature’s output, and increasingly they think it’s a problem with the institution rather than just its current membership.
So what difference does this make? It doesn’t seem to have much effect on the prospects for incumbents. For all kinds of reasons, including gerrymandering into safe districts, incumbents keep getting reelected. But it surely can’t be good for the health of a democracy that people have so little confidence in its core policymaking institution. It’s tempting to blame this on one party or the other, or on peculiarities of current American politics, but in fact these declines seem to be taking place in other countries. (See here for the UK and here for Australia). This is a very large problem, and I only wish I could offer a solution.
At a less macro level, there’s also the impact of this distrust on courts. Judges aren’t immune from the climate of opinion, and it’s likely to become increasingly difficult for them to defer to an institution that’s held in such low repute. The public does hold the Court in greater respect than Congress, though the Court’s public standing has also suffered considerably. The President is somewhere in the middle.
As I said, this is a problem that has deep roots. But pitting the Court against the other two branches can only ultimately undermine public support for all three institutions, particularly when so many key judicial decisions are split on ideological/partisan lines. A small start would be to curb divisive rhetoric in judicial opinions. The Court should also hold firmly to the Chevron doctrine, which reduces the number of occasions where the Court and the executive branch collide. In constitutional and statutory interpretation cases, the Court might at least entertain the concept that legislation really does represent a serious effort to attain its announced purposes, rather than being dismissive of legislative integrity. These are only small steps, but in default of a solution to the larger problem at least they would lead in a positive direction.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more