First, Chill All the Lawyers in Congress | Procedural Politics

To put a gentler twist on Shakespeare’s more drastic remedy: The first thing we do, let’s chill all the lawyers in Congress. That way they may become cool and practical legislators.  

I say that as one who has great respect for lawyers. My father wanted me to be one (I am not); I am married to one; and half my wonderful bosses on the Hill were lawyers before they became lawmakers. Having served with lawyer members and staff alike, I know they bring a critically trained eye to policy problems and legislative draftsmanship. There is something about an appreciation for the law that makes you more cautious about drafting new ones.  

Having paid that well-deserved tribute to the lawyer class in Congress, I still have a brief grief with a small coterie of legal beavers who gnaw so much on their trees of legalese they lose sight of the legislative forest.  

I hadn’t really thought of it until someone told me of meeting with a group of members to discuss some of the major policy issues confronting the nation and what they were doing about them. Instead of demonstrating any considered appreciation for the causes and consequences of the problems and their solutions, the members wandered off onto esoteric legal side streets and cul-de-sacs, all the while ignoring “the meat of the coconut” (as one of my non-lawyer bosses used to call it). This may be a useful tack at an ABA seminar on an obscure section of federal contract law, but it does not resonate with John Q. Citizen who is more concerned about jobs and the economy.  

So why do some members get so sidetracked? I don’t think it is to impress anyone with their legal acumen; they know that only turns most people off. Nor do I think it is necessarily an intentional device to avoid talking about the real nature of the problem at hand. But that is getting closer. Usually it bespeaks members’ limited familiarity with the details of the multiplicity of things they are expected to grapple with in each Congress.  

Sometimes it reflects a legal angle from their leadership’s talking points about pending issues. Quite often those are part of the larger party message machine on how to parry criticisms from the opposition about the party’s policy positions (or lack thereof). Clever legal arguments can be effective (or at least deflective) defense mechanisms.  

Think of it as dueling moot court teams exchanging what they hope are winning gotcha points. Unfortunately, that only tends to impress other lawyers and skirt the coconut altogether. Still, you go with what you know to show some understanding of the situation.  

I won’t go into examples here but they become apparent once you start considering arguments being advanced using this template. They can be found in discussions of mega-problems from global warming and legal culpability for it to immigration laws and enforcement technicalities. And it can be found in congressional investigations of government scandals that often get hung-up on the legal vulnerabilities of witnesses instead of addressing the actual sources of systemic government failures and correcting them.  

Many of these legal haggles are tied to the permanent campaign and individuals seeking to score legal points for partisan gain. While it is not effective with average voters, as already mentioned, it does feed a certain element of the political base of both parties that sees the tight political struggle for power as depending in part on superior legal arguments to bolster the parties’ policy positions. Some of those legal disputes end up as frivolous lawsuits filed by partisans to tie opponents down.  

Former Democratic Speaker Champ Clark of Missouri (1911-1919) recounts in his memoir Supreme Court Justice David Brewer’s observation that, “America is the paradise of lawyers.” No one has ever accused Congress of inhabiting such a lofty perch.  

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.