Did the Constitution Fail New Orleans? (Part 2)

One of the most depressing aspects of the fallout from Hurricane Katrina is how it has shown that Congress treats making sound policy as a byproduct or afterthought rather than a primary goal. If I recall correctly, this was one of Morris Fiorina’s major arguments in his book Congress: Keystone of the Washington Establishment (when I get back in my office, I’ll check the reference!).

In Congress, flood control efforts designed to save lives and property are classified as water projects. And water projects. . .well, many people know them as the purest form of pork. Water projects can indeed control flooding, but what they more often do is provide dams for dubious recreational projects that states should pay for themselves and even more dubious navigation projects that cannot meet cost-benefit tests. What benefits they do provide tend to go to shipping interests who are also interested in supporting the member of Congress who provided the benefits. So instead of having a water control policy, we have 535 policies. The Washington Post recently quoted Mark Davis, identified as the head of a coastal restoration coalition. He stated: “We don’t have a water agenda in this country that makes any sense. . . Our policy is just to keep spending money. And we just paid a staggering price for it.” (See “The Slow Drowning of New Orleans,” October 9)

Observers of Congress with a longer view might reply that the point of water projects has never been to fulfill a “water agenda” or make “water policy” but simply to provide what the Post characterized as a “form of currency” that keeps the legislative wheels spinning. This process is an example of what Fiorina meant by saying that policy was a byproduct of Congress, not its main goal. Critics often fault Congress for enacting incoherent policies and refusing to prioritize. But suppose members of Congress are not simply feckless, but acting rationally within a structure they did not create. And what might that structure be? It’s the Constitution, of course.

More specifically, it is the collision of the disaggregated structure of Congress, based on single-member districts in the House and state representation in the Senate, with the demands of the activist or interest group state. The activist state gave Congress the chance to do things it had never done before, such as giving local concerns millions of dollars they could not get from their state governments. Yet there was no way to provide an organizing principle to guide this local aid. Thus today, we have measures to fund transportation projects, higher education, and of course water projects that consist almost entirely of “earmarks,” legislative provisions that direct money to a specific project in a specific congressional district. Every member of Congress gets something and that keeps the legislative process going.

The tragedy of Katrina is that flood control designed to save lives was treated as just another pork barrel item. Indeed, it was treated as such by representatives from Louisiana! So why can’t we prioritize? Why can’t flood prevention designed to save entire cities be treated as more important than projects justified solely in economic terms? An illustration of why not was just provided in Congress, as Senator Coburn of Oklahoma tried to use money devoted to an Alaskan “bridge to nowhere” for Katrina purposes. Senator Stevens of Alaska in effect replied: Over my dead body! In our constitutional system, all projects desired by members for their districts are equal. The national interest, which might be to avoid spending tens of billions to fix the problems caused by inadequate flood control, is only rarely at the table.

In the 1950s and 1960s liberals thought they had an answer to the dysfunction of Congress. On the executive side, presidential leadership would set national priorities. On the legislative side, as political scientist Julian Zelizer has detailed, comprehensive reform of the legislative process would allow national objectives to be realized. Both of these were good examples of informal constitutional change – political actors trying to adapt the institutions created by the Constitution to new circumstances. But both obviously fell short and had unanticipated side effects. Experience seems to teach that a legislative process capable of setting priorities and enacting at least some coherent policies would be one where the leadership has both the ability and the incentive to say “No” to the current situation where earmarks are rampant, but also would be able to give members of Congress what they need to survive. Unfortunately, as a polity we haven’t spent any time thinking about the sort of institutional structures that would make this possible.

Finally, a general point. I imagine talking about how “the Constitution” “failed” New Orleans could cause a certain amount of confusion. Am I referring to the 1787 Constitution, the stainless achievement of the framers? Of course not. “We” (Americans through time) have been working on the Constitution from the moment it was ratified, sometimes adopting formal amendments that changed the constitutional order in significant ways, sometimes using informal means. If the Constitution should have been altered more significantly in response to the activist state, surely it is our nearby contemporaries, not the framers, who were responsible for failing to seize the moment. And we are all still working on the system, so to speak. But when government institutions fail, it is usually not due solely to failures of leadership. Leaders and institutions operate within the structure established by formal and informal constitutional rules. When government institutions fail as dramatically as they did during (and now after) Hurricane Katrina, that structure must also be a focus of our concern.