On the Federalist Papers: How Congress Is Turning Itself Into a Super-Faction at War with the American People

Congress is on recess, but the American ruling class hasn’t been idle.

Last week, a bipartisan group of congressional leaders joined with President Obama to carve out a special Obamacare “rule” for the Congress and its staff that would subsidize their health insurance to protect even maximum federal salary earners against otherwise sharp increases in premiums. That could sure help a lot of people in states like Florida and Ohio, where insurance rates are projected to increase an average of 35% and 41%, respectively, but where Obamacare subsidies are phased out at a much lower income level — just like they are everywhere else, except Congress.


Republican government has always been troubled by factions — groups wanting to promote their private good at the expense of everyone else — but rarely in American history has the governing class so boldly and so openly elevated its own faction and shown such disregard for the citizens it is supposed to represent and serve.

A comparison of today’s governing class and the founding governing class is telling. James Madison spoke of his generation’s “determination” to assume Americans were capable of self-government because the lessons of history were dishearteningly ambiguous. The ancient republics of Greece and Renaissance republics of Italy furnished critics and cynics with plenty of evidence that popular government might only mean popular despotism. Together, Federalist essays 9 and 10 offer a cautiously optimistic response, based on two distinctions between these earlier republics and the American model outlined in the Constitution. The first, a series of improvements in the “science of politics” identified by Alexander Hamilton in Federalist 9, helps us understand the Obamacare carveout.

Anyone familiar with the direction Political Science has taken in the academy may blanch at the mention of the “science of politics,” but Hamilton is referring to four improvements in constitutional design developed or more fully appreciated in the century or so preceding the American Revolution: (1) a legislature of elected representatives; (2) an executive branch distinct from it; (3) an independent judiciary, and (4) a system of checks and balances to maintain this division of power. In sum, the concentration of power in a single legislative assembly (often of the people themselves) characteristic of earlier republics could be replaced with a divided government no factious majority and no ambitious leader could easily control.


All of these provisions, of course, were included in the Constitution. And they remain a part of our system today–at least formally. But the security against faction that each was to provide has been compromised by the rise of a government super-faction, including leaders from all three branches, the federal bureaucracy, and a vast network of plugged-in clients, contractors, and media cheerleaders. Office-holders expected to be rivals for power have instead, in instances like the Obamacare carve-out, chosen to collaborate to advance mutual interests.

What about electoral accountability–the founders’ fail-safe when institutional design was not enough? Surely the people would not allow such a faction to abuse them–and surely those who expose such abuses can expect to earn the people’s favor. Why, then, did every party to the carve-out act against its well-cultivated public image?

Congressional Democrats–supposed to be the friends of the people–decided to bill them for their special break. The president–supposed to be fighting cynicism with “hope and change”–cynically cut one more deal to quiet Obamacare critics, in the spirit of earlier deals that secured the support of the American Medical Association and the AARP.

All of this set up a perfect political opportunity for the party of small government; just follow through on the thinnest possible understanding of Republican principles and score big points against do-as-I-say-not-as-I-do big-government hypocrites. Even this turned out to be too hard for the GOP leadership, which can congratulate itself for at least saving a few special people (themselves!) from the extra burdens of Obamacare.


Again, in the age of daily poll-tested, focus-grouped talking points, how could popular accountability fail so completely? If government has become a faction, we are not surprised that it, like any other faction, pursues its interest as far as possible. In this case, it had the power to make the deal–not under the law (as Senator Vitter pointed out in a recent op-ed), but in the simple fiat of executive office, exercised with increasing frequency in the last two presidencies. And all parties calculated that there was nothing the American people could or would do about it.

They may be right.

Congress hasn’t had an approval rating above 25% since the week in November 2009 that the House first approved Obamacare. And yet even in the Tea Party election of 2010, 84% percent of incumbents won re-election (it was back up to 90% in 2012). Gerrymandering, another form of bipartisan collusion, has reduced the number of competitive House seats (as calculated by the Cook Political Report) from 164 fifteen years ago to 99 today, leaving more than 80% of the current House apparently impervious to all but the strongest political winds.

Still, here is a cause that should provoke a bipartisan “throw the bums out” movement. Obamacare supporters should be angry that Congress is acting like the program is something to avoid if one can, which can’t help in the effort to reconcile the American public to it. Opponents should be mad, too–wanting Congress to share the general pain, in the hope that this will add personal interest to better motives for repeal. Therefore, even gerrymandered districts should be unable to resist this hurricane–unless there is no hurricane after all.


Like presidential candidates in the last days of a campaign, let’s return to the people of Ohio and Florida. Obamacare raises health insurance premiums in those states, but then provides tax credits for those earning up to $94,000. Those earning more, of course, will foot the bill for everyone else (and well-paid Congressmen and staff). Those who qualify, however, may now have a big refund check coming their way. Will they forget the congressional carve-out when candidates pull out their tax rebate calculators to charm them on the campaign trail? Will they be content to cash a check from an account already $17 trillion in the red?

Madison’s words in Federalist 57 make the challenge clear:

“If this spirit [of the American people] shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

The founding generation was determined to demonstrate the capacity of mankind for self-government. If we allow this deal to stand, we give powerful evidence that we are losing the spirit required to perpetuate it.

This essay is part of a series connecting the principles of the Federalist Papers to contemporary politics. For more, visit The Federalist Today website or Facebook page or follow the project on Twitter.

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