The insurrection against Congress last week placed in sharp focus the role — and fragility — of legislatures in the American governmental system.

Legislatures rarely require defining. Their composition and activities are straightforward as “a deliberative body of [elected] persons.”

But after a year of the Covid-19 pandemic, it’s worthwhile to assess whether our state legislatures and our Congress can effectively function as legislative bodies. 

In legislatures, we see a gathering of elected representatives, most of whom hail from outside the capital city. But it’s far more than that as last week’s attack demonstrated. 

Take the Kansas Legislature, which consists of 165 lawmakers, a substantial number of permanent staff (Revisor’s Office, Legislative Research, etc.), the security force, journalists, lobbyists who represent thousands of interests, groups that come to the capitol to make a host of statements, individual citizens who have specific policy goals to present, and members of the executive branch and departments who regularly interact with legislators.

In sum, the Legislature is our only institution that brings together a wide array of elected officials, reporters, staff, lobbyists speaking for others, members of the executive branch, and citizens.

Far more than the Kansas Supreme Court or the Governor, the Legislature stands as the permeable branch of government, open to all. 

Moreover, legislatures are defined by their “deliberative” capacity. That is, lawmakers, whether in committees, on the floor of their chambers or through informal gatherings, regularly interact with each other and deliberate over policy choices that may become law. Deliberation necessarily precedes decision-making, which produces laws. Nothing could be more serious.

Enter the pandemic. Aside from a terrorist attack or a mob insurrection, it’s hard to imagine anything that challenges the legislative process so profoundly, to the point of damaging the very essence of a legislature.

At its core, legislating is highly personal and requires continuing conversations among many participants. No matter what accommodations are implemented, legislatures simply cannot replace the intimate nature of law-making, whether in a committee room, a hallway conversation, or an evening social setting, where much business is actually conducted.

Social distancing within the legislative process denies members private conversations; limiting discussions between legislators, constituents, and interest groups means that representation is made more difficult, with less likelihood of meaningful exchanges.

I have great sympathy for legislative leaders, as they try to construct a setting that least obstructs the regular legislative process, within the bounds of constitutional mandates. At the same time, legislatures depend heavily on the observance of norms, the kind of informal understandings that facilitate the difficult process of law-making. 

In a partisan era, many norms have weakened, and when legislators are confronted with new quandaries — whether to wear a mask or not, for example — they have little common ground to fall back upon, especially when formal leaders will not or cannot create clear new rules. Thus, in an already fraught situation, distrust likely increases.

What should legislators do? In Kansas, they might consider deferring their session until all participants are vaccinated, perhaps by mid-February. This seems sensible, but unlikely, given the central fact of life in contemporary legislatures — the highly uneven and partisan distribution of power.

Given less opportunity for discourse and informal discussion, formal leaders control more information and wield more power. As long as they hold these advantages, don’t expect much effective adaptation or delay, even as legislatures veer far from their role as deliberative, in-person assemblies.

 

Burdett Loomis is an emeritus professor at the University of Kansas.

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