Congress Incongruous — Response to Commentaries

I am grateful for the smart and informed commentaries on my Liberty Law Forum essay by John Samples, Gordon Lloyd, Michael M. Uhlmann, and those who posted shorter comments. They do not, I think, call for point-by-point author responses, but reading them altogether suggests that I should say a few words about the motivations and purposes of my piece.

My essay is concerned with the decline (as I see it) of Congress, not the decline of the Constitution’s separation-of-powers arrangements. Although the two are obviously related, congressional decline is a distinct and more recent development and admits of distinctive corrective measures.

I am aware that the federal government’s operations departed from the framers’ conceptions and provisions early on, especially with the emergence of political parties beginning in the late 1790s and the popular democratic presidency beginning in the late 1820s. I know, too, that many further and deeper departures were wrought during the 1900–1960 period by the Progressive movement, the New Deal and the Supreme Court’s acquiescence in it, and the consolidation of a federal government of plenary national powers.

I focused on the changes in government structure that began approximately in 1970 because, in contrast to what had come before, they were occasioned by changes in the nature and functioning of Congress. During previous periods when the executive was on the march, when the courts were abandoning enforcement of constitutional requirements and restrictions, and when the states were surrendering political autonomy to federal expansions or their own collectivist schemes, Congress remained a relatively robust institution.

The early innovations of parties and the democratic presidency did mean that, at times when one party controlled both political branches, Congress was less independent, and did less checking and balancing, than the framers envisioned. But even then Congress remained jealous of its constitutional powers, engaged in actual legislating, and defeated or compromised many executive ambitions. In the 1930s, when the nation was in economic crisis and a hugely popular president enjoyed whopping party majorities in both Houses, regulatory delegation had to be extracted from Congress by aggressive presidential lobbying and dispensing of favors and imperious appeals to public opinion.

The period since 1970 has been fundamentally different. Presidents and agencies have still extracted (or seized) legislative powers when they thought this was feasible and advantageous, but the overarching trend has been for Congress to transfer lawmaking to the executive branch voluntarily and proactively. The initial, early-1970s instances of regulatory delegation were the work of a Democratic Congress facing a Republican president (and many later ones occurred at times of at least partially divided government). They handed the executive lawmaking powers much more comprehensive than those in the New Deal and Progressive statutes. Later, and with increasing regularity over time, Congress proceeded to relinquish its crown jewels—its appropriating, taxing, and borrowing powers—which would have been inconceivable in earlier eras.

These trends began when Congress dismantled its internal hierarchy of member seniority and powerful committees, whose leaders had previously (albeit with more and less force during different historical periods) guarded Congress’s Article I prerogatives vis-à-vis the executive and disciplined their exercise. The trends gathered steam with the subsequent “atomization” of Congress into single-member political entrepreneurs.

My essay describes these developments and links to other writings on the subject. It begins with a personal anecdote; let me add another one here. I was present at the creation of the EPA and modern environmental policy, working as a young staffer in the Richard Nixon White House in 1969 and 1970. We believed that the federal government’s impending thrust into pollution control and environmental restoration would and should include not only agency regulation but also substantial components of congressionally controlled taxation and financing (our initial design was for an Environmental Financing Agency—“EFA”).

We were wrong, and surprised by the discovery. In 1970, President Nixon proposed a national tax on SO2 emissions—but could not find a single member of the House of Representatives of either party to sponsor it. Congressional opinion, led by senators Edmund Muskie (D-Maine) and Henry M. Jackson (D-Wash.), was strongly for turning environmental policy over to agency rulemaking and litigation, with certain spec’d-in advantages for environmental groups to keep them competitive with industry groups.

That is what we got, with the exception of congressional standards for motor vehicle emissions and grants for municipal wastewater treatment. When Congress declined to legislate a cap-and-trade program for controlling greenhouse gas emissions in 2010, leaving the matter to EPA and the courts, it was following longstanding precedent.

Now I have a hypothesis for congressional decline and the emergence of executive government, also advanced in my essay and the other pieces mentioned above (and also here). It is that they are the result of the growth of wealth, education, and technological mastery (especially in communications and information), and certain cognate cultural changes that my essay called “habits of mind.” These developments, I claim, first became pronounced in the late 1960s, and have, among many other things, worked increasingly and relentlessly to the disadvantage of the representative legislature and advantage of the executive. Their effects on Congress have been parallel to and derivative of their broader effects in politics and society. They have “atomized” morality, social order, and the sense of political community (Robert Nisbet, Twilight of Authority, 1971). They have “atomized” political institutions from parties to election campaigns (Anthony King, “The American Polity in the late 1970s: Building Coalitions in the Sand,” 1978). And they have “atomized” Congress (James Q. Wilson, “American Politics, Then & Now,” 1979; Allen D. Hertzke and Ronald M. Peters, Jr., eds., The Atomistic Congress, 1992).

The federal executive, and to a lesser degree also the federal courts, have filled the breach. They have done so because their innate characteristics—their formal structures of authority and capacities for action and decision—have been relatively resistant to the disintegrating tendencies of wealth, technology, and cultural individualism, and in many respects have benefitted from them. The executive in particular has been able to take unique advantage of new information and communications technologies. The botched initial rollout of the ObamaCare insurance exchanges was just a hiccup in the deployment of a system for consolidating information on the incomes, health status, tax histories, and private engagements of millions of citizens, and similarly detailed information on the firms that insure and employ them.

This hypothesis is primarily a heuristic at this point, but it does help to explain the secular trend of our constitutional transformation. The Progressives’ anti-Madisonian theorizing on the advantages of administrative government was mostly aspirational during the Progressive Era itself; it first took serious hold on government structure twenty years later, with the Depression and New Deal, and was fully realized in the decades following 1970.[1] The Supreme Court’s 1937–1942 revolution in constitution doctrine gave Congress capacious powers of national economic regulation that it began to exercise aggressively only thirty years later, in the mid-1960s. The practice of informal rulemaking was established in the Administrative Procedure Act of 1946, but lay dormant for twenty-five years before it was suddenly seized upon with tremendous effect, both by the new 1970s agencies and the previously adjudicative New Deal and Progressive agencies such as the SEC, FCC, and FTC. My explanation is that federal powers and abilities conceived in earlier eras realized their potential only when economic advance and cultural change made them politically potent and administratively practicable.

It is this view that led me, in my essay, to focus on congressional rather than constitutional reform. I am an advocate of a moderate nondelegation doctrine, and of a resuscitation of many of the Constitution’s provisions that enforce the separation of powers and limit the domain of the federal government. I am for stricter judicial review of regulatory decisions, and for making agency rulemaking more formal, evidentiary, and adversarial. But I cannot help noticing that the tendency of contemporary law and policy has been strongly in the opposite direction on every point, and has been furthered by judges and elected officials of both parties, including more than a few self-styled conservatives and originalists. Something deeper must be afoot than that people of my persuasion have been losing arguments in the law journals and policy magazines. I believe that something is the profound economic and cultural developments of modern times.

So I am taking a different tack, trying to conceive a role for the representative legislature that is (a) consistent with modern politics and (b) useful in addressing the most serious problems of modern government. My recommended reforms aim to make Congress more independent and decisive and to channel its members’ energies toward deliberation, compromise, and “collective choice.” That would make the body much more effective at checking and balancing the executive—but at significant cost to individual members, who would need to relinquish some of the personal prerogatives they have acquired under current delegate-and-lobby arrangements, and fashion new means of advancing their careers. The trick is to make the legislative calling prestigious and admirable to the modern mind, or at least understood and tolerated. That is why I hail the new intellectual school of “political realism” and call for a reexamination of Habermas.

Such a legislative restoration, if it could be achieved, might do more than restore constitutional balance. Congress is not only a branch of power but also a selfie of the nation in full. It not only represents the populace but also portrays it—not with perfect resolution by any means, but well enough to show each of us how we look and where we stand in the throng of fellow citizens who are our legal and political equals. A citizenry that permitted this portrait of its collective self to play a more central role in its government would need to be more liberal in the classical sense than ours has become. It would need to be more patient with disagreement, including intractable disagreement; more alert to the improving potential of dialogue, even when no decision ensues; less insistent on comprehensive plans and final solutions and capacious application of state coercion; and more attuned to the relative advantages of imperfect private markets and voluntary ordering.

Contemporary attitudes to the contrary may prevent a congressional restoration, but not necessarily. Social norms are, to a significant degree, adaptations to prevailing circumstances, and they have often adapted expeditiously, for better or worse, to top-down (“exogenous”) changes in political forces and institutions. The regulatory state exhibits many pathologies and is probably at least as unpopular as Congress. It is entirely possible that a crisis or sequence of events within government could open the way for a legislative resurgence, which would then get the ball rolling on moderating popular attitudes and expectations.

American government and politics are in a bad way, and there are three broad strategies for improvement, each one discussed in the commentaries. The first is action from within the system aimed at improving its policies—such as running for office, serving in government or training others for service, advocating certain policies in books and op-eds, and mounting litigation on constitutional and other issues of public law. The second is action from the outside aimed at reforming the system itself—such as Charles Murray’s By the People organized resistance to regulatory edicts, and the movement for an Article V state-convened constitutional convention. The third is action aimed at reforming the system from within—such as the congressional reforms I have suggested. The third, institutional reform strategy is a bit tedious to the politically engagé, but I think it is best suited to the problems we face, and in any event has been underemphasized and deserves more effort. Also, I live in Washington and like to work on problems that are close at hand and matters of immediate experience. Finally, institutional reform forces one to consider, unromantically, the interplay of government and society, and this may contribute to progress on the other two fronts as well.

[1] Woodrow Wilson’s first and greatest triumph for expert administrative government, the Federal Reserve System established in 1913, acquired vastly greater regulatory powers over banks and finance in the late twentieth century and even more, of course, in recent years. His second and last triumph, the Federal Trade Commission established in 1914, did not even acquire rulemaking power until 1974.