Bucking Up the People's Branch

We live still nominally under the Constitution of 1789 (as amended) but not under its republican government. The states are largely subordinated to the federal establishment. The people loathe the people’s branch, and in any case, Congress seems unwilling to make laws or to fight its corner in the balancing of powers. As Christopher DeMuth documents in his Liberty Forum essay, the President and executive agencies effectively make law. Our constitutional order has been turned upside down.

Indeed delegation of congressional power has gone well beyond the executive branch. John DiIulio has documented the growth and pathologies of Leviathan by Proxy.

Big government funds state and local government employees, for-profit business contractors, and nonprofit organization grantees to administer federal policies, programs, and regulations. In some federal policy domains, it also mandates but does not fund subnational government employees to function as de facto federal employees; and in many federal policy domains, it relies heavily on networks of grantees, subgrantees, contractors, and subcontractors mustered by subnational governments.[1]

DiIulio worries that spreading authority around precludes government from effectively carrying out its legitimate tasks. The demands of these proxies for funding and power not only expand government beyond its capacity and legitimacy, but make reductions in the state unlikely.

Let us resist pessimism and consider first the ramifications of doing nothing. Might the nation’s “political processes”[2] ultimately constrain the administrative state? For 80  years, American government has promised economic growth and prosperity. For over a century, as a famous chart has shown, growth has indeed been steadily upward at 2 percent annually.[3] Lately, however, the nation seems off track or, worse, has found a new path of lower growth. The median voter is noticing this decline. Sooner or later, candidates will figure out that regulation is one source of our economic sorrows, and when they do, they will try to get elected by promising deregulation. To rid us of the offending regulations, Congress will take back power over the agencies, perhaps for more than a moment.

But of course, regulatory failure has persisted. Mancur Olsen’s logic of rent-seeking is powerful. Such deregulation as we saw—now so long ago—may have come about only because the regulatory rents in those sectors were exhausted.[4] While “political processes” might strike down enough rules to get us back on the growth trend, it is unlikely to change the relationship between Congress and the bureaucracy absent a profound crisis that can be clearly attributed to federal regulations.

Surely republicanism itself has some claims on the American people and thus their politics. Self-government in a republic means the people’s representatives write the laws. Insofar as bureaucrats make laws and are not accountable to lawmakers, the administrative state has a formal “republican deficit.” Can that matter politically? Probably not. One of the major political parties defines itself as the party of expansive government on behalf of “the people.” Its adherents believe that the rule of experts fosters substantive democracy by advancing redistribution and constraining markets. The agencies themselves, as DeMuth notes, actually see themselves as accountable and representative.

If politics fails, the courts—even the Carolene Products (1938) courts—are supposed to act. Delegation to administrators does appear unconstitutional when measured against both the legislative vesting clause and the “proper” part of the sweeping “necessary and proper” clause.[5] But the courts have not enforced the non-delegation doctrine for 80 years. The Roberts Court, with a conservative majority or without, is unlikely to change that pattern of deference. The courts are also unlikely to force Congress to include a coherent “intelligible principle” in laws to guide and evaluate their implementation. Libertarians and conservatives have put a lot of time and money into legally restraining the administrative state. We are not going to have a District of Columbia V. Heller (2008) or a Citizens United v. Federal Elections Commission (2010) for the administrative state. It is time to move on. High judicial politics will not save us.

Might more mundane litigation make a difference? The Administrative Procedure Act of 1946 requires the courts to strike down any agency action determined to be “arbitary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[6] But, as Charles Murray notes, the Supreme Court set so high the standards implicit in the Act that few agency actions are deemed to contravene it.[7] Murray believes the courts might yet rescue the people from the administrative state. In especially bad cases of bureaucratic caprice, Murray recommends civil disobedience supported by privately-funded legal representation. This would raise the costs of enforcing arbitrary regulations, constraining in fact if not in law the reach of the administrative state. In time, stopping the deluge of litigation would require a change in doctrine that restrains the bureaucrats. The sheer arbitrariness of the regulations in question would also move public opinion which, in turn, would move the Supreme Court away from deference to the administrative state.[8]

Murray offers a plausible path toward a measure of restraint on the administrative state. The government will provide victims for an effective public relations and legal campaign against arbitrary regulations. But not all victims, politically speaking, are created equal.  Lawyers know how to find the right clients to make the best case to the public as well as the courts. Those clients would also have the backing of Murray’s Madison Fund or of a professional association. Those who contributed to the former would risk the ire of politicians and the bureaucracy. Preserving donor anonymity would be essential and even then finding donors may be more difficult that finding clients. If all goes well—and it likely will not—we will have more restrained enforcement of regulations crafted by agencies. We will not have ended delegation of legislative power.

The executive branch seems an unlikely source of solutions for the delegation problem. Its members benefit from the power ceded by Congress. History would suggest that even a libertarian-conservative President would not or could not move the executive branch toward free markets and limited, lawful government. This is at least in part because a bias toward the status quo exists quite apart from politics. But agencies are occupied by officeholders who are making a career out of government service. They have their own interests and ideals, neither of which counsels cooperation with a libertarian-conservative President.

So the bureaucratic status quo is hardly promising. But it is fact. Remember, the judiciary is not going to enforce the nondelegation doctrine. So we will either surrender to a particularly Progressive status quo bias in the bureaucracy or try to alter that bias. Such change would require people and ideas.

Training substantial numbers of libertarian and conservative public managers might seem unlikely, but if the rules of the game, especially the economic game, are made in agencies, libertarians and conservatives need to be in that arena. If their numbers were significant, such officials could support presidential efforts to constrain the government. They could also set off “fire alarms” that would warn Congress and perhaps a President that an agency was contravening congressional preferences or presidential policy.[9] Richard Epstein has noted that “no amount of devotion to a system of legal rules can eliminate the need for sound discretion in the management of both private and public affairs.” Even a properly limited government needs “to develop management practices that allow for the needed discretion to be invested in the right individuals, subject to the right level of supervision and control.”[10] In the libertarian-conservative case, the “right” individuals means people trained in economics, ranging from microeconomics to public choice. Especially the latter.

We need to find ways increase the supply of public choice public administrators, as strange as that might sound. Doing that means creating and supporting programs for training such people. It may also mean fostering a subfield in public administration informed by economics. This effort might seem futile or even misbegotten. (I myself can hardly believe I am proposing this.) But absent such efforts, all of Epstein’s “right” individuals will turn out to be Left or at the very least self-serving servants of the status quo. Even if the subfield and education I have in mind led to a relatively small number of new conservative-libertarian managers, the scholarship coming from this new subfield might challenge and change the people actually exercising delegated authority.

Even if the Supreme Court ignores the nondelegation doctrine, might Congress reform itself or be reformed?

Political scientists say Congress delegates to husband time and effort. Members pass the details to agencies. But they do not thereby give their agents, the agency, free rein to create and carry out a law. After all, members of Congress may have a great deal electorally at stake in implementing a law: voters in general or important constituencies may be hurt. So Congress controls the bureaucracy through budgets, subsequent legislation, agency design, reactions to what an agency does, and formal oversight.[11] The political science view indicates that delegation is less of a problem than libertarians and conservatives believe.

Political scientists assume, however, that democracy works all the way down. Hence members of Congress maximize the likelihood of re-election by being roughly responsible for policy. Public choice analysts argue that members seek reelection by taking credit for things the public wants and avoiding blame for bad things. Delegation lets bureaucrats be blamed for controversial matters, and members are given credit for intervening to help their constituencies deal with overweening government.[12] The logic of concentrated benefits and diffuse costs leads to the same conclusion. A Big Government that reflects an electorate aware of its benefits but ignorant of its costs is a government that is politically optimal and constitutionally perverse.

Congress can deal with regulations. The Congressional Review Act of 1996 empowers Congress to pass a joint resolution of disapproval of a major regulation.[13] As the Government Accountability Office summarizes:

Since 1996, 43 resolutions have been introduced in the Senate or House of Representatives and two of those resolutions have passed one house of Congress. Only one rule, the Department of Labor rule on ergonomics, has been disapproved by Congress.[14]

Keep in mind, too, that Republicans have controlled both chambers of Congress and the presidency for only about eight years since the Congressional Review Act was enacted. Either majorities in Congress support almost all regulations, or majorities that don’t are unaware of the myriad regulations that get approved or cannot organize effectively against them.

As I write, Congress is considering the Regulations from the Executive in Need of Scrutiny Act of 2015. A version of the REINS Act has passed the House of Representatives in previous years. The bill improves on the Congressional Review Act by requiring positive action—a joint congressional resolution—to validate regulations having “an annual effect on the economy” of more than $100 million.[15] It is intended to force Congress to reengage when it comes to regulation. However the bill fares in Congress, though, if a President were to veto it, a supermajority to override the veto would be unlikely. We might wonder whether a Congress that has been unwilling to strike down particular regulations is likely to pass a law that creates a rebuttable presumption against all major regulations.

Laws requiring Congress to take responsibility for regulations may be politically difficult to pass or to use. But they would—especially a law requiring congressional support of regulation—restore some republican legitimacy to the administrative state even if political science and not public choice has a better case regarding Congress and the administrative state. That remains true even if Congress were to validate most of the regulations put to a vote. Like enforcing the nondelegation doctrine, such a process would probably lead to fewer laws and a more limited government. It does appear likely that only a constitutional amendment enacting something like the REINS Act would be adequate to the task.

Are other congressional reforms needed? DeMuth argues that members of Congress spend too much time raising money. Yet campaigns must be funded, and the public does not support taxpayer financing. He suggests mandated anonymity in contributions, which reflects a concern about the appearance of legislative corruption and weakness.

The original proposal for mandated anonymity protected freedom of speech about one’s donations. Indeed, the proposal depended on the confusion created by many false claims of donating to reinforce the ignorance of officeholders about who bankrolled them. Mandated anonymity is certainly less coercive than mandated disclosure for that reason. However, political scientist Kenneth Mayer argued convincingly that lobbyists and others would come up with credible signaling methods to overcome anonymity. [16]

Let’s assume that if members spent less time on fundraising, they would devote more time and effort to their legislative tasks. Contribution limits are one reason members spend so much time fundraising. By paring back the limits and allowing political parties to fundraise on the same terms as outside groups, the average member would probably spend less time fundraising. But he or she would also be more beholden to party leaders. Enhanced parties in Congress might also mitigate the temptations associated with campaign finance.

DeMuth does not mention the term limits the congressional GOP has imposed on its committee chairs for 20 years. The committee chairs of old were powerful and controlled the bureaucracy in part because they persisted in power. Chairs with experience in oversight and control of the agencies would presumably suffer less from the asymmetries of knowledge first noted by Bill Niskanen.[17] Agency officials would be less inclined to wait out a difficult chairman who was not limited to six years. Ending terms limits for committee chairs, were it politically possible, might well strengthen Congress’ power over the administrative state, all things being equal.[18]

Institutions, however well-designed, can never guarantee conduct nor replace character. Article I of the U.S. Constitution presupposes much about legislators. They are inhabitants of a state and citizens of the nation; they are of a certain age but vulnerable to corruption by the executive or a foreign power. They should be willing to be held accountable. Taken as a group, and perhaps individually, they might abuse the power won through elections. They require limitation as well as empowerment.

As legislators they inhabit the republican branch of the government and should take pride in being first among equals. They should stand up for their institution in the ongoing struggle among the branches (and other newly-empowered institutions like the Federal Reserve). Legislators should dominate the administrative state because such is their role in American government.

But members of Congress often do not take their roles seriously. Consider the War Powers Resolution. In the Libyan expedition, President Obama violated most of a legitimate law passed by Congress in 1973. The 60- and 90-day limits on national commitments to the use of force were ignored by Congress until they had elapsed. I cite this example not to raise traditional questions about the war powers. Rather, whatever you believe about the war powers, surely it is odd that Congress cannot bring itself to defend its own laws or its position in the balancing of constitutional powers. Do U.S. senators and representatives really think so little of their institution?

The same loss of institutional self-respect informs the question of delegation and administration. Members wish to win reelection by avoiding responsibility for difficult decisions. Recall that with the Troubled Asset Relief Program (TARP), the chairman of the Federal Reserve was concerned about the limits of his powers and the rightful role of Congress in making laws to bail out the economy.[19] The head of the fourth branch of government was concerned to see Congress uphold its duties. In early October 2008, the members of Congress feared the electorate and wished to avoid accountability for their votes on TARP.  Perhaps the executive has authority because its officials accept responsibility.

I am not sure how to change how members of Congress view themselves and their institution. Perhaps electoral changes would make a difference. Beginning in the 1970s, many people thought the GOP would usually win the presidency but not a majority in Congress. Thinkers on the Right valorized executive power, including the hope that conservative Presidents might constrain the administrative state.

Republicans have now lost four out of the last six presidential elections and finished second in the popular vote five times since 1992. It seems unlikely that the GOP will win the presidency more than once or twice over the next two decades. But it has held Congress for most of the time it has been losing the presidency. Electoral defeats and successes should lead Republicans to embrace Congress and its powers with as much fervor as the party has embraced the executive until now. If Congress becomes more important to a party previously drawn to the presidency, perhaps legislators themselves will begin to regain some sense of institutional loyalty and pride.

This scenario might seem implausible, but conservative intellectuals defended Congress not so long ago.[20] Perhaps most would do so again.

[1] John J. DiIulio, Bring Back the Bureaucrats: Why More Federal Workers Will Lead to Better (and Smaller!) Government (Templeton Press, 2014), pp. 5-6.

[2] Justice Stone: “political processes . . . can ordinarily be expected to bring about repeal of undesirable legislation . . . ” United States vs. Carolene Products Co. 304 U.S. 144 (1938).

[3] See Charlies I. Jones, “The Facts of Economic Growth,” April 28, 2015, Version 1.0, Fig. 1., p. 2 at http://web.stanford.edu/~chadj/facts.pdf.

[4] Samuel Peltzman, “The Economic Theory of Regulation after a Decade of Deregulation,” Brookings Papers on Economic Activity: Microeconomics, 1989.

[5] Gary Lawson, “Delegation and the Constitution,” Regulation 22 (1999), 23-29.

[6] 5 U.S. Code Sec. 706(2)(A).

[7] Charles Murray, By the People: Rebuilding Liberty Without Permission (Crown, 2015), p. 160.

[8] See Chapter 11 of Murray.

[9] Matthew McCubbins, “Abdication or Delegation? Congress, the Bureaucracy, and the Delegation Dilemma,” Regulation 22 (1999), 33.

[10] Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2011).

[11] Charles R. Shipan, “Congress and the Bureaucracy” in Institutions of American Democracy: The Legislative Branch, edited by Paul J. Quirk and Sarah A. Binder (Oxford University Press, 2005), pp. 438-446.

[12] Morris P. Fiorina, Congress: Keystone of the Washington Establishment, Revised Edition (Yale University Press, 1989).

[13] 5 U.S.C. § 802(a).

[14] http://www.gao.gov/legal/congressional-review-act-faq/about

[15] See H.R. 427, January 16, 2015.

[16] Kenneth P. Mayer, “Political Realities and Unintended Consequences: Why Campaign Finance Reform Is Too Important to Be Left to the Lawyers,” University of Richmond Law Review 37 (May 2003), 1069.

[17] William Niskanen, Bureaucracy and Representative Government (Transaction Publishers, 1971, republished 2007 by Aldine Transaction).

[18] But we should be careful about categorical statements here. Representative Jeb Hensarling (R-Tex.) would probably not be head of the House Financial Services Committee now if there weren’t term limits. A more experienced chair might have been unwilling to take on the Export-Import Bank. Thanks to Colin Samples for this point.

[19] “‘We can’t do this anymore, Hank. We have to go to Congress,’ Bernanke told Paulson, according to one of the participants in the call. The Fed was at its limit.” David Wessel, July 28, 2009, In FED We Trust: Ben Bernanke’s War on the Great Panic (Kindle Locations 3699-3701, Kindle Edition, Crown Publishing).

[20] James Burnham, Congress and the American Tradition (Transaction Publishers, 1960, republished 2003).