Congress Must Grow to Check the Administrative State
The rise of the administrative state and the corresponding decline in power of the legislative branch is much lamented, often by political conservatives, and rightly so. The executive branch so dominates policymaking that Congress often stands by as major aspects of public policy get rewritten without any change to underlying law. The country’s founders wanted the people’s representatives in the House and Senate to serve as checks on an overly assertive executive branch. Congress’s persistent failure to properly fulfill this essential constitutional role in recent years is one reason the nation’s politics are out of balance.
Restoring Congress to its rightful position in the constitutional order won’t be easy, though, because a major reason for the current imbalance is a structural shift in the nature of governance. The problems the country faces are more complex and technical than they used to be, and House and Senate members do not have sufficient expertise to write new policies on these questions without the assistance of experienced professionals. Congress can therefore only retake its proper place in the policymaking process if it rethinks how it conducts its business.
One need not agree with former President Woodrow Wilson’s misplaced longing for technocratic governance to see that knowledge is indeed power and that the executive branch has more of it than does Congress. Competent supervision of environmental protection, cybersecurity, information technology, energy production, the provision of medical services, and many other matters cannot be conducted by legislators with little direct knowledge of these topics and woefully insufficient institutional support. Congress lacks adequate access to experts who can help them develop legislation to address emerging questions and problems. House and Senate members have become more deferential to the executive branch in part because they lack the self-confidence to independently challenge the positions of experts who make decisions on these matters within the administrative state.
The institutional nature of Congress puts members at a disadvantage in building technical capacity. The tenure of House and Senate members can often exceed that of a two-term president, but much of their time in Congress is spent in relative obscurity and with insufficient resources or staff support to become truly knowledgeable in any particular area. The members who chair committees have more power and expertise, but, for Republicans, their tenures are short because of term-limit rules. The key congressional committees do have numerous qualified staff who are capable of competing with their counterparts in the executive branch, but they are spread far too thin to be fully effective in this regard.
The executive branch, on the other hand, is hindered by none of these constraints. Federal agencies have significant financial resources and large staffs assembled and cultivated over decades. Senior agency personnel have the resources they need to conduct research, build models to test new ideas, and hire contractors to expand their reach. They also lay plans to influence policy over decades rather than years. They remain in place regardless of who is elected president. Presidents of both parties come to rely on them to advance their agendas.
Health care provides a clear example of what happens when there is a persistent imbalance in expertise between the elected branches. A major challenge in the health sector is the rampant waste and inefficiency that occurs in the provision of services to patients. Pursuing solutions to this longstanding problem is an exceedingly complex exercise. It involves rewriting the massive regulations in Medicare that govern payments to hospitals, physicians, and other providers of services. Congress has largely ceded responsibility for pursuing this task to the Department of Health and Human Services. The Trump administration, like the Obama administration before it, is currently pursuing a wide-ranging series of initiatives that have the potential to alter dramatically how medical care is delivered to millions of patients. Congress is largely on the sidelines of this effort, satisfied to wait for answers to emerge from the executive branch.
Congress could begin to reassert itself by building stronger institutional support for the development of specific legislative responses to emerging issues and problems. The existing congressional support agencies — the Congressional Budget Office (CBO), the Government Accountability Office (GAO), the Congressional Research Service (CRS), and the Medicare Payment Advisory Commission (Medpac) — have real strengths and expertise. They provide regular, highly valuable reports to Congress, and, in the cases of GAO and Medpac, make relevant recommendations for legislation to Congress.
But because these agencies are designed to provide nonpartisan support to Congress, neither party relies on them heavily to develop new policy initiatives that could serve as the basis for legislation. When Republicans and Democrats write bills to address emerging issues, they want ideas that are technically sound, of course, but they also want to champion changes that conform to their philosophical approaches to governing.
Congress shouldn’t breach the political independence of the traditional support agencies; they provide objective analysis and should be above the partisan fray. Instead, Congress should look to expand support for their legislative efforts by building new pockets of institutional support that combine technical expertise in key issue areas with a policy development mission.
A potential model is the Joint Committee on Taxation. Although JCT is a nonpartisan support agency that is known for estimating the revenue effects of tax bills, it also has as part of its mission the direct support of House and Senate members in the development of new tax bills. The committee has played an instrumental role in shaping every major tax bill going back many decades, including the GOP tax plan that was enacted in December 2017. Because of the support of JCT, Congress has not been forced to take a back seat on tax policy to the experts in the Department of the Treasury. Congress should consider building similar support agencies in a number of other complex issue areas.
Adding more institutional support to Congress would cost very little in the context of the government’s overall expenditures. This year, the total appropriation for the legislative branch is $4.7 billion, or 0.0001 percent of total federal spending. Even doubling the size of the legislative branch, which is far beyond what is needed, would increase federal spending by a small fraction of the $69 billion that will be added to Medicare expenditures next year.
Congress is run today much as it was in 1960, but the United States has grown in size and complexity in the last half century. The legislative branch has steadily lost power to the executive branch because it does not have the capacity to develop and implement legislative policies that can competently address the many challenges that present themselves in a modern economy. House and Senate members need more help from true experts to fulfill their constitutional roles. It is long past time to give it to them.
James C. Capretta is a RealClearPolicy Contributor and a resident fellow at the American Enterprise Institute.
