Curbing presidential power
On Jan. 3, the 117th Congress will convene. It is not clear why. Presidents make war without congressional involvement. They declare “emergencies,” with Congress’ permission, “repurposing” money for projects Congress did not authorize. The Constitution vests in Congress the power “to regulate commerce with foreign nations,” but Congress has vested presidents with the power to utter “national security,” thereby justifying, for example, tariffs on metal imports from Canada, a military ally. And on washing machines. Really. And the power to disburse billions to compensate farmers for injuries a president inflicts by initiating a trade war. Congress thinks it sets immigration policy, but presidents can substantially alter it by invoking “enforcement discretion.” The Congressional Budget and Impoundment Control Act of 1974 requires Congress to pass a budget resolution by April 15, but it rarely does. In eight fiscal years since 2010 it has not passed one. The 12 subcommittees of the House and Senate Appropriations Committees are supposed to draft bills to fund the government’s components and pass them by Sept. 30. Congress has passed all 12 appropriations bills before the end of the fiscal year only four times since 1977. Only about 10% of appropriations bills are enacted before the beginning of the fiscal year. In 40 of the past 44 fiscal years, Congress has resorted to continuing resolutions to keep the government open. Since 1977, there have been an average of 4.6 CRs per year. Sixty-four percent of members of the 116th Congress have never served under a regular budget and appropriations process.
Fortunately, the 116th Congress created the 12-member bipartisan Select Committee on the Modernization of Congress. Under Chair Derek Kilmer, DWash., and Vice Chair Tom Graves, R-Ga., it produced recommendations that could help Congress attract and retain serious members not given to delegating to the executive branch essentially legislative powers.
The size of congressional staff has not kept pace with the growth of congressional business. There are almost 1,500 lobbyists for the pharmaceutical industry, three for every representative. Congress’ parsimony toward itself — the cost of Congress is 0.08% of the federal budget — has costs. Staff pay has declined relative to the private sector, so institutional memory suffers as the typical staffer leaves after four or five years. House committee staffs declined about 50% between 1991 and 2015. In 1912, Congress set the House’s size at 435 members, one for every 211,000 constituents; after the 2020 census, the average member will have roughly 765,000 constituents. Claims on Congress’ time — policymaking, oversight, etc. — have grown exponentially since 1912, yet Congress is not in session significantly more days than 50 years ago.
Since the 1940s, the number of bills passed per Congress has decreased while the average number of pages per bill has increased. Since fiscal 2012, no standalone appropriations bill has been signed into law. Gigantic omnibus bills, burying controversial appropriations among those that are crucial (e.g., defense), give members the choice of all or nothing. Members always choose all.
The parties’ leaders have displaced committees in shaping legislation: In the 113th Congress (2013-2014) 40% of major legislation reached the House floor without a committee report. Most members are thereby marginalized, lack occasions for developing relationships across the aisle, become insular and focus grimly on reelection to their unsatisfying jobs. They don’t care that they don’t matter.
A few, like Kilmer and Graves, do. Their report’s most controversial proposal is the return of “earmarks” — member-directed spending that the report gives the anodyne label “communityfocused grants.” The report’s reasoning is that members know better than executive branch decisionmakers what their districts need. But the most important reason for forthrightly embracing pork is that legislative bargaining is healthy because the alternative is the majority discouraging heterodox views within its ranks and treating the minority as irrelevant. Bargaining is additive: Support for A, B and C is purchased by including D, E and F. This is a tolerable transaction cost of democracy.
In 1789, there were three executive agencies: the departments of State, Treasury and War. Today, the report’s most stunning sentence says: “While there is no official inventory of federal agencies, one recent count puts the current total at 278 distinct agencies.” So, Congress is not even certain of the components of, and hence cannot meaningfully control, the agglomeration of bureaucracies it has created. Modernization might begin by counting.