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The Sausage Factory

Both Parties Should Support the Plan to Restore Congress

House Republicans, led by Conference Chair Cathy McMorris Rodgers and Speaker Paul Ryan, released their agenda for restoring the proper role of the Legislative Branch under the Constitution on Thursday. While individual Members of Congress will find some items to quibble with, all Members – and the public – should support a plan that would reclaim powers the Executive Branch has gobbled up more and more voraciously over the last 50 years.

In our civics classes we were taught that there is supposed to be a balance of power between the three branches of government. Instead we have competition among the branches for each others’ power. The Executive Branch, under both Republican and Democratic Presidents, has been gathering power at the expense of the Legislative Branch in ever increasing ways. Issuing an executive order demanding that Federal border patrol employees not enforce immigration laws, and acting to terminate the coal industry through EPA regulations are just two recent examples of the Administration using pseudo-legislative powers to bypass and defy Congress. Even so, this is not a new phenomenon, as President’s from both parties share in the blame. It is consistent with a modern trend towards ever increasing executive power and the expense of legislative power. It needs to stop.

The agenda that the Speaker released explains why it is critical to preserving constitutional liberties:

“The Constitution separates the powers of government to guard against the arbitrary use of power. James Madison warned that “[t]he accumulation of all powers, legislative, executive and judiciary, in the same hands . . . may be justly pronounced the very definition of tyranny.” So liberty itself is at stake when any of the branches violates the separation of powers. But it is likewise in jeopardy when a branch fails to exercise its power. Madison warned that the Constitution is a “mere parchment barrier” unless each branch asserted its powers to keep the others in check.”

The agenda document, listed at http://abetterway.speaker.gov contains a host of important reforms aimed at the Executive and Judicial Branch, but also aimed at Congress itself.

One of the most important is the reform of the Congressional authorization process. In the authorization process, committees draft bills establishing, revising or eliminating policies and also recommend a certain level of funding for these government activities. Then the Appropriations Committees draft bills actually furnishing money. Each of these steps is critical in ensuring the people’s interests are served, and Congress has long distinguished them, even to the point of creating rules to do so. It is, for example, against the standing Rules of the House to appropriate money for an unauthorized agency or program. Unfortunately, the House Rules Committee frequently waives this rule. As a result, the Congress appropriates $310 billion – or nearly one-third of the discretionary Federal budget to programs that have not been authorized. And these are not small and obscure agencies – the entire Department of Homeland Security has not been reauthorized since its creation!

Authorization committees are important, because this is where real oversight occurs. It makes the Executive agencies accountable to Congress, and it makes Members of Congress accountable to the public. Authorization committees used to be so important that bureaucrats would quake at the arrival of a “Dingell-gram” – a letter seeking detailed information from former and long-time Democratic Energy and Commerce Committee Chairman John Dingell. This letter meant the Administration would have to come and testify about the program in question before Dingell’s powerful authorization committee. John Dingell once said, “Oversight isn’t necessarily a hearing. Sometimes it’s a letter. We find our letters have a special effect on a lot of people.”

If only Congress could compel that kind of accountability today!

Along with reasserting Congress’ oversight authority, the plan also calls for reforming the regulatory process – an important aspect of increasing accountability to the public. Right now, only a handful of insiders really know the arcane processes used to create Federal regulations. Congress passes a general statement into law and then orders the Executive Branch to write the regulation to enforce it. This is a huge delegation of power – and not one you would find in most other democracies. To reestablish a balance of power, the plan calls for Congress to approve regulations that have a large impact on people’s lives. Congress would then be accountable for “laws” written by bureaucrats – many of whom might be hostile to the intent of Congress.

An acquaintaince of mine likes to say, “Were you stand depends on where you sit.” Like the filibuster in the Senate – when the Senate changes hands, the Senators just exchange scripts. Whoever is in the majority finds the filibuster an outrageous obstacle, and whoever is in the minority claims the filibuster is what makes the Senate the greatest deliberative body in the world. Control of the regulatory process is the same thing. The President wants to minimize congressional involvement, and Congress wants to influence the end result. But make no mistake, the power to regulate is the power to make laws – and that is a function the Framers gave to Congress.

In addition to making laws, Congress’ constitutional responsibility is to protect the people’s rights by making sure too much power is not concentrated in the hands of the President. As Conference Chair McMorris Rodgers said on Thursday:

“The People’s House is the seat of representative democracy.  No other institution has such power because no other institution is as accountable to the people. Presidents can veto. Supreme Courts can strike down. But Congress is the exclusive seat of lawmaking power. Not some guy in the basement of the Labor Department.”

In addition to the House Republicans’ newly released agenda, there are dozens of other proposals, dealing with appropriations, reforming the Anti-Deficiency Act, rewriting the budget process, as well as loads of proposals to increase accountability. Increasing accountability should be Congress’ primary goal, since Americans said that the lack of accountability was their top concern about the legislature, according to a recent survey commissioned by the Congressional Institute.

If anyone is unsure of how Congress can begin the process of government reform, we can actually look to congressional history itself. The traditional way Congress has pursued bipartisan and bicameral change is by creating a Joint Committee on Congressional Reform. Every generation, Congress needs to review laws like the Budget Act, update and amend their own rules. Party organizations within Congress (the House and Senate Democratic Caucuses and the House and Senate Republican Conferences) increasingly have taken a look at their own internal partisan rules. This process has proven remarkably successful over the years at generating bipartisan support for improving Congress. Instead of pointing partisan fingers at each other, this Joint Committee would allow Congress to take a good look in the mirror and start a reform process that, as their oaths demand, “defend(s) and protect(s) the Constitution of the United States.”

Mark Strand is the President of the Congressional Institute. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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