CONGRESSIONAL AND GOVERNMENT REFORM
In Federalist 51, James Madison wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Significant reforms to Congress and the Executive Branch are necessary because we are not governed by angels, but by men (and women) with all their human limitations.
The Congress of the United States is often referred to as the greatest legislative body in the world. The Founders recognized the supremacy of the Congress in our system of government by establishing the structure, qualifications for membership, and powers in the very first article of the Constitution. Thus, Article I begins:
“All legislative Powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.”
While the first three articles of the Constitution vest unique powers in three separate institutions of government -- legislative, executive and judicial branches -- they do not confer any power to a federal government.
At the same time, the Founders envisioned a limited not an unlimited form of self-government. Accordingly, the Constitution sets up a series of checks and balances, even on the expansive powers of the Congress. The Constitution itself is intended to restrain the powers of the federal government over the people by enumerating the powers of the government and making an express reservation of all other powers to the states or to the people.
The most important power of the Congress is the power of the purse. It thus becomes the prudential responsibility of the Congress to determine how and where to spend the taxpayer’s money.
Over the years, Senator Tom Coburn of Oklahoma has issued his annual "Wastebook" showing the profligacy of the politicians in Congress when dealing with someone else's money -- the taxpayers -- to which they are entrusted.
Congress has, however, vastly exceeded all reasonable and prudent spending limits and has done so without clearly expressing the enumerated constitutional power that permits such excessive spending. This excessive spending results in some measure from the creation of more and more government programs and departments that require bigger and bigger bureaucracies without accountability from Congress. We have finally reached the point that Benjamin Franklin said we would: “When the people find they can vote themselves money, that will herald the end of the republic.”
Thus, Congress must be reformed to ensure: (1) that all legislation is enacted pursuant to a power enumerated in the Constitution; (2) that Congress reduce spending to reasonable levels to achieve the principles of the limited government established by the Founders; and (3) hold agencies accountable for the effective management of government programs. Moreover, it is within Congress’s purview to reform government.
- Exercise Constitutional Authority Only: The Constitutional authority for proposed legislation is often unclear. More importantly, the constitutionality of a bill is often just a second thought, at best. Legislators appear to believe that the Commerce Clause (U.S. Const., Art. 1, sec. 8, cl. 3) is so broad that it encompasses almost any legislation that touches on the economic activity of our country, no matter how little the activity actually affects interstate commerce. For example, the health care reform legislation, passed by the 111th Congress (2009-2010) and signed into law by President Obama, rested on the view that a human being’s breathing in and out affected interstate commerce. Although the Supreme Court ultimately decided that question, Congress should exercise its own judgment, deliberately and transparently, on the constitutionality of all legislation.
While the House of Representatives assembled for the 112th Congress (2011-2012) adopted a new rule that requires a reference to the enumerated power in the Constitution that authorizes the exercise of legislative power to enact the legislation, it does not go far enough. The requirement is susceptible to abuse because sponsors of legislation simply can cite the Necessary and Proper Clause (U.S. Const., Art. 1, sec.8, cl.18), which presupposes legislative power to act, so as to justify the legislation.
A Chamber rule that requires the citation to a substantive power and allows a “point of order” against a bill to challenge that citation would be far more effective at ensuring a full vetting of the constitutional basis for legislation. Such a rule would allow a “full and open debate” of the constitutional basis for legislation and would allow the bill to be defeated on the constitutional argument alone. Without such a rule, Members of Congress are forced to choose between arguing the constitutionality and arguing the wisdom of a bill under limited time constraints. As a result, the argument over constitutionality will be seen as one argument among many and will not receive the attention this most basic requirement deserves.
- Rules for Constitutionally Smaller Government: John Adams enshrined in the Massachusetts Constitution the principle that the government should be “a government of laws and not of men.” (Mass. Const. pt. 1, art. XXX (1780)). To that end, Congress must adopt rules to constrain spending because it is clear that only such rules, and not the Members themselves, can do it.
There is now a firm political consensus across the land that government spending has accelerated and reached levels that seriously threaten the stability of America’s economic and political system. Entitlements, bailouts, and stimulus spending have pushed deficits beyond a trillion dollars as far as the eye can see. The 112th Congress responded by introducing systemic measures that will constrain spending. The new “cut-as-you-go” rule in the House, as opposed to the so-called pay-as-you-go rule utilized by the majority Democrats in the 111th Congress, will require spending cuts and not tax increases to offset any new spending.
Earmarking: Republicans and Democrats in the 112th Congress agreed to forego earmarks which, although only a small percentage of overall spending, seem to grease the skids for large spending measures.
This is, however, not enough. It is not clear why the earmark ban was passed only as a rule of the Republican Conference in the House. It should at least be made part of the House rules, if not enacted by statute. As part of the House rules, the earmark ban would be the official position of the Committee of the Whole, not just the rule of the House Republicans.
A statute would have the beneficial effect of binding future Congresses unless a future Congress repealed it. The Members of that Congress would then have to face the political consequences of repealing the ban and returning to the discredited practice of earmarking.
- Hold Congress Accountable: Government spends too much because it does too much. Many programs created by Congress duplicate each other and are not adequately “overseen” to ensure their effectiveness. As a result, government programs are funded long after their authorizations have expired. Thus, although a committee of jurisdiction may not have seen fit to reauthorize a program, the spending for that program is so institutionalized that funds continue to be appropriated.
So who is making sure that Congress acts responsibly to oversee these programs and end them, if appropriate? As the first century Roman poet Juvenal wrote, echoing Plato, “Quis custodiet ipsos custodies?” (Who is guarding the guardians themselves?). Congress must have rules that will hold themselves accountable for, and that force it to hold agencies accountable for, the continuation of any program.
- Require Authorizing Legislation for Spending: Authorization by implication must end. Rules must be adopted to require an existing duly enacted statute authorizing any spending. While this could mean nothing more than passing a bill extending the date of an existing authorization, at least it will require a public and deliberate vote on legislation to extend the program for which the Members can then be held accountable.
In addition, all federal statutes should be required to be reauthorized every 10 years. Such reauthorizations will force lawmakers to seriously reconsider every federal program at least every decade and face the voters with their decisions.
- Shrink or Eliminate Federal Agencies: Congress should examine specific ways to shrink or eliminate federal agencies altogether The Departments of Education, Energy, and Commerce are bloated and ineffective. There is scant evidence that 40 years of a federal education bureaucracy has improved education in America. Only a very small percentage of overall spending on schools is federal. Much of what Education does can be done by other agencies and at the state and local level.
The Department of Energy’s functions can easily be dispersed to other agencies, such as the Defense Department and the Interior Department. Research at the National Labs is largely related to commercial applications, which should be in private hands.
Former Commerce Secretary Mosbacher called the Commerce Department “nothing more than a hall closet where you throw in everything you don’t know what to do with.” The Department’s Inspector General described it as a “loose collection of more than 100 different programs and shares its mission with 7 different federal agencies, bureaus and offices.” It can be eliminated.
- Return the Election of Senators to State Legislatures: Until the adoption of the Seventeenth Amendment to the Constitution in 1913, Senators were elected by state legislatures, not directly by the people. The Founders believed that while the House represented the people and the popular will, the Senate represented the sovereign states. In Federalist 62, Hamilton wrote: “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.”
Repealing the Seventeenth Amendment would reflect a recognition that a Senator’s role is to represent the state whose policies are better known and expressed by the state legislature than by the population as a whole. Election by the legislature was originally intended to protect against election of unqualified members as a result of demagoguery or superficial qualities. Closer to the people, state legislatures were better equipped to select a candidate who would represent the state’s interests. Such election would also insulate a Senator from the need to campaign throughout the state and focus on the great business of the nation. Election of Senators by state legislatures seems even more appropriate today because of our celebrity and media culture and the enormous burdens of campaigning and fundraising.
Finally, the rules of the Senate Chamber must not allow the passage of large spending bills by “unanimous consent.” Currently, any bill, including large spending bills, can be passed by unanimous consent without any debate or public discussion whatsoever. This practice may be useful in the naming of a post office. But it is not appropriate when exercising the most fundamental power Congress has, the power of the purse.
- Reduce the Administrative State: Congress has delegated too much rulemaking authority to federal agencies. These agencies issue rules and regulations that strangle the economy and require huge costly bureaucracies.
Congress must insist on agency compliance with the Congressional Review Act (CRA) of 1996 and stop major rules that are overly burdensome. Under the CRA, any administrative rule with an economic impact of more than $100 million must be submitted to Congress for review prior to going into effect. Once submitted, Congress can pass a resolution of disapproval that, if signed by the President, invalidates the rule. Congress should defund any rule that is not properly submitted and enact legislation to make clear that any person affected by a regulation that was not submitted has the right to sue the agency in federal court to prevent the regulation from going into effect.
Administrations of both political parties have disregarded the CRA requirement during the 110th (2007-2008) and 111th (2009-2010) Congresses. And Congress has not insisted on strict compliance. Moreover, the courts have generally found that no private right of action exists to allow citizens to challenge the legal validity of rules that were not properly submitted to Congress.
Congress is also currently considering legislation that would require Congressional approval of all regulations with an impact of more than $100 million. If passed, such regulations could not become effective until Congress acted on them. Thus, if Congress simply does not act, the regulations would die. It is Congress’s responsibility to make policy decisions with huge implications. Congress can and should make executive agencies into advisory bodies for major regulations.
- Reform Congress: First and foremost, Members of Congress must have term limits. Members of Congress who arrive with idealistic hopes of bringing about real change too often become co-opted by Washington. They abandon those hopes because they are told that they cannot change Washington and that they will lose their reelection if they persist in unrealistic dreams. Term limits will allow members the freedom to pursue those dreams because they will know that life in Washington is only temporary. A constitutional amendment will be required to impose term limits. Reasonably, the House should be limited to six two-year terms, while the Senate should be limited to two six-year terms in office.
Committees must have, and leadership must enforce, term limits for chairs, members, and staff directors and other senior staff. While there is some risk that term limits drain expertise from the committees, that concern is balanced by the retention of former chairs as members and by the retention and advancement of junior staff who develop expertise. Like the theory of the civil service, expertise at the staff level flows through longtime employees. Senior staff positions are intended for effective leaders and managers who exercise judgment, not for experts in legislative minutiae. There is a high risk in retaining many senior staffers for too long a period of time.
Appropriations: Washington’s out of control spending practices can be traced directly back to the House Appropriations Committee and the “power of the purse,” inherent in the Constitution. Reforming the appropriations process in Congress, both in the House and Senate, is essential to earning back the voters’ trust. Unofficially, there are actually “three” parties in Congress: Democrats, Republicans and the Appropriators, whose loyalty is only to themselves. The legislative conference process of changing and-or restoring spending cuts made in committee must be prohibited. The careful stewardship of taxpayer funds, lost during the “earmark” spending craze of the Bush years, must be regained. The President should have vetoed much more than he did. But it was the “Appropriators” who were sending the legislation to his desk.
More freshmen and sophomore Members of Congress should be given access to the levers of power, including appointments by the leadership to key committees such as Appropriations, Ways & Means, and Finance, if Washington’s business as usual and out of control spending practices are to be reversed.
Transportation: With the House Transportation and Infrastructure Committee as the largest committee (75 members) in the 110th and 111th Congresses, it remains among the largest committees (59 members) in the 112th Congress; as such, it has become more pork barrel than purveyor of sound transportation policy. Washington’s out of control spending practices typified by the irresponsible practice of “earmarks” has devastated the Highway Trust Fund and largely bankrupted a financing mechanism that successfully funded America’s transportation needs for decades, including the effective completion of the nation’s Interstate Highway System.
President Ronald Reagan called this simple and efficient mechanism a true “user fee” and decried the fact it had not increased over the previous 23 years to keep pace with rising costs of transportation. Coupled with costly earmarks, Congress has depleted the Highway Trust Fund surplus in recent years. This has brought about calls for additional revenue sources and even higher spending levels with new and “innovative” ways to tax the average driver, who, able to ply the freeways of America, was once heralded as the “king of the road.”
These so-called innovative ways to double and even triple tax the average American driver include new tolling and financing schemes, such as the notorious “public-private-partnerships” deplored by President Reagan as well as leading conservatives today like Michelle Malkin and Steve Forbes.
“Good tax policy decrees that wherever possible a fee for a service should be assessed against those who directly benefit from that service,” President Reagan remarked. “Our highways were built largely with such a user fee – the gasoline tax.” A single fee – the gas tax levied at the pump and “indexed” to meet rising construction and highway maintenance costs will be sufficient to finance the Highway Trust Fund as long as Members of Congress behave as responsible stewards of our tax dollars. This would prove far less wasteful and far less expensive than the myriad tolling schemes being called for by special interests such as: Open Road Tolling (ORT); High Occupancy Toll (HOT) Lanes, All Electronic Tolling (AET); Time of Day Tolling (TDT); and the worst of all, Vehicle Miles Traveled (VMT).
The White House FY 2012 budget for the Department of Transportation fundamentally transforms the funding mechanism for highways, roads and bridges. It will destroy the Highway Trust Fund and create an all encompassing “transportation trust fund” used to subsidize bicycle paths, transit and high speed rail, while forming a “national infrastructure bank.” Any idea of a proposed “national infrastructure bank” should be stopped dead in its tracks to prevent backdoor federal spending on unnecessary and costly infrastructure such as high speed rail, the infamous “Bridge to Nowhere” and the very real NAFTA Superhighway.
The committee’s size alone is a symbol of the members’ attachment to bloated spending. The Transportation and Infrastructure Committee’s out-of-control spending practices satisfy special interest demands for grand infrastructure plans, rather than meeting the country’s actual transportation needs. These demands turn our transportation policy into a massive make-work project that President Reagan deplored. The number of committee members should be reduced significantly by 50 percent and trust a smaller committee to do what is right for the nation, not what is right for the members.
While states should have a greater role in determining their own transportation needs, governors and state legislators must also act responsibly to be good stewards of their citizens’ gas tax revenues. Raiding the state highway trust funds for other than road projects, whether it is bike paths, transit, the state education fund or filling a budget shortfall, is simply unacceptable. Tolling existing Interstates and-or transferring highways and roads to private toll companies, foreign or domestic, by way of long-term leases – 50, 75 and even 99 years – at the very least amounts to double taxation, without political accountability. A road, highway or bridge has been paid for once by gas tax revenues from the highway trust fund collected at the federal, state and often times at the local level. The average American driver should not have to pay a toll to drive on a road that is already paid for with gas tax revenues collected at the gas pump.
Homeland Security: Legislative and oversight jurisdiction in dozens of House and Senate Committees and Subcommittees cannot be good for keeping the nation safe. Legislation moves slowly through multiple committees, and turf battles slow oversight. Of all the 9/11 Commission recommendations, this has probably seen the least progress. The danger does not come from distracting the homeland security community from its mission by the need to respond to Congress. The creation of the Department of Homeland Security merged 22 agencies and some 170,000 employees. There are plenty of officials available to respond to Congress.
The real problem is ensuring coherent and effective policy. Congress must reduce the number of committees and subcommittees with jurisdiction over homeland security to avoid conflicting policy directives from Congress. Homeland security is simply too important to do otherwise.