Thursday, October 13, 2011

Congress can't recuse itself

Guest Blogger

Michael Justin Teter

Nobody seems to like Congress. Indeed, even its members find themselves hard-pressed to defend the institution. While many factors contribute to this increasing frustration with Congress, chief among these causes is the gridlock that defines the legislative process today.

Stalemate, though, is not new to Congress. In the past, legislators turned to a variety of tools to overcome the problem: independent commissions to make policy recommendations (epitomized by the Greenspan Commission to address Social Security in the early 1980s), fast-track procedures that ensured an up-or-down vote for certain types of legislation (most often treaties), or automatic triggers to force policy enactment that would not otherwise occur (the current Super Congress is an example). Each of these mechanisms offered some means to overcome institutional obstacles.

Only in the rarest of circumstances, though, has Congress combined these devices and given an independent commission responsibility for designing public policy,while ensuring that the commission’s pronouncements take effect if Congress does not act. The clearest example of this form of lawmaking was the creation of the military base closure commission in the late 1980s. This manner of lawmaking is atypical because it leaves Congress largely removed from the policymaking process. Once Congress created the base closure commission, legislators had almost no control over which bases wereclosed or consolidated. When Congress does employ this approach, it does so because it recognizes that institutional constraints and electoral pressures prevent legislators from achieving a widely shared objective. In short, just like judges facing a conflict-of-interest, Congress in essence “recuses” itself.

With gridlock reaching a nearly unbearable level, there is a growing chorus of commentators encouraging an expanded use of “recusal legislating.” The most recent push came from Peter Orszag, who served as President Obama’s first Director of the Office of Management and Budget. Mr. Orszag endorsed shifting much of the nation’s fiscal policy toward automatic triggers and independent commissions whose recommendations would take effect absent congressional action. Those who promote this form of lawmaking point to the success of the military base closure process and argue that the same results could translate to other policy areas, as well.

In truth, however, the military base closure law succeeded because three key conditions were met. First, broad—nearly universal—consensus existed within Congress that it needed to act. Second, Congress agreed on the substance of that need—many bases were obsolete or unnecessary and required closing. Finally, members of the Armed Services committees in both the House of Representatives and the Senate were well positioned to prevent any base closures, and other legislators saw little benefit to challenging their powerful colleagues when any savings associated with closing bases would be dispersed. Thus, it was institutional and electoral factors that impeded action, not policy disagreement. Absent these circumstances, the base closure law never would have worked.

Take, for example, the proposal last August by Senate Republican Leader Mitch McConnell to shift the responsibility for increasing the debt ceiling from Congress to President Obama. It went nowhere, even as the showdown threatened to capsize the economy, because too many Republicans did not agree that the debt ceiling needed raising. Suggestions, like those of Mr. Orszag, to address divisive issues like the nation’s fiscal policy through this form of legislating will meet a similar fate as SenatorMcConnell’s effort.

Given the times, there is an understandable urge to transform the legislative process so that policy enactment is the default—to make action, rather than inaction, the consequence of gridlock. There are even important advantages to “recusal legislating” beyond policy enactment. These include reducing the disproportionate influence of interest groups, tackling collective action problems that would otherwise go unaddressed, and allowing specialized policies to be developed without concerns about political preferences or interference.

But despite these many benefits, the fact remains that it is Congress’s responsibility to legislate. Encouraging lawmakers to opt-out of this duty too easily or too often risks undermining representative government and democratic accountability. Though the frustration is genuine and the goals for these proposals noble, there are some issues for which Congress simply cannot recuse itself.

Michael Justin Teter is Associate Professor of Law at the University of Utah. You can reach him by e-mail at michael.teter at

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