an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.