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As the two previous essays have explained, we are increasingly governed not by our elected officials in Congress, but rather by an administrative state which makes most of the national government’s policies.  How has this affected the way Congress functions, and how it represents the people?  The administrative state has fundamentally changed the way Congress works, and this change has taken place over two distinct eras.

Throughout most of the twentieth century, while the administrative state was being constructed and expanded, Congress decentralized its power to committees.  These committees specialized in the subjects that the bureaucracy was created to regulate: agricultural production, workplace safety, consumer product safety, aviation policy, financial regulation, environmental protection, and so forth.  By decentralizing its own power into these specialized committees, Congress created a system that enabled it to supervise and oversee the work of the administrative state.

Congress was able to remain in control of the administrative state, in spite of the fact that the bureaucracy was ostensibly controlled and supervised by the executive branch.  Congress remained in charge due to two powers: the power to empower agencies by authorizing them to make policy, and the power to appropriate money to agencies.  Agencies needed Congress to give them power and funding.  This meant that when members of Congress – typically those on the relevant committee – demanded agencies to make certain decisions, the bureaucrats were happy to oblige.

Congress’s structure, throughout the twentieth century, in other words, was perfectly designed to supervise the administrative state it created.  But it was no longer representing the people in the making of law.  Instead, individual members had power, due to their committee assignments, to please their own constituents rather than deliberating with their colleagues on the bills that would promote the good of the country.

During this period, both parties in Congress largely supported the increasing role of the administrative state in making policy.  Members of Congress, regardless of their party affiliation, enjoyed the benefits that they derived from the administrative state.  Political ideology mattered a lot less than whether a member could bring home benefits to his or her constituents, and members were happy to play this role regardless of their partisan affiliation.  Congress could pass vague bills that promised to accomplish huge goals such as cleaning the air and improving automobile safety, but the costs would be imposed by the agencies that implemented the regulations necessary to attain those goals.

This is surely one reason why, throughout the twentieth century, the nation witnessed a steady increase in reelection rates to Congress, the rise of career members of Congress, and a decrease in voters’ sense that the government reflects their wishes.

Things have changed in important ways since the last century, however.  Instead of both parties in Congress agreeing on the legitimacy of the administrative state, and using it to promote the narrow interests of their constituents, one party has begun to question the legitimacy of the modern administrative state completely.  As the Republican Party became more consistently conservative, culminating in the 1994 and 2010 midterm elections, partisan politics has reemerged in Congress.  Newt Gingrich, the Speaker of the House after 1994, took some powers away from committees and centralized some power in the Speaker’s hands, allowing the party leaders in Congress to bring partisan politics, and the fight over the size of the national government, back into Congress.

In this second phase of the relationship between Congress and the administrative state, Congress is no longer content to oversee the exercise of administrative power.  Instead, one party in Congress seeks to constrain this administrative state, while the other defends it.  This has made Congress more polarized and more gridlocked, but it has also caused Congress to become weaker.  Congress was still an “impetuous vortex” in the twentieth century, just as James Madison had predicted it would be.  It ostensibly delegated power to the bureaucracy, but it controlled the bureaucracy behind the scenes.  Today, on the other hand, Congress has become so deeply divided that its members no longer act institutionally, defending and expanding congressional control of the administrative state.  Instead, they fight over the legitimacy of the modern state itself.

Paradoxically, the administrative state did not gain its powers at the expense of Congress.  Rather, Congress gained the most when it delegated lawmaking power to the bureaucracy, because members could claim credit for fixing problems but avoid the responsibility for the modern state’s costs.  As Congress has become increasingly polarized and gridlocked, it neither oversees the administrative state systematically, nor has it regained the original responsibility for making laws that our Constitution’s Founders envisioned it should have.  It is increasingly relegated to the periphery of American politics, eclipsed by the President, by the Supreme Court, and the bureaucracy.  Far from the republic’s crown jewel, Congress sadly has become the country’s most despised political institution.  It no longer resembles the representative, lawmaking body that the Founders intended it to be.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

 

Samuel Postell is a Ph.D. student at the University of Dallas.

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