John Dingell, who represented southeastern Michigan for 59 years in the House of Representatives, died on 7th February. While I disagreed with virtually all of Rep. Dingell’s policy preferences, I very much admired the man for the institutional pride he took in Congress. It’s a quality sorely lacking in contemporary lawmakers.
Rep. Dingell was a master parliamentarian. He is famous in Washington D.C. for his steady accumulation of power as chairman of the Energy & Commerce Committee during the 1980s. Due to his efforts, Energy & Commerce presently exercises the broadest jurisdiction of any authorizing committee in Congress.
From this perch, he regulated the regulators. His use of agency “details”—i.e., commandeering executive branch officials to assist in oversight—was legendary. His investigations were feared. Again, I disagreed with his policy preferences, but, undoubtedly, he was effective in competing with the president (and his colleagues) for control over agency policymaking.
Today, alas, the president calls the shots at regulatory agencies, largely unfettered by Congress. As described by then-Prof. Elena Kagan in a celebrated law review article, we live in a time of “presidential administration.”
Over the last few decades, the president has developed powerful mechanisms, including budget management and White House regulatory review, to superintend the administrative state. Yet, in the face of growing executive power, Congress declined to compete. As I explain further below, party allegiance trumps institutional pride in today’s Congresses. Most congressional Democrats looked the other way, or even cheered, when “their guy” used a “phone and pen” to circumvent Congress and unilaterally impose a deferred action immigration policy. And most congressional Republicans looked the other way, or even cheered, when “their guy” declared a “national emergency” to circumvent Congress and unilaterally build a wall. I’m confident that such obsequiousness would’ve been anathema to a Congress full of John Dingells.
What made Rep. Dingell different? He was a product of his times. Whatever else their flaws, lawmakers of his era abided certain norms that made for a more competent Congress. Under the “apprenticeship” norm, new members of Congress were expected to keep a low profile and instead devote themselves to committee work. Under the “specialization norm,” lawmakers were expected to master one to two narrow issues within their committee’s jurisdiction. To be sure, Dingell’s generation engaged in overbroad delegations of lawmaking functions to agencies, but these lawmakers at least felt a duty to counterbalance such grants by taking the time to understand the inner workings of the agencies they created and funded. The 1946 Legislative Reorganization Act, for example, requires congressional committees to exercise “continuous watchfulness” over regulatory agencies.
Moreover, lawmakers of Dingell’s era genuinely cared about Congress as an institution. To the Congresses that legislated the administrative state into existence, the president was a competitor, and oversight was a primary means for ensuring that laws were faithfully executed. To a large extent, the legislature’s oversight role was codified in various enabling statutes, which often required agencies to consult with appropriate committees before implementing proposed policies. Back then, agencies usually acknowledged and honored objections voiced by members. Congresses of yesteryear also authorized lawmakers to check regulations after they already had been issued. From the New Deal until the early 1980s, Congress legislated 295 veto provisions in 196 statutes, pertaining to every field of governmental concern. In 1983, however, the Supreme Court ruled that this sort of legislative oversight is unconstitutional.
At about the same time that the Supreme Court rejected the legislative veto, Congress began a structural change that further undermined its capacity to compete with the president. Specifically, there was a shift from committee-control to party-control over both chambers of Congress, such that, again, party affiliation currently takes priority over institutional affiliation. In large part, this centralization of power resulted from demographic shifts that homogenized the Democratic and Republican parties, primarily the decline of northeastern Republicans and southern Democrats. Another major factor contributing to this trend is the “fiscalization” of politics in Washington D.C., by which scholars mean that congressional affairs are now dominated by periodic high-stakes negotiations over budget deficits, debt ceilings, and government shutdowns. In these recurrent crises, congressional leadership naturally assumes a greater hand. Congressional leaders accelerated the centralization of power by slashing professional support staff at committees and Article I agencies.
In this environment, Congress has had insufficient political will to reinstitute a viable mechanism for checking administrative policymaking. In 1996, Congress partially revived the legislative veto, but its scope was limited to resolutions of disapproval rather than resolutions of approval, which meant that a sitting president could use his constitutional veto power to protect regulations promulgated during his term. As a result, Congress gained veto power over only a small subset of some presidents’ regulations—basically, those rules promulgated in the final five months of an outgoing presidency, where the incoming president is from a different party. The crucial point is that the legislative veto is a shell of former self.
Obviously, norms like specialization and apprenticeship have fallen by the wayside—just look at the AOC phenomenon. Less than two months into her first term, she has basked in the political limelight and even introduced a sweeping proposal that would fundamentally overhaul the American economy. “Apprenticeship” plainly does not apply. Nor does “specialization.” In modern Congresses, members tend to be generalists when they enter, and they are content to remain generalists while they stay.
Compared to members from Dingell’s time, lawmakers today know less and have fewer resources. They also work fewer days. Effective oversight has suffered accordingly. Consider the House Natural Resources subcommittee hearing on climate change last Tuesday, which was adjourned by the minority party because too few Democrats bothered to attend. Mind you, it’s a Democrat party plank that climate change is the most pressing problem of our time. Quality of oversight isn’t any better in a cleanly divided government, where both chambers are held by the party in opposition to the president, as was demonstrated amply by the Republicans during the Obama era.
To be clear, I’m wide-eyed about the realities of power. I understand that Dingell wielded his authority to benefit his constituents—in particular, the Big Three automakers in Detroit. While there are those who genuinely believe that “what is good for GM is good for America,” I’d no more want Rep. John Dingell than anyone else to wield the powers of the modern president. Rather, my preference is for Congress and the president to battle to manage the administrative state—like they used to—and thereby tame the leviathan. That’s how the system is supposed to work.
What will it take to make Congress great again? We’re going to need a few score more members like John Dingell, in both houses and on both sides of the aisle. R.I.P.