Everyone agrees that Congress needs to be reformed. Around 150 new representatives, a third of the House, are likely to be swept into office this November on the reform wave. Many are running explicitly on reform platforms. Even the incumbents have approved their own tepid plan for a commission to look into some internal changes. But there is too little agreement about what is wrong in the first place: gridlock, huge deficits, pork, avoiding important issues, and a self-interested attitude are some of the frequent complaints. The root problem is that the United States Congress is a legislature that has stopped legislating.
Take, for example, Congress's approach to transportation. The 1991 highway bill was a monument to pork-barrel politics and congressional self-promotion. One Senator's father had a boat ramp named after him. Localities in Tennessee, Ohio, and Wisconsin got new bicycle paths, and the Staten Island Ferry hauled in an extra $2.7 million. At least two representatives brought home over a quarter of a billion dollars in grants and subsidies for their districts. The bill was a monument to complexity as well: 298 pages of small print text with a 186-page report adding more details.
Compare this with the bill that created the interstate highway system. The Federal Aid Highway Act of 1956 was a mere 32 pages. The section describing how the interstate highways would be funded and built took up only 11 pages. No state, county, or locality was mentioned in the bill. Yet the 1956 Act revolutionized America's transportation network. There is little danger that anyone will make a similar judgment about the 1991 transportation bill 35 years from now: $150 billion will have been spent for little return.
When Congress is not enmeshed in detail, it tends to be lost in generality. The Americans with Disabilities Act (ADA), for instance, requires "reasonable accommodations" for disabled workers as long as this poses no "undue hardship" for the employer. But Congress refused to define these terms more explicitly. Thus regulatory agencies and the courts will make the real law. Congress effectively is turning over its legislative chores, and power, to someone else.
The 1991 Highway Bill represented not a law, but a series of administrative decisions. The ADA embodies good intentions with very few guidelines as to how those wishes are to be accomplished. Congress takes these approaches because members want to control details while avoiding tough decisions. Real legislation is just the opposite: combining precise meaning with general applicability. The rule of law means nothing if the law is so detailed that it applies differently in every place and circumstance, or so vague that one cannot know beforehand what constitutes a violation. Yet Congress is denying Americans their fundamental rights to equal treatment under clearly understandable law. Congress loses as well from this abdication of its legislative responsibilities, for what is gained in detail and warm feelings is lost in the ability to act decisively on major issues.
Yardsticks for Reform
The high proportion of time Congress devotes to non-legislative activities is equally counter-productive. Micromanaging executive agencies ensnares Congress in iron triangles with bureaucrats and special interest groups, robbing lawmakers of objectivity. Making a wholesale business of constituent service is helpful at election time, but diverts attention from larger issues, and creates the perverse incentive to ignore systemic problems. Pursuing disputes through investigatory hearings and independent counsels poisons public debate, making it more difficult to explore and settle legitimate policy differences. The result is that congressmen have become elected superbureaucrats: ombudsmen, micromanagers, and prosecutors.
To achieve real reform, Congress will have to stop doing a lot of what it does today. …