Make Congress Legislate Again

Congress has not engaged in regular lawmaking for some time. Does this require structural reform, such as abolishing the filibuster? Some seem to think so. I am skeptical. If Congress is reluctant to legislate, there will be difficulty cobbling together the requisite number of votes whether 51 or 60 votes are required. If there is insufficient reason to craft a legislative vehicle that can pass, it will not get passed.

Legislative quiescence is a serious problem, but it is not as if Congress never acts. Must-pass legislation gets enacted, albeit often after much consternation (and the occasional government shutdown). What I believe this illustrates is that creating stronger incentives for Congress to act, and to revisit existing laws, is fruitful path for encouraging more regular lawmaking, including the reauthorization of programmatic statutes.

Chris Walker and I explored this issue some in our paper, “Delegation and Time.” I discuss it further in “Making Congress Legislate Again,” my contribution to today’s Civitas Outlook symposium on structural reform. From my essay:

Including expiration dates or sunsets in new legislation is one way to encourage Congress to reengage with specific policy areas more frequently. Congress can still punt when an authorization expires, such as by extending deadlines piecemeal, as is sometimes done with continuing resolutions. But there is still value in forcing legislators to acknowledge their responsibility and cast their votes.

Many existing programs already contain time-limited authorizations, even if Congress has not observed them. This is the case with most major environmental statutes, which, as noted above, have not been reauthorized (let alone significantly revised) this century.

Adding sunset provisions or expiring authorizations to new laws would be a positive change, but we need not wait for it. It is also not a cure-all, as expired authorizations matter only if they are allowed to take effect. The Congressional Budget Office regularly reports which programs have expired authorizations, ostensibly to prevent appropriations for them.

As it happens, current congressional rules may already require Congress to revisit existing programs. Current House and Senate rules already prohibit appropriating funds for unauthorized or expired federal agencies and programs. Blocking such appropriations should require no more than raising a point of order. While such objections can be overruled (and congressional leadership has ways of making procedural objections difficult), raising them would be a start.

Many think the answer to Congress’s inability or unwillingness to legislate requires rewriting the rules or broader structural reforms. A better start might simply be enforcing the rules we already have.

The full symposium, with contributions from Steven Hayward, Josh Blackman, John Yoo, and William Voegeli is here.

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