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Fixing The Broken Branch – OpEd

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The Legislative branch represents the voice of the people and the states. Article I, Section 1 of the Constitution vests all legislative powers in Congress. To fulfill its role, Congress cannot “delegate”. This is the principle of nondelegation, that the people, through the Congress, make the law, rather than the executive or judicial branch. Given the complexity of the real world, the Supreme Court permits limited delegation, providing Congress furnishes intelligible principles to guide discretion.

Neither the President nor the Supreme Court possess legislative authority. This is a central tenant of the separation of powers between the departments of the federal government. The Constitution intended the Executive to execute the will of Congress. The Executive’s role is to facilitate and promote legislatively mandated programs and aims. The Constitution did not intend the Executive to be king.

Nevertheless, the power of the Executive branch of government has grown at the expense of the Legislative branch. Legislative dysfunction had been masked by executive creep. The Executive appoints directors to oversee virtually every major government agency, influences departmental priorities and “spin”, determines the flow of money, stipulates regulations, recommends the budget, and designates government secrets. The legislature lags the Executive, not the other way around. To this extent, the Congress and the people no longer lead the government. They are led. The Legislative branch appears Johnny-come-lately to the party.

The loss of Congressional power in relation to the Executive Branch has been interpreted as due to the gradual erosion of Congressional powers of contempt and enforcement of subpoenas. Enforcement often involves the courts, appeals, and delays that render the powers moot. So the effective means for the Congress to assert itself have been undermined. With erosion of legislative power, so also has the prestige of legislative members whose approval ratings are typically well below those of the Chief Executive.

The Unenviable Position of the Legislature

Congressional workload reflected in the number of bills, hearings, resolutions that are the purview of Congress is astounding. During the calendar year 2019, the 116th congress introduced 12,326 bills, 3,375 amendments, 2,060 resolutions, and passed 150 public laws. Clearly, expertise in the multiple areas of government oversight, regulation, and initiative is impossible for any one representative or senator, and so congress relies upon research by member staff, committee reports, and deliberation. During 2019, the average representative had 14 full time staff (representatives are limited to 18 staff), and the average senator had 34 staff (senators have no limit to staff). In addition to staff research, representatives and senators rely upon meetings with constituents, inputs and conferencing with NGOs, industry, experts, and members of executive departments. Formal hearings may be held on issues of public importance or controversy. Congressional members are further informed or directed by party political positions to support, amend, or defeat bills. Among these voices, the needs, priorities, and necessary oversight of government agencies and departments may be neglected.

How Legislative Work Gets Done

Much of the discussion and agreement concerning bills, amendments, and resolutions takes place in Committee meetings. Committees membership is determined by house and senate rules, partisan politics, and members’ interest and seniority. In the House of Representatives, there are 20 permanent committees, and 16 in the United States Senate. Each committee is subdivided into multiple subcommittees, often five or more, that appraise specialized areas within the domain of the committee. Committees and subcommittees have specific jurisdictional privilege. The fact that a bill has been passed does not mean that the bill has been implemented as intended. According to “The Legislative Process in the House, Section VIII”, the code that governs House conduct,

Each standing committee, other than the Committee on Appropriations, is required to review and study, on a continuing basis, the application, administration, execution, and effectiveness of the laws dealing with the subject matter over which the committee has jurisdiction and the organization and operation of federal agencies and entities having responsibility for the administration and evaluation of those laws.”

Committee recommendations are often myopic, in the sense that they concern just the subject of matter of deliberation allotted to that committee. The Role of the House or Senate is not only to evaluate these recommendations but to prioritize and consider how these desperate recommendations fit together into a whole. Different recommendations by different committees might work at cross purposes to one another. A bill in commerce or energy might easily compete with environmental protection or the budget. A major task of the House and Senate is to reconcile these bills in a way that is harmonious.

How well the House and Senate manage these tasks is a matter of dispute.  A Lack of coherence in legislative mandates can lead to government gridlock. Departments and the Executive branch can be the recipient of mixed and contradictory messages. The Executive can exploit incongruous messages to accord with an idiosyncratic, and potentially problematic, perspective. Hence, the importance of congressional oversight and review.

Congress Needs an Update

The legislative branch of government, the voice of the people, has treated itself like the beggar at the banquet. It grants itself about 1/5 the budget of the smallest Federal Department (Agriculture) and 1/120 of the largest Federal department (Defense). It depends, almost entirely, upon reports from Executive Departments entangled by politics and bureaucratic justification. The legislative branch is unsystematic in its sampling of local and national public opinion. Focus groups and discourse with constituencies varies by congressional district and state. In 1994, Congress blind sighted itself through defunding the Congressional Office of Technology Assessment that had provided Congress an independent assessment of the role and effects of technological change on the economy, environment, and social relations. Arguably the most important branch of democratic government remains pinioned to 19th century practices comfortable with “old boy/old girl” networks and influence. Congressional processes and decisions could be brought into the light of day, but the Congress must be willing to fund itself and create Congressional offices that objectively present the will of voters, facilitate legislative follow-through, clarify the complex social and economic environment, and help it do its job.

Regaining the Reins of Government

Reestablishing the relation between the Executive and Legislative branches intended by the Constitution involves restraining, rescinding, redirecting, and innovating. These changes are within the Constitutional prerogatives of the Legislative branch.

Merit-based Requirements for Executive Posts

Government dysfunction is partially attributable to disruption and discontinuity brought about by successive changes in Executive leadership and political agenda. Political parties often take antithetical positions on matters of public policy. Change in administration is like a spammer thrown in the machinery of government. Agency and Department heads, Directors and Assistant Directors, Chief financial officers for every agency and department, and every sort of executive level appointee are replaced in the government establishment. Some agencies and departments are favored, others sent to the woodshed. Selective programs are defunded, held in limbo, or redefined.

In the modern era, the power of Executive appointments remains far too broad. The President appoints approximately 4,000 personnel of whom 1,200 require Senate approval. The personnel are composed of Departmental Secretaries, Agency heads, Judges, Directors, Assistant Directors, chief financial officers, Attorney Generals, and the like. As a rule, executive appointments occupy positions of influence at critical junctures for implementation of government policies and operations. This establishes power over the departments and agencies that employ 2.1 million civilian workers. This provides the Executive branch extraordinary leeway to promote, disrupt, or reverse congressional programs and mandates. Whatever the Congress passes may be tweaked, and the Executive controls the outcome.

The power of the Executive to defund and derail programs approved by the legislature must be curtailed. This may be accomplished by restricting executive appointments, other than the Cabinet, to persons who have met merit-based requirements defined by the Office of Personnel Management (OPM). This change would bring closure to the reforms commenced during the 19th century to reduce the role of favoritism and politics in government service. Pivotal departmental positions would be selected through merit-based examinations.

Cabinet level appointees, such as Departmental Secretaries, would serve as executive representatives to departments and would be required to administer within civil service rules. To meet the requirements of Article 2, Section 2 of the Constitution, executive officers would be required to appoint personnel only among those qualified by the Office of Personnel Management (OPM). This would insure competence and promote continuity in Departmental initiatives and programs.

Quarterly Reports and Updates from Federal Agencies and Departments

Legislative delegation has been interpreted as permission for wholesale executive reinterpretation of legislative programs and aims. The requirement that Standing Committees have the responsibility to review the laws, organization, and operation of the agencies to which these laws apply is abstract and does not require assessment of actual performance. Parsing responsibility so that the Congress only attends to laws, but not performance, is artificial and counterproductive. Laws cannot be assessed without attention to their outcomes.

Like public companies subject to Securities and Exchange Commission (SEC) rules, law may be written to require Federal departments and agencies to provide quarterly and annual reports to the Executive, Congress, and Public, providing at least the same level of detail as in mandated SEC reports. The requirement for public reporting may be enforced by an office of the Congress created to enforce reporting and transparency. This is necessary for the Congress to do its job of review and assessment of the laws and institutions it creates.  In this way, everyone is “in the know” –not one report for the Executive, another for the Congress, and another for the public.

The Office of Management and the Budget as a Non-Partisan Legislative Office

The Office of Management and the Budget is an executive department that has evolved from its fledgling beginning in 1921 as a section within the Department of the Treasury. Currently the office has more than 500 employees and a budget of more than 100 million dollars. The Office of Management and Budget (OMB) is the largest office within the Executive Office of the President of the United States. OMB manages other agencies’ financials, paperwork, and information technology (IT). OMB also oversees and coordinates the administration’s procurement, financial management, information, and regulatory policies. Wikipedia summarizes its purpose,

OMB prepares the President’s budget proposal to Congress and supervises the administration of the executive branch agencies. OMB evaluates the effectiveness of agency programs, policies, and procedures, assesses competing funding demands among agencies, and sets funding priorities. OMB ensures that agency reports, rules, testimony, and proposed legislation are consistent with the president’s budget and with administration policies.

The purpose of the OMB clearly complements or even duplicates the role and function of the Congress, but with a narrower scope, to serve the policies of the Executive Branch. When Congress or the branches of government are divided by party or politics, the OMB serves the Executive Branch. Perhaps for this reason, Congress created the Congressional Budget Office (CBO) which is non-partisan. The CBO possesses about half the staff and budget of the OMB and provides independent projections of the budgetary needs. The CBO’s focus is largely cost estimates for proposed bills and budget reports and projections. The latter overlaps reports provided by OMB. However, CBO lacks OMB’s intimate connection and oversight of executive departments and agencies.

The OMB should be non-partisan and serve as an office bridging the Legislative and Executive branches. In many respects OMB already acts as a conduit and support to congress, providing requested reports to committees and subcommittees of the legislature. However, the current residence of OMB renders it subject to partisan bias. For this reason, the public interest is better served if the OMB is reframed as a non-partisan Congressional Office that serves both the Congress and the Executive. The reframing would permit the OMB and CBO to be merged as an OMB division, providing a window to alternative perspectives as revealed by proposed legislative bills.

The reframed OMB becomes “a new generation” entity to better inform Congress, the Executive, and the electorate. To cope with rapidly changing environmental conditions, economy, technology, and foreign relations, a division within OMB could access state of the art Artificial Intelligence (AI) to model monetary costs, impacts on the environment, trade and social relations, and analysis of parameters specific to present or proposed programs. AI would facilitate cost-saving through identification of government duplication and discern synergies among independent departments and programs. The AI component likely would prove important to congressional planning and proposals. The same information would be available to the Executive and the public to promote discourse and creative vision for the future.

Secrecy is a Tool to Blindsight Congress and the Public

The Espionage Act of 1917 permits the Executive branch to keep secret anything that relates to the “national defense”. This is a broad umbrella since virtually anything or everything may be linked to the “national defense”. Documents, reports, experiments, actions, and operations may all be kept secret. The law extends to anything militarily related, the State department, every US intelligence agency, the CIA, the FBI, “classified” operations and experiments, and whatever information may be deemed connected, however tangentially, to “national defense.” The law is so broadly written that legal defense is virtually impossible. Reporting of government wrongdoing by whistleblowers virtually guarantees criminal penalties to whistleblowers. This is the law by which Chelsea Manning, Edward Snowden, and, if extradited, Julian Assange are charged. The maximum penalty is death. The Congress may be informed of “secrets” under this law, but only on a “need to know” basis and in closed meetings since “national defense” may be compromised. This relic of wartime paranoia is the Trojan horse that divides and protects the deep state, largely ensconced within Executive branch departments. By passage of this law, the Congress has morphed itself into a maiden aunt who is an after-the-fact spectator of unmonitored executive branch initiatives and actions.

Summary: Congress taking back its powers

The Congress has willy nilly ceded powers that belong to the Congress to the Executive. The decline of legislative influence is linked to legislative decisions that seemed good sense at the time, but ultimately weakened the core of legislative authority. Unfortunately, legislative delegation has been interpreted as permission for wholesale executive reinterpretation of legislative programs and aims.

The Congress scrimps on creation and funding of Congressional offices that support Legislative & Public empowerment. The Congress could establish independent non-partisan offices for science-based polling, environmental and economic forecasts, and other independent analyses to supplement reporting from non-legislative offices. Instead, Congress overly relies on lobbyists, party dicta, media, and other conveyors of influence who may or may not support the public interest.

The Legislative needs to legislate for itself, for the government, and for the democracy it represents. The Legislature needs to take back its role as the voice of the people and the states. The Legislature needs to become strong, and to become strong, the legislature must retrieve powers that it has relinquished to the the Executive branch. Arguably, this increases Legislative duties and responsibilities but these can be offset by the proposed shifts from Executive to nonpartisan Congressional offices and the creation of new Congressional offices that expand and simplify legislative initiatives and judgments. The path to a Congress for the 21st century:

  • Eliminates partisan control of government departments and agencies. Other than Cabinet level appointments, require non-partisan personnel selection in accord with Office Personnel Management requirements. The aim is to eliminate Executive authority to appoint government “officers” in administrative positions with little or no experience, expertise, or qualification to advise, monitor, or supervise, appointed programs, agencies, or departments.
  • Requires periodic reports to Congress from Agencies and Departments on mandated programs. Departments, agencies, and programs are approved and funded by Congress, yet uniform reports to Congress that update expenditures, accomplishments, issues, and problems are happenstance and largely depend upon requests from individual committees. Establishes a Congressional Office of Government Reports to oversee and enforce required reports and documentation.
  • Reframes the Office of Management and Budget (OMB) as a legislative office whose oversight and recommendations serve both the legislative and Executive branches. Establishes the Congressional Budget Office (CBO) as a division of the OMB. Creates an OMB division to model complex changes in the economy, environment, and society. The division would employ Artificial Intelligence.
  • Revokes the Espionage Act of 1917. The Espionage Act permits the Executive branch to impose “secrecy“upon documents, expenditures, actions, and programs, thereby keeping Congress and the Public in the dark. The Espionage Act has done far more harm than good to democracy and America’s status in the world. The Act has led to secret sites, reprehensible experiments, and placed doubts in many  Americans’ minds. Secrecy is the enemy of democracy.

*Leland van den Daele, PhD, ABPP is Professor Emeritus of Psychology at the California Institute of Integral Studies in San Francisco, CA. He trained at the American Institute for Psychoanalysis (AIP) in New York City and has taught at University of Illinois, Rutgers University, Columbia University, and California School of Professional Psychology. Leland is a clinical psychologist with interests in culture, character, and social cohesion.

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