Delegation and Time … and Staff

In their forthcoming article, “Delegation and Time,” Jonathan Adler and Chris Walker have made an incisive and important contribution to the literature on the statutory delegation of authority from Congress to executive and independent agencies. They note that, for all the scholarly, and occasionally judicial, focus on the scope of delegations, there has been very little attention paid to “the temporal problems” of delegation. These temporal problems arise from the fact that delegations made at time 1 can become the basis for agency action at time 2 that is both beyond anything the time 1 legislature contemplated and beyond anything the time 2 legislature would endorse.

This state of affairs, Adler and Walker argue, is doubly problematic: It “inevitably undermines democratic accountability and compromises effective governance.” They accordingly suggest a suite of reforms designed to ensure more regular congressional reauthorization—and, if necessary, reformation—of statutory schemes that delegate power.

To their great credit, Adler and Walker do not propose a one-size-fits-all solution. Indeed, they suggest that Congress should remain “nimble” and experiment with different sorts of reauthorization schemes. Moreover, they think in sophisticated ways about how to structure reauthorization mechanisms so as to “avoid catastrophic outcomes while still imposing significant costs on politically diverse groups” in the event of failure to reauthorize, thus promoting the sort of coalition-building necessary for reauthorizing legislation to pass. This is all very much to the good.

Adler and Walker are clear that their proposals would necessitate additional work by Congress. But, if we are to credit their insistence that the call for regular reauthorization is not simply a disguised call for deregulation—and, to be clear, I do credit it—then a good bit more needs to be said about congressional capacity.

Since the mid-1980s, the number of staffers in the U.S. House of Representatives has declined dramatically, from a high of 7,920 in 1986 to 6,030 in 2015, a decline of nearly 24 percent. The decrease in U.S. Senate staff began later and has not been quite as severe: its high came in 1997, and it is down 11 percent from there.

The starkest decline in congressional staff has come at the supporting agencies: the Library of Congress, including the Congressional Research Service; the Government Accountability Office; the Congressional Budget Office; and the short-lived Office of Technology Assessment. In 1992, these agencies had a combined total of 10,473 staffers. By 2015, that number had been cut to 6,384—a 39 percent decline.

In recent years, staffers’ inflation-adjusted salaries have actually been decreasing, with the decline most pronounced at the more senior levels. This may, in turn, help explain why staff turnover levels are so high. Roughly a fifth of House staffers vacate their position in a given year, and no House staffer position has a median tenure length greater than three years. Given the extent to which members of both houses of Congress rely on staff for research and expertise, these data paint a worrisome picture of congressional capacity.

In the absence of adequate staff and resources, members and committees are forced to rely on information coming from lobbyists and from the executive branch itself. Indeed, in one of their few brief mentions of congressional staffing, Adler and Walker suggest that regular reauthorizations are unlikely to overwhelm congressional staff because “federal agencies are deeply involved in helping to draft the legislation that grants the discretion to regulate and constrains such discretion.” In other words, fear not: The agencies themselves will supply the missing staff and expertise.

But this is a strange response to a problem that the authors characterize as “the democratic deficits that come with broad delegations of lawmaking authority to federal agencies.” If we are worried about bureaucrats running wild in exercising delegated authority, surely we should be even more worried about relying increasingly on bureaucrats to write those statutory delegations.

Indeed, the provisions of the Legislative Reorganization Act of 1946 dramatically boosting both the number and the pay of congressional staffers came about in large part because of concerns about congressional borrowing of agency staff, which had become a regular practice during World War II. As Senator Kenneth Wherry (R-Neb.) put it at the time, borrowed staff “have a loyalty to that department which otherwise they might give to the Senate committee in a study of the problems covered in the investigations.”

If the point of requiring regular reauthorizations is to provide opportunities for oversight and reform, greater congressional reliance on agency staff seems counterproductive. Congress should instead be moving in precisely the opposite direction: growing its staff, increasing their pay, and marshaling the resources necessary to play a more vigorous role in governance.

With greater responsibility, there should also come greater resources. By all means, we should encourage Congress to revisit, reorient, and reform its grants of authority to the executive more frequently. But we should not do that without giving it tools adequate to the task.

Josh Chafetz is a professor at Cornell Law School.