Law; Congress; Legislative Process; Nonpartisan Expertise; Declining expertise
It is no surprise to anyone that Congress has become a hyperpartisan battleground where little effort is expended to promote policies that work for Americans. While Congress has always viewed policy issues through the lens of party politics, the role of nonpartisan expertise in the legislative process is at an all-time low. The disrespect for experts is growing across society, but the decline in their use is particularly troubling in Congress because it exacerbates deficiencies that are inherent to the legislative process. Congress passes laws of general applicability and does not sit in judgment of specific applications of the law. Whether Congress does a good job setting those general policies depends on the process it uses for doing so. Sometimes, though increasingly rarely, Congress gathers the relevant facts and arguments about different aspects of a problem before acting. More often, legislators have specific outlier problems or prototypes in mind when they draft legislation, and if there is not an expert fact-finding process in place to study a proposal, cognitive biases may go unchecked. This Article sets out to document the declining respect for expertise in Congress, the implications for policymaking given the wholesale nature of the legislative process, and some possible ways to account for the decline of expertise in the legislative process. Part I details the role nonpartisan experts have played in the legislative process over time and documents the various ways that experts have fallen out of favor in Congress. Part II explains why this decline of expert involvement in legislation is particularly troubling given the way Congress operates as a body making wholesale policy with little individualized feedback on how its policies are applying to real-world scenarios. Part III then turns to the question of what, if anything, could or should be done about it. While Congress could, in theory, shift course, that seems unlikely. Throughout its history, Congress has cared about nonpartisan expertise when it worried about presidential overreach. But with parties dominating the political landscape, there is little likelihood that Congress will care enough about its institutional position relative to the executive. In the absence of legislative reform, Part III therefore considers two additional implications of the decline of expertise in the legislative process. First, the decline of internal expertise in the legislative body places greater weight on the use of administrative agencies to provide that guidance. Ironically, the U.S. Supreme Court may be toying with a revitalization of the nondelegation doctrine at the precise moment that delegation is most urgently needed. Second, courts and other bodies that interpret statutes could consider the relationship between statutory meaning and Congress’s consultation with nonpartisan experts to help address statutory ambiguities.
Rachel E. Barkow,
The Wholesale Problem with Congress: The Dangerous Decline of Expertise in the Legislative Process,
90 Fordham L. Rev. 1029
Available at: https://ir.lawnet.fordham.edu/flr/vol90/iss3/1