LegBranch Conversations: An interview with David Schoenbrod

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By Philip Wallach

David Schoenbrod is the Trustee Professor of Law at New York Law School. Over the course of his career, he has been a leading practitioner and scholar of environmental law, including, as a staff attorney at the Natural Resources Defense Council in the 1970s, leading the push to get lead out of gasoline. Once he became a law professor in the 1980s, he wrote a number of important articles explaining how Congress had changed its strategy for legislating, of which my favorite is “Goal Statutes or Rules Statutes: The Case of the Clean Air Act” (1983). His first book, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993), marked him as one of the most powerful critics of Congress’s penchant for finding ways to claim credit while simultaneously ducking real accountability for policy outcomes. He has continued to develop that theme in his most recent book, D.C. Confidential: Inside the Five Tricks of Washington (2017), which opens with forewords from Governor Howard Dean and Senator Mike Lee.

In our conversation, we discussed how and when Congress learned to duck responsibility and what can be done about it. The following is edited for length and clarity.

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PW: So, your basic story is one of degradation: the system of legislating used to work well, and then something broke. When and how did things break?

DS: The breakdown began in the latter half of the 1960s, and not before, because then people came to believe that our government could work wonders. It had gotten us through the Great Depression, won World War II, invented the atomic bomb, invented nuclear power, built the interstate highway system, presided over the world’s richest economy, passed the Civil Rights Act, and soon would put a man on the Moon. And if it could do all this, it ought to be able to do yet more wonderful things, and without imposing burdens on the people. So, with constituents bursting with hope, Congress began to strive to enact statutes that would produce great benefit for little burden.

PW: I have one skeptical note to sound here, related to the timing. One statute I spent a little time studying is the Sherman Antitrust Act of 1890. As I understand it, mostly from an excellent book by political scientist William Letwin, called Law and Economic Policy in America (1956), the Sherman Act seemed like an instance of Congress passing a vague statute without having a very clear idea of what kinds of changes it would go out and make in the world. It left those consequences not to an agency, but to the courts. But I take it that you think that, in general, Congress’s way of doing things up until the late 1960s was to give clearer charges to agencies?

DS: No, not at all. During the Progressive Era, Congress handed off a lot of power to agencies and the courts, and the effect was that the agencies and the courts got most of the credit for the benefits that came from the exercise of that power and most of the blame for the burdens. What happened in the regulatory area around 1970 was different. Then, with statutes like the Clean Air Act, Congress commanded agencies to provide vividly described benefits to the public. Such seemingly specific statutes let Congress take credit for the promised benefits but shift the blame to the agencies for the failure to deliver the benefits and for the burdens needed to deliver them. With so much political profit coming from enacting these commands to agencies, Congress enacted many of them. That fundamentally changed how Congress went about regulation. And I hasten to add, it wasn’t just in the regulatory sphere that Congress did this kind of thing. In every other very important sphere of government, Congress hit upon ways that allowed it to take credit and shift blame.

PW: So, would it be fair to say that you see there being good delegation vs. bad delegation, and the difference is this key accountability link between credit-taking and actual responsibility for consequences?

DS: I’d say that there was the old delegation, and then there is the new delegation that’s much worse. With the old delegation, a lot of the credit and blame went to the agency, and there were political reasons why the agencies felt compelled to generally do not such a bad job. But with the new form of delegation, where Congress took the credit and shifted the blame, that skewed responsibility and led to a kind of public policy insanity in which members of Congress focus on how to maximize their credit without regard to the harm to their constituents.

PW: A lot of political scientists who study Congress look back on precisely the period you’re describing as a time of remarkable legislative productivity, a time when Congress was able to really change the face of American public policy despite persistently divided government. It’s often presented as a triumph. When you look at it, however, you see it as a kind of counterfeit triumph. Is that fair?

DS: Yes. Congress passed a lot of statutes by sweeping disagreements under the rug. The Clean Air Act passed almost unanimously, but not because members of Congress agreed on air pollution. Instead, what they agreed upon was a form of legislating that gave them credit for the popular but shifted blame for the unpopular. Yet, such legislation has come back to haunt American politics; it has promoted the polarization that has made it so hard for Congress to legislate since then.

PW: So, there’s some awareness of the problems that you point to. Let’s talk through some of the attempts to counteract them that were tried over the years. One would be that the 1990 Clean Air Act Amendments learned some of the lessons about the dysfunctionality of the 1970 and 1977 Acts and got more specific in some ways.

DS: But wait a second now. There’s specificity, but that’s not necessarily taking responsibility. The 1990 Clean Air Act issues 940 commands, “the Administrator shall,” to the EPA administrator. But, in most cases, these let Congress take credit and shift the blame to the Administrator. So, specificity, even in the 1990 Act, is not the same thing as responsibility. 

PW: The story I’ve heard about the 1990 Act is that there was an attempt made during the 1980s to figure out how the Administrator had used or not used the massive discretion that the earlier acts had given. And 1990 was a fairly directed attempt to remedy that situation and get Congress to make some of the key decisions. I’m not entirely sure I understand your vagueness point…

DS: Congress did take a step in the right direction in Section 112 of the 1990 Act. That section lists almost 200 hazardous pollutants to be regulated  to require that they be controlled with --

PW: Maximum Achievable Control Technology, right?

DS: Yes. MACT sets a floor on pollution control but calls upon the administrator to require more if achievable. But, that’s a judgment call. The administrator has even more latitude in setting the air quality standards under section 109. It says that the administrator is to set them to “protect health” with “an adequate margin of safety.” That sounds specific, but for most of these pollutants, some health harm occurs at levels below those that can reasonably be achieved.  That prompts the administrator to make a judgment call weighing health versus costs, and then to lie about having taken cost into account, because the provision forbids consideration of costs.

PW: So, what about Title IV, the acid rain stuff, are you more sympathetic to that?

DS:  That’s the one title in which Congress really did take responsibility, but only as a last resort. The downwind eastern states wanted protection from acid rain, which required limiting emissions of sulfur and some other pollutants from Midwestern power plants. In a statute commanding the agency to impose command-and-control regulation on these plants, blame-shifting wouldn’t work so well because the statute would have to target those plants and the utility commissions and utility companies would say to ratepayers, “Hey, your rates are going up because Congress increased the cost of making your electricity.” Fearful of the ensuing blame, the Midwestern legislators said, in essence, “We’re not going to pass any revision of the Clean Air Act that imposes such costs on our constituents.”  Yet, the eastern legislators said, “We’re not going to pass any revision of the Clean Air Act that fails to control acid rain.” So, you had two different blocs of legislators that were each shaping the act. Meanwhile, expiring deadlines meant Congress had to revise the statute. This needle was threaded by Congress itself establishing title IV’s cap-and-trade program for acid rain because this approach would radically cut the cost of reducing acid rain.  In this, Congress did take responsibility.

So, a brilliant idea, worked great. In the Breaking the Logjam project I undertook with Professors Richard Stewart, Katrina Wyman, and others, we argued that the obsolete and dysfunctional Clean Air Act be amended to establish a national cap-and-trade program for the large sources of other major pollutants.  We went around Capitol Hill promoting the idea. People on both sides of the aisle said they wished our proposals were already in the statute, but that it wasn’t going to happen because other members won’t take responsibility.

So, yes, in extremis, they did take responsibility in the case of acid rain. But generally, they legislate bullshit.

PW: So, there was some sense that these responsibility-evading mandates were piling up. We had the Unfunded Mandates Reform Act coming out of the Contract With America. So that was a heart-in-the-right-place kind of gesture, I take it, but not terribly effective?

DS: The heart was not in the right place, because the people who passed it know full well that there’re so many mandates in many statutes, like budget bills, that allowing points of order on every mandate, which is what the Act promises, would enable any member to bring Congress to a halt. That gave leadership an excuse to impose rules that keep members from raising the promised points of order. So, the gesture was deceptive.   

I show how Congress could take responsibility for federal mandates with a technique like the one the NFL uses for challenges to the officials’ calls: give every member of Congress one point of order on  mandates to states with the proviso that, if the point of order succeeds, the member gets another one, without limit. That would create incentives at the committee level to omit mandates that won’t survive challenge—and many mandates should survive. For example, if the federal government is going to pay for, say, a highway, then there ought to be a mandate to use decent concrete. My proposal would make members responsible for questionable mandates without giving any one member the power to bring Congress to a halt.

PW: Would you give them little red flags to throw, like the NFL coaches do?

DS: Sure, that’s better than throwing insults. In any event, that a flag could be thrown is going to change incentives for writing bills. One flag per member is enough to discourage mandates that allow members of Congress to claim credit for popular goodies and shift blame for their costs to the states.

PW: At around the same time as the Unfunded Mandates Reform Act, you note that we almost got the Congressional Responsibility Act, but instead we got the Congressional Review Act. How do those two differ?

DS: The Congressional Responsibility Act would’ve required votes on new regulations, while the Congressional Review Act gives Congress the option of voting on them. Of course, Congress hardly ever chooses to take such responsibility. (The exception was what took place in 2017, when there was an unexpected change in party control of the White House.)

Congress should now pass a statute that requires it to vote on new major regulations. This way to make Congress responsible was originally proposed by James Landis, who was the New Deal’s leading administrative law expert and later dean of Harvard Law School. The Landis proposal was supplemented by Judge Stephen Breyer, who showed how Congress could commit itself to vote by a deadline, thereby stopping filibusters. I discuss Landis and Breyer and show how to implement their ideas.  

PW: So, what about the REINS Act, which obviously bears at least a superficial resemblance to what you’re talking about, but it doesn’t satisfy you for a number of reasons. So, why does the REINS bill that passed the House in the 115th Congress not sit right with you?

DS: REINS does seemingly call for Congress to vote on new major regulations, but it’s disingenuous. For starters, the bill’s title, “Regulations from the Executive in Need of Scrutiny,” blames agencies for the burdens of regulations, but the regulations come from the executive because Congress commanded it to issue them through statutes that often were designed to make Congress look good at the expense of allowing the agency to act sensibly.

The substance of the bill is as objectionable as its title. Its provisions ensure that it won’t pass, because they’re bound to alienate Democrats in the Senate. Currently no Democratic senators support it.

Here’s an example: one of the requirements of REINS, section 809, is that every existing regulation must be eliminated unless Congress enacts it within the next ten years. It provides also that a member may require a separate vote on individual regulations, and also allows members to attach conditions to the approval of any existing regulation. With the potential for individualized votes on all these regulations, there’s no way Congress could do it. So, the actual upshot would be that a vast amount of the Code of Federal Regulations would fall by the wayside. It’s basically repealing a large fraction of the existing Code of Federal Regulations, without any real thought about how the whole thing would work. There would be huge uncertainty for business and everyone else, which would hurt the economy.

Another example is the requirement that an agency will eliminate costs of existing regulations to compensate for any new costs that come from new regulations. That clashes with commands in statutes to promulgate regulations.

Functionally, REINS and the Clean Air Act are mirror images of each other. The Clean Air Act allows members of Congress to promise health protection but shift the blame for the burdens to the agency. REINS allows members of Congress to promise to put caps on regulatory costs, but shift the blame for the loss of regulatory protection to the agency. In each case, legislators irresponsibly claim credit and shifting blame to the agencies, but to play to opposite poles of the political spectrum. No wonder we have polarization.  

With REINS, its sponsors can say they are for being responsible without having to shoulder responsibility.

PW: Thinking more now about remedies that will work. First of all, you used to be more optimistic about the Supreme Court making some kind of doctrinal changes that would make Congress’s tricks more difficult, but these days, you’re not holding your breath.

DS: In Power Without Responsibility, I argued that the Court should recognize that delegation of legislative power conflicts with the Constitution, but I never was confident that it would do so. To my surprise, however, a decision from the D.C. Circuit, American Trucking Association, showed some interest in this argument. But it went to the Supreme Court, and what I learned afterward from one of the justices, who I think would otherwise have been very sympathetic to the delegation argument, is that the court felt that there was no way it could really enforce the delegation doctrine and survive the wrath of the Congress. If the Court held the Clean Air Act unconstitutional, the venom that would be directed at the Court would have been worse than the court packing plan of 1937. There may well be modest gestures from the Court—the Gundy case (for which cert has been granted) may nibble at the breadth of current authority of Congress to delegate legislative power and the Chevron doctrine may be trimmed, but more aggressive changes are long shots.

So, in my current book, D.C. Confidential, instead of arguing that delegation is unconstitutional, I argue that Congress shouldn’t delegate in a way that lets its members duck the accountability that they owe their constituents.

PW: And to make that happen, your recent book ultimately argues that America’s citizens need to change our own orientation to politics to break the hold of the “tricks” that destroy accountability—you go so far as to say that “we are not entitled to blame [members of Congress] for the trickery until we recognize our own part and propose a way to stop it.” I think you put it very beautifully, saying: “It is a duty to act rather than simply to prefer.” I really like that. The way you see that working is through a Norquist-style pledge to support the  “Honest Deal Act” that you think voters should demand candidates sign. Say a little bit about that.

DS: My impression is that many members of Congress don’t like the blame-shifting. They don’t feel good about waking up in the morning to go to work in the most despised institution in America, next to a used car lot—actually, as despised as a used car lot. Yet, so long as the other party can get away with these tricks, they would put themselves and their party at a disadvantage to give them up. To escape this trap, members of Congress should change the ground rules of legislation. What we need to do is to get to a point where the parties will compete to be more responsible. And I think a way of getting that to happen is for people to ask their representatives to pledge to support the Honest Deal Act. We’ve got to start thinking about government as a way we take care of ourselves, rather than some pie-in-the-sky Santa Claus that hands down sugar plums.

PW: I’m with you! But so, the question is always: what’s the constituency? Those of us who care a lot about the process, and think that it really matters for having a government worth the trouble, always have to ask ourselves, are we really capable of generating a grass-roots movement on behalf of process?

DS: It’s an excellent question. I do know it’s frustrating, but I have some reasons for optimism. One is that when the book came out, I was on a lot of radio and television shows and I was surprised by how much people really do get it. Second is that I was at a big meeting in Washington hosted by the Committee for a Responsible Federal Budget with 45 people in the room, each of whom is a leader of an organization that is trying to do something about process, from some different points of view. I found it very heartening that so many people see this problem, and they see it from somewhat different points of view. It makes sense that people see the problem, because the polls show that faith in American democracy is down, down, down. People are getting disgusted. So, the disapproval of Washington, the disapproval of Congress, the waning faith in American democracy, could have the effect of creating a time and a mood where we could actually get somewhere.

Philip Wallach is a senior fellow in governance at the R Street Institute.