Congressional power and the war on Chevron

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By Jamelle C. Sharpe

Calls to reign in federal administrative power have increased to almost deafening levels in recent years.  Contributing to the din are Members of Congress and Supreme Court Justices (former, current, and aspiring) who have reserved special disapprobation for the Court’s Chevron deference jurisprudence.  Simply stated, Chevron deference instructs courts to accept reasonable agency interpretations of the ambiguous statutes they administer.  This deference assumes that Congress wants agencies, rather than courts, to fill the policy gaps it invariably leaves in its regulatory legislation.  

Chevron’s congressional and judicial critics are united in their fear that such a broad delegation of policymaking power to agencies expands federal bureaucratic control in ways that endanger the American People and the rule of law.  However, this broad agreement on the perils posed by Chevron belies consequential differences among the most prominent anti-Chevron critiques.  Members of Congress have heavily relied on pragmatic considerations in proposing legislation to either scale back Chevron deference or eliminate it entirely.  They conclude, as a practical matter, that the doctrine produces outcomes largely injurious to both their constituents and to our democracy.  They nevertheless agree with one of Chevron’s axiomatic principles—Congress has the constitutional authority to choose the primary interpreter of its statutes. 

By contrast, two Supreme Court Justices—Clarence Thomas and Neil Gorsuch—have expressed grave doubts about whether the Constitution leaves this choice to Congress.  They instead have argued that the act of statutory interpretation is essentially a judicial one, assigned to the federal courts by Article III.  Who ultimately wins this tacit conflict within the Chevron war—Congress’ pragmatists or the Court’s essentialists—will profoundly affect Congress’ capacity to shape the meaning of federal statutory law.

As indicated above, Chevron deference requires judges to give legal effect to an agency’s reasonable interpretation of the statute it enforces when that statute does not speak directly to the precise question at issue.  Chevron’s animating assumption is that Congress, by leaving ambiguity in the statute, intended the administering agency to be its primary interpreter rather than the courts.  The Supreme Court has expanded Chevron’s scope over the years in ways that give agencies even greater policymaking freedom.  For instance, agencies now get deference when interpreting ambiguous statutes that set out the scope of their regulatory jurisdiction, and when they interpret their own ambiguous regulations (commonly referred to as Auer deference).  Within limits, agencies may also re-interpret—replace their prior interpretations of—ambiguous statutes, even after a federal court has already accepted an older interpretation as reasonable.  On the whole, Chevron and its progeny afford federal agencies substantial policymaking flexibility without any further Congressional legislation.

Chevron’s proponents argue that such delegations of policymaking authority are crucial to the proper functioning of modern government.  Delegations made possible by Chevron and related doctrines help to make up for the fact that Congress is largely incapable of managing the country’s lawmaking needs by itself.  It is plagued by collective action problems: a bicameral structure, diffusion of decision-making authority among 535 Members whose interests differ from those of the body as a whole, inter- and intra-party conflicts, Senate rules that permit obstruction by the minority party (or even by a single senator), and the supermajority requirement to overcome a presidential veto.  All of this makes it difficult for Congress to reach agreement on clearly worded and comprehensive policies.  By allowing important policy choices to be made by agencies instead of insisting that they always be made by Congress itself, delegation doctrines like Chevron allow the People’s work to move forward.

Chevron’s detractors in both Congress and the Judiciary deem these arguments insufficient to justify the doctrine’s existence, at least in its present form.  Several conservative legislators, already troubled by what they view as the federal government’s intrusion into the lives of their constituents, have launched numerous legislative attacks on Chevron and its progeny.  Rep. Bob Goodlatte’s (R-VA) opposition to Chevron deference has taken on an almost ritualistic quality; he routinely introduces bills for its elimination.  Senator Orin Hatch (R-UT) and Rep. Mia Love (R-UT) have also entered the anti-Chevron arena, recently introducing bills of their own.  While efforts such as these typically fall well short of acceptance by even a single chamber, one recent bill indicates that the anti-Chevron movement in Congress may growing in intensity. 

The Separation of Powers Restoration Act of 2016 (“SOPRA”) passed in the House by a party-line vote (one Democrat voted in favor) during the 114th Congress.  By amending the Administrative Procedure Act to require de novo judicial review of agency statutory interpretations, SOPRA purports to restore the “proper” power balance among the Branches of the federal government. 

For the most part, SOPRA’s congressional supporters and their fellow travelers have advanced pragmatic arguments for ending Chevron’s judicial deference regime.  They simply believe definitive statutory interpretation by courts will produce better outcomes than definitive statutory interpretation by agencies.  Unlike the bureaucrats who continually misuse statutory interpretation to invest their personal policy preferences with the force of law, SOPRA’s supporters view judges as apolitical arbiters; they have no policy preferences to advance at the expense of those chosen by Congress, and they have no political axes to grind.  Judges, to their minds, will properly limit themselves to locating and enforcing Congress’s intent.  Their solution is legislation that directs judges to be the final word on all relevant questions of statutory meaning. 

Importantly, and regardless of how much they may otherwise reflect revulsion for Chevron, pragmatic arguments implicitly accept one of its foundational ideas: Congress has the constitutional authority to choose the primary interpreter of its statutes.  Chevron deference is animated by the assumption that Congress wants agencies, not courts, to make the policy decisions it has not made itself.  The deference Chevron affords agencies wouldn’t be possible had the Supreme Court concluded that the Constitution does not grant Congress the power to make this fundamental choice; formulating pragmatic arguments for or against Chevron would be little more than an academic exercise.  Clearly, SOPRA’s supporters, and others who would end the Chevron regime through legislation, do not believe they are engaged in an academic exercise.

Several Supreme Court Justices have likewise sounded the Chevron alarm bell, though the reasons underlying their agitation differ in constitutionally significant ways.  Chief Justice Roberts has made clear his disapproval of Chevron’s expansion.  Rather than simply assuming Congress intended for agencies to resolve all ambiguities in the statutes they administer, he has argued that courts should figure out whether Congress intended for agencies to resolve particular statutory ambiguities at issue in particular cases.  Justices Kennedy and Alito agreed with him.  See Arlington v. FCC, 569 U. S. 290 (2013) (Roberts, C.J., dissenting). 

While this would certainly limit Chevron’s scope, it would leave the ultimate choice of definitive interpreter (courts or agencies) to Congress.  In a subsequent concurrence he authored before leaving the Court, Justice Anthony Kennedy described as “troubling” the “reflexive deference” some lower courts give to agency interpretations. The target of his ire seemed to be some perceived intellectual laziness on the part of lower court judges, and not the more fundamental power of Congress to choose the primary interpreter of its statutes.  Even Judge Brett Kavanaugh of the D.C. Circuit, whose nomination to the Supreme Court is currently pending before the Senate Judiciary Committee, has publicly criticized Chevron.  But he has done so ways that would seem to preserve Congress’ ability to choose. 

Echoing pragmatic arguments raised by SOPRA’s Congressional sponsors, Judge Kavanaugh thinks that Chevron encourages agencies to be unduly aggressive in how they interpret statutes.  In other words, they try to force their own policy preferences onto a statute instead of looking for what Congress actually wanted them to do.  He has also observed that Chevron has no apparent basis in, and actually seems to contradict, the language of the Administrative Procedure Act (“APA”).  The APA instructs reviewing courts, not agencies, to decide “all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”  Despite these misgivings and preference for a narrower Chevron doctrine, Judge Kavanaugh has not gone so far as to say that Congress lacks the constitutional authority to choose agency interpretations over judicial ones.

Compare this to the anti-Chevron attacks launched by Justices Thomas and Gorsuch.  Unlike Chief Justice Roberts, Justice Kennedy, Justice Alito, and Judge Kavanaugh, they do not believe Congress has the constitutional power to choose who interprets its statutes.  They have instead taken an “essentialist” position which views statutory interpretation as an essential (and hence inalienable) aspect of the judicial function assigned to federal courts by Article III of the Constitution.  In a well-known concurring opinion he authored while still a judge on the U.S. Court of Appeals for the Tenth Circuit, Justice Gorsuch lamented that Chevron and its progeny “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”  Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (Gorsuch, J., concurring).  Justice Thomas harbors similar doubts about whether the Constitution permits courts to defer to agency interpretations of ambiguous statutes.  For Justice Thomas, Chevron “is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies.”  Michigan v. E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring).

For Justices Thomas and Gorsuch, finding a statute’s meaning is an integral part of deciding Article III cases and controversies, the task exclusively assigned to the Judiciary by the Constitution.  The Judiciary’s responsibility prevents it from deferring to agencies; Article III assigns judges the more robust task of finding the definitive meaning of the statutes they interpret.  This is a function courts must perform even as to genuinely ambiguous statutes, those for which there is no congressional policy choice to find through interpretation.  In sum, the essentialists posit that Chevron, Auer, and similar interpretive deference doctrines improperly vest Congress with the authority to choose its preferred interpreter.

Presumably, Members of Congress would be loathe to accept so profound a restriction on their legislative power.  They may not like what agencies typically do with the interpretive prerogative Chevron affords, but they almost certainly want to retain the flexibility to delegate that interpretive authority when they find it advantageous to do so.  The essentialist position would make this at least very difficult, and in all likelihood impossible.  If statutory interpretation is an inalienable aspect of deciding cases and controversies, even the clearest legislative language assigning the task to a non-Article III court would be struck down as unconstitutional.  After all, and as Marbury v. Madison made pellucidly clear, Congress can’t revise the Constitution by passing a statute.

Members of Congress should be circumspect when proposing SOPRA-like reforms in any event, separate and apart from adopting the Court’s possible adoption of the essentialist position.  It isn’t a forgone conclusion that the de novo judicial review of agency interpretations envisioned by SOPRA would foster greater fidelity to Congress’s policy preferences.  Courts are largely immune to external pressures, and openly disdain efforts to influence them.  Such hostility is entirely appropriate given the function courts perform in our legal system; their insulation from the political process allows them the freedom to decide cases based on legal merit, and not on the whims of electoral majorities, politicians, or interest groups. 

Agencies, by contrast, can be influenced by legislative pressure.  Through the give-and-take that characterizes formal and informal oversight, Congress can shape an Administration’s views on the policy issues delegated to them for resolution.  Placing the policymaking currently conducted by administrative agencies behind a judicial firewall—based on either pragmatic or essentialist rationales—seems likely to substantially dilute the potential effectiveness of Congress’ oversight powers. 

Additionally, Congress labors under profound procedural disadvantages when exercising its powers as compared to its co-ordinate Branches.  Given the enormous damage to individual rights and liberties that the abuse of legislative power can cause, the Framers purposely made its exercise difficult.  Those procedural impediments have only multiplied in the years since the nation’s founding; instead of securing majorities from the 91 Members seated by the end of the First Congress in 1791 (65 House Members and 26 Senators), legislative action must now be coordinated among almost six times that number.  In short, SOPRA and similar efforts may endanger, rather than enhance, Congress’s influence over the post-enactment meaning of federal legislation. 

At a minimum, the anti-Chevron boosters in Congress have a lot more to work out.

Jamelle C. Sharpe is a professor of Law at University of Illinois College of Law. This post is based on Professor Sharpe’s recent article, Delegation and Its Discontents, in the Wayne Law Review.

Congress needs a commission for its drug policy ideas


(Editor's note: This article originally appeared in STAT on August 9, 2018.)

By Scott Levy

As the midterm elections loom, politicians are trotting out their stump speeches promising, among other things, to lower the cost of prescription drugs. We’ve been hearing these kinds of promises for years, with few results.

If members of Congress really want to get serious about tackling the mounting cost of medications, they need to start by doing two simple things:

  • Stop relying on drug companies for information about medication
  • Hire more policy staffers who can go head to head with big pharma

Creating a permanent commission to advise Congress on drug policy accomplishes both goals.

Instead of taking even basic steps to counteract the pharmaceutical industry and its lobbyists, Congress has made itself more vulnerable to industry predation. Over the past 25 years, Congress has repeatedly cut its own funding for staff and now lacks the staff needed for sustained oversight and sophisticated legislating.

Instead, Congress is forced to turn to outside sources, which inevitably include industry lobbyists, to help it draft and analyze legislation. Like a fox building the henhouse, drug companies act in their own self-interest, opposing real reform while feeding Congress ideas that line drug company’s pockets.

Even if Congress can’t stop drug companies — or any other businesses — from flooding it with donations, it needs to stop relying on the pharmaceutical industry for its drug policy ideas. To do this, Congress should consolidate and strengthen the legislative process by creating and maintaining a permanent advisory commission on drug policy. Comprising a dozen or so experts chosen by the nonpartisan Government Accountability Office, this commission would publicly examine the prescription drug problems facing patients, pharmacies, doctors, hospitals, pharmacy benefit managers, and even drug manufacturers themselves.

The commission would be able to contribute a comprehensive vision of drug policy that Congress, with its fragmented committee system, sorely lacks. While the House and Senate each have four committees responsible for regulating discrete aspects of the pharmaceutical industry, no one in Congress has the job of understanding how different laws interact and contribute to the generation of high prices.

By contrast, drug companies have centralized operations and understand every facet of their business and the Byzantine regulations that govern it. A drug pricing commission would let Congress break down its informational siloes and match big pharma’s global perspective.

A commission could also comment on rules proposed by the FDA, the Centers for Medicare and Medicaid Services, and other relevant government agencies. That would help Congress keep track of how its laws are implemented while protecting executive agencies from being captured by interest groups. This commission would conclude its annual deliberations with a set of recommendations in an annual report to Congress.

Unlike blue-ribbon commissions that come and go with much acclaim and few accomplishments, a permanent commission can liberate Congress from its dependence on industry expertise. Grounded in evidence, the commission’s reports would provide Congress with clear analyses and carefully constructed solutions. Instead of starting with industry proposals, Congress could instead begin the legislative process by focusing on the needs of the many, not the profits of a few.

After the past eight years of partisan squabbling over the Affordable Care Act, this may sound hopelessly naive. But it isn’t. For more than 20 years, Congress has relied on a nonpartisan commission of experts to advise it on Medicare policy: the Medicare Payment Advisory Commission (MedPAC). Its recommendations are carefully evaluated by members of Congress — Democratic and Republican alike. Indeed, its recommendations have served as the blueprint for the last decade of Medicare reforms, successfully pushing Congress to pass laws that reward the quality of care instead of the quantity of care. Similarly, at MedPAC’s urging, Congress stopped giving raises to providers who weren’t becoming more productive. Because of MedPAC, when Congress crafts Medicare policy, it isn’t beholden to industry groups for expert information and analysis.

Congress has promised to fix drug prices several times before, yet the problem has only intensified. Congress needs to cure the process before it can cut prices. A prescription drug commission is just the medicine Congress needs.

Scott Levy is a former staffer for the Senate Finance Committee and a recent graduate of Yale Law School.

Despite appearances - or perhaps because of them - Congress is not as dysfunctional as some believe

 Image source:  VOA

Image source: VOA

By John Ray

Since the publication of the historic Congress: The Broken Branch, observers of life on the Hill have lamented the decline of Congress as a legislative institution. By some measures, Congress produces both less legislation and less substantive legislation now than in the past. The committee system as a technical institution is generally thought to be a shadow of prior eras.

But between the general public, who is disdainful of but generally inattentive to  daily congressional activity, and the regular Hill staffer who is busy as ever, congressional observers are left with a puzzle. Despite being unproductive as measured by bills passed, legislators spend as much time on regular Hill activities like committee meetings, hearings, and Caucus confabs as ever. This is despite a dramatic increase in the amount of time legislators must dedicate to financing their own re-election campaigns, and to the “call time” imposed by party headquarters to help fundraise for co-partisan colleagues and would-be legislators.

This is also despite the unprecedented job security that comes with being a Congressperson in the modern era. Re-election rates are at an all-time high. Why, exactly, this is is not widely agreed-upon, but there is no evidence it has anything to do with how long a legislator spends on the Hill. If anything, the combination of job security and increased demands of party leadership lead some to assert that legislators mostly use their time on the Hill to grandstand before C-SPAN, coordinate the floor agenda with the Speaker, and fundraise, as opposed to getting policymaking work done. Why legislators would pursue this strategy when C-SPAN has about 20,000 regular viewers and hearing content does not tend to end up in campaign advertisements remains a mystery.

In a new paper at Interest Groups and Advocacy I attempt to shine some light on this mystery. Inspired by conversations with Hill staffers, agency managers, and interest group representatives that I conducted for my dissertation, I was unsatisfied with the theory that immediate electoral incentives dictate quotidian behavior on the Hill. This theory rests at the core of American political science, but does not necessarily imply that every activity legislators engage in serves a short-term re-election need. Rather, that theory supposes that legislators are maximizers of their careers, broadly defined.

At the same time, this interpretation ignores those who I argue are the primary audiences of the daily activities of Congress: interest groups, lobbyists, trade associations, and the other spokespeople of the various factions whose policy incentives motivated the original design of the republic. I reframed the problem with these organizations in mind. As I describe in the paper, I think of the words spoken by and exchanged with legislators as containing credible commitments rather than cheap talk.

I started by gathering a dataset of words spoken at congressional hearings by any legislator and any witness at those hearings, which are available online from 1990 onward. I then developed a typology of the people who have been invited to congressional hearings over time, with a particular eye toward whether that person worked for an “interest group” traditionally defined. To model whether the content of legislative speech represented a “credible commitment” in some sense, I considered how to measure whether interest groups took the words of legislators seriously.

One meaningful measure of whether interest groups take legislators’ words seriously is if interest groups want to continue to work with legislators on policymaking after legislators retire; that is, if an interest group ends up hiring a legislator to do lobbying or advocacy work. For every legislator in the dataset, I examined various biographical sources and filing records to determine if they had ever worked as a lobbyist or advocate after leaving office. I used a combination of filing forms and biographical records to create a novel dataset of post-legislature lobbying by Congresspeople, as federal filing forms alone often leave out important modes of advocacy and part-time work (and, in the Trump era, are often simply ignored). I then measured the speech affinity (text similarity, essentially) between legislators and interest group witnesses at congressional hearings.

The results showed, consistent with the “credible commitment” view over the “grandstanding” view, that legislators’ speech affinity to interest group representatives correlated with the probability of legislators becoming lobbyists after leaving office, controlling for usual suspects like party, committee, and other factors. Legislators who talked more like interest group representatives were likely to become interest group representatives than those who talked less like interest group representatives. This is observationally consistent with the theory that interest groups take the actions of legislators on the Hill seriously, and sincerely.

Further, some components of the underlying speech dataset I used are not consistent with the notion that the Hill is just a place to practice attack lines. Perhaps surprisingly, using common measures of speech sentiment and complexity, I found that speech on the Hill has not become more acrimonious or vituperative over time, nor has it become semantically less complex (i.e., more television-appropriate). In an era where polarization is high and getting higher, it is not consistent with the notion that the Hill is a place for pure grandstanding to find that the incivility or soundbyte-appropriateness of Hill speech has not increased at the same time.

There is much not to like about life on the Hill. The congressional committees from which my data were derived are understaffed by people who are underpaid and overworked. I trawled hundreds of congressional biographies because federal record-keeping of interest group advocacy is woefully inadequate for the purposes of conducting rigorous research. But despite some of the more grandiose claims of the death of life on the Hill, the day-to-day stuff that not enough people pay attention to is still taken seriously by the public and private interests who keep the shop running whether or not cameras are on.

John Ray is a Ph.D. candidate in the political science department at University of California-Los Angeles, and a senior political analyst at YouGov Blue. Follow him on twitter, check out his academic and his professional work.

Next meeting of the Legislative Branch Capacity Working Group: January 23, 2018

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Tuesday, January 23, 2018
12:00 PM  1:30 PM

RSVP: https://intrapartyorganizations.splashthat.com/


The fourteenth meeting of the Legislative Branch Capacity Working Group will examine the political and policy influence of intraparty organizations in the House of Representatives. Catholic University Professor of Politics, Matt Green, will discuss his work on the House Freedom Caucus and how it can help us understand the conditions under which intraparty organizations will be influential. Lunch will be served.

No, gerrymandering is not THE cause for non-competitive congressional elections and legislative polarization

 The original gerrymander. 1812.

The original gerrymander. 1812.

By Charlie Hunt

Perhaps the most hotly-debated case the Supreme Court has taken up in the past year is Gill v. Whitford, which will consider the partisan gerrymandering of legislative districts and, some hope, end it once and for all. Some politicos and analysts insist that this kind of gerrymandering is responsible for --- among other things --- reducing the competitiveness of districts and increasing partisan polarization in Congress and the electorate.

Whatever the Court decides in the Gill case, those of us who are concerned about polarization in Congress are bound to be disappointed. Why? Because newly-examined data on county-level partisan voting through the 2016 election shows us that, as an explainer of polarization, partisanship, and a lack of healthy competition, gerrymandering falls well short. Instead, the larger problem is the so-called “Big Sort,”

a process of partisan sorting, in which partisan voters increasingly are living closer together and forming like-minded communities rather than mingling with the other party.


Partisan Voting in Congressional Districts

Since 1997, the Cook Political Report has calculated a metric designed to capture how partisan a congressional district is in comparison to the rest of the country. This measure, called the Partisan Voting Index, compares a district’s two-party presidential results from the previous two elections to that of the national average. The higher the value of the PVI, the more partisan and less competitive a district is compared to the nation as a whole.

Figure 1 below reproduces a Cook figure showing the trajectory of competitiveness in congressional districts over the last 20 years. The trend is clear that competitive “swing” districts, which deviate from national presidential results by 5 points or less, have plummeted as a share of all districts. “Safe” districts, on the other hand, which are more than 5 points more partisan than the nation as a whole, now comprise more than 80% of all congressional districts.

There is no denying that districts on the whole have become more partisan, and therefore less competitive in recent decades. But what this figure does not tell us is why. Politicians, scholars, and commentators of all stripes insist not only that gerrymandering is the main reason that districts are less competitive and more partisan, but that it’s also the main reason Democrats have difficulty winning majorities in Congress.

Gerrymandering may be a factor in this consistent trend; but as Dave Wasserman and Ally Flinn note in their summary of Cook’s most recent PVI ratings, most of the changes observed in this trend occur during between years in which no redistricting of any kind occurs. In which case, the primary cause of decreased district electoral competitiveness and polarization, therefore, is likely to be found elsewhere. This is exactly what my analysis found.


Partisan Voting in Consistent Communities

One way to confirm these suspicions is to analyze the extent to which the same trends in the PVI have occurred in geographic areas that are consistent over time. While counties vary among each other in their geographic and population size, they do not (with very few exceptions) vary in their borders between elections as congressional districts do. Gerrymandering, or even the redistricting process generally, has no bearing on county-level vote.

Therefore, if we observe similar declines in the number of competitive counties as we did in competitive congressional districts, we know that gerrymandering is not the sole cause. Using the same calculations Cook Political uses for congressional districts and applying them to county-level presidential results from the last 25 years, Figure 2 shows the resulting trend.

Not only do we observe the same trend in counties as we did among congressional districts, but the disappearance of swing counties is even sharper than that of congressional districts. While the number of swing congressional districts have declined by 56% since 1996, swing counties declined by 73% over the same period.

If gerrymandering, or even redistricting generally, was the main culprit in polarizing our politics or making our elections less competitive, then we would not expect significant changes in geographic areas for which the borders don’t change. Instead, we see that more and more counties are voting more and more consistently for one party or the other. At all geographic levels, and not just congressional districts subject to redistricting, voters are sorting into more like-minded and more partisan communities. This phenomenon of sorting is clearly a serious cause of this partisanship, regardless of whatever effects gerrymandering is said to have.


What now?

With this in mind, these changes in partisanship and competitiveness at the county level can only be due to more natural, less artificial changes like voter migration, changing demographics, or shifting ideology and attitudes over time. I will leave it to better-versed scholars to determine which of these is the most causal (for example, Corey Lang and Shanna Pearson-Merkowitz find compelling evidence that these shifts are due primarily to the Southern realignment of the last 40 years). But what cannot be denied is that slaying the gerrymander, while perhaps desirable for other reasons, is not the silver bullet to increase competitiveness and de-polarize the country. The solution, as with most sticky political problems, is far more complicated.

Charles Hunt is a doctoral candidate at the University of Maryland, College Park.


Congress’s Socioeconomic Biases: Does It Matter for Tax Reform?

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Last month, my LegBranch.com colleagues Casey Burgat and Charles Hunt created an interactive graphic of the net worth of the 114th House.  Check out their graphic, but spoiler alert: Our elected representatives are very wealthy!  According to Burgat and Hunt’s data, the average representative has 116 times the net worth of the typical American. 

Given Congress’s socioeconomic biases, a natural question is: Does the overrepresentation of wealthy, upper-class Americans matter?  Needless to say, this is a salient question given that Congress is about to pass the most significant tax reform package since 1986.

A fiery, pre-Thanksgiving exchange between Sherrod Brown (D-OH) and Orrin Hatch (R-UT) hinged on this very question.  Minutes before the Senate Finance Committee voted to advance the GOP tax bill, Brown accused his Republican colleagues of catering to rich.  Hatch, whose net worth is $3.7 million, shot back, citing his economic upbringing:

I come from the poor people, and I've been here working my whole stinkin' career for people who don't have a chance, and I really resent anybody saying I'm just doing it for the rich. Give me a break... I come from the lower middle class originally. We didn't have anything. So don't spew that stuff on me.

What this exchange highlights in a secondary question: If Congress’s socioeconomic biases matter, is it net worth or class that affects a lawmaker’s behavior? 

Let’s start with the reasons why a member’s socioeconomic background wouldn’t matter.  First, it’s hardly shocking that members of Congress do not “look like” the typical American.  In addition to their greater wealth, virtually everyone recognizes that our elected representatives are disproportionately old, white, married, and male.  Likewise, they are more highly educated and tend to be drawn from the legal and business worlds.  In short, we could find dozens of ways in which the typical member of Congress differs from the average American.  Perhaps representational biases cancel out in the aggregate, or are benign facts of political life. 

Second, there are a handful of key variables that reliably predict legislative behavior, raising the possibility that other factors trump the effect of a member’s background characteristics.  For example, if members care about winning reelection, which of course they do, then voting out-of-step with your constituents, based on your own personal characteristics, makes lawmakers electorally vulnerable.  In other words, it’s hard to square the belief that “members only care about reelection” with the claim that “rich lawmakers vote for tax cuts for the rich.”  Relatedly, party affiliation is such a strong predictor of lawmakers’ voting behavior that there may not be much variation left to explain.  Consider that every Democratic member of the House and Senate voted against the two tax reform bills, and that some of those members are very wealthy.  For example, the possibility that legislative behavior is shaped by members’ socioeconomic background is belied by Nancy Pelosi, who has a net worth of $101 million and is one of the most liberal members of Congress.

All of this is to say that isn’t obvious (1) whether or (2) how a member’s socioeconomic background matters.

Fortunately for us, a book by political scientist Nick Carnes provides some concrete answers to these questions.  Carnes does the yeoman’s work of cataloguing the net worth and pre-congressional occupation of members of Congress in order to test the effect of those factors on their legislative behavior.  As with Burgat and Hunt’s data on net worth, Carnes finds that our elected representatives are disproportionately drawn from white-collar occupations.  According to his data:

·       20% of lawmakers grew up in working class homes, compared to 65% for all Americans.

·       Blue collar workers have declined from Congress over time.

·       Democratic lawmakers—the presumed working class party—look more their Republican counterparts in Congress than the typical American family.

Back to the original questions: Does a member’s socioeconomic background matter, and if so, how?  In brief, Carnes finds that socioeconomics do indeed affect how lawmakers vote.  Lawmakers with white-collar backgrounds vote more conservatively on economic matters compared to their blue-collar counterparts, who vote in a more liberal direction.  Notably, this effect exists even in a model that controls for the usual suspects like party affiliation and constituency characteristics.  Carnes also finds that class shapes the kinds of bills members sponsor, which working-class lawmakers more likely to sponsor economic bills that receive more economically liberal votes compared to white-collar lawmakers.  As far as the class vs. net worth debate, Carnes finds that class matters more than worth.  In fact, Carnes' data suggest that net worth has no effect on how lawmakers vote on economic legislation, once you control for their class.

As far as how much class matters, Carnes gives us a few answers.  (By “matters” social scientists often mean a variable’s “effect size,” which is the estimate of how much a change in that variable increases or decreases the outcome.)  Because party affiliation is such a strong predictor of roll-call behavior in the modern period, it serves as a useful benchmark.  According to his model, class matters for legislative behavior about 1/3rd as much as party affiliation.  Another useful benchmark is the effect of a lawmaker’s constituents, measured by constituent ideology.  Carnes’ model shows that class matters only slightly less than constituent ideology.  Finally, Carnes simulates how a balanced Congress would vote on major economic initiatives.  By “balanced” Carnes means one that has the same percentage of white-collar and blue-collar members as the American public.  Notably for the current tax reform effort, his data show that the two Bush-era tax cuts, passed in 2001 and 2003, would have failed in a socioeconomically balanced Congress.

Granted, there are many factors that go into how lawmakers vote on any given bill, some we can’t include in a statistical model.  It’s also possible that the current tax reform bill is unique for a variety of reasons.  Needless to say, much has changed in American politics since Carnes’ book was published in 2013.  And in the social sciences, we can’t predict outcomes with certainty like some in the hard sciences can.  But it is reasonable to conclude, based on the available evidence, that Congress’s socioeconomic biases matter and may be playing an overlooked role in the GOP’s tax reform effort.    

A few final caveats.  First, why do lawmakers vote with class?  A simple, if somewhat cynical, view is that lawmakers are voting based on pure self-interest in an attempt to enrich themselves.  However, that’s not likely the case. According to a number of studies of what political scientists call descriptive representation, demographic characteristics—like class—shape a lawmaker’s experiences, the groups they identify with, and the information they bring to bear on a decision.  In other words, lawmakers with from different socioeconomic classes simply think differently.  Second, it is a strong assumption that the working class should favor liberal economic policies.  No doubt, many working class Americans oppose unions, want tax cuts for the rich, support right-to-work laws, etc.  Lastly, from a normative perspective, an argument can be made that we want economic elites running the country.  For example, many of the nation’s founders—mostly in the Federalist camp—worried about “common people” being in positions of power.  It boils down to how much democracy you want.  All in all, how you interpret these results no doubt depends on where you stand on a range of ideological and philosophical issues.

Lastly, a transparent plug: I have a paper on why Americans support increasing or decreasing taxes on the rich, which is relevant to the current debate.

Jordan M. Ragusa is an associate professor of political science at the College of Charleston, where he directs the college's American Politics Research Team and is a research fellow in the Center for Public Choice and Market Process.


Five legislative styles of members of Congress

 Workhorses are but one of the sorts of legislator. Source:  WestCoastHorsemen.com .

Workhorses are but one of the sorts of legislator. Source: WestCoastHorsemen.com.

By Casey Burgat

Even the most casual observer of American politics recognizes stylistic differences between members of Congress (MCs) and how they approach their jobs. Some MCs are more vocal, consistently making the rounds on cable news to explain their positions, while others are more comfortable cracking down on the details of policy and avoiding the spotlight altogether. Still others spend a greater portion of their time and resources fundraising for themselves and their co-partisans.

We know lawmakers differ in their goals, tactics and approaches to their congressional work. But, a new paper authored by political scientists William Bernhard and Tracy Sulkin, with an assist from biostatistics assistant professor Daniel Sewell, reveals that MCs cluster into legislative styles that are far more stable and predictable than many would have thought. In the words of the authors, members “engage in patterns or “packages” of activity that correspond to a particular constellation of goals. These patterns are characteristic of individual MCs, but not unique to each.”

Within their August 2017 Legislative Studies Quarterly article, “A Clustering Approach to Legislative Styles”, the authors show that patterns of member decisions, behaviors, and activities ultimately produce five distinct legislative styles of lawmakers: district advocates, party builders, ambitious entrepreneurs, party soldiers, and policy specialists.

To construct these five typologies, the authors identify 16 “everyday behaviors available to all members” that measure variance in MC activity across a host of behavioral domains. Such lawmaker activities include the number of district offices maintained for each MC, the number of bills and amendments introduced, and the amount of money raised and transferred to their colleagues. These lawmaker inputs are then standardized (which allows comparisons across variables of different scales) and put into indices.

 Source: William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

Source: William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

The above table presents the variables used to create the eight indices of legislative behaviors. For example, lawmakers that score high on the “showboat” index are those that give more 1-minute speeches within the chamber and publish more op-eds (bylines). Alternatively, “bipartisan” MCs are those that cosponsor a higher percentage of bills introduced by the opposition party.

After standardizing the indices, the authors then use clustering analysis to identify “groups of observations that are similar to one another and distinct from those in other groups.” This creates distinct clusters of relationships between the indices used and produces the five discrete legislative styles.

The authors’ heat map (below) enables readers to visualize the relationship between each index and legislative style cluster. The lighter the shade, the stronger the connection. For example, lawmakers with a policy specialist legislative style score higher than their counterparts on the policy focus index. Party builders are those that give more in campaign contributions to their party, both to their colleagues and respective party committees.

 William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

So then, what is the breakdown in legislative styles? The figure below presents the distribution of legislative styles for lawmakers who served within the 101st to 110th Congresses (1989-2008). The three most common legislative styles---district advocates, party soldiers, and policy specialists---characterize between 26% and 32% of MCs. Party builders represent about 12% of the lawmakers studied, while ambitious entrepreneurs, those MCs that scored high on the fundraising and showboater indices, make up the smallest cluster at 3.7% of members.

 William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

Within the paper the authors point out several additional interesting and important features of MC legislative styles. First, once adopted by lawmakers, legislative styles are relatively stable---77% of members retain their legislative styles from one Congress to the next.

Second, nearly 60% of members begin their congressional careers as party soldiers, meaning they vote regularly with their party and are active in fundraising and lawmaking as freshman. As MCs gain seniority, though, the percentage of lawmakers who fall into the party soldier cluster drops, with just 17% of MCs fitting this description by their fourth term. As MCs serve longer, they are likely to transition from party soldiers to policy specialists or party builders. (This finding may have implications for those who advocate for term limits.)

Third, the authors find that the legislative styles of freshman MCs are dependent on a variety of political and demographic factors. For example, freshman MCs with previous state legislative experience are more likely to start their congressional careers as policy specialists, and freshman that represent diverse districts are more likely to take on a district advocate legislative style when compared to MCs elected within homogenous districts.

This research aides our understanding of how and why lawmakers vary in their approaches in executing their responsibilities as members of Congress. While we have always known that their individual goals and institutional factors and constraints help shape their legislative styles, Bernhard, Sulkin, and Sewell’s paper highlights that despite the many differences in member personalities and district attributes, MCs largely operate within the same political context. As a result, legislative behaviors do cluster into distinct and consistent legislative styles.

Casey Burgat is a governance fellow at the R Street Institute.

The Obamacare markets: Trump is making Democrats pay for writing an ambiguous law

  P.L. 111-148 , also known as "Obamacare."

P.L. 111-148, also known as "Obamacare."

By Rob Oldham

Over the last few weeks, the Trump administration has taken an important step in dismantling the Affordable Care Act by cancelling $7 billion in cost-sharing subsidies that the federal government had been paying to health insurance companies. The ACA mandates that insurance companies reduce out-of-pocket costs, like copays and deductibles, for low-income enrollees on the ACA exchanges, and the subsidies fund those reductions. But according to a federal court ruling, the cost-sharing subsidies are not continuously funded by the ACA, meaning the Trump administration cannot make the payments without a specific appropriation from Congress.

The case of the cost-sharing subsidies implicates a well-traversed area of constitutional authority: Who controls the spending powers of the federal government? Is it the president, who directs the Treasury, or Congress, which writes laws authorizing outlays from the Treasury? Article I of the Constitution seems to clearly put spending in Congress’s domain, saying, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…” Indeed, plenty of intellectual energy has been expended affirming that, as the Supreme Court ruled in United States v. MacCollom (1976), “the expenditure of public funds is proper only when authorized by Congress.” However, reality has always been more complicated, with the president sometimes spending unappropriated funds to carry out his executive duties. While courts usually rule in favor of Congress’s power, presidents have taken advantage of ambiguity in laws to spend unappropriated funds, which is what happened with the cost-sharing subsidies.

The subsidies were essential for the ACA to lower the uninsured rate. It had a three-part structure to achieve its goal: obliging insurers to cover all people, requiring all people to buy insurance, and making insurance affordable. Two government spending programs were designed to lower health care premiums and out-of-pocket costs for low-income persons, respectively. Premiums were reduced by tax credits authorized by the ACA’s section 1401 and out-of-pocket costs were reduced by section 1402’s cost-sharing subsidies.  

Although they perform the same function of making healthcare costs cheaper for low-income persons, there is a critical difference between sections 1401 and 1402 that explains why the Trump administration cancelled the cost-sharing subsidies and left the premiums in place (which might cause the federal deficit to increase, according to the CBO). Section 1401 authorizes a permanent appropriation for the premiums, meaning Congress does not have to reauthorize them via annual appropriations. Section 1402, however, authorizes a current appropriation, specifically saying the payments shall be made “at such time and in such amount as the Secretary of Health and Human Services specifies.” A current appropriation must be renewed every year.

The lack of continuous funding for cost-sharing subsidies presented a problem for President Obama. He wanted to ensure that the federal government could continue to offset the costs of reductions that insurance companies had to make. Without the subsidies, the companies would have to recoup their losses on the reductions in other ways, potentially by increasing premiums. So, while the administration continued to ask Congress to appropriate the cost-sharing subsidies in annual budget requests (a tall order after the 2010 Tea Party wave brought a Republican majority to the U.S. House), the administration simultaneously began making the payments without an appropriation.

This caught up with Obama in November 2014 when the House Republicans filed a lawsuit claiming that the payment of the subsidies infringed on Congress’s Article I power to appropriate the funds that the federal government spends. In May 2016, D.C. District Court Judge Rosemary Collyer (a George W. Bush appointee) ruled in favor of the House Republicans. She wrote:

“Paying out Section 1402 reimbursements without an appropriation…violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.”

Collyer’s opinion addresses a series of arguments the Obama administration used to justify paying the cost-sharing subsidies without an appropriation. The administration’s most compelling arguments laid out a legal theory of the discretion that should be afforded to the executive branch when Congress either does not make an appropriation or was ambiguous. These arguments cited the Supreme Court’s ruling in King v. Burwell (2015), a similar case where the plain text of the ACA did not appear to authorize premium subsidies for persons that purchased plans on federal-run, as opposed to state-run, exchanges. In a 6 to 3 decision, the court ruled the subsidies could go toward plans purchased on the federal exchanges because the full context of the ACA clearly indicated that Congress wanted to cover as many people as possible. Not allowing the credits for federal exchange enrollees would undermine the law’s purpose.

The argument for the cost-sharing subsidies is similar. An amicus brief filed by a group of health policy scholars laid out the case, arguing that Congress could not have intended to make premium subsidies continuous and cost-sharing subsidies on a year-by-year basis as this would have prevented the ACA from achieving its legislative goal of decreasing the uninsured rate. Essentially, the administration was saying it should be able to take certain actions and spend funds to help the law achieve its overall goal even if Congress did not approve the actions.

Despite the Obama administration’s efforts to justify executive preeminence in spending and administering laws, Judge Collyer ruled in favor of the House Republicans. She did, however, allow the payments to continue being made while the case was appealed. This continued through 2017, which is when the Trump administration inherited responsibility for the payments.

After the subsidies were cancelled by Trump, 18 states and Washington, D.C. filed suit to compel the federal government to make the payments.  They made similar arguments to the Obama administration in terms of the executive’s power to make the payments in the absence of an appropriation (with an added twist that Trump was attempting to undermine the ACA and crash the health insurance exchanges). Federal Judge Vince Chhabria, an Obama appointee in the Northern District of California, ruled in favor of the Trump administration, but he also conceded that the appropriation issue was “a close and complicated question.”

The future of the cost-sharing subsidies is unknown. While there appears to be support in the U.S. Senate for reviving them, Speaker Paul Ryan and President Trump have expressed their opposition. Ryan’s statement following their cancellation hits at the core legal issue surrounding the subsidies:

Under our Constitution, the power of the purse belongs to Congress, not the executive branch. It was in defense of this foundational principle that the House, under the leadership of former speaker John Boehner, voted in 2014 to challenge the constitutionality of spending by the Obama administration that was never approved by Congress. The House was validated last year when a federal court ruled that the Obama administration had indeed been making unauthorized and therefore illegal payments through Obamacare. Today’s decision by the Trump administration to end the appeal of that ruling preserves a monumental affirmation of Congress’s authority and the separation of powers.

This harkens back to one of Ryan’s 2016 campaign arguments about the upside of a Trump presidency: He would restore the balance of power to the federal government by limiting executive meddling in matters reserved for Congress. While there is a question of whether Trump too has been seduced by the allure of executive orders (and of whether Ryan’s hope on the campaign was sincere or realistic), the president’s actions on cost-sharing subsidies has certainly shifted some power back to the legislative branch. While that balancing of power could come at the expense of the ACA’s ability to improve the American healthcare system, it should please those longing for a constitutional order based on the separation of powers.

However, with that power comes a responsibility for Congress to address major policy concerns. Congress’s ability to act on policy has been less than stellar in recent years, meaning Ryan’s vision of an empowered legislative branch might not comport with current political realities. As President Trump continues to dump policy items like cost-sharing subsidies and immigration reform into its lap, Congress should meet his challenges and show the American people it can be trusted with governing in a rapidly changing world. If it does not, the legislature risks ceding even more of its power to the executive and drifting further away from being “the First Branch” of government.

Rob Oldham is a political writer interested in legislative politics at the state and national levels.