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To have a better, more honest Congress, change its incentives


Congress has become one of America’s most unpopular and disparaged institutions — but a practical reform could quickly change all of this to simultaneously benefit the American people and Congressional approval numbers.

Congress’s fall from grace came ironically from the success it helped to produce.  

{mosads}In 1964, the federal government seemed capable of working wonders.  It had gotten the country through the Great Depression, won World War II, invented the atomic bomb, built the interstate highway system, came to preside over the world’s richest economy, and enacted meaningful civil rights legislation.  


Such successes understandably led voters to want Washington to deal with additional problems such as pollution and haphazard health care for the poor and elderly.  Yet, voters preferred not to feel the burdens required to satisfy their wants.

Out of their desire to please voters, politicians came to embrace theories that made it seem possible to provide something for nothing or very little.  One theory: setting strict deadlines to make the air healthy would force industry to invent technologies that would make it feasible to meet the deadlines.  In fact, the theories usually failed.

An example: meeting the deadlines in the 1970 Clean Air Act would have required cutting traffic in southern California by 80 percent. Instead of confessing error, however, legislators from both parties quietly lobbied the EPA not to impose unpopular burdens and then publicly blamed the EPA for failing to deliver healthy air on schedule and those burdens it did impose.

Once Congress began down this road, there was no going back because a new way of legislating had begun that changed legislators’ personal incentives.  They could now claim credit for making popular promises, but shift blame for the unpopular consequences.  Today, Congress routinely shifts blame:

  • To federal agencies for the burdens needed to deliver promised regulatory protection and the failures to deliver;

  • To their successors in office for the tax increases and benefit cuts that will inevitably be required by current unsustainable policies;

  • To their successors in office for the fiscal crises and economic crashes that will come from the speculation encouraged by guaranteeing private debts without charging market-based fees;

  • To state and local officials for the burdens required to deliver the benefits promised through federal mandates; and

  • To the presidents for wars that are controversial with constituents.

The results are bumptious promises, failed policies, and spiraling distrust of government and Congress in particular.

Even proposals to supposedly end the trickery are themselves tricky.  Take a bill that the House passed on Jan. 5, Regulations from the Executive in Need of Scrutiny (REINS).  The title, which suggests that the root of the problem is aggressive agencies rather than blame-shifting legislation, shows that blame-shifting is again at work.  

According to the House Judiciary Committee, REINS would require roll call votes on regulations that “add” more than $100 million to the costs of compliance.  No mention is made of regulations that cut the costs of compliance.

REINS’s sponsors have fashioned it to be anti-regulatory rather than pro-accountability, which minimizes the chance that it would survive a filibuster in the Senate.  How convenient.  

The failure of REINS to pass allows its sponsors to strike a pose popular with their constituents without ever having to vote against specific regulatory protections that their constituents want.  No less opportunistically, Democrats are for promises of regulatory protection without having to vote for regulatory burdens.

Congress is trapped by its own trickiness.  It has become the course of least resistance.

To stop the tricks, Congress must change the ground rules of legislation.  

A kind of “Honest Deal Act” would force members to shoulder responsibility for burdens as well as benefits. In the case of regulation, it would apply equally to regulations that increase or decrease regulatory costs.  A bill that is pro-accountability rather than anti-regulatory would have a better chance of surviving a filibuster and not being repealed the next time Congress changes hands.

The Honest Deal Act would not only require legislators to be honest with constituents, but push constituents to face up to the consequences of their demands.

Those legislators who lead the way in writing and introducing such an Act would have performed an historic public service.  All members and their staffs would feel better when they wake up in the morning.

David Schoenbrod is Trustee Professor of Law at New York Law School and author of DC Confidential: Inside the Five Tricks of Washington (Encounter Books, March 2017).

The views of contributors are their own and not the views of The Hill.

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