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Why most federal laws are flawed — and precious few succeed

Why most federal laws are flawed — and precious few succeed
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Of some 30,000 laws passed in the history of Congress, a remarkably small number stand out for their positive impact and minimal adverse effects. This subject is important because controversy over lawmaking and congressional gridlock have prevented us from solving critical national problems for more than 30 years. This essay lists 15 laws that meet both criteria. Laws mainly correcting injustices, such as the 13th, 14th and 15th Amendments, are not included.

Except for its fateful slavery provision, the U.S. Constitution is widely regarded as the most visionary and also practical document in U.S. history. It was created when the American colonies were outposts of The Enlightenment. They gained experience creating representative state constitutions free of the corruption associated with the aristocracies of Britain and France. Gifted leaders such as James Madison framed a document that drew on knowledge of the fate of representative political systems in ancient times, and recognized the risks from overzealous advocacy in the new nation. As president of the Constitutional Convention, George Washington rarely spoke but had a sobering influence.

Political vision shows in early laws such as the Northwest Ordnance, the Bill of Rights, the Federal Judiciary Act, Departments of Treasury and the Postal Service, and the decadal Census. Washington set a precedent for the first six presidents in appointing government positions below Cabinet secretaries based on competence, avoiding partisan politics.

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There have been 15 high-quality laws enacted since the Washington administration. They are: The Louisiana Purchase of 1803, The Morrill Act of 1862, The Reconstruction Act of 1867, The Pendleton Act of 1883, The Meat Inspection and the Pure Food and Drug Acts of 1906 and 1907, The Federal Reserve Act of 1913, The Glass-Steagall Act of 1933, The PWA Part of the NRA of 1934 (remainder of NRA declared unconstitutional), The Social Security Act of 1935, The Servicemen’s Adjustment Act of 1944 (GI Bill), The Economic Recovery Act of 1948 (Marshall Plan), The Federal-Aid Highway Act of 1956, The Nuclear Test Ban Treaty of 1963, The Environmental Protection Agency (1969) (Presidential plan approved by both houses of Congress) and The Bayh-Dole Act of 1980.

The hallmarks of positive laws include expert and broadly-based preparation. The Pendleton Act of 1883 initiated reform of chaotic governmental turnover after presidential elections, the legacy of the spoils system of Andrew Jackson. The merit system for appointment of career federal employees was only eight pages long, but it was based on an intensive international search commissioned by Rutherford B. Hayes, the first reform president after the Civil War. Franklin D. Roosevelt radically expanded the role of government in the aftermath of the Great Depression in 1932, but he valued differences of opinion among his advisors and Cabinet members, and favored independent leadership of new federal agencies. The Glass-Steagall Act of 1933, which reformed and restored the collapsed banking system following the stock market crash of 1929, was sponsored by experienced congressmen and was preceded by intensive debate. Research for The Social Security Act, led by Labor Secretary Frances Perkins, took into account international experience. Roosevelt’s best early laws were approved by bipartisan majorities in Congress.

Popular laws with adverse effects include The Housing Act of 1934, a landmark measure that vastly expanded middle-class home ownership. But it also led to the Federal Housing Administration, which adopted segregation guidelines that suppressed African American participation. Most recently, weaknesses in the Civil Rights Act of 1964 have likewise been criticized by African Americans. Unlike the Social Security Act, the popular Medicare and Medicaid Act extensions did not include adequate provisions to cover costs. The Violent Crime Control and Law Enforcement Act of 1994 reduced intolerable crime levels but filled the prisons, disproportionately with Black citizens.   

The Clean Air Act of 1970 (CAA), one of the most highly-regarded environmental laws, rapidly reduced health and environmental hazards. But it set unrealistic goals for industry to meet air pollution standards based on its goal of  “forcing technology.” This posed a dilemma for the newly created Environmental Protection Agency, which had to create arbitrary delays lest it put companies out of business and lose jobs. Adversarial features of the CAA and subsequent laws contributed to massive loss of manufacturing and economic decline in the 1970s. The first Reagan administration’s radical cutbacks in enforcing environmental regulations created a backlash in Congress, widening conflict to partisan polarization.

The Reagan tax cuts (The Economic Recovery Tax Act of 1981 and the Tax Reform Act of 1986) helped relegitimize business and restore the economy. But steep reduction of top personal income tax rates from 70 percent to 28 percent led to exponential increases in pay for executives and highly-paid individuals. The cuts weakened the competitiveness of remaining manufacturing by creating inducements for short-term profit policies.    

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The CAA also broke precedent by transferring responsibility for regulatory policies from professional agencies to Congress and the federal courts, neither of which have formal scientific and professional expertise. Laws burgeoned in length and complexity.  The Affordable Care Act of 2010, (ACA),  969 pages in length, had 475 Sections. Laws of this length are hard to agree on or update, and risk obsolescence on passage. They inhibit innovation and adaptation of policies to new needs and potentials.

Frustrated by gridlock in Congress, contending U.S. parties have increasingly resorted to ramming legislation through by party-line vote. Examples are the preceding ACA and the Trump administration’s Tax Cuts and Jobs Act of 2017. The problem is that unilateral policymaking stokes antagonism and division. Laws passed in this way inevitably include flaws because they lack input that could reduce weaknesses or suggest creative alternatives. Flaws may be revealed only after they have done serious damage.

Bipartisan framing of legislation helps reduce potential flaws. But an observation late in the life of the former Sen. and Majority Leader Howard Baker (R-Tenn.) was that nonpartisan legislation produces the most effective laws. Baker, who had an engineering background, is credited with contributing scientific and technical detail in the Clean Air (1970) and Clean Water Act (1972) Amendments. Both were approved unanimously in the Senate en route to overwhelming bipartisan votes in Congress. Leading European nations introduce nonpartisan expertise through professional ministry task groups that draft laws for ruling governments. Drafts are presented to affected constituencies to improve legislation.   

What can be done? Members of Congress face pressure from the nation’s most ideologically polarized forces. Concerned with reelection, they are least likely to initiate positive change. Years ago, Presidents Rutherford B. Hayes and Franklin D. Roosevelt looked beyond short-term solutions to promote changes in governance and provide for fundamental needs of the nation. Can the Biden administration take counsel from history?

Frank T. Manheim is an affiliate professor and distinguished research fellow at George Mason University’s Schar School of Policy and Government.