Can Congress’ ‘Most Successful Bill’ Fix the Legislative Branch?

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It is often said that Congress is “broken.” But for each of the last fifty-nine years, Congress has enacted one major bill on a bipartisan basis without the looming threat of a crisis or shutdown: the National Defense Authorization Act (NDAA), which authorizes funding for the Department of Defense. Contrary to popular belief, the NDAA is not “must pass” because it is constitutionally necessary to fund the military –– the military could continue to draw funds if Congress failed to pass the NDAA. Rather, the NDAA is the first step in a two-step process that Congress once found essential, but has allowed to collapse in other policy areas over the last several decades. As Congress drafts its sixtieth NDAA, legislators should draw lessons from its success and use them to fix the legislative process elsewhere.

The House and Senate Armed Services Committees have developed a blueprint for passing the annual NDAA that legislators should replicate in nondefense policy areas, to improve congressional oversight of federal agencies. The committees focus their legislative work almost entirely on the NDAA, following a fixed annual schedule that ideally begins with oversight hearings in February and ends with floor passage in the fall. Throughout the process and beforehand, committee staff work closely with policy staff at the Department of Defense and the combatant commands to capitalize on their collective issue expertise. Standalone bills introduced by individual committee members are often folded into the NDAA, rather than debated and approved on their own. This makes individual legislators invested in the larger bill and keeps the committee’s schedule focused. The committee leaders, members, and staff commit to a bipartisan process in advance of negotiations, often pushing controversial measures to the end of deliberations or tabling them entirely. And the committees work with party leadership to ensure that time on the floor schedule –– particularly in the Senate, where only one bill may be considered at a time and a minority of members can force the body to debate for days –– is reserved for considering the NDAA.

 

 

As I have argued in more detail elsewhere, the NDAA is a model for reviving the authorization-appropriations process, a two-step process that Congress developed as a tool to accomplish exactly what the NDAA does –– checking the executive branch’s use of federal funds. In theory, before Congress appropriates money for federal programs, it authorizes the spending in separate legislation. The process dates back to the early 19th century, when Congress recognized the value of sending appropriations legislation through standing committees that would develop the necessary expertise to oversee federal spending. Like their modern counterparts, early legislators exploited the must-pass nature of appropriations bills by attaching spending riders to the bills. Over time, Congress adopted rules that require prior authorization of appropriations to limit these riders. Moreover, Congress began authorizing appropriations on a temporary basis –– typically for one or two years –– to ensure regular oversight of the executive branch’s spending activities.

Both steps are necessary. The appropriations process is no replacement for the authorization process. Appropriations committees have fewer resources than the authorizing committees, they hold fewer hearings on any given issue, and their goals are somewhat different. As Supreme Court Justice Anthony Kennedy once wrote before he joined the Court, the two-step process allows Congress to “consider the substantive justification of a project separately from the fiscal consequences of funding it.” In addition, one of the benefits of the committee system is that it fosters the development of issue expertise among lawmakers. Concentrating power in the appropriations committees stifles that objective.

A Breakdown on Capitol Hill

In recent years, however, the two-step process has increasingly broken down. The Congressional Budget Office recently reported that, for fiscal year 2020, Congress appropriated $332 billion for government functions with expired authorizations. In other words, more than half of this year’s total discretionary spending for non-defense functions is not formally authorized. Congress simply grants the funds for these programs in appropriations bills, and the agencies may act without the updated legally binding parameters set forth in authorizing language. Many housing, energy-assistance, and health-care programs that serve low-income communities have continued to receive funding long after their authorizations expired, with no signs of congressional interest in updating their authorizations. Congress has focused significant attention on other expired authorizations, such as the State Department authorization act, but lawmakers have failed to return to a regular two-step cycle.

There are at least three reasons for the breakdown. First, legislative reorganization incentivized Congress to spend more time on the budget resolution and appropriations. In fact, there have been recent, bipartisan efforts in Congress to move the budget and appropriations bills to a two-year cycle so as to free up more time to consider authorizing bills. Second, the increasing use of the filibuster –– combined with the newfound emphasis on the budget –– crowded authorization bills out of the legislative calendar, especially in the Senate. Finally, the political willpower disappeared to an extent. Per scholar Richard J. Lazarus’s 2006 article in the Georgetown Law Journal, Republican lawmakers employed a strategy in the 1990s of centralizing power and turning to the appropriations process to advance controversial measures. House Republican leaders, for instance, took steps to allow their preferred appropriations riders to bypass House rule requirements, including provisions aimed at deregulating environmental protections. It’s hard to pinpoint an exact time that authorizing bills declined, but it is significant that Congress appropriated $334 billion for expired programs in FY 2020, compared to $121 billion in FY 2000.

To be sure, Congress regularly enacts multiyear authorization bills on a bipartisan basis –– though even the success stories have fallen behind schedule or failed on the first attempt. For example, the five-year Farm Bill addresses a range of policy programs –– from crop insurance payments to food stamps –– that serve bipartisan interests. It also contains authorities that, if they were to expire, could have severe consequences. Yet since 2002, Congress has failed to pass a Farm Bill on time, allowing conservation and food aid programs to expire and sometimes requiring temporary extensions. The multiyear authorization bill for the Federal Aviation Administration likewise contains authorities that would lead to a partial agency shutdown and significant revenue losses if they were allowed to expire — yet Congress needed twenty-three short-term extensions before reaching a deal to renew the authority in 2012. When that authorization expired in 2015, it took six more extensions to avoid a shutdown.

How Has the NDAA Survived?

The NDAA stands as a striking exception to the two-step process’s decline. During my time as a policy staffer for Sen. Tim Kaine, from 2013-2017, the Senate meaningfully debated and enacted five iterations of the NDAA. As the Senate inched towards the NDAA’s sixty-year milestone, we knew that the NDAA had become Congress’s most regular and bipartisan legislation. Despite Congress’s growing reputation for inaction and gridlock, the NDAA is routinely commended as “demonstrat[ing] how bipartisanship in Congress can work … to responsibly authorize expenditures” and “perhaps the last bill, the last legislative process, that still actually works.”

Some scholars have called for Congress to use the two-step authorization-appropriations process as a way to rein in the administrative state. Constitutional law scholars Jonathan Adler and Christopher Walker, for example, propose that Congress revitalize the temporary authorization process to ensure that agencies’ broad powers only last for short periods of time before Congress revisits them and exercises critical oversight. As part of their argument, they highlight eight reauthorizations that Congress continues to enact –– including the Farm Bill and FAA reauthorization –– as examples that Congress might draw from if it were to reform the reauthorization process.

This discussion and others bring much-needed attention to an important subject. That said, commentators have overlooked the most important reauthorization bill: the NDAA. The NDAA is important for several reasons. Most obviously, it passes every year and authorizes more than half of the government’s discretionary funding. Perhaps more importantly, the NDAA process that plays out between Congress and the executive branch paints a picture of how congressional operations would need to change if the regular reauthorization process were revitalized.

Fewer Bills, More Structure

For instance, the House and Senate Armed Services Committees consider relatively few standalone bills as compared to other committees, opting instead to include most worthwhile legislation into the NDAA. With demand on congressional staff time increasing and salaries flatlining, this “one bill at a time” approach enables committee staff to devote themselves to a single process and be free of the pressure to act outside of the scheduled cycle.

Another attribute of the NDAA is the Senate Armed Services Committee’s closed “markup,” or the meetings in which members vote on amendments. This tactic has earned criticism from activists who oppose the reduced transparency that comes with amending a bill behind closed doors. Proponents have argued that the closed markup process facilitates bipartisanship, enabling the bill to survive the committee process.

Indeed, bipartisanship might be the most critical element of the NDAA’s annual passage over the last fifty-nine years. My experience observing and working on the NDAA always involved a collective effort by members and staff of both parties to craft a bill that would win broad bipartisan support. Perhaps the bipartisanship requirement stems from the examples historically set by committee leadership, or an understanding that the NDAA represents Congress’s “fulfill[ment] of its constitutional responsibility to ‘provide for the common defense’.” In any event, the bipartisan commitment remains essential to the NDAA’s passage. As Kaine told me recently: “Should other committees ever follow a similar model . . . they need to follow the Armed Services Committee’s bipartisan, all-input-welcome example and not write that sole authorization in a one-sided manner.”

The Process Won’t Work Without Political Will

With just some of these NDAA attributes in mind, it’s clear that Congress simply cannot revitalize regular reauthorizations of appropriations — cannot just adopt the process used for the NDAA — without making major behavioral and procedural changes. Specifically, such an effort would first require good-faith commitments from both parties’ legislators to work in a bipartisan manner. Congress’s recent success negotiating coronavirus aid packages suggests that bipartisanship is not reserved for military issues alone. If the political will materializes, the process would then require agreement from party leadership to relinquish significant amounts of Senate floor time for bill consideration, concessions from House and Senate appropriators who benefit from increased control over policymaking when the authorizing committees fall behind, and a substantial increase in staffing resources for Congress and the executive branch.

The amount of Senate floor time required to authorize spending and other authorities for every federal program through the same process used to such effect for the Department of Defense would pose an especially significant obstacle. Last year, for instance, the Senate spent more than a week considering the NDAA. In that time frame, senators offered nearly 650 amendments but took roll call votes on only three. Given that the Senate typically spends about thirty-four weeks in session, moving reauthorization bills from fourteen additional authorizing committees to the floor more often –– even with limited opportunities for considering amendments –– may require longer sessions and less floor time spent on leadership-driven business like confirming nominees.

Advocates for revitalizing the authorization process acknowledge some of these constraints. But they also point to the threat of expiring reauthorizations as a potentially useful incentive that could motivate Congress to act. Specifically, in the forthcoming issue of the Iowa Law Review, the above-referenced scholars argue that an increased use of regular reauthorizations “would still fall short unless Congress dusted off and more strictly enforced” the rules requiring prior authorization of appropriations. They suggest that Congress “change its rules in order to make the prohibition of appropriations without authorization self-executing — albeit, still subject to majoritarian override.” This approach, they argue, would “shift the burden of inertia onto the corner-cutters, and in so doing, could spur Congress into action.” Arguing in the alternative, the scholars offer a “more aggressive approach”: allowing the courts to review and strike down agency spending that lacks prior authorization.

Say No to Sequestration 2.0

But political will would not follow from setting up a series of “cliffs” that would be triggered if Congress failed to act on expiring authorizations. In 2011, in a slightly different context, Congress tried to create incentives for members to compromise by scheduling mandatory “sequester” cuts to discretionary spending that would begin in 2013 unless a bipartisan group reached a deficit-reduction deal before a deadline. The incentives didn’t work –– and legislators on both sides of the aisle have since described the plan as “arbitrary, damaging, and a blunt ax hanging over the budget and appropriations process.” The same failure would likely occur in the context of authorization bills. As one hearing witness told the Senate Budget Committee in 2016, “[u]nauthorized appropriations . . . are a symptom of political polarization and gridlock. Changing the process will not change the will of the members nor the extreme polarization.” In fact, Republican lawmakers have proposed a bill –– the Unauthorized Spending Accountability Act –– to institute reforms to the authorization-appropriations process that would trigger budgetary allocation reductions for unauthorized appropriations. Unsurprisingly, the bill’s cosponsors include several prominent members of the Freedom Caucus, which seeks to curtail government spending writ large.

Legislators should take an approach based on carrots, not sticks. They should observe how 60 years of the NDAA have empowered the House and Senate Armed Services Committees within the legislative branch and, arguably, enabled Congress to exert greater control over defense policy vis-à-vis the executive. If — and only if — legislators develop a willingness to enact regular reauthorization bills (either annual or multiyear) in policy areas other than defense, they should use the NDAA process as a blueprint for doing so. For example, the “one bill at a time” approach is one option that other committees could adopt to get used to passing regular authorization bills and reduce pressure on their limited staff resources. Unorthodox tactics like closed markups and “pre-conferencing” may make it easier to pass bills, although they raise issues over transparency and limiting minority input. Finally, the behavioral aspects of the NDAA process — such as the trust that committee staff have that their counterparts on the other side of the aisle will work in a bipartisan manner and the universal expectation that the bill will pass every year — should not be discounted.

Congress’s most successful bill should be part of any conversation about how to fix the legislative process. It’s no secret that defense spending is largely a bipartisan issue that lawmakers view as critically important, even as a global pandemic threatens to slow congressional action generally. For that reason, the NDAA serves as a critical example of how Congress could revitalize the authorization-appropriations process, if legislators grew determined to do so in a bipartisan manner. Scholars and lawmakers have proposed more threat-based approaches –– including an automatic prohibition on appropriations for unauthorized programs –– but none of them are relevant unless Congress is willing to revive the authorization process. Until Congress can translate the bipartisan approach to defense spending to other policy areas, revitalizing the authorization-appropriations process may not be possible or even desirable.

 

 

Amanda Chuzi is a 2020 graduate of Columbia Law School and a Political Partner with the Truman National Security Project. From 2013 to 2017, she served as a legislative aide to Sen. Tim Kaine and worked on national security issues.

Image: White House (Photo by Andrea Hanks)

CORRECTION: An earlier version of this article contained this sentence: “Congress simply grants the funds for these programs in appropriations bills, and the agencies may act without the legally binding parameters set forth in authorizing language.” The sentence has been updated to the following: “Congress simply grants the funds for these programs in appropriations bills, and the agencies may act without the updated legally binding parameters set forth in authorizing language.”

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