This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

We agree with Sen. Eric Schmitt that “Congress must reclaim the habit of legislating.” While much of the senator’s report and commentary addresses the challenges posed by the administrative state, we hope he and his colleagues use Loper Bright Enterprises v. Raimondo as an opportunity to pursue two important objectives.

First, Congress should consider the best ways to modernize and invest in its own capacity. Second, Congress should adopt an approach of collaborative learning in its interactions with executive branch agencies, not merely antagonistic oversight.

These emerged as focal points of the Bipartisan Policy Center’s Working Group on Congress, Courts, and Administrative Law, formed after the Loper Bright decision. Comprised of a diverse and distinguished mix of knowledge and experience, the working group looked at several of the issues Sen. Schmitt raised. They sought to answer the question: what does, or should, Loper Bright mean for Congress? Co-chaired by former Sens. Heidi Heitkamp (D-ND) and Mel Martinez (R-FL), the group concluded that if we expect Congress to more fully carry out its Article I responsibilities, legislators need to modernize and expand the resources available to them and change how they conduct executive branch oversight.

Modernize and Invest in Capacity

It is no surprise that Congress, a historically sclerotic establishment, needs to modernize both its processes and capacity. At the time of writing, Capitol Hill has entered the third week of a government shutdown, a clear sign that the federal budget process needs attention. Repeated failure to act on its most foundational responsibilities has led to abysmal approval ratings.  

It likely surprises many to learn that Congress has, in bipartisan fashion, made concerted efforts to modernize itself for several years. From 2019 to 2022, the bipartisan Select Committee on the Modernization of Congress investigated the state of congressional operations and found them wanting. It approved over 200 recommendations to improve institutional policies, procedures, and resources, most of which have been acted upon. Today, the House Subcommittee on Modernization & Innovation continues that work, yet more work is clearly needed.

Congress persistently struggles with capacity issues. Sen. Schmitt encouragingly acknowledges in the foreword to this series that “Congress must modernize its own legislative capacity,” and mentions reforming legislative counsel, legislative branch support agencies, and “investing in staff.” We welcome these proposed steps and are heartened that the House and Senate Appropriations Committees approved a budgetary increase for their respective Offices of Legislative Counsel for fiscal year 2026.

But Sen. Schmitt’s article lacks detailed pathways for expanding congressional capacity. Committee staff positions in the House have fallen by 44% since 1990, and though they have been flat on the Senate side, the volume and nature of challenges facing congressional staff have only grown. Funding levels for committee staff have also declined. Similar trends have been observed within the Government Accountability Office and the Congressional Research Service, two key legislative support agencies whose expertise will be even more critical post-Loper.

Sen. Schmitt also rightly observes that Congress must improve how it writes statutes. As BPC working group member and former Congresswoman Allyson Schwartz told a Senate subcommittee in July, this laudable goal requires greater congressional capacity, particularly in the form of more internal expertise and staff. We hope Sen. Schmitt and his colleagues in Congress recognize and act on the pressing need to invest in their own offices, committees, and support agencies.

Oversight and Learning

Sen. Schmitt calls for a greater amount of “robust, relentless oversight” of administrative agencies by Congress. This may help, but oversight varies in effectiveness depending on its form.

Congress already conducts a good deal of agency oversight, and research by Jonathan Lewallen found that growth in oversight hearings has come at the expense of legislative hearings. BPC has also noted that Congress faces a continued challenge in hearing quality and scheduling, as the total number of hearings has declined and those hearings that are held often create scheduling conflicts. This contributes to a culture where oversight hearings serve as political theater. As Rackey has found, the number of executive branch witnesses at congressional hearings has sharply declined, due to reluctance on the part of agency officials to subject themselves to beratement rather than productive discussion.

Congress designs, funds, and charges administrative agencies with specific goals to accomplish. Members should therefore be keenly interested in progress toward those goals and whether changes to an agency’s approach are needed. For the most part, oversight hearings currently do not advance what Susan Dudley, BPC working group member and former administrator of the Office of Information and Regulatory Affairs, describes as a “learning agenda.”

BPC’s working group recommended, among other things, that Congress direct agencies to conduct retrospective review of regulations. This would satisfy Sen. Schmitt’s call for “hearings that matter” and help orient members toward discovery and learning. Lawmakers should search for accountability mechanisms that achieve the shared mission of determining if agencies are successfully fulfilling congressional intent.

Implications of Loper Bright for Congress will continue to emerge as cases work their way through the courts. Further self-examination on the part of members—and the productive arenas to which they might apply Loper Bright—will also help illuminate the ruling’s future impacts.

Dane Stangler, Michael Thorning, and J.D. Rackey work at the Bipartisan Policy Center.