*This is the sixth post on a symposium on Jed Stiglitz’s “The Reasoning State.” For other posts in the series, click here.
In The Reasoning State, Jed Stiglitz offers a novel argument for the necessity of the administrative state. It is not, as other scholars have argued, that Congress delegates power because it lacks the capacity and information to make decisions on its own. Nor is it that re-election-minded legislators are simply looking to offload hard choices on to unelected bureaucrats who do not have to face the music on Election Day.
Rather, Stiglitz offers an argument that hinges on trust; agencies, he argues, are capable of reasoning to arrive at decisions that are seen as legitimate and trustworthy by the public. Importantly, their ability to do this sets them apart from the legislative branch. The very same “choices that we could not trust in the legislative context,” he argues, “become choices that we might trust in the administrative context by virtue of the procedural burdens that agencies carry” (50).
The majority of Stiglitz’s analysis involves presenting evidence in support of these claims about the administrative state as a “reasoning” one. But at its center is the assertion that the legislative branch cannot perform these functions. Because the legislative branch is not capable of committing to due process and adhering to its prescribed procedures, and because courts are not able to police the legislature in a way that guarantees the latter will follow its own rules, he argues, Congress can’t attain the same kind of credibility that the administrative state can.
I do not deny that public trust in Congress is low; Gallup polling from 2022 puts the share of respondents who have a “great deal” or “quite a lot” of confidence in Congress at 7 percent—down from 42 percent at the historical start of the survey in 1973. And the procedures used by Congress to enact new laws could certainly contribute to low levels of trust. Indeed, there is some evidence, from work by political scientist Jim Curry, that using “unorthodox” procedures to pass laws may reduce public support for those initiatives. Importantly, partisanship (a pervasive feature of American political life largely absent from Stiglitz’s analysis) appears to play a role in how individuals respond to learning about the particular tactics used by Congress to make decisions. When Democratic-leaning respondents in Curry’s survey experiments were told that a Republican-leaning law was passed using unorthodox procedures, they were less likely to support it; the same was true for Republican-leaning respondents and Democratic-leaning policies.
Given that most Americans pay little attention to the nuance of legislative procedure, however, the processes used to enact laws probably make only a very small contribution to the low esteem in which Americans hold Congress. But even if we don’t go as far as Stiglitz and argue that evidence of reasoning and adherence to due process are necessary for trustworthiness, his argument leaves observers of the legislative branch with a bleak picture: the prospects for increasing trust in Congress by showing the public the reasons behind legislative choices are slim.
The same unorthodox processes that can, when pointed out to survey respondents, decrease their support for the underlying laws of which they facilitate passage are, in many scenarios, a necessary adaptation to the partisan realities of contemporary American politics. Packaging all of the individual appropriations bills in to one large, omnibus package is, as political scientist Peter Hanson has argued, a response to the fact that the Senate struggles with invoking cloture on the individual component measures; building a coalition to get to the 60 votes necessary to end debate once is more attractive than doing it 12 separate times.
Beyond the utility of unorthodox procedures as a mechanism for accommodating current political realities, there is a more fundamental challenge to trying to make Congress part of the “reasoning state.” Enhancing Congress’s analytical capacity would require significant resource investments that have proven, repeatedly, to be politically difficult to make. Stiglitz takes up the role of a well-resourced Congress near the start of his analysis, but largely dismisses it as an explanation for the rise of the administrative state; “[i]f information and capacity are the constraints” faced by Congress, he asks, “why not expand the institution’s ability to collect and process information?” (5).
Investing in this kind of capacity has proven to be far more complicated than this formulation suggests; spending money on itself is a hard political lift for Congress. It took, for example, until fiscal year 2022 for Congress to finally return House office budgets (from which staff salaries are drawn) to 2011 levels, adjusted for inflation. When House Democratic leaders floated allowing representatives’ own salaries to rise in line with inflation for the first time in ten years in 2019, some of their own members criticized the move and the change was not pursued further. The continued work of the Select Committee on the Modernization of Congress has been a bright spot on this front, but much work remains.
The political difficulty of investing in congressional capacity is, in part, the result of a vicious circle. Spending money on Congress is politically hard because people don’t trust Congress. People don’t trust Congress, in part, because they think lobbyists have too much power. But “special interests” have the influence they do because Congress does not have sufficient resources to gather and process information internally. Building trust requires breaking this circle.
Molly E. Reynolds is a Senior Fellow in Governance Studies at the Brookings Institution.