The Congressional Bureaucracy
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The Congressional Bureaucracy Jesse M. Cross Abbe R. Gluck CSAS Working Paper 20-23 First Branch, Second Thoughts — What Is Congress’s Proper Role in the Administrative State? Article The Congressional Bureaucracy Jesse M. Cross* & Abbe R. Gluck** Introduction Congress has a bureaucracy. Legal scholarship, judicial discourse, and doctrine about Congress and statutes have focused almost entirely on elected members of Congress and the ascertainability of their purported intentions about policymaking and statutory language. In recent years, we and others have broadened that perspective, with new scholarship about the on-the-ground realities of the congressional drafting process--including the essential role that staff plays in that process--and have argued the relevance of those realities for theory and doctrine.1 Here we go deeper. This Article goes beyond our previous accounts of partisan committee staff, congressional counsels, and other select staff offices to introduce the broader concept of what we call Congress’s bureaucracy. The congressional bureaucracy is the collection of approximately a dozen nonpartisan offices that, while typically unseen by the public and * Assistant Professor, University of South Carolina School of Law. ** Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School. Soren Schmidt, Yale Law School Class of 2020, was instrumental in working as our partner for the first draft of this article, including doing the first round of interviews and working with us to write the first draft. We are grateful to Douglas Elmendorf, Bill Eskridge, Sherry Glied, Ed Grossman, Rick Hills, Anne Joseph O’Connell, Nick Parrillo, George Yin, Kevin Kosar, Douglas Holtz-Eakin, Nina Kohn, Josh Chafetz, participants at the NYU Public Law Workshop, faculty workshops at the University of North Carolina, Seton Hall and Yale law schools, participants at the 2020 Legislation Works-in-Progress Roundtable, and Yale Law School students Josh Feinzig, Sumer Ghazala, Hilary Higgins, Jade Ford, and Natasha Khan. This paper was also presented at the Gray Center 2020 Roundtable on Congress and the Administrative State, and we are appreciative of support and comments received there. Finally, we are deeply grateful to the editors at the University of Pennsylvania Law Review, and to all the current and former staffers who spoke with us confidentially. 1 See generally Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725 (2014) (studying drafting practices of congressional counsels and the assumptions they make about judicial interpretation); Jesse M. Cross, Legislative History in the Modern Congress, 57 Harv. J. Legis. 91 (2020); Jesse M. Cross, The Staffer’s Error Doctrine, 56 Harv. J. Legis. 83 (2019); Jesse M. Cross, When Courts Should Ignore Statutory Text, 26 Geo. Mason L. Rev. 453 (2018); Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways that Courts Can Improve on What They Are Already Trying to Do, 84 U. Chi. L. Rev. 177 (2017) (defending an approach based on congressional process and calling attention to the role of the Law Revision Counsel and Congressional Budget Office in drafting statutes) [hereinafter Gluck, Statutory Interpretation]; Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013); Abbe R. Gluck, Anne Joseph O’Connell, & Rosa Po, Unorthodox Lawmaking, Unorthodox Rulemaking, 115 Colum. L. Rev. 1789 (2015) (detailing recent deviations from traditional legislative and processes and their implications for doctrine and theory); Abbe R. Gluck, The “CBO Canon” and the Debate Over Tax Credits on Federally Operated Health Insurance Exchanges, Balkinization (July 20, 2012), https://balkin.blogspot.com/2012/07/cbo-canon-and-debate-over-tax-credits.html (introducing concept of CBO canon) [hereinafter Gluck, Debate Over Tax Credits]. 1 largely ignored by courts and practicing lawyers, provides the specialized and objective expertise that helps make congressional lawmaking possible. In the process, the bureaucracy furthers Congress’s own internal separation of powers and safeguards the legislative process from executive and interest-group encroachment. These institutions internal to Congress use bureaucracy’s traditional tools--including nonpartisanship and technical expertise--to separate powers both inside of Congress and external to it. But they do more than that: the congressional bureaucracy also performs functions that add important layers to our understanding of the relevant inputs into statutory text. For one thing, its work destabilizes common views of the boundaries of the “legislative process” and what a “statute” actually is. Some expert inputs, like the economic estimates of legislation, are as critical a part of--and sometimes even more important to--the legislative process and Members’ understandings of what bills say as the specific words chosen. Some key aspects of statutes as the public receives them-- such as the ways in which statutes are organized and ordered, and even what words appear-- are changed, or rearranged, by the congressional bureaucracy: that is, changed by nonelected, nonpolitical staff with precisely these delegated functions--even after members vote. Understanding the context in which law is made changes how we understand law itself. In the pages that follow, we theorize what it means for Congress to have this infrastructure--a workforce of nonpartisan, expert, and long-serving institutional actors and entities without which Congress as we know it could not function. We focus primarily on Congress’s nine nonpartisan legislative institutions: • The Congressional Research Service (CRS)--the research arm of Congress that provides in-depth legal and policy analysis of existing and proposed legislation or other issues;2 • The Offices of the House and Senate Legislative Counsel (Legislative Counsel)-- the nonpartisan staff in each Chamber who actually draft the text of most federal legislation; • The Office of the Law Revision Counsel (OLRC)--staff who turn Congress’s various enacted public laws into a U.S. Code re-organized into fifty-three titles--a process that involves rearranging and reordering statutory sections, cleaning up language, moving enacted text into statutory notes, and sometimes even adding new statutory provisions; 2 We focus on CRS within the Library of Congress, because its mission to “serve[] the Congress throughout the legislative process by providing . legislative research and analysis,” makes CRS a consistent presence in the legislative process. About CRS: History and Mission, Library of Congress, http://www.loc.gov/crsinfo/about/history.html (last visited April 19, 2020). However, we note that other parts of the Library of Congress do sometimes provide independent research for Member offices as well. See, e.g., Law Library, Legal Reports, Library of Congress, http://www.loc.gov/law/help/legal-reports.php (providing reports produced by the Law Library) (last visited April 19, 2020). 2 • The Congressional Budget Office (CBO)--economists and analysts who provide influential economic analysis, including estimates of the cost of all significant legislation; • The Joint Committee on Taxation (JCT)--a nonpartisan committee with staff that assists with all aspects of tax legislation, including policy analysis, drafting assistance, and all revenue estimates; • The Offices of the House and Senate Parliamentarians (Parliamentarians)--the arbiters of congressional procedure in each chamber who rule on the appropriateness of amendments, resolve jurisdictional questions among committees, and operate as the keepers of legislative precedents; • The Government Accountability Office (GAO)--Congress’s “watchdog” over the executive branch that conducts audits, performs in-depth policy research, and informs Congress about the implementation of its laws. We selected these nine institutions because they share a generally nonpartisan nature and common roles of information- and expertise-imparting upon Congress in the context of the legislative process. They also share surprisingly common origins in a desire to safeguard Congress’s legislative power from the executive. From 2017 to 2019, we conducted confidential interviews of more than twenty staffers with key roles in each of these institutions to complement more than 30 interviews with nonpartisan staff conducted by one of the authors for an earlier study.3 We also interviewed twenty partisan staff--congressional staffers who work outside of the bureaucracy, for members in personal offices or on committees--to mitigate the risk of interviewee bias and to ensure that our account reflects how the work of Congress’s bureaucracy actually is perceived on the ground, including by those outside of it.4 Why does Congress need this bureaucracy? What roles do the bureaucracy’s offices serve, together and apart? What does the bureaucracy teach us about how Congress works and about the distinctive features of modern lawmaking? There are more than 5,000 congressional bureaucrats in our nine nonpartisan institutions alone. Every drafter in the Offices of Legislative Counsel is an attorney.5 Ninety percent of staffers at the CRS have graduate degrees, as do most 3 Gluck & Bressman, supra note 1, at