Here’s a development that should raise the hackles of LPE scholars across the country: Conservatives are currently trying to institutionalize cost-benefit analysis within the halls of Congress. This proposal, part of the broader movement to “modernize” Congress, would in effect create an analogue to the White House Office of Information and Regulatory Affairs (“OIRA”) in Congress. As LPE scholars have long argued, there are few symbols of the neoliberal legal order more prominent than conventional cost-benefit analysis, and even with recent important updates, many worry that its basic logic still treats regulation as a presumptively unwarranted intrusion into the freedom of the market.
Yet despite these misgivings, LPE nevertheless seems poorly positioned to counter the forces of neoliberalism on Capitol Hill. This is because LPE scholars have insufficiently attended to the realities of legislative power. Indeed, stepping back from this specific issue, it is striking how little LPE has had to say about legislative procedure and politics. In recent years, LPE has generated compelling positions on both (the limits of) the courts and (the promise of) the administrative state. Yet no similar attention has been paid to building a modern approach to legislative procedure and politics.
This leaves the thrust of new constitutional paradigms unsatisfying. If LPE scholars want to reject juristocracy and unmediated presidentialism—and here, they would be following the lead of the likes of Niko Bowie—then they need to offer an alternative. By focusing on how power can be durably built on Capitol Hill, scholars could generate democratic alternatives to our current doom spiral. But that would take a much greater focus on legislative procedure and politics and a conscious effort to generate new conversations. In the remainder of this brief post, we explain why such a focus should be natural fit for LPE scholars and begin the task of charting what it might look like.
Cementing Power through Process
In attempting to cement their normative priors into the legislative process, today’s conservatives are following a well-observed playbook – significantly, one that was initially laid down by Progressives more than a century ago. In the 1910s, progressives descended on Capitol Hill to argue for paradigmatic changes to Congress that would help lawmakers overcome the Lochner courts and pump out “social legislation.” To augment their own power and marginalize conservatives, the Progressives started with an internal revolution that overthrew “Czar” rule under Speaker Joseph Cannon. This move (and others explored by Robert Harrison) allowed the Progressives to pursue a new era of state building.
New archival findings reveal the full depths of that project. A group of Columbia law professors built Congress’s professional drafting bureaus. Under the surface, they built a procedure for answering lawmakers’ constitutional and sub-constitutional questions. They used this procedure to push for outsized views of legislative power that could overcome judges’ obstruction. This same group powered the New Deal, helping to ensure the passage of President Franklin Roosevelt’s most salient legislation.
We do not mean to suggest that LPE scholars should transplant Progressive Era projects onto the present. As one of us has detailed, building a secretive power base for white Progressives during the height of Southern power on Capitol Hill had predictable consequences. To take one notorious example, the Senate drafting bureau produced an odious opinion declaring anti-lynching legislation hopelessly unconstitutional. Because of NAACP archival records, we know that the opinion’s author was simultaneously helping to draft the Dyer Anti-Lynching Bill. All the NAACP’s arguments were ignored in a hastily drawn opinion.
Instead, our point is that regardless of misgivings about the numerous problems with Congress—its “gridlock” and seemingly endless veto points—groups are always trying to freeze their normative priors into legislative procedure and politics.
This mirrors what LPE scholars have called implicit governing paradigms. LPE scholars have used sociologists’ insights to show that bureaucrats are institutionally situated so that their worldview is shaped by the procedures around them. That same instinct can be applied to legislators, who see the world and make sense of it through the institution they inhabit. Whether we’re talking about the Progressives or contemporary conservatives, groups that understand legislative politics work to build institutions, procedures, norms, and ideas that will sustain their priors behind a surface-level neutrality. Without such a focus on legislative power, LPE will be unable to meet the challenges posed by competing intellectual paradigms.
LPE on Congress
What would an LPE take on Congress look like? The potential avenues for research and debate are seemingly endless. But let us outline a few ideas, to offer a sense of what we have in mind.
Maybe the most obvious portion of an LPE take on Congress is the greatest prize of all (outside of axing the filibuster, of course)—namely, the building of some institution on Capitol Hill that could advance Article I power and counteract the influence of presidentialism and juristocracy. For decades, separation-of-powers scholars have called for a counterweight to the Department of Justice’s (“DOJ”) Office of Legal Counsel. But the left was never able to mobilize behind these calls as it continued decades-long affairs with the ideal of the Warren Court and the siren song of presidential administration. The government just produced a new report on the possibility of building a new congressional counterweight to the DOJ, and one of us is actively building out a research agenda on the same question. Many LPE scholars’ familiarity with administration and bureaucratic politics makes them ideal interlocutors for this project.
The “congressional bureaucracy” offers another focal axis rich for exploration. Over the last century, the actual work of legislating has shifted away from lawmakers themselves onto an increasingly well-established committee system and the so-called “congressional bureaucracy.” The staffers that populate the committee system are partisans, while the staff that run the congressional bureaucracy are nonpartisan bureaucrats. They work at institutions like the Congressional Budget Office (“CBO”), the Government Accountability Office (“GAO”), the Joint Committee on Taxation (“JCT”), and the Offices of Legislative Counsel.
All these institutions are levers of power on Capitol Hill—and they will be the sites of both offense and defense in the years ahead. Are you worried that the death of Chevron deference might squeeze state capacity and imperil American democracy? Well, then you might support Josh Chafetz’s suggestion that the Offices of Legislative Counsel should be instructed to presumptively draft around Loper Bright. Maybe you are worried about the most prominent feature of neoliberalism’s legislative agenda—seemingly endless tax cuts for the wealthy. Well, then you should probably oppose conservatives’ attempt to redesign CBO scoring of tax breaks. But maybe, as Mehrsa Baradaran briefly suggested in her new book, we should view the CBO as part-and-parcel to a neoliberal takeover of Congress. The longer you stare at Congress’s power centers, the more opportunities and questions arise.
And when thinking about legislative power, cautionary tales loom large. In 1974, Congress established an Office of Technology Assessment (“OTA”). This was Congress’s big answer to the accumulation of technological expertise in the executive branch. While OTA did important work in providing authoritative scientific expertise to lawmakers, it ran into the Gingrich Revolution of the 1990s. Angry that OTA poured cold water on Ronald Reagan’s “Star Wars” program, the Republicans abolished the agency in 1995. This is a useful lesson. Expertise-based authority on Capitol Hill, if properly designed, operates as a safeguard of democracy. Republicans killed OTA as part of the right’s war on expertise-based authority.
A huge portion of an LPE agenda for Congress would be imagining how to bolster existing institutions and build new ones that would advance a progressive agenda. After the death of OTA, several components of the congressional bureaucracy adopted a hyper neutrality to avoid the GOP’s wrath. The Congressional Research Service (“CRS”), once Congress’s venerable think tank, has been in decline for 20 years. They increasingly refuse to provide answer to lawmakers’ questions, often adopting a “both sides” framing to important questions. Staffers who built their careers defending Article I were purged. Rebuilding institutions like CRS would help recenter Congress in our constitutional system.
Whatever policy agenda LPE scholars hold dear, from health care to climate, from labor rights to antitrust, it is hard to imagine their success on Capitol Hill without congressional capacity, which has consistently run into conservative opposition. A successful project to reify American democracy will have to involve Capitol Hill. To meet many challenges, Congress will need the technical and non-technical expertise that used to be available from the OTA and the CRS. Bolstering Congress will make any systematic deconstruction of the legacies of neoliberalism more possible.
Defeating Declinism
These are, of course, merely meant as illustrative examples of the kinds of topics that LPE scholars might pursue in focusing their attention on Congress. Our larger point is simply that, given the importance of Congress to any progressive overhaul of our nation’s political economy, we can no longer afford to ignore it.
If we haven’t convinced you yet, here’s the final benefit of such an agenda: It might help the LPE community avoid the same kinds of “declinism” that have been prominent in the legal academy for generations. The last group of legal scholars who made legislative power their fixation was the group of inter-war Progressives who helped found the legislation field. They were displaced by a subsequent generation who lived through the Second World War and felt a statist optimism for the American project. This later generation populated the Legal Process School, became disproportionately preoccupied with administration, and mostly left the systematic focus on Congress to the past.
For generations, law schools mostly practiced benign neglect for legislatures as they celebrated jurists. Legislatures were recast as cocktails of retrenchment, party politics, and endless veto gates. This has only helped generate a distaste for the realities of politics among lawyers and jurists.
By challenging this status quo disgust for Congress, LPE scholars can offer alternatives that embody collective self-rule in a time of overwhelming and overlapping crises. As one of us has discussed in our scholarship, conservatives have been all too willing to undermine faith in our democratic institutions. Justice Neil Gorsuch and Judge Neomi Rao use congressional declinism to pitch juristocracy. Project 2025 is predicated on counteracting Congress precisely because a functioning legislature (not courts) is the best check on would-be authoritarians. Adopting a progressive strategy for an institutionalized legislative power is one way of building an effective agenda for our democracy.
