By Emmett J. McGroarty, J.D., director of the Subsidiarity and the Constitution program at the Institute for Human Ecology
In a mark of solidarity, seventy-eight percent of Americans disapprove of the job Congress is doing. That’s not a fleeting drop. The number has steadily declined through the years. Nor are such dismal numbers a surprise. Congress does not attend to necessities. It tends to make things worse or, at best, kick the can down the road.
Over the last century, Congress has done a poor job exercising the powers entrusted to it by the American people, and it has done a poor job protecting the constitutional structure. It has transferred power to the administrative state that, under the constitutional design, should remain with Congress. It has empowered the administrative state to pass labyrinth regulations that intimidate both individuals and corporations. It has encouraged the administrative state to subdue the states. And it refuses to address easily solvable problems.
A case in point is the Agency Accountability Act (HR 850; S.1456), a simple four-page bill. If enacted, it would restore Congress’s power of the purse by requiring that “any agency that receives a fee, fine, penalty, or proceeds from a settlement” deposit such amount in the Treasury’s general fund.
At issue is the $500 billion collected by agencies each year in fees, fines, penalties, and proceeds from settlements of legal actions brought against individuals and corporations. Under current law, agencies can do as they see fit with these funds. As Senator Mike Lee stated when introducing the bill:
Congress has given far too much power and authority to the executive branch and it is far past time for us to start taking it back. By forcing government agencies to get approval from Congress before spending government money, the Agency Accountability Act is an essential element of any effort to rein in executive branch overreach.
There are a couple of problems with the current practice.
Under the constitutional design, Congress raises the money and decides how it will be spent. As to raising the money, the Constitution states that “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises” (Art. I, Sec. 8). Although fines, penalties, settlements and the like might fall outside the constitutional verbiage, Congress is still responsible for setting the parameters of the administrative state.
By letting agencies keep the money, Congress incentivizes them to pursue legal action against persons for the purpose of collecting money and thereby compromises their duty to exercise good faith and prudence in deciding who to pursue. Likewise, it further incentivizes them to squeeze as much money as possible from defendants, rather than to make a concerted effort to negotiate a just amount. Such untethered discretion creates ill will and a sense of unfairness among the citizenry.
Finally, such incentives could interfere with the efforts of both Congress and the president to direct the energies of the agencies. This fuels the sense that the citizenry has lost control of the government.
The Agency Accountability Act is a common-sense bill. It would be a small but decisive step in restoring the integrity of the constitutional structure. Is it likely to pass? Probably not. Congress is mired in partisanship. The House version has eighty-four cosponsors, all of whom are Republican. The Senate bill has four cosponsors, all of whom are Republican. As long as Congress fails to pass common-sense fixes, we should expect further decline in its favorability rating.