There’s been interest today in the historical record of Congressional commissions—or more narrowly, the implications of congressional delegation of authority to resolve vexing public problems. The context of course is the Joint Committee authorized in the deficit reduction deal. Today’s recurring question is whether or not the Joint Committee will be able to reach (at least nominal) bipartisan agreement on a deal this fall. Thinking about past episodes in which Congress has kicked the can down the road might be helpful in handicapping the outcome. How successful have these past commissions or committees been? Subject to the caveat that I’ve never compiled a complete list of special committees or commissions (please add to the Comments section if you’ve seen or built such a beast), the general track record of commissions is not very good. Examples of failed commissions abound (Kerry-Danforth Entitlement Reform Commission 1993; Breaux-Thomas Medicare Commission 1997). Examples of unalloyed successes are rare (Base Closing and Realignment Commissions of the 1980s and 1990s). Based on this limited history, it’s worth speculating some more about the factors that will shape the success of the Joint Committee.
Some commissions are formed by executive order; others, by statute. The deck is stacked against commissions formed by executive order since such groups can’t be granted legislative authority (for example, to report and to secure chamber votes). Only Congress and the president can do that by creating commissions through statute. So, for example, the Kerry-Danforth 1993 commission was probably doomed to fail, having been established by executive order. The Joint Committee’s statutory basis gives it a leg up compared to many of the recent, most salient examples.
The devil is in the details. Even when Congress and president set up a commission by statute, decisions about institutional structure and procedural protection affect the likelihood of success. The base closing commissions in the 1980s and 1990s were nearly guaranteed success, since Congress was only allowed to reject the commission’s recommendations (and then only if the president signed their disapproval into law and his veto was not overridden); Congress’s approval was not required. Moreover, the commission’s recommendations typically did not affect a majority of House districts or states, making it difficult for opponents to muster majorities to disapprove the list.* In contrast, the Breaux-Thomas Medicare Commission—established by statute as part of the Balanced Budget deal in 1997—was doomed to fail since Congress required a super-majority vote for the Commission’s recommendations to be taken up by Congress. The Joint Committee’s simple majority requirement to report and the all-but-guaranteed up-or-down floor votes on the committee’s handiwork give the committee an advantage over past commissions—circumventing Democratic and Republican filibusters and the House Republican leadership’s ability to control the floor agenda through its grip on the Rules Committee.
Commission vs. Committees:
Congress on occasion creates temporary committees to deal with tough problems. But the more typical pattern is delegation to a commission with a mixture of unelected and elected officials. The Joint Committee’s legislators-only makeup is unusual, and raises questions about the impact of membership on committee success. Panel members and their fellow partisans of course would have to vote on any committee agreement. Does electoral accountability behoove cooperation or encourage stalemate? The committee of course inherits the same ideological and partisan conflict that led Congress to kick the can down the road in the first place. Much rides on the makeup (particularly the three Republican senators) of the committee.
The exploding can**:
Congress often kicks the can down the road to avoid blame for tough decisions. By adding draconian spending cuts (balanced between defense and domestic accounts) should the committee, Congress, or the president fail to agree to a deal, Congress and the president have rigged the can to explode. This suggests a more credible commitment to making the committee succeed than is usual for past delegations of authority. (Past delegations of course have not been made under the threat of a downgrade of the nation’s credit worthniess.) Still, as many are beginning to speculate (Ezra Klein here, for example), it’s not clear whether one or both of the parties might prefer to watch the can explode than to craft or vote for a committee deal.
In sum, the Joint Committee has several important structural and procedural advantages over past incarnations. But given the partisan, ideological, and temporal contexts in which it must work this fall, prospects for success remain uncertain.
*I experienced this first hand working on the Hill in the late 1980s for Rep. Lee Hamilton, who voted to overturn the first commission’s handiwork—including its provision to convert the Army’s Jefferson Proving Ground in his Indiana district into a nature preserve.
**H/t to Mark Spindel for the analogy.