Non-Representative ‘Super Congress’, Here We Come!

I missed this yesterday. From Huffington Post:

WASHINGTON — Debt ceiling negotiators think they’ve hit on a solution to address the debt ceiling impasse and the public’s unwillingness to let go of benefits such as Medicare and Social Security that have been earned over a lifetime of work: Create a new Congress.

This “Super Congress,” composed of members of both chambers and both parties, isn’t mentioned anywhere in the Constitution, but would be granted extraordinary new powers. Under a plan put forth by Senate Minority Leader Mitch McConnell (R-Ky.) and his counterpart Majority Leader Harry Reid (D-Nev.), legislation to lift the debt ceiling would be accompanied by the creation of a 12-member panel made up of 12 lawmakers — six from each chamber and six from each party.

Legislation approved by the Super Congress — which some on Capitol Hill are calling the “super committee” — would then be fast-tracked through both chambers, where it couldn’t be amended by simple, regular lawmakers, who’d have the ability only to cast an up or down vote. With the weight of both leaderships behind it, a product originated by the Super Congress would have a strong chance of moving through the little Congress and quickly becoming law. A Super Congress would be less accountable than the system that exists today, and would find it easier to strip the public of popular benefits. Negotiators are currently considering cutting the mortgage deduction and tax credits for retirement savings, for instance, extremely popular policies that would be difficult to slice up using the traditional legislative process.

I do not believe such a plan complies with the Constitution as it stands: a constitutional amendment, not legislation, is in my opinion the only way such a legislative body, effectively another layer interposed between the citizenry and the actual legislative process, could be legitimately created. And the weight of constitutional tradition is against it. There are two things to note:

  • It would not be a representative body, because only the constituencies of The Twelve would have voted them into office, though they would effectively legislate for the entire nation as Congress does now.
  • It would reduce the power of all other elected members of Congress from those specified in the Constitution and in the rules of the two houses: The Twelve could… and would… introduce legislation which could not be amended, only voted up-or-down. Nowhere in the Constitution do I recall a provision that grants some legislators that power to the exclusion of other legislators. “All animals are equal, but some are more equal than others.”

This is a dangerous path if followed to its logical conclusion. And I did not sign up to be ruled by twelve non-representatives. If this happens, it changes everything about our relationship to our government, and we all have some serious rethinking to do.

(H/T Jane Hamsher.)

AFTERTHOUGHT: Here is the question you must ask yourself: how much of the constitutionally stipulated power of a house of Congress may that house cede to any other body, branch or individual within government? To accept the notion of a “Super Congress,” you must answer “almost all of it, at least on a specific question.” I admit I am very uncomfortable with that answer. We already seem to have great amounts of formerly legislative power ceded to an encroaching executive branch; now we are proposing “miniaturizing” the legislative branch to a dozen people. Add the unitary-executive President, and then we effectively have rule by The Thirteen. Good number, huh?

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  • upyernoz  On Sunday July 24, 2011 at 7:58 pm

    i think it’s pretty clear that congress does the power to delegate a lot of its authority. the clean air act, for example, delegates to the EPA the role of identifying pollutants that are regulated, or even banned entirely, based upon its review of the scientific literature. this is to avoid having to have congress pass a new bill, amending the clean air act, each time a new pollutant is identified to add it to the list of regulated substances. if congress can delegate that quasi-legislative power to the unelected bureaucrats at the EPA, i don’t see why it wouldn’t be able to delegate it’s spending powers to a special super-congress you describe in your post.

    the one check against it, which is actually a pretty major check, is that members of congress tend to jealously guard their own power. so while the plan may meet minimal constitutional standards, the members of congress who aren’t tapped to be in the special group of 12 are probably going to be reluctant to give up their ability to draft legislation and submit amendments concerning spending decisions.

    • Steve  On Sunday July 24, 2011 at 9:23 pm

      ‘noz, I understand that Congress both can and must delegate the implementations of its laws to the executive branch; that’s at least one basic function of the executive branch. But what Congress would be delegating here is, literally, legislating. It may be in the clear because it would be delegating it to a subset of its own membership, but unless all American citizens get to vote on the twelve members, this act would effectively remove representation from almost every single citizen in every congressional district in America… except for residents of six states (or fewer) and six congressional districts. That strikes me as a major structural change in the way our government works. If it doesn’t require a constitutional amendment, it damned well ought to.

      Indeed members do guard their own power and advantage jealously. I am reminded of the support for the (later abandoned) Superconducting Supercollider (SCSC) a few years ago: it was joked (sort of) that before a location was chosen for the collider itself, support for the SCSC in the Senate was 100 members, and after a location was chosen, Senate support dropped to 2 members. No surprise there. In this case, I suspect a lot of now-powerful senators and representatives would not appreciate it if they were not among The Twelve!

  • upyernoz  On Monday July 25, 2011 at 11:12 am

    but delegating the power to make regulations is a lot like legislating. take my example from the above comment. if the u.s. wanted to outlaw a substance because it is dangerous, the normal way of doing that is to pass a law in congress banning the substance. but under the clean air act, the executive branch has been delegated the ability to ban substances if it concludes that a substance is so dangerous it cannot be regulated safely. the EPA regulation has the same effect as if congress passed a law. which is why that kind of delegation was the subject of furious legal challenges early in the development of a regulatory state. the ability to delegate won those cases, which is why we have an EPA, FDA, etc.

    just to be clear: i’m not advocating that there should be a 12 member super-congress. i completely agree with your critique of it in this post. i just think it is at least arguably constitutional. and, to be honest, the current supreme court is unlikely to strike down a super-congress.

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