Under, the banner of congressional control over the bureaucracy, a growing number of representatives and senators are advancing a plan that could make Congress even more fragmented, frenzied and frustrated than it is now.
The device is the legislative veto, which would give Congress power to disapprove and kill the rules and regulations by which executive agencies carry out the laws. The key to the veto's disruptive effects on legislation and the legislative branch is that it would require action by only one house. Thus whenever they disagreed, the Senate and House could just veto each other. The incentives for compromises and accomodations would be greatly reduced.
That was surely a factor in the House's vote to add a one-house veto to the housing authorization bill recently. Rep. Garry Brown (R-Mich.) and others assailed the Department of Housing and Urban Development for issuing regulations that, they insisted, ignored Congress's intent. Many of their complaints involved HUD positions that have been endorsed or encouraged by the Senate Banking Committee, whose views differ from those prevailing in the House.
The two bodies are about to go to conference and try again, to settle their differences. However, if the Senate conferees unexpectedly accept the one-house veto in the House bill, any accord on housing policies could be short-lived. As soon as HUD issued new regulations, either house could veto anything that did not fit its original view. HUD's efforts to appease one side would just invite another veto from across the Capitol.
If a general one-house veto were enacted, very few laws would have real finality. No policy on federal funding of abortions would survive more than a day. Rules on busing, pollution control, oil and gas pricing, foreign aid and other highly charged subjects could ping-pong back and forth forever between the Senate and the House.
Champions of the legislative veto seldom discuss this choas-producing aspect of the scheme. During the housing debate, Rep. Elliott Levitas (D-Ga.) proclaimed, "The question is: Who makes the laws of the United States?" The answer, he said, "is, or at least should be, that it is the elected members of Congress," not the "unelected bureaucracy."
That is just half the answer. The Constitution vests legislative authority in the House and Senate acting together. The veto would let either house unmake the laws alone.
Besides fostering stalemates and driving a wedge through the Constitution's bicameral design, a general one-house veto would undermine both houses' capacities in several ways. Their workloads, already oppressive, would become impossible. As Rep. John Seiberling (D-Ohio) has observed, every law would be "legislated all over again every time a regulation was submitted to us, and all the same lobbyists would descend." Moreover, he predicted, "their attack will be even more furious" because it would be concentrated on a single house.
Subcommittee chairmen and staff would gain even more sway over various agencies. But they would lose an excellent excuse. Controversial regulations could no longer be blamed on obstinate bureaucrats or the unreasonable posture of the other house. Every member could be held publicly accountable for the most minute and technical rules of every agency. Some nervous legislators might try to veto each day's Federal Register - just to protect themselves.
At the same time, the legislative veto could actually cause more lawmaking authority to slide away from Congress to the executive and the courts. Given the perils facing regulations, any president would certainly be tempted to expand the use of executive orders, memoranda and other methods not automatically subject to one-house review.
The courts, meanwhile, would be called on to arbitrate countless wrangles about the status of various laws. If technical rules on pollution control were vetoed, would industrial cleanup deadlines in a law still be in force? Could Medicare benefits be paid if the reimbursement schedules were snarled in a Senate-House dispute? Could an agency enforce a law without issuing regulations at all?
The whole subject is such a bog that one wonders why so many legislators, including a number who are generally sensible, want to get into it. One answer is that they are already bogged down by the complexities and pressures of their daily work. Regulations are a handy target and a popular one these days; wielding a veto sounds like a sharp way to assert more authority over pieces of policy and bits of the bureaucracy.
But Congress already has enough ways to control and check executive agencies through authorizations, money bills and traditional oversight techniques. What it needs, badly, is more legislative care and self-discipline - not new, constitutionally dubious weapons whose first victim could be Congress itself.