A recent poll of senior congressional staff suggests what many Americans have long suspected: Lawmakers don’t have enough time and resources to do all of their work well.
The poll, released in August by the nonprofit Congressional Management Foundation, found that most respondents believed “senators and representatives lack the necessary time and resources to understand, consider, and deliberate public policy and legislation.”
In recent months, Congress has proved unable to advance major legislative items like health care and tax reform and has been slow to act on presidential nominations. How much of that is owing to lack of time and resources is debatable.
What is not debatable, however, is that Congress’ lack of time and resources has led to the passage of laws that are poorly crafted and add new crimes to the federal books.
This feeds into the problem of overcriminalization—the trend of using criminal laws to penalize minor mistakes and fix every problem in society.
The late Justice Antonin Scalia discussed this problem in his dissenting opinion in Sykes v. United States (2011):
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. … Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.
Scalia observed two problems in the legislative process that are implicated in the poll: the “volume” of laws and the “details” they contain.
The volume of criminal laws is overwhelming. Congress has added nearly 5,000 federal crimes to the list of around 30 that the Framers of the Constitution and the first Congress established.
Today’s list includes gimcracks like 18 U.S.C. § 711 and § 711(a) that impose up to six months in prison for benign or nonsensical missteps, such as misusing the name “Smokey Bear” and the phrase “Give a Hoot, Don’t Pollute,” respectively.
The details of criminal law can be overwhelming, too. The Supreme Court spoke clearly in Lanzetta v. New Jersey (1939): “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the state commands or forbids.”
Yet Scalia was right—there is no shortage of “leave-the-details-to-be-sorted-out-by-the-courts legislation.”
For example, Congress often omits any mention of the first of two traditional elements of crime: a mens rea (Latin for “guilty mind,” referring to criminal intent) coupled with an actus reus (Latin for a “bad act,” meaning the criminal act itself). Omitting criminal intent in federal law leaves courts without the detail that traditionally distinguished a crime from a civil or administrative offense.
Congress has also churned out “leave-the-details-to-be-sorted-out-by-the-[agencies] legislation,” by granting agency officials broad authority to define crimes. They have returned the favor with flummery like 36 C.F.R. § 2.15(a)(4), which makes it a crime to “[allow] a pet to make noise that is unreasonable … or that frightens wildlife.”
Today, approximately 300,000 (or more) federal regulatory crimes are scattered throughout the Federal Register.
Congress ostensibly oversees how agencies use their delegated legislative authority—but if Congress had full knowledge of the wide scope of federal regulatory offenses, would it really condone the use of federal criminal justice resources to combat things so benign as dogs barking at squirrels, or kumquat handlers chewing gum at work?
As Scalia wrote, and as the Congressional Management Foundation’s recent poll suggests, Congress simply does not have the capacity to enact and review all of those sanctions as well as it might if it only focused on clear federal interests.
The Framers of the Constitution doubtless foresaw this capacity problem when they left Congress a concise to-do list, as well as a to-not-do list, in the Constitution and Bill of Rights.
Consider another of the poll’s findings: “Congress should re-examine its capacity to perform its role in democracy.”
A majority of surveyed staffers said that it is “very important” for Congress to have “adequate capacity … to perform its role in democracy.” But few were very satisfied with Congress’ current capacity, and many “question whether their chamber has the resources it needs to perform its role.”
So, it seems that Congress has a familiar choice ahead of it: Spend more money to increase its capacity, or do less.
As the 75th Attorney General Edwin Meese III has argued, “What we really need are some statesmen who are willing to stand up and say, ‘Let’s not make a federal case out of this.’”
When Congress decides to reclaim its constitutional role to clearly define crimes within its enumerated powers, it will probably incur an immediate and significant drain on its capacity .
But if it addresses these issues—the erosion of mens rea, reigning in regulatory offenses, and following states like Michigan by cutting excess sanctions—it might provide itself and the other branches of government with greater capacity over the long haul.
Maybe then, Congress could better “perform its role in democracy.” By not troubling itself with trivialities like misuse of the phrase “Give a Hoot, Don’t Pollute,” Congress might even find time to tackle bigger national concerns—like health care, taxes, and nominations.
