AuthorCross, Jesse M.

INTRODUCTION 1543 I. THE BUREAUCRACY'S INSTITUTIONS: COMMON ORIGINS IN SEPARATION OF POWERS AND PRESENT-DAY OPERATIONS 1555 A. Congressional Research Service 1560 B. Offices of the Legislative Counsel 1563 C. Office of the Law Revision Counsel 1567 D. Congressional Budget Office (CBO) 1573 E. Joint Committee on Taxation (JCT) 1578 F. Offices of the Parliamentarians 1583 G. Government Accountability Office (GAO) 1587 H. MedPAC and MACPAC 1594 II. THE BUREAUCRACY'S FEATURES AND FUNCTIONS 1600 A. The Standard Account 1600 B. How the Congressional Bureaucracy Intervenes in This Account 1. Internal Separation of Powers 1608 C. Different Types and Structures of Congressional Bureaucratic Expertise 1612 1. Nonpartisanship 1613 2. Specialization and Long Tenure 1616 3. Nonpartisan Is Not Necessarily Position-Neutral or Non Substantive 1621 4. Policy Versus Procedure 1624 5. Confidential Versus Transparent: "The Atmosphere Has Changed" 1625 6. Authoritative Versus Permissive 1628 7. Trust with Low Salience Tasks: Why OLRC? "No Members Know We're Here" 1630 8. Timing 1632 III. LEGISLATION AND STATUTORY INTERPRETATION THEORY 1633 A. What the Congressional Bureaucracy Tells Us About Congress's Rationality and Changes in Modern Lawmaking 1638 B. Unorthodox Lawmaking Is the New Orthodox Lawmaking: Implications for Understanding Statutes 1640 1. Congress Is Still Informed in Key Ways 1640 2. New Timing and "Preconference"--and Their Challenges for Textualists 1643 3. More Mistakes and Gaps 1645 4. Highly Specific, Negotiated, Language Used to Clear Procedural Hurdles 1646 5. Less Legislative History 1647 6. More Visibility and Politicization 1648 C. What Does the Supreme Court Think About Unorthodox Lawmaking? 1648 IV. DOCTRINAL IMPLICATIONS AND STATUTORY "DECONSTRUCTION" 1651 A. Deconstructing the Concept of "a Statute" 1653 B. What You Think Is the "Statute" Is Not; OLRC As a Deeper Example 1656 1. When You Open the U.S Code You Only See About Half of Enacted Statutory Law 1656 2. Text Is Added, Edited, and Rearranged After Enactment 1664 3. Yates v. United States--A Legislation Chestnut Misunderstood 1668 4. Positive v. Nonpositive Law 1670 C. New Canons, Canons, Canons 1674 1. The CBO Canon--And Now, the JCT Canon, OLRC Canon, Parliamentarian's Canon 1676 D. Anti-Canons 1679 1. Drop Canons on Code Organization 1679 2. Drop Grammar Canons 1680 3. Drop Anti-Purpose Canons and Recognize Congress's Own Instructions to Construe Purposively 1681 4. Drop the Whole-Code Canons 1682 CONCLUSION 1682 INTRODUCTION

Congress has a bureaucracy.

Legal scholarship, judicial discourse, and doctrine about Congress and statutes have focused almost entirely on elected members of Congress and the ascertainability of their purported intentions about policymaking and statutory language. In recent years, we and others have broadened that perspective, with new scholarship about the on-the-ground realities of the congressional drafting process--including the essential role that staff plays in that process--and have argued the relevance of those realities for theory and doctrine. (1)

Here we go deeper. This Article goes beyond our previous accounts of partisan committee staff, congressional counsels, and other select staff offices to introduce the broader concept of what we call the congressional bureaucracy. The congressional bureaucracy is the collection of approximately a dozen nonpartisan offices that, while typically unseen by the public and largely ignored by courts and practicing lawyers, provides the specialized expertise that helps make congressional lawmaking possible. In the process, the bureaucracy furthers Congress's own internal separation of powers and safeguards the legislative process from executive and interest-group encroachment.

These institutions internal to Congress use bureaucracy's traditional tools--including nonpartisanship and technical expertise--to separate powers both inside of Congress and external to it. But they do more than that: the congressional bureaucracy also performs functions that add important layers to our understanding of the relevant inputs into statutory text. For one thing, its work destabilizes common views of the boundaries of the "legislative process" and what a "statute" actually is. Some expert inputs, like the economic estimates of legislation, are as critical a part of--and sometimes even more important to--the legislative process and members' understandings of what bills say as the specific words chosen. Some key aspects of statutes as the public receives them--such as the ways in which statutes are organized and ordered, and even what words appear--are changed, or rearranged, by the congressional bureaucracy: that is, changed by nonelected, nonpolitical staff with precisely these delegated functions--even after members vote. Understanding the context in which law is made changes how we understand law itself.

In the pages that follow, we theorize what it means for Congress to have this infrastructure--a workforce of nonpartisan, expert, and long-serving institutional actors and entities without which Congress as we know it could not function.

We focus primarily on Congress's nine nonpartisan legislative institutions:

* The Congressional Research Service (CRS)--the research arm of Congress that provides in-depth legal and policy analysis of existing and proposed legislation or other issues; (2)

* The Offices of the House and Senate Legislative Counsel (Legislative Counsel)--the nonpartisan staff in each chamber who actually draft the text of most federal legislation;

* The Office of the Law Revision Counsel (OLRC)--staff who turn Congress's various enacted public laws into a U.S. Code re-organized into fifty-three titles--a process that involves rearranging and reordering statutory sections, cleaning up language, moving enacted text into statutory notes, and sometimes even adding new statutory provisions;

* The Congressional Budget Office (CBO)--economists and analysts who provide influential economic analysis, including estimates of the cost of all significant legislation;

* The Joint Committee on Taxation (JCT)-a nonpartisan committee with staff that assists with all aspects of tax legislation, including policy analysis, drafting assistance, and all revenue estimates;

* The Offices of the House and Senate Parliamentarians (Parliamentarians)--the arbiters of congressional procedure in each chamber who rule on the appropriateness of amendments, resolve jurisdictional questions among committees, and operate as the keepers of legislative precedents;

* The Government Accountability Office (GAO)--Congress's "watchdog" over the executive branch that conducts audits, performs in-depth policy research, and informs Congress about the implementation of its laws.

We selected these nine institutions because they share a generally nonpartisan nature and common roles of information- and expertise-imparting upon Congress in the context of the legislative process. They also share surprisingly common origins in a desire to safeguard Congress's legislative power from the executive. From 2017 to 2019, we conducted confidential interviews of more than twenty staffers with key roles in each of these institutions to complement more than 30 interviews with nonpartisan staff conducted by one of the authors for an earlier study (3) We also interviewed twenty partisan staff--congressional staffers who work outside of the bureaucracy, for members in personal offices or on committees--to mitigate the risk of interviewee bias and to ensure that our account reflects how the work of Congress's bureaucracy actually is perceived on the ground, including by those outside of it. (4)

Why does Congress need this bureaucracy? What roles do the bureaucracy's offices serve, together and apart? What does the bureaucracy teach us about how Congress works and about the distinctive features of modern lawmaking? There are more than 5,000 congressional bureaucrats in our nine nonpartisan institutions alone. Every drafter in the Offices of Legislative Counsel is an attorney. (5) Ninety percent of staffers at CRS have graduate degrees, as do most in JCT. (6) Some offices, like JCT, interact with members; some, like OLRC, do not. Some communicate confidentially, like Legislative Counsel; others are almost entirely transparent, like GAO. Some give procedural advice that while neutral effectuates significant decisions, like the Parliamentarians; others offer policy conclusions using defined methodologies, like JCT. Some work in the field of policy, like CBO; others do not, like OLRC. Some have come under political fire for a long time, like CBO; others have come under occasional political scrutiny more recently, like the Senate Parliamentarian and CRS; still others remain out of the fray, and largely unknown, like Legislative Counsel and OLRC.

Our findings allow us to intervene in a variety of heretofore unconnected debates. First, the congressional bureaucracy is a tool of separation of powers. Classic bureaucracy literature focuses on the tradeoff of control for expertise--the standard account is that Congress loses power when it delegates to the executive branch. In contrast, the congressional bureaucracy, as we will illustrate, was explicitly founded for the opposite reason: so that Congress could reclaim and safeguard its own powers against an executive branch that was itself using knowledge and expertise to encroach on the legislative process and congressional autonomy. For Congress, knowledge was power.

Second, the congressional bureaucracy contributes to the already robust conversation about why institutions delegate and what bureaucracy typically looks like. Congress's bureaucracy shares features with some traditional agencies, including a nonpartisan staff committed to the long-term mission of the agency over any particular politics or policy. But unlike many other agencies, Congress's bureaucracy remains under...

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