What U.S. legislators do when they can’t pass laws

The 118th Congress

Backdoor lawmaking takes advantage of the fact that federal agencies often have a great deal of discretion on how they implement policies, Ritchie said.

Lawmakers use informal channels of communication with leaders of agencies to request that they make specific policy changes, often ones that could not be implemented through the legislative process.

Ritchie investigated this back-channel policymaking in a way that hasn’t been done before. Under the Freedom of Information Act, she obtained records of over 100,000 contacts, including letters, faxes, emails, phone calls and meetings, between members of Congress and 10 cabinet departments during the George W. Bush and Obama administrations.

This included contacts between legislators and the U.S. Departments of Labor, Energy and Homeland Security between 2005 and 2012.

She found that legislators worked with agency officials to influence a variety of policies, including having the gray wolf delisted as an endangered species (a decision that was later overruled by a federal court) and allowing some towns to keep their historic street signs rather than replace them with more visible signage as was mandated by law.

It has always been difficult to pass legislation, Ritchie said. Fewer than 5% of bills become law.

But recent gridlock and an increase in partisanship have enhanced the difficulty and made it tougher especially for new lawmakers to play a role in Congress.

In her research, Ritchie found certain legislators have the most success with backdoor lawmaking, including those with more longevity, those who hold key committee assignments and those in the ruling party.

“I found that agencies prioritize members of Congress who have the most sway and are more responsive to their requests,” she said.

But Ritchie also found that agencies are more responsive to groups of legislators who have policy requests over single legislators.

“If you’re a legislator having trouble pursuing your policy goals, if you can get some colleagues on board, you’re more likely to have an impact with federal agencies,” she said.

Even when Congress does pass laws, it often writes them with vague language. Often that is done to help a bill pass, knowing that some specifics may cause the bill to lose support, Ritchie said.

Vague language delegates much policymaking authority to the federal agencies, meaning that legislators have another opportunity to help shape the final policies by working with agency officials.

While this back-channel policymaking may have negative connotations, Ritchie said it is hard to fault legislators for pursuing this course in many cases.

“Amid polarization and gridlock, back-channel policymaking may be a necessity at times in order for lawmakers to effectively represent their constituencies,” she said.

The key, though, is to include citizens in the process, because members of the public often don’t know that this is how important policies are being decided. One idea would be for members of Congress to have town halls focused on agency policymaking and discuss how their rules and policies could impact citizens.

“Member of Congress could learn how their constituents feel about proposed policies, and maybe even learn about some unintended consequences that they hadn’t considered,” Ritchie said.

“If this work with agencies were done in a way that was more public, that reduces some of the concern over transparency.”

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