OPINION

We don't need more laws: Column

Glenn Harlan 

Allison Shelley, Getty Images

The Capitol building.

A recent article in The Hill describedthe now-adjourned 113th Congress as "historically unproductive," observing that "few Congresses have sent less bills to a president in 20 years."

This, I'm afraid, reflects a common journalistic belief that when legislatures are passing legislation, they're producing something valuable. But while it's true that when oil wells produce oil, or gold mines gold or automobile factories cars, those entities are being productive, it's not so clear that every time a legislature passes a law it's producing something of value. In fact, there's good reason to suspect just the opposite.

When Congress passes a law, it is pretty much always either limiting someone's freedom or spending taxpayer money. Sometimes those are good things: The civil rights laws of the 1960s took away the freedom to engage in racial discrimination, and the spending of World War II and the Cold War defeated the evils of Nazism and Communism.

But most congressional action doesn't rise to that level, and much of it — things like pork-barrel projects or bills that protect special interests from competition — is a net loss. Even worse, once legislation is enacted, it becomes very difficult to repeal. That's too bad. Bills that are passed generally limit freedom or spend money; repealing laws generally expands freedom and saves money. 

What's more, the accumulation of laws creates a drag on both prosperity and freedom. Jonathan Rauch calls the problem Demosclerosis, in his excellent book of the same name: Special interest laws build up kind of like arterial plaque, eventually choking off freedom. Economist Mancur Olson calls the same phenomenon "the web of special interests." In his book The Rise and Decline of Nations, he suggests that this web will inevitably lead to economic and political stagnation, and can usually only be broken by some sort of catastrophic event, like a lost war or a revolution. Or we could just repeal some of the laws.

But nobody in Congress sees repealing laws as job No. 1. Well maybe one does, but he's not doing such a great job getting it done. Last year, House Speaker John Boehner said, "We should not be judged on how many new laws we create. We should be judged on how many laws we repeal."

And for that, at least, I have a proposed solution. It's not really my idea, though I fleshed it out a bit in a law review article and a speech at Harvard Law School a while back. If the problem with Congress is that nobody sees repealing laws as job No. 1, why not create a legislative body that can only repeal laws.

The growth of laws and regulation in America has reached the point that pretty much everyone is a felon, whether they know it or not. But nobody in Congress gets much in the way of votes by repealing laws. All the institutional pressures point the other way.

So in a third house of Congress — let's call it the House of Repeal — the only thing that the elected legislators would have the power to do would be to repeal laws, meaning that for them, all the votes, campaign contributions, media exposure and opportunities for hearings would revolve around paring back the federal behemoth. It's an extension of James Madison's principle (or, possibly, Alexander Hamilton's) enunciated in Federalist No. 51 that, since politicians are always ambitious, in a free society "ambition must be made to counteract ambition."

Though the details, as with all constitutional provisions, matter a lot, the key virtue of a House of Repeal goes beyond the details: The point of its existence would be to give someone in the federal government an incentive to give us less law rather than more. Right now, only the federal judiciary is free from incentives to create additional regulation (though not necessarily free from incentives to create additional legal complexity), but federal judges get no reward for striking laws down. There is no institutional incentive to do so. Yet it seems that things are much more likely to get done in our system if some institution benefits from the doing.

It would take a constitutional amendment to create a third house of Congress, but those happen from time to time — usually when the populace thinks that the existing system is letting them down. Looking around at American politics today, the prospects for constitutional change don't look so bad.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.