WASHINGTON — Thanks to a conservative Supreme Court, Congress may do something it hasn’t done in living memory: dramatically increase the size of the legislative branch.
A handful of recent decisions — most notably Loper Bright Enterprises v. Raimondo, which ended the Chevron doctrine of judges deferring to federal agencies’ interpretations of ambiguous statutes — have set the stage for a tsunami of litigation challenging regulations and administrative rulings in the coming years.
That has Congress — plus industry insiders, consumer advocates, environmental groups, unions and a host of other special interests — now considering how to respond. Some liberals want to see Congress resurrect Chevron deference legislatively, as a bill introduced last week by Massachusetts Sen. Elizabeth Warren would do. Republicans are consideringbills that would build on the court’s deregulatory momentum.
But there is one potential response that seems to unite the right and the left: Congress needs more expertise and capacity, and that means more staff.
“There is a growing bipartisan consensus for building capacity in a way that hasn’t existed in a long time,” said J.D. Rackey, a senior analyst at the Bipartisan Policy Center.
That consensus was already growing before the Loper Bright decision thanks to the work of the Select Committee on the Modernization of Congress, which issued a series of recommendations for improving the legislative branch. That work, now taken up by a House Administration subcommittee, has led to increased staff pay. Actually adding staff seems like the logical next step. “It’s more likely now than it ever has been,” said Rackey. “So I’m optimistic, in that sense, for long-term capacity growth.”
At a House Administration hearing last week exploring how Congress could react to the end of Chevron deference, a panel of conservative and liberal experts all advocated more staff.
Overall, staff levels in Congress haven’t changed much in the past half-century. According to the Congressional Research Service, there were an estimated 8,831 House staffers in 1977 and 9,247 in 2023, although a large part of that growth came from a roughly 300 percent increase in the number of leadership staffers. The number of committee staff, who are generally considered to be the subject matter experts of Congress, fell by more than a third, from upward of 2,000 in 1978 to just 1,170 in 2023.
Similarly, even though staff levels in the Senate have risen, committee staff showed the smallest increase, growing just 10% over the period between 1977 and 2022, from 1,084 to 1,194.
While adding lawmaking capacity has long been a no-brainer on the left, small-government conservatives have come around to the idea that the way to shrink the overall size of government is to make the legislative branch a little bigger first. “We were designed to be slow and methodical, not responsive, right?” said Rep. Barry Loudermilk, a conservative Georgia Republican. “So, the fallback was let’s just empower the agencies, but that hasn’t worked out so well, as we’ve seen.”
During the hearing last week, Loudermilk recalled asking the late Supreme Court justice Antonin Scalia how Congress could rein in both the executive branch and the judicial branch. “Do your job,” he said, meaning Congress needed to write more specific legislation and spend more time on oversight. “We’ve got to have the ability to do that,” Loudermilk told Roll Call.
Loudermilk said it’s time to make the case to the American people that Congress needs to hire some more help.
“It is worth us making the case that it’s an investment to the American people, because the more that we can be decisive here, the less bureaucracy we have out there,” he said. “And the cost of bureaucracy is a whole lot more expensive than the cost of Congress.”
Loudermilk acknowledged that can be a hard sell, especially to voters struggling to get by who earn way less than aides in Washington, but he noted how the high cost of living in D.C. is driving experienced staff away. “The concern here is that we’re going to lose a lot of good people that just can’t afford to be here anymore,” he said.
Even if Congress agrees on adding capacity, the question becomes where and how to do so. There are proposals for beefing up nonpartisan expertise at the Congressional Research Service or the Government Accountability Office, or creating a new office focused on regulatory matters. Marci Harris, executive director at the POPVOX Foundation, likes those ideas, but “it makes more sense to beef up committee expertise,” she said. “You have the folks there who are in the weeds as much as Congress needs, and as much as the agencies are.”
The only thing really standing in the way of expanding Congress is inertia and electoral politics. There’s no real built-in constituency opposed to more staff or better pay, but voters rarely judge members of Congress on their stewardship of the legislative branch. Instead, it’s issues such as inflation, immigration and health care that the electorate cares about, and so those are the issues politicians focus on.
And members in tight reelection campaigns are often loath to do anything that smacks of rewarding themselves. Even though plenty of them probably want one, lawmakers in Congress haven’t given themselves a pay raise in 15 years because a very vocal, and bipartisan, minority of members in swing districts fight it.
In the short term, Rackey said uncertainty in how the new Supreme Court precedents will play out in the lower courts will keep Congress from moving quickly to ramp up staff capacity. “I don’t think Congress will make an immediate response until there’s frankly more litigation and the picture becomes clearer on what the judicial branch is expecting from Congress,” he said.
In the meantime, Congress can expect an even worse brain drain, Harris said. “It’s going to be an interesting time, even for hiring people with legal reg expertise, because the private sector is going to be hiring these people. They are going to be in very high demand and commanding high pay packages,” she said.
