A Republic of Spending

Authors

Jonathan S. Gould, UC BerkeleyFollow

Abstract

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes and consequences of that change. For Congress itself, spending has several advantages over regulatory lawmaking: spending measures can circumvent the Senate filibuster, changes in both political parties have tilted the political playing field toward spending, public choice dynamics often make spending more attractive to Congress than regulating, and spending is much less vulnerable than regulation to constitutional judicial review. But from the standpoint of the public interest, there is reason for concern about spending eclipsing regulatory legislation. Spending alone does not allow Congress to address all policy problems, and many pressing national issues cannot be remedied through spending. Spending also does not always allow Congress to deploy the most effective solutions to those problems that it does address. Moreover, normative arguments in favor of spending over regulation, such as arguments based on liberty or democracy, are weaker than they appear at first glance.

This account holds several lessons for a public law literature that has too often marginalized Congress. The spending domain provides a case study of Congress acting as a central national policymaker with the judiciary playing only a marginal role; it thus illustrates a road not traveled for our otherwise court-centered constitutional system. More practically, in the face of obstacles to regulatory legislation, spending can provide Congress with a meaningful (if indirect) way of advancing regulatory goals. Institutions and doctrines change over time, however, and greater congressional reliance on spending could lead to future efforts—most notably in the courts—to narrow Congress’s spending power.

Recommended Citation

Jonathan S. Gould, A Republic of Spending, 123 Mich. L. Rev. 209 (2024).
Available at: https://repository.law.umich.edu/mlr/vol123/iss2/3