Reducing nomination battles by restoring Congress

One way to decrease the importance of nomination fights is to reduce the power of agencies by shifting the locus of legislative decision-making back where it belongs — in Congress. Article I, Section 1 of the Constitution — the document’s very first substantive provision — establishes that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Today, most policy decisions are made not on Capitol Hill, but in agency bureaucracies that sidestep the carefully controlled checks and balances that the founders placed on legislative power. The legislative process makes more room for bipartisan compromise, creating a broader consensus in favor of more gradual legal change that has buy-in from a broader swath of the political spectrum. This is the story of the 1996 Telecommunications Act, Congress’s last significant foray into the telecom space. It was the result of a multi-year conversation among stakeholders across the political spectrum that helped set the stage for increased competition, and passed by a vote of 414–16. This is also how most experts agree the net neutrality debate should be resolved — and how it very nearly was resolved in late 2014 when Republicans offered to join Democrats on a compromise bill that would have established binding net neutrality requirements in exchange for clarifying that broadband networks are not Title II common carriers. But Democrats balked, preferring to use the FCC to adopt a more aggressive net neutrality regime that was repealed a few years later when Republicans came into power.