FISHER LOOKS AT INSTITUTIONS AS INSTITUTIONS, NOT AS A SUM OF SMALLER UNITS OF ANALYSIS.

A foundational assumption by modern Congress scholars is that the branch should be studied as a “they,” not an “it” (Shepsle Reference Shepsle1992). In this view, budgets and fiscal policy can and should be viewed through a variety of legislative power and process perspectives: members, committees, parties, and the different rules and customs that govern the two chamber floors. As a separation of powers scholar, however, Fisher observes and analyzes Congress as an institution because it acts as an institution and speaks about itself as institution when laws are designed explicitly to gain, shed, or recalibrate its constitutional powers. The 1921 Budget and Accounting Act, 1974 Congressional Budget and Impoundment Control Act, and the deficit-driven delegation of power movement in the 1980s and 1990s all tell institutional stories separate from the more microlevel motivations that blocked or passed each act's details. Furthermore, looking at Congress holistically can help us compare institutional development related to budget power to other areas over the same period, such as war and foreign policy (Fisher Reference Fisher2000).

At the same time, Fisher could more explicitly acknowledge that members are the base unit of Congress and their electoral goals frame just about all other actions. In a time of fiscal constraint, members may seek to shift blame for outcomes that adversely affect their districts to other institutions or automatic mechanisms (Weaver Reference Weaver1986). As budget processes are a crucial staging ground for political, institutional, and economic upheaval, members have many strategic reasons to shape and support “reform” movements (Stewart Reference Stewart1989). Members are also aware that every committee and floor vote can be used as part of their next campaign, or mined by their opponents, and they make strategic decisions accordingly (Arnold Reference Arnold1990). But members are not robots; they have unique connections to their district and a variety of lawmaking and representation styles. Voters sometimes even elect (and re-elect) deficit hawks that eschew pork on principle (Sellers Reference Sellers1997).

Fisher sometimes shows interest in individual member-driven budget behavior, but does so largely to celebrate the rare Senator or House member who personifies a Madisonian connection between representative power and institutional protectiveness. For example, Fisher dedicates his book Defending Congress and the Constitution (Reference Fisher2011) to the late Senator Robert Byrd (D-WV), who often voted against deficit-driven reforms in the 1980s and 1990s that were explicitly designed to weaken congressional power, such as the item veto and balanced budget amendment. Senator Byrd was also legendary for using powerful institutional positions, such as chair of the Appropriations Committee and majority party leader, to help secure vast federal funds for West Virginia.

There is a lesson in Fisher's spotlight on Senator Byrd for member-centered congressional scholars. David Mayhew, the intellectual father of congressional election theory, long ago explained the corrosive relationship between short-sighted member actions and long-term institutional power. “If members hope to spend careers in Congress, they have a stake in maintaining its prestige as an institution. They also have a stake in maintaining congressional control over resources that are useful in electoral quests. But if every member pursues only his own electoral goals, the prestige and power of Congress will drain away” (Mayhew Reference Mayhew1974, 145). In budgeting, as in base closures, trade, and other national policies with profoundly local consequences, members who give up power in the beginning of the legislative process may appear to regret the negative policy effects of these losses in their districts (Farrier Reference Farrier2010).

FISHER USES NORMATIVE CONSTITUTIONAL LANGUAGE AS A THEORETICAL FOUNDATION.

Mayhew's connection of individual actions to institutional decline implies that the latter is an unintended byproduct of other incentives and developments rather than an explicit goal, and other scholars agree (see Schickler Reference Schickler2001). Fisher, by contrast, does not see Congress's decline as an incidental story to its development, nor to constitutional balance. His research shows that Congress is institutionally self-conscious when it reforms budget processes. Congress suffers from inflated optimism about various delegation and process-based “cures.” When Congress gives up budgetary power, it not only undermines inter-branch balance, but the results of the reform often show the opposite of its stated intention. After the original “sequester”-based reform movement in the mid-1980s, Gramm-Rudman-Hollings, the deficit actually increased (Farrier Reference Farrier, Bessette and Tulis2009; Fisher Reference Fisher2000).

For all these reasons, Fisher is unabashedly normative in his work, most often on policy grounds. He sees power imbalance as a key cause of poor outcomes, from budget deficits to poorly planned wars. Others who study power shifts and institutional development emphasize a different kind of normative separation of powers theory that hinges on the branches' maintaining diverse structural “virtues” articulated by the Constitution's framers. In this view, the branches can evolve to meet modern exigencies as long as the separation of powers system maintains a commitment to deliberation in the Congress, energy in the executive, and sensitivity to the rights of minorities in federal courts. Congressional habits of deference, delegation, and abdication merit skepticism not only for throwing the system off balance generally, or generating poor policy specifically, but for the attack on these crucial institutional specialities (Tulis Reference Tulis1987).

Other scholars see delegation as harmless, or even positive. For example, Kiewiet and McCubbins (Reference Kiewiet and McCubbins1991) argue that a “principal-agent” relationship between those who grant and receive power can keep delegation from spinning out of control, while advancing the principals' goals any way they see fit. In this view it is equally rational and institutionally responsible to delegate internally to congressional committees or externally to the executive branch. Epstein and O'Halloran (Reference Epstein and O'Halloran1999) argue that Congress's collective action problems are so severe in some policy areas that delegation of power is the strategic equivalent of any firm's decision to “make or buy.”

While Louis Fisher does not engage directly with such rational choice perspectives on the budget or delegation of power, he would recognize three problems with their assumptions. First, it is odd (at a minimum) for Congress members or majorities to delegate new kinds of budget discretion to a president of another party that holds different fiscal values, or to an entity that is purposely designed to be out of the reach of the “principals” (Farrier Reference Farrier2004; Oppenheimer Reference Oppenheimer, Dodd and Oppenheimer1997). Second, congressional delegation of power needs to be carefully calibrated to meet the problem, as hasty and ill-designed reforms can have the opposite political and economic effect as intended (Gilmour Reference Gilmour1990; LeLoup, Graham, and Barwick Reference LeLoup, Graham and Barwick1987; Thurber and Durst Reference Thurber, Durst, Dodd and Oppenheimer1993). Third, agnosticism on institutional power loss is actually a normative argument by another name. Fisher would agree with the following defense of explicit normative argument in scholarship.

FISHER IS FLUENT IN ALL THREE BRANCHES OF THE NATIONAL GOVERNMENT.

Lou Fisher stands out for his expertise in the complete separation of powers system, which partly explains his normative empiricism. In a variety of policy areas, ranging from national security to budgets, Fisher explains how institutional developments in one branch affect political dynamics and constitutional interpretation in another. This cross-branch view of US government breaks through the frequent silo approach of political research, which is especially important in understanding budget processes from legislative and executive perspectives (see also Cullather Reference Cullather1995; Palazzolo Reference Palazzolo1999).Footnote ³

A consistent Fisher theme is that the executive branch has a unique capacity for national fiscal leadership. Actual presidential responsibility in this area, however, evolved from a voluntary position to a legal one, and more recently slid into something else entirely. Before the 1921 Budget and Accounting Act (BAA), Congress controlled a haphazard committee-and agency-centered process that could still handle the small overall federal budget totals. Presidents could choose to be more or less involved in the process, and some presidents made a point of zealously vetoing what they perceived as congressional waste (Fisher Reference Fisher1975). The 1921 BAA was a watershed event that gave presidents an annual duty to propose a holistic, responsible national budget based on informed agency aggregates. The president's budget would start the process, but the end result depended on congressional assertion of power based on its own committee information and party and member priorities. Beginning with Ronald Reagan, however, presidents have rarely met the letter and spirit of the law. Now presidents often submit unserious budget plans and Congress replies in kind; presidents who take political risks in their proposed fiscal policies also tend to suffer at the polls (Farrier Reference Farrier2011).

Fisher argues that Congress inadvertently undercut the executive's crucial role by enacting the landmark 1974 Congressional Budget and Impoundment Control Act. While Congress gave itself vital institutional resources, such as the Congressional Budget Office (CBO), the president's spotlight became diffused. Fisher argues that the CBO is a vital resource for objective budgetary numbers (see Joyce Reference Joyce2011), but the creation of the Budget Committees took the burden of the 1921 BAA off the president's shoulders. Whereas the 1921 Act built on the executive branch's institutional strengths of information and hierarchy, its 1974 sibling tried to graft a similar holistic responsibility on the institution that was least structured to perform the duty.

In addition to his work on presidential-congressional relations and dynamics, Louis Fisher seeks to understand these same issues within constitutional law. Fisher presents two themes in this area of his research on the budget process. First, Fisher has long exposed the Supreme Court's anomalous jurisprudence in this area, especially in the 1980s and 1990s. As an early and vociferous critic of the Court's misplaced formalism in INS v. Chadha (1983), Fisher exposed an underappreciated moment of judicial activism. In Chadha, the Supreme Court's majority misunderstood the practical needs of interbranch relations in a modern administrative state. Although Fisher agreed with the outcome of Bowsher v. Synar (1986), and had previously testified against the budgetary delegation in Gramm-Rudman-Hollings, he again criticized the Court for dicta that failed to understand practical flexibilities within separation of powers.

Fisher's second theme is that members need to look out for their own prerogatives and learn to become independent, confident, and consistent constitutional interpreters. On the so-called line-item veto, the Supreme Court knocked down a version of this curious delegation of power in Clinton v. City of New York (1998). In 2006, there was a serious effort in both chambers to pass a new version of the bill that would shift budget power to the president and still pass muster with the Court. Fisher testified: “Congress should not consciously pass an unconstitutional bill. Similarly, lawmakers should not pass legislation that damages their institution simply because they predict the bill will not be overturned in the courts.”Footnote ⁴