By Matt Glassman
Lamenting the underperformance of Congress has a long history in American public life. Nineteenth century cartoonists portrayed Congress in terms familiar to modern observers: dysfunctional, corrupt, and unable to meet the needs of a modern society. Washington has been quoted as vowing never to go back to the Senate after procedural actions made his first visit there functionally useless. Robert E. Lee famously quipped (perhaps apocryphally) that the Joint Committee on the Conduct of the War was worth two divisions to him. And Andrew Jackson argued, as would most of his successors, that Congress was hopelessly provincial, a national legislature incapable of seeing the national good.
Such criticism continues today. The laundry-list of alleged dysfunction is familiar even to the most casual observer of congressional politics. The policymaking process is mired in gridlock. The appropriations process lurches from deadline to deadline. The budget process is completely broken. Members are divided into deeply polarized partisan camps. Capacity is on the decline, with resource and staffing cuts for Members and committees. Oversight of the executive branch has largely withered. Washington, DC is a swamp of crooks that must be drained.
The intellectual roots of most contemporary criticism can be traced to another president, Woodrow Wilson. He was among the first to propose the entire separation of powers system was a relic. The Founders had not anticipated political parties, and their rise overwhelmed Madison’s vision of institutions in competition, ambition checking ambition. Had American democracy bloomed a century later, Wilsonians argue, it would have been self-evident a parliamentary system—with a sovereign legislature and executive drawn from its ranks—was the superior arrangement. Unfortunately, such a system was a non-starter for the 18th century Framers, leaving us with a clumsy copy of Tudor England’s mixed system, long after the world moved on.
For such critics, a greater problem is that even within this second-best system, Congress can no longer compete. Its power has been eroded by the other branches, which have shown themselves capable of adapting to the demands of modernity. Congress, meanwhile, has either passively stood by or, worse yet, actively aided the other branches in strategic attempts to shirk responsibility. This has, in turn, further reduced Congress’s power and prestige. What remains is an institution both vestigial and vital; a large, complex organ through which all the blood must flow but which serves little purpose for the body politic.
For Wilson, the solution was to graft parliamentary democracy onto our separation of powers constitution. Encourage disciplined parliamentary-style parties, strengthen leaders, eliminate anti-majoritarian roadblocks (the filibuster, committees), and shift deliberation and policy leadership from the legislature to the executive and the parties. Championed by generations of progressive intellectuals, this vision of responsible parties, presidential-centered policymaking, and a hollowed-out, majoritarian arena legislature continues to captivate contemporary observers. With everyone in agreement that Congress is useless at this point, why not take Wilson’s advice and reform this lemon into some lemonade?
In Congress’s Constitution: Legislative Authority and the Separation of Powers (Yale University Press, $45), Cornell law professor Josh Chafetz forcefully and persuasively answers these critics. Separation of powers is not antiquated, it is not second-best, and Congress is neither doomed to third-fiddle nor necessarily as far behind as often portrayed. Chafetz, unsurprisingly, does not argue Congress has distinguished itself in recent times or that it is currently at an apex of power. Instead, he builds a conception of the separation of powers system that challenges congressional critics to reassess much of how we think about power within the system. Part of the problem, it turns out, is critics have been using the wrong metrics and frames of analysis. Seen through the proper lens, Congress not only has the tools necessary to compete with executive power, but actually does compete more often than it is credited.
Fundamental to Chafetz’s vision is what he calls a multiplicity-based view of our constitutional system. Unlike formalists who view institutional power as a predictable consequence of institutional design, Chafetz argues “political power is largely endogenous to politics.” That is, the relative power of the branches is contestable, varies over time, and is adjudicated through substantive battles over specific political issues. The Constitution assigns certain rigid static powers—only the president can nominate a Supreme Court justice and the threshold to override a veto is exactly 2/3 of both chambers—but most of the important questions of power are not formal inquiries into mechanical authorities. Rather, they are substantive questions of informal power. “How much money should the government spend on hurricane relief?” and “Under what terms should the debt limit be raised?” are not discoverable by constitutional analysis.
Whether the answers are shaped mostly by the president or Congress is a function of the current balance of power, which itself has been shaped by the outcomes of previous contestations, and which will in turn shape a new equilibrium going forward. As Chafetz notes, in most interbranch fights there are many weapons available to each side and numerous opportunities to escalate or concede defeat. Congress can ignore the president’s budget; the president can veto appropriations acts; Congress can override the veto; the president can impound funds; Congress can seek court relief under the impoundment act; the president can assert the impoundment act is unconstitutional; the court can rule, perhaps for Congress; the president can ignore the court order; and Congress can impeach the president.
Crucially, however, these power contests occur in the public sphere. The ultimate adjudicator is the voters. That no appropriations fight in history has resulted in an impeachment speaks to the public’s role. Actors in all branches seek to preserve the public’s trust; it not only affects reelection chances in the political branches, but also the future power of their institution. To impeach the president over an appropriations veto risks not only your seat, but also Congress’s public standing in all future fights. Properly gauging your current public standing and your ability to win a battle in the public sphere becomes paramount.
Thus, the key to increased institutional power is not aggressively asserting authority at all times, but judiciously asserting authority where it is both likely to prevail and likely to enhance your future power. Congressional power can easily be lost by overplaying your hand in the public sphere. Picking a fight you are sure to lose is not always bad politics, but skipping a specific substantive fight that might create a longstanding public precedent against you is often the correct strategic course for long-term power. Chafetz does not assert Congress has made particularly judicious use of its tools, but he does show that the inverse—Congress appearing to not make use of its tools in a particular interbranch conflict—is often interpreted as congressional impotence, rather than as wise strategic behavior.
Attentive readers will recognize in this strands of Neustadt’s Presidential Power (Wiley, 1960) argument. The power of the presidency, he asserted, is not found in the written text of the Constitution. Instead, it is derived from skillful maintenance of professional reputation and public prestige, two public sphere resources that allow him to persuade others that their best interests lie in going along with him. Chafetz’s conception also recalls the American Political Development tradition within political science, with its overlapping institutions in conflict for authority and legitimacy, and its careful attention to how the strategic resources and choices of actors reflect previous conflicts and inform future ones.
Chafetz’s application of these arguments to the analysis of constitutional power will be jarring to many readers. After all, many of us were taught to believe that the Constitution, while open to interpretation, is a definitive adjudicator of political authority, not a set of tools for contesting a less tangible power that actually resides in the public sphere. Chafetz’s clear writing and careful argumentation, however, should convince even the most skeptical reader of the merits of his separation of powers conception. It also doesn’t hurt that he happens to be correct.
Much of Congress’s Constitution is an examination of the history, development, and application of six of the powers individual members, or chambers, of Congress have at their disposal as they engage in interbranch conflict. Chafetz divides these tools into ‘hard’ and ‘soft’ powers, the former composed of coercive powers (purse, personnel, and contempt) and the latter those that protect or enhance its reputation in the public sphere (freedom of speech and debate, internal discipline, and cameral rules). Each chapter follows a similar structure. The history of the power is traced from its origins in English legislative development through colonial and U.S. history. A structural discussion of the power, and its application in contemporary context, follows. The crisp writing throughout the volume makes for easy and enjoyable reading.
The detailed tracing of the English history is somewhat puzzling at the outset, but by the end of the first substantive chapter it becomes clear how much it enriches the structural discussion. First, it offers a glimpse of what legislative-executive relations looked like in a system where the legislature was substantially weaker in formal authority. Similarly, it strikingly places the contemporary powers of Congress on a developmental timeline, notably one that is not frozen in 1787. The American Constitution occupies something of a late midpoint in English-American legislative development, benefitting from the received wisdom of English history and colonial experience, but clearly still part of a transitional period. Finally, it provides numerous parallels between events that occurred 500 years apart. All of these things reinforce the underlying theme of a system in constant contestation, and the contingent nature of any temporary equilibrium.
The structural analysis is clear, methodical, and insightful. While some of the territory will be well known to those familiar with separation of powers, the presentation is top-notch and the connections to early English democracy make for striking revelations. Discussing the power of the purse, Chafetz illustrates it’s not inherently about control of the money, but about the annual nature, and therefore built-in sunset, of appropriations. Only positive action of parliament (or Congress) can provide the monarchy (or president) with war funding. And just as Parliament spent centuries fighting to reduce the portion of royal funds derived from prerogative taxation (funds that could be raised without Parliament), Congress spent the 20th century reversing that trend, in the form of mandatory appropriations. If a chief lever of legislative control is the need for positive annual appropriation, what does it say about congressional power and institutional strategy that three-quarters of government spending has been effectively removed from such control?
Throughout, such non-obvious connection between congressional power and visible action is on wonderful display. Indeed, one underlying theme is we’ve been looking for congressional power in the wrong places. Or, more precisely, the easiest places to look can be misleading. Chafetz notes, in the chapter on personnel, that the intense focus on confirmation of nominees obscures the larger superstructure. Congress creates the bureaucracy and positions to which the president nominates officials. Congress designs the civil service system, placing the vast majority of executive employees out of patronage or at-will control. Congress designs regulatory structures out of the reach of the president. But even on confirmations, analytic instincts can be wrong. Most presidents get strong co-partisan congressional support for their nominees, but their nominees are endogenous to both their relative standing in the public sphere, as well as private information they get from Congress. A weak president will not necessarily have more rejected nominees than a strong one under unified government, but the idea that they share the same deference is a naïve assumption.
Readers of all ideological stripes will take issue with some aspects of the book. For liberals, the central conceit will be its faith in free and fair elections. The vision presented necessarily relies on the public sphere being able to effectively reward and punish parties. Chafetz makes the excellent point that any party which wins the consecutive elections necessary to dominate the government is inherently more trusted by the voters, and thus we should be less concerned by some of the often-derided features of unified government, such as reduced oversight of the executive branch. In effect, the rules of the constitutional game are flexible enough to be responsive to the realities of the public sphere.
But if the very rules of the constitutional game are determined in the public sphere, how can we possibly ensure debate that occurs in the public sphere is not itself distorted by corporate money or entrenched illiberal hierarchies of power? Or what if a unified government is able to manipulate the election laws and put a thumb on the scale in its favor? While Chafetz does correctly point out that what we call unified government in our system is hardly unilateral total control, many liberals in 2017 are likely to bristle at the idea the judiciary can be a strong bulwark against election manipulation by the political branches. If constitutional power is endogenous to politics, surely it is possible that fair elections are endogenous as well. These questions go unanswered.
Liberals and conservatives, and in particular legal originalists, may also react poorly to the public sphere understanding of constitutional politics itself. It will undoubtedly raise the specter of a constitution that is not itself an anchor for government, or a restraint on government behavior. If the Constitution’s framework is merely endogenous to politics, then it cannot be the rock upon which the church is built. And that may be unsettling. Even if a conception of the Constitution as stable scaffolding of assigned powers and strict limitations is a fiction, they may argue, it is a fiction worth preserving. Law professors and others who rely on strict textual analysis may be equally unsettled. But these quibbles pale in comparison to the explanatory power of the book.
The Trump presidency is providing a worthy testing ground for many of Chafetz’s claims about institutional power and the public sphere. Will a Republican Congress meaningfully restrain President Trump? Some tests have already occurred. The low standing of the president in the public sphere has emboldened Congress to act in ways highly atypical for a unified government in its opening months. An unusual number of executive nominees have been forced to withdraw while others have barely survived the Senate; Congress statutorily reduced the president’s sanction authority; and substantial investigations of presidential scandals are ongoing in both chambers. Other tests remain, some related to the soft powers described by Chafetz. Will Congress seek to augment its institutional capacity in the face of a hostile executive? Will any Members seek to create individual leverage in the public sphere over foreign policy by reading classified information into the congressional record or committee hearing transcripts?
Most notably, members of the Republican majority have criticized or refused to defend the president on numerous occasions, laughed off many of his policy proposals, and have often placed institutional concerns squarely ahead of partisanship. This was exemplified by Senator Grassley’s terse public letter asserting the need for executive agencies to respond to majority and minority committee oversight inquiries, as well as bipartisan subpoenas that have been issued in the Russia investigation. And more broadly, Congress appears to have taken on an agenda-setting role far greater than under previous first-term unified-government presidents. These applications of congressional power are revealed neither in legislation nor in roll call votes on the floor. Again, congressional assertions of power are often found in places people tend not to look.
Chafetz only takes an explicit normative turn in the final chapter, though the argument throughout well predicts his position as a defender of legislatures. For many, the final chapter may answer the most nagging question of the book: even if Madisonian government is still workable in the modern age, why go through all the trouble when the parliamentary systems seem fundamentally superior? Chafetz surveys three classic strengths of a separation of powers system—representation, deliberation, and tyranny prevention—and updates them in the language of his multiplicity viewpoint and public sphere contestation. The comparison to the parliamentary systems is unfortunately mostly implicit, but the important (if uncomfortable) upshot is clear: if politics is messy and contested, a system that reflects that has certain virtues, and a system that suppresses it comes with costs.
Congress’s Constitution beautifully portrays a legislature not only well-equipped to compete with the modern presidency but, indeed, already competing more forcefully than casual observation would reveal. It forces the reader to consider that perceived failings of legislative government in a modern separation of powers system are part illusory and part consequence of poor strategic choices, rather than simply systemic failure of an outmoded system. There is no guarantee of a congressional resurgence or even an attempt at one. And the centralizing temptation of Wilsonian government is ever-present. But the tools of power are available for Congress to compete in the public sphere, and as the 115th Congress unfolds, the equilibrium has been disturbed enough that the dust has been shaken off many of them.