The Hidden Powers of the People’s Branch

Passing legislation isn’t the only way Congress can check an unruly president.

What good is Congress?” Josh Chafetz provokes readers with this question at the outset of Congress’s Constitution. It certainly is a timely query, given that nine out of ten Americans now routinely tell Gallup that they disapprove of how Congress does its job. Americans on both the left and the right are increasingly fed up with what is meant to be the people’s branch. Major problems and campaign promises languish on Capitol Hill, while the pace of tit-for-tat hyper-partisanship escalates alongside the flow of money and influence that fuels congressional politics. Yet Chafetz’s compelling new book, in combination with the presidency of Donald Trump, bids us to consider Congress’s roles and contributions in a new light. Even those more inclined to be skeptics after the 2016 election may reconsider their views by the time Trump leaves office.

Congress’s Constitution: Legislative Authority and the Separation of Powers
by Josh Chafetz
Yale University Press, 448 pp.

Consider what’s happened since Trump’s inauguration. The GOP’s drive to repeal and replace the Affordable Care Act, despite seven long years of pent-up legislative fury—and all sorts of Twitter-borne cajoling and threats from @realDonaldTrump—ran aground on the opposition of dissident Republican senators who refused to cede legislative leadership to the White House and Senate Majority Leader Mitch McConnell. Arizona Senator John McCain, in the same week he cast a dramatic and decisive “no” vote on ACA repeal, declared on the Senate floor, “We are an important check on the powers of the executive. Our consent is necessary for the president to appoint jurists and powerful government officials and in many respects to conduct foreign policy. Whether or not we are of the same party, we are not the president’s subordinates. We are his equal!” Elsewhere, Congress has so far stiffed the president by refusing to fund his promised wall on the Mexican border, the centerpiece of his campaign. And arguably the most important legislation this Congress has passed to date—a bill tying Trump’s hands on Russian sanctions—was enacted over his strong objections by veto-proof and bipartisan majorities.

Congress has checked and balanced Trump in other ways. Much to the president’s frustration, Congress has continued bipartisan investigations into Russia’s involvement in the 2016 election (along with the possible collusion of Trump’s campaign). Twenty million Americans watched as former FBI Director James Comey gave his compelling testimony before the Senate Intelligence Committee, whose bipartisan investigation continues apace. Judiciary Committee members, including Chairman Chuck Grassley and fellow Republicans Ben Sasse and Lindsey Graham, have warned Trump that he would place his administration in even more jeopardy should he get rid of Attorney General Jeff Sessions, who has recused himself from the Russia investigation, as a way to eliminate Special Counsel Robert Mueller.

When Trump stumbled into his implicit endorsement of the neo-Nazis and Ku Klux Klansmen who marched with violence in Charlottesville, GOP leaders in Congress piled on rather than defending him, condemning white supremacy while the president flailed away with his “both sides” gambit. In September, Congress unanimously passed a joint resolution condemning the white supremacist hate groups responsible for the violence and calling on the president to repudiate these groups and their views. Trump may be sticking with his race baiting, but Congress effectively gave him no choice but to sign a resolution that overrode it.

This Republican-led sabotage of the traditional honeymoon period for a new administration might surprise the majority of Americans who have lost confidence in Congress. But these developments come as no surprise to Chafetz, whose book serves as a much-needed corrective to the view that Congress must always be the patsy in the ongoing contest of ambition between and among government’s three branches.

Congress’s Constitution focuses not on the institution’s most visible and collective law-making powers, but rather on how Congress, its two chambers, and individual legislators can deploy nonlegislative powers to check and balance the other branches, the executive in particular. Chafetz believes that “the exclusively legislation-focused view of Congress is far too narrow.” Given the difficulty of overriding a presidential veto, and the Supreme Court’s powers of judicial review, legislation is often not the best weapon for Congress to ward off inter-branch encroachments on its powers. Indeed, as noted above, the acts of congressional rebellion we’ve seen so far have had relatively little to do with legislating, of which there hasn’t been much, and everything to do with Congress’s other powers, such as its power to oversee and investigate the executive branch, to withhold appropriations for executive priorities, and to use its sturdy platform to speak freely in criticizing presidential missteps and overreach.

Chafetz traces the development of Congress’s nonlegislative powers back to the tumultuous political battles between Parliament and the Stuart monarchs in seventeenth-century England. This is an atypical but illuminating starting point. As he notes, the “conflict between Parliament and the Stuart Crown involved contending claims by institutional actors with independent sources of constitutional authority. These conflicts occurred before the rise and solidification of parliamentary sovereignty and ministerial responsibility to Parliament in the early eighteenth century.” The stakes and imperatives of Parliament’s running battle with the Stuart kings—punctuated at one point by a royal beheading, at another by the Glorious Revolution—were thus especially influential among the American colonial legislators later in the eighteenth century as they sought to protect their liberties against colonial governors. Chafetz carries the story forward through the revolutionary and founding periods to the present day with great effect.

The heart of Congress’s Constitution is six chapter-length assessments that bring this historical arc to bear on different sets of Congress’s nonlegislative powers. Borrowing a useful framework from international relations theory, Chafetz groups them into “hard” powers that enable Congress to coerce other branches and “soft” powers it can deploy to build up its public standing.

Congress’s hard powers include cinching the purse strings—for example, withholding appropriations, perhaps the ultimate nonlegislative act (as Trump is finding out with his wall). These powers also include the personnel powers of appointments, removals, and impeachment. The forced withdrawal of fast food CEO Andrew Puzder as Trump’s nominee for secretary of labor in the face of Senate rejection of his nomination is but the latest example of Congress wielding this set of powers; and we can bet Trump’s lawyers are not dismissing the possibility of impeachment. Finally, Congress has the hard power to subpoena witnesses and hold those who do not comply in contempt, a prerogative that backstops congressional oversight and investigations such as those now focused on the Russian affair.

Congress’s soft powers include “the ability of Members to engage discursively in the public sphere,” as protected by Article I’s “speech or debate” clause, as well as the ability to discipline members for legal or ethical violations and affronts to good order and decorum. The ham-fisted and quickly spiked attempt to kill the Office of Congressional Ethics at the start of this Congress points to the resonance of this power. Constituents want it even if some members of Congress do not. Finally, Congress has the soft power to set and play by its own rules, which can either bolster congressional capacity and legitimacy or, alternatively, undermine them (as has been the case with the GOP’s insistence on a partisan process for developing its various repeal-and-replace schemes).

While Chafetz focuses on Congress’s nonlegislative powers, the book also assesses how the separation of powers works in practice. His vantage point on this constitutional arrangement “highlight[s] the ways in which claims of authority multiply and overlap in a nonhierarchical constitutional order.” No one branch can effectively be the boss of either of the others; they are always jockeying for position in constitutional politics, fighting over and deciding who gets to decide, caught up in a rivalry for which there is no natural or logical stopping point. Yet there is some restraint, for the contest between Congress and the president occurs in the public sphere, with citizens watching. Officeholders need to make and rebut constitutional arguments in a compelling fashion for their position to win. Chafetz argues persuasively that this context privileges “not maximal combativeness but rather judicious combativeness” (his emphasis).

More broadly, Chafetz assumes a perspective that runs counter to typical notions of power flowing upward from the people to politicians who share and support their constituents’ points of view. Chafetz argues instead that elected officials—in Congress no less than the White House—create their own political power and authority based on the wisdom and popular appeal of what they say and do. In short, political leadership shapes its own fate, garnering or losing public legitimacy and the political leeway that comes with it. Consider how Trump’s biggest constitutional blunders so far—his travel ban and the firing of James Comey—have led to a public backlash and the other two branches of government boxing him in.

In making his case, Chafetz also challenges the argument that the current state of party polarization has led to the separation of parties, not powers, and that unified control of government by one party, as at present, leaves us with insufficient checks and balances. Chafetz observes that unified control is one thing in theory, quite another in practice. Moreover, the comparatively loose-jointed nature of American political parties, reinforced by the lack of centralized party control over nominations and policy positions, deflates the argument that party discipline can consistently override the institutional dynamics of the separation of powers. Finally, while intermittent, members of Congress can and do join forces across the aisle to defend their prerogatives and check the presidency, as we are now witnessing. However much President Trump feels betrayed and blocked by swamp-dwellers, legislators, federal judges, blue state officials, and others, he is simply the latest president to confront these realities.

Chafetz’s contribution is to rehabilitate not only the separation of powers but also Congress’s ability, through its nonlegislative powers, to hold its own within this system. That said, the suite of powers Chafetz describes will need expansion if Congress is going to assert itself institutionally, as he calls for it to do. One of these supplemental soft powers is the ability to clean up the illicit influence of moneyed interests that many citizens, not unreasonably, are convinced is corrupting the institution. A good place to start would be bolting shut the revolving door to K Street through which more than 50 percent of retired members pass after they leave office, according to the Center for Responsive Politics. Democratic Senators Michael Bennet and Al Franken and Republican Senator Cory Gardner have introduced a bill that would, among other things, ban former members from lobbying for the rest of their lives.

Another good step would be campaign finance reform. Legislators spend countless hours—up to half of their time, for legislators in competitive seats—dialing for dollars to support their next election campaign or those of their copartisans. Not surprisingly, many constituents see legislators as working primarily for their donors or their parties’ coffers, not them. But some promising reform ideas are now percolating. For example, Maryland Democratic Representative John Sarbanes has a bill that would help level the playing field and reconnect members with their constituents by providing a $25 tax credit to support individual small donor contributions, which would be matched by public funds in a six-to-one ratio for those candidates who swear off big contributions and PAC money. It’s not perfect, but it is a start down the road that members of Congress will eventually need to travel if they want to restore public confidence in their institution—and free up the time they need to carry out their constitutional responsibilities.

An additional soft power that Congress must exercise to restore its institutional heft is to fully fund the staff capacity and expertise it needs, in member offices, committees, and nonpartisan legislative support organizations like the Government Accountability Office and the Congressional Research Service. Chafetz notes that legislative reorganization acts passed by Congress in 1946 and 1970 bulked up this capacity, in part to provide for more systematic oversight and investigations of the executive branch. But when the GOP gained its dual congressional majorities in the mid-1990s, they shrank House committee staffs by one-third, disbanded the Office of Technology Assessment, and cut the budgets of the GAO and CRS. In effect, they lobotomized the institution they had fought so long to win control of at the very moment they should have been optimizing its capacity. Congress’s budgets and staff horsepower have never recovered. Until Congress allows itself—and pays for—the quantity and quality of staff and expertise it needs, its members cannot begin to oversee the executive branch adequately and will continue their overreliance on lobbyists for policy advice.

In fairness, lobbying and campaign finance reforms, along with more ample legislative appropriations, require new laws. Chafetz has thus not included them in his survey of Congress’s essential nonlegislative powers. But they will be necessary for Congress to fully exercise the powers that he has illuminated.

Will Congress rise to the occasion? That remains to be seen. Chafetz’s impressive accounting of Congress’s hard and soft powers is not a story of constitutional constancy among our representatives and senators over the years. For every episode of steadfastness, there is another of fecklessness. In tracing these vignettes, Chafetz shows us that Congress and its members can choose to exercise the considerable suite of constitutional powers at their disposal, or neglect them; they can do so judiciously, or rashly; and they can gain standing in the eyes of the people as a result, or lose it. Chafetz observes, “It is a contention of this book that Congress has the capacity to behave so as to foster public trust and thereby enhance its own power; it is likewise a contention of this book that Congress has only sometimes taken advantage of that capacity.” In the current moment, the former point should give us hope, and the latter should push us to demand that our elected representatives meet the challenge before them. For his part, Chafetz has given them a time-tested playbook to draw upon.

Daniel Stid

Daniel Stid is director of the Madison Initiative at the William and Flora Hewlett Foundation.