How congressional power became separate, but unequal
Recent polling shows that Americans are increasingly turned off by the rancor and high-stakes nature of our recent presidential elections. But don’t expect contests for the presidency to calm down anytime soon. Today, the modern American presidency is more powerful than ever, making the importance of the office paramount to partisans on both sides of the political aisle.
It’s important to remember, however, that the presidency wasn’t always viewed this way. The system established by our Founding Fathers went to great lengths to separate the powers of government both vertically and horizontally. If anything, the founders actually were more concerned about power accreting in the legislature than in the executive.
As James Madison warned: “[i]n republican government, the legislative authority necessarily predominates,” rendering it necessary to take certain “precautions” to “guard against dangerous encroachments.” In contrast, he noted that the “weakness of the executive … might require it to be fortified” in order to resist legislative power grabs. The text of the Constitution reflected the primacy of Congress, too: Article I of the document, which lays out of the legislative powers, is more than twice as long as Article II, which describes the executive’s role.
Over the past several decades, though, Congress has gradually lost its influential role, while the presidency has been ascendant. Today, the executive branch is a sprawling behemoth with more than 4 million employees, and presidents routinely advance policy goals by executive fiat rather than by working with Congress. Given Congress’ diminished state, it is important to consider how and why Congress has failed to maintain its role as the country’s “first branch.” A recent paper by Matthew Glassman of the Congressional Research Service lays out a primer on the history of the separation of powers, as well as providing clues about Congress’ dwindling status within that system.
As Glassman recounts, the notion of governmental power being comprised of distinct functions—lawmaking, administration and adjudication—can be traced back to the ancients, including greats like Aristotle, Polybius and Cicero. The theory was more fully developed in the 17th and 18th century by Locke and Montesquieu, who acted as intellectual guideposts to the American founders.
The key feature of the American tripartite system is that it placed the legislative, executive and judicial powers of government into distinct spheres, but also ensured that their powers overlapped in certain areas. For example, the president has veto power over congressionally passed legislation, while Congress has a say in executive branch appointments. In Glassman’s words, this setup produces conflict “by design,” allowing each branch to guard its power against encroachment from the other branches.
Glassman also identifies several institutional features that have allowed our system of separated powers to remain effective throughout most of our country’s history, such as distinct personnel, independent electoral bases and separate resources for each branch. But using a system of separated power to guard against the accumulation of power is only effective if the numerous branches are operating in relative equipoise.
Glassman’s paper is particularly insightful in analyzing why the power of different branches can ebb and flow over time. He highlights the perverse incentives individual actors within each branch face—incentives that can cause them to undermine their own branch’s long-term institutional power. These forces at least partly explain why Congress’ power has declined in recent times.
For one, Glassman notes that an individual actor within a branch may have personal policy positions that conflict with the long-term institutional interests of his or her branch. An example might be a member of Congress agreeing on policy grounds with a president’s decision to engage in a unilateral military strike, despite the fact that the president acted without consulting Congress.
Partisan affiliations also might cause individuals to take actions that undermine their branch’s institutional power. This phenomenon is commonly seen when members of Congress refuse to criticize a president of their own party publicly, even if they believe the president is acting beyond his power. The electoral goals and strategies of individual members of Congress can conflict with their own branch’s long-term interests.
Glassman recognizes that the problem of a branch’s institutional power conflicting with the personal goals of individual branch members is “particularly acute for Congress”:
As individual members of a large body, Representatives and Senators may not believe they have the responsibility or the capacity to defend the institution… Even when Congress does choose to institutionally defend itself, it often finds itself speaking with less than a unified voice, as only the most vital institutional powers have the ability to unanimously unify Congress.
These problems of collective action—the responsibility/capacity to defend the institution, the ability to speak with a unified voice, and the conflict with party or policy goals—rarely if ever occur in the executive branch. The unitary nature of the presidency ensures that the executive branch will ultimately always speak with one voice, and past presidents have often expressed— both in office and after retirement—a deep feeling of responsibility for the maintenance of the powers of the presidency.
These trends, of course, are not irreversible. Congress can fight back against executive branch encroachment, if it so chooses.
R Street’s Legislative Branch Capacity Working Group has identified numerous “Madisonian solutions” that would allow Congress to rebalance the separation of powers. Options include strategies to strengthen Congress itself—for example, by beefing up committee staffs and providing more funding for entities like the Congressional Research Service and the Government Accountability Office. Alternatively, Congress could seek to reduce the power of the presidency by clawing back power from federal agencies through comprehensive regulatory reform legislation.
In other words, Congress has the tools at its disposal to return our branches of government to a more equal footing. Members of Congress simply need to start prioritizing their branch’s long-term institutional interests over their personal preferences and predilections. Until that happens, we can expect the preeminence of the presidency—and the vitriol of presidential elections—to continue unabated.
Image by Pozdeyev Vitaly
