First Among Equals: Reconsidering Congressional Power in James Burnham’s Congress and the American Tradition

Congress as an institution seems deeply troubled, if not doomed. Public confidence in the institution has fallen to historic lows, at least in the history of mass polling. Meanwhile, its institutional rivals – the president and the courts – remain central to daily politics. Such concerns about Congress are not new. In 1959, a prominent conservative thinker, James Burnham, wrote Congress and the American Tradition, a book tracing the decline of that body over the previous three decades. Was Burnham correct about Congress? If so, has congressional decline continued through the Great Society and the reform era that followed Vietnam and Watergate? Where does the institution that constitutionally exercises “the legislative power” stand today?

Burnham argued that the American framers believed a republican government would be marked by “legislative supremacy.” Congress would be both a boon and a threat to liberty. Its powers needed to be diffused and balanced to prevent tyranny. The framers tried to limit Congress by involving the executive in legislating, by giving the president the first move in appointments and foreign relations, and by establishing different modes of appointing officials in each branch of the government. Burnham argues that from the founding to the New Deal Americans were governed by “a changing equilibrium of dispersed, balancing and conflicting powers” with Congress primus inter pares. After 1933, the status of Congress declined.

Congress had forsaken its legislative powers. The president drafted bills as part of his larger agenda; Congress could only discuss, modify, or occasionally reject the President’s handiwork. Similarly, congressional leaders, once defined as agents of their party within their institution, had become more the servants of presidential aspirations: now “the proper function of a leader of the legislature is to be led by the executive.” Burnham discerned in the independent agencies a diminution of congressional power. Lacking technical knowledge, Congress delegates the power to decide policy to experts, thereby creating a fourth branch of government possessing legislative, judicial and executive powers and answering to neither Congress nor the president.

Congress has not been completely subservient to presidential goals. The nation has selected a government unified by party in 22 of the 52 years since Burnham wrote (but only in 10 of the last 30 years). President Kennedy found Congress difficult in many ways where President Johnson largely did not. Carter famously got little from Congress, and both Clinton and Obama failed to get vital parts of their agenda enacted by congresses controlled by Democrats (a health care bill for Clinton and a “public option” in health care for Obama). Indeed, Obama turned his health care proposal over to Congress and seemed to follow rather than to lead legislating. George W. Bush presided over the 6 years in the last 50 under unified Republican governance; he cast almost no vetoes suggesting he either dominated Congress or adapted his desires to theirs. The prescription drug benefit law suggests the former.

The courts remain blasé about the propriety of delegating legislative power.  The courts have asked only that Congress provide an “intelligible principle” to guide such delegations. Such standards, however abstract or obscure, have always passed muster with the courts. Even Justice Anton Scalia would declare that the Constitution precluded delegation of the legislative power but that the courts could not enforce that rule.

Does delegation necessarily imply abdication of legislative authority as Burnham expected?  William Niskanen argued that asymmetries of information lessen congressional control over the bureaucracy. Theodore J. Lowi’s The End of Liberalism rejected delegation as a means to attain liberal goals as well as the rule of law. Lowi complained that delegation led not to the rule of liberal experts but rather to bargaining among groups that rewarded the most powerful.  Matthew McCubbins and several co-authors reply that Congress can limit agency discretion through several methods, all connected to the design of bureaucratic institutions. Their models and experiments suggest that Congress does not generally abdicate its responsibility to legislate. Whether delegation in fact culminates in abdication of authority remains an open and difficult question.

Congress also had lost control over the public purse, a foundation of its authority. Congress took a back seat to the president in making war and thus in spending toward victory. Beyond war, Congress was unwilling to resist presidential priorities in spending or to enforce its will on fiscal matters. Members could not effectively oversee (or control) increasingly complex budgets.

Congress tried to reclaim the power of the purse in the 1970s. In 1973, President Nixon impounded about 4 percent of congressional appropriations. Congress replied the next year with a law requiring that all appropriated funds be spent. More generally, Congress sought to gain greater control through budget process reform. The new procedures did not impose much fiscal discipline or encourage rational budgeting. The president’s annual budget still drives public debates although his proposals are often “dead on arrival” which suggests Congress can resist his will at least as to details.

Burnham probably underestimated Congress’ capacity for fiscal oversight. Limitation amendments and appropriation riders (floor amendments directing policies for federal agencies) can influence actual spending.  Congressionally directed spending – known as earmarks – became unpopular and were renounced in recent years.  Specific earmarked spending often seemed foolish, but a general ban on them merely transferred power over some spending to the executive.

Like the president, Congress apparently cannot address the impending fiscal difficulties of entitlement programs. This failure over the long term may be traced to a lack of votes from the young and unborn. But voters care as little about the long term as their representatives. Waiting for a fiscal crisis to solve clear fiscal problems should not be counted a virtue of Congress. Now as in 1959, members lack courage. But perhaps we are wrong to lament their cowardice; after all, they fear the voters just as they should in a democracy. It is the people who wish to receive benefits absent taxes. Congressional decline arises from obedience to that fanciful hope.

Apart from the Civil War era, Burnham argued that Congress actually exercised the war powers granted in Article I of the Constitution. From the New Deal to the Great Society, the president seized the power to declare war. Truman prosecuted the Korean War absent congressional approval. Presidents seemed to need more discretion to deal with the Soviet threat. But presidential power also waxed because a standing army became a potent interest.

Since 1960, presidential power in foreign affairs remains both potent and constrained. In Vietnam, two presidents exercised broad powers over war; yet their commitments ultimately destroyed both administrations. The War Powers Resolution has proven to be a weak constraint on presidents. Nonetheless its requirements were not wholly ignored until Kosovo in the late 1990s and more recently, in Libya. In the post-Cold War era, major conflicts (in Iraq and Afghanistan) involving expected casualties have been put before Congress and received its approval. During that same period, presidents have undertaken minor wars, those involving no expected casualties, without congressional participation. The president remains powerful, but Obama’s Libya is not Truman’s Korea, the constitutional impropriety notwithstanding. The president retains a considerable advantage in convincing the public and Congress to undertake major conflicts. Congress seems unlikely to deny the president a desired war. In Libya, it was only after Obama had breached the War Power Resolution’s ninety-day limit on committing troops that a significant number of members stirred themselves to complain much about executive aggrandizement.  The case against Congress should not be overdrawn. The political scientist Douglas Kriner found that congressional complaints after a war has begun do change policies by altering the political calculations of a president. Of course, such influence concerns “making war” not “declaring war” and is of questionable constitutional propriety.

The framers were concerned that the treaty power might trump legislation or even extend the power of the government beyond constitutional limits. They headed off that danger by giving Congress part of the power to make and implement treaties; the Senate, in particular, was intended to be actively involved in treaty making and foreign affairs. In the post-New Deal era, the subjects addressed by treaties expanded, and Congress’ powers eroded in favor of executive agreements. Some treaties, Burnham emphasized the United Nations agreement, had removed traditional powers of Congress.

The Senate’s power to approve treaties has not become wholly empty. The defeat of the Kyoto protocol on climate change indicated the Senate still mattered. Burnham’s concern about executive agreements now seems misplaced. The courts have allowed the executive to settle foreign claims at his discretion, a mild innovation in the overall scheme. Presidents Carter and George H.W. Bush terminated treaties on their own, a practice affirmed by the courts and not obviously contrary to the original understanding of the Constitution.

The congressional war powers, as noted earlier, have been somewhat given to the president, not the United Nations Security Council. Presidents do appeal to UN actions to undertake a limited war, but the bombing of Kosovo showed that NATO could offer the same misleading justification. More troubling in the future may be United Nations “emerging norms” like the Responsibility to Protect document adopted as part of a report from an international conference. This putative obligation did not receive congressional approval, and yet the Obama administration based its Libyan adventure on this responsibility. Congress has remained silent on the matter.

The investigative power was an implication of the legislative authority granted in section 1 of Article I. In the wake of Senator McCarthy, however, the investigatory power had come under attack. Burnham sees the McCarthy struggle not as a great moment in the fight against communism (as the Senator thought) or in the struggle for human rights (as his enemies decreed) but rather as the continued decline of the legislature’s power to investigate. In particular, the doctrine of executive privilege to withhold information had weakened it. The executive’s power to classify information and thereby withhold it from Congress had also grown sharply in the years after World War II.

The congressional power to investigate waxed during the 1970s. The Watergate investigations ultimately brought down President Nixon, and along the way, the Supreme Court denied the President’s sweeping claim of executive privilege over tape recordings made in the White House. The 1970s were also a period of consequential congressional investigations. In 1975 and 1976, both House and Senate Committees conducted extensive investigations of abuses by U.S. Intelligence agencies after years of relative acquiescence. The reforms fostered by these investigations established permanent congressional oversight of intelligence. Yet the changes did not preclude the Iran-Contra Affair, and the failed congressional investigation into that imbroglio seemed all too partisan, the grave questions at issue notwithstanding. The public thought the same about the investigations into President Clinton’s misconduct.

In the years after September 11th, Congress seemed passive in contrast to a president making large claims for his constitutional authority. Yet from 2003 to 2006 the Senate Permanent Intelligence Committee undertook an investigation that debunked the major justification for the war in Iraq. In 2006, an agent of Congress, the Baker-Hamilton Iraq Study Group, looked at the state of the war in Iraq and recommended many changes in policy, many of which were rejected by the Bush administration. These investigations did have political consequences for the administration.

In general, the congressional powers of investigation have not been nearly as diminished as Burnham expected. Congress’ willingness to use those powers has varied, depending on whether government is divided and how popular a president might be. Congressional investigations peaked in the 1970s and engaged the executive less during the War on Terror. But the investigatory powers remain largely intact, contrary to Burnham’s expectations.

Burnham also expected that Congress would slowly lose legitimacy first with elites and then with the people as a whole. He thought liberal elites wished to degrade Congress in favor of the presidency and the administrative state. This expectation was reasonable. Liberals detested Congress because it moved slowly, it precluded progressive measures by requiring broad consent, and it embodied the values of the retrograde Constitution of 1789.

Congress certainly has lost public confidence. The proportion of Americans approving of “the way Congress is handling its job” has steadily declined since September 11. However, public approval had risen steadily after 1994; at the peak of the climb prior to September 11, Congress enjoyed the approval of 40 percent of the public. That level of support equaled earlier crests going back to the late 1970s. The high tide of support is hardly a flood.

Why does the public dislike Congress? The September 11th debacle fostered public support for both the presidency and Congress. The years afterward, however, saw a weak recovery from a recession and then a financial crisis followed by a sharp recession which was then again followed by a weak recovery with high unemployment. Surely these economic circumstances explain some of the recent public distaste for Congress as an institution. Some research has shown that individual assessments of the effects of the economy on “you and your family” affect public judgments about Congress.

Other factors matter. Robert Durr and his colleagues concluded that “the very activities which characterize Congress and the legislative process – deliberation, debate, and decision-making – cause it to appear quarrelsome, unproductive, and controversial, and thus diminish it in the public eye.” Others find that many Americans wish that Congress would stop fighting with each other and “do the right thing.” The Congress Burnham admired, a legislature marked by conflict with the executive and successful inaction, would be an unpopular Congress.

Yet Burnham was not quite correct in thinking that liberal elite hostility to Congress would vitiate the institution. Liberals favored Congress over Nixon and the “imperial presidency” he represented; they also supported the active Congress and its investigations in the 1970s. None of that is surprising. Republicans won all but one presidential election from 1968 to 1992. Liberals were inclined to resist those results, and Congress offered a way to fight back against Republican presidents. Burnham did not expect such Republican successes.

Burnham was correct that 1933 marked the beginning of the decline of Congress. Thereafter the American national state promised security and prosperity to voters. In pursuit of those ends, state officials and Congress intervened continually in economic and social life. Those interventions inevitably led to conflict, debate, compromise and eventually, polarization. In contrast, a more limited government would imply a Congress that did less and fought fewer battles. Burnham was thus correct that the American welfare and administrative state would undermine the legitimacy of Congress. He was correct, however, for the wrong reason.

Burnham offered an explanation for, as well as a description of, congressional decline. Liberals favored expanding government at the behest of a majority, a desire that necessarily contravened Congress’ traditions and centrality. After 1935, they emphasized the president and his power to overcome limits on government and conflict among the branches. Liberals saw in the unified executive a national figure authorized by a plebiscite to attain social justice. The “new republic” would be more democracy than republic, a democracy dominated by the president, the only official representing a national majority.  Burnham traced the rise of the executive and decline of Congress to the triumph of democratism, the belief that law should only reflect the general will as expressed by majority judgment. In the later chapters of his book, Burnham wrote of a Caesarism seizing the nation with the passage of time.

Has the nation become relentlessly majoritarian? In some ways, the nation has become more “democratical” in Burnham’s terms. Polling has become ubiquitous since 1959, providing continuous majority sentiments on issues, candidates, and officials. The president’s approval rating has become an important strength or weakness of the incumbent in the struggle to enact his legislative agenda. In the last two decades, the House of Representatives has increased the power of the leadership of both parties, especially under Speakers Gingrich and Pelosi; that power helps legislative majorities pass laws.

Nonetheless, that increased responsiveness to transient majorities has been counterbalanced by a Senate whose cloture rule sustains a minority veto over most important legislation. In practice, the filibuster either precludes lawmaking or mimics the median voter by forcing the polarized parties to move toward the center. When laws do pass, they thus become more widely supported than they would be under a simple majority rule that reflected partisan sentiment well off the median of the nation. In the hands of a skilled Senate leader (like Mitch McConnell), it enabled a small Republican faction to frustrate a popular president in 2009. That frustration fostered a failed effort to weaken the cloture rule, suggesting both parties (and their voters) expect to use its protections in the future. Moreover, majoritarian support for a policy, even overwhelming support, need not translate immediately into law, though supermajorities cannot be denied forever. The prescription drug benefit that passed in 2003, for example, could claim the support of 80 percent of the nation as early as 1994.

The United States may not be ruled by a democratic Caesar, but Burnham did foresee much of our present discontents. Congress is condemned for its “inefficiency” and deliberations. The will of a surveyed majority is not exactly a trump card in policy debates, but it may be the most important one to play. The older wisdom that Burnham admired – the wisdom of concurrent majorities and constrained power – now has few defenders, at least in the daily scrum of politics.

The New Deal and its echoes did set Congress on a declining path toward obsolescence, and in 1959, the administrative/welfare state seemed triumphant. Had the fifteen years after World War II continued for the next fifty, Burnham’s bold predictions might well have been confirmed, including the demise of Congress But the administrative-welfare state lost, and never quite regained, public confidence, and if those athwart history did not quite stop its progress, they also did not wholly fall under its wheels. The question remains whether, when historians look back at the beginning of the post-New Deal era, they will note with surprise the revival of the United States Congress.

 

Works Consulted

James Burnham, Congress and the American Tradition, New Brunswick, NJ: Transaction Publishers, 2003, orig. Chicago: Henry Regnery Co., 1959.

Robert H. Durr, John B. Gilmour, and Christina Wolbrecht, “Explaining Congressional Approval,” American Journal of Political Science 41(January 1997)175-207.

Gene Healy, The Cult of the Presidency: America’s Dangerous Devotion to Executive Power. Washington, DC: The Cato Institute, 2008.

John R. Hibbing, “How to Make Congress Popular,” Legislative Studies Quarterly 27(May 2002):219-244.

Douglas L. Kriner, After the Rubicon: Congress, Presidents, and the Politics of Waging War. Chicago: University of Chicago Press, 2010.

Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States, second edition. New York: W.W. Norton, 1979.

Matthew McCubbins and D. Roderick Kiewiet, The Logic of Delegation: Congressional Parties and the Appropriations Process. Chicago: University of Chicago Press, 1991.

William Niskanen, Bureaucracy and Representative Government. Chicago, Aldine, Atherton, 1971.

Michael Ramsey, “Treaty Power,” in The Heritage Guide to the Constitution, eds. David F Forte and Matthew Spalding. Washington, DC: Regnery Publishing, 2005.

Thomas J. Rudolph, “The Economic Sources of Congressional Approval,” Legislative Studies Quarterly 27(November 2002): 577-599.