Investigating the President

Congressional Checks on Presidential Power

Douglas L. Kriner, Eric Schickler

• Editorial: Princeton University Press
• Año: 2016
• ISBN:
  9781400883639
• Categoría: Politics & International Relations
• Categoría: American Government

Although congressional investigations have provided some of the most dramatic moments in American political history, they have often been dismissed as mere political theater. But these investigations are far more than grandstanding. Investigating the President shows that congressional investigations are a powerful tool for members of Congress to counter presidential aggrandizement. By shining a light on alleged executive wrongdoing, investigations can exert significant pressure on the president and materially affect policy outcomes.Douglas Kriner and Eric Schickler construct the most comprehensive overview of congressional investigative oversight to date, analyzing nearly thirteen thousand days of hearings, spanning more than a century, from 1898 through 2014. The authors examine the forces driving investigative power over time and across chambers, identify how hearings might influence the president's strategic calculations through the erosion of the president's public approval rating, and uncover the pathways through which investigations have shaped public policy. Put simply, by bringing significant political pressure to bear on the president, investigations often afford Congress a blunt, but effective check on presidential power—without the need to worry about veto threats or other hurdles such as Senate filibusters.In an era of intense partisan polarization and institutional dysfunction, Investigating the President delves into the dynamics of congressional investigations and how Congress leverages this tool to counterbalance presidential power.

CHAPTER 1

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Introduction

IN 1944, MISSOURI senator Harry S Truman, who four years earlier had cast little shadow on the American political stage, joined Franklin Roosevelt atop the Democratic ticket as the vice-presidential candidate. What could account for the meteoric rise of a junior senator once known as a pawn of Kansas City powerbrokers like Tom Pendergast to a figure of national stature, whom the media judged to be “one of the ten most valuable officials in Washington”?¹ Strikingly, Truman built his public reputation not through legislating, but by investigating as chair of the Senate Special Committee to Investigate the National Defense Program. Truman lobbied to create the committee to discover and correct instances of fraud and abuse in government contracting and war procurement programs. While the Roosevelt administration initially resisted any move that would empower congressional snooping into its conduct of the war effort, it eventually relented, and the committee compiled an impressive record of rooting out fraud, abuse, and maladministration during its three-year history.

In a speech to the Senate upon resigning his chairmanship of the committee, Truman extolled investigations as critical to ensuring Congress’s place in our separation of powers system: “In my opinion, the power of investigation is one of the most important powers of Congress. The manner in which the power is exercised will largely determine the position and prestige of the Congress in the future.”² Writing in the immediate aftermath of the Watergate scandal, in which President Richard Nixon orchestrated a massive cover-up of illegalities committed by the Committee to Reelect the President, the historian Arthur Schlesinger Jr. echoed Truman’s assessment. Indeed, Truman “could have gone further,” Schlesinger argued. “The manner in which Congress exercises the investigative power will largely determine in years to come whether the problem posed in the 51st Federalist can be satisfactorily answered—whether the constitutional order will in the end oblige the American government to control itself.”³

The intervening forty years since Schlesinger wrote have produced no shortage of congressional investigations of alleged executive-branch malfeasance. Moreover, as Iran-Contra and the Monica Lewinsky scandal made clear, Richard Nixon would not be the last chief executive to fret over the very future of his presidency in the face of an investigative maelstrom on Capitol Hill. And yet, scholarly assessment of congressional investigations has been limited both in quantity and in scope. A legal literature has traced the evolution of the constitutional and legal authority underlying congressional investigations of the executive branch.⁴ Historians have largely focused on the dynamics of individual investigations,⁵ or traced the evolution of the investigative power over time.⁶ While valuable, these studies tell us comparatively little about the extent to which Congress is able to use the investigative arm of its committees to combat the steady increase in presidential power since World War II. Finally, apart from a handful of isolated studies, political science has paid scant attention to investigations as a potential mechanism for legislative influence.⁷

Building on Truman’s and Schlesinger’s insight, we take seriously the idea that investigations offer Congress a valuable tool for constraining an ascendant executive. Investigations do not require the assent of both chambers, the construction of a supermajority to avoid a Senate filibuster, or the president’s approval. Critically in an era of intense partisan polarization and seeming institutional dysfunction, Congress can therefore investigate when it cannot legislate. To be sure, investigations cannot, on their own, compel presidential compliance and mandate changes in public policy. Moreover, Congress’s investigative zeal waxes and wanes over time depending on the mix of incentives encouraging members to expose or pass over alleged executive-branch misconduct. However, when Congress does investigate, it can focus public scrutiny on the executive branch and bring public pressure to bear on the White House in ways that can materially affect politics and policy.

Of course, investigations are a somewhat blunt instrument of counter-attack. Congress does not and cannot investigate every instance of presidential aggrandizement. However, Congress can use the investigative tool to weaken the president politically. And because presidents anticipate Congress’s capacity to inflict political damage, the threat of investigations can limit presidential autonomy more broadly, even if the political costs investigations impose may often be fairly general, rather than tied to reversing a specific abuse.

WHY CONGRESS CAN INVESTIGATE WHEN IT CANNOT LEGISLATE

If the constitutional framework of separation of powers sets up an “invitation to struggle” among the branches, the Congress enters the battle at a distinct disadvantage vis-à-vis the executive.⁸ Despite the paucity of formal powers enumerated in Article II, presidents have repeatedly stretched the bounds of their authority by shifting policy unilaterally,⁹ by tightening their control over the bureaucracy to enhance their influence over the policy implementation process,¹⁰ and by making broad assertions of wartime power in both the international and domestic arenas.¹¹ The Constitution grants Congress an array of tools to defend its institutional prerogatives and restore the balance of power. Yet, while the Framers plainly believed that Congress would be the most powerful branch, Congress confronts several institutional limitations on its ability to respond to presidential power grabs.

First, as Terry Moe has stated most forcefully, Congress is beset by collective action problems.¹² Unlike the president, Congress is not a unitary actor. Rather, “Congress is made up of hundreds of members, each a political entrepreneur in his or her own right, each dedicated to his or her own reelection and thus to serving his or her district or state.” While members share a stake in the power of Congress vis-à-vis the White House, “this is a collective good that … can only weakly motivate their behavior.” By contrast, presidents are motivated to defend the power of their institution, since doing so will also directly enhance their power as individuals.¹³

Second, the legislative process is riddled with transaction costs that make it difficult for Congress to respond in a coherent fashion when its interests are threatened. Passing a bill typically requires the coordinated efforts of committees and leaders in two chambers; as a result, a supportive majority coalition is no guarantee of action. Instead, the transaction costs of putting together a coalition to fight the president are simply too great for individual members to bear, given that the benefits are shared by all members, regardless of their contribution to the collective good.

Third, even if Congress succeeds in mustering majorities in both the House and Senate behind legislation to rein in the executive, such efforts will often fail to become law. Presidential co-partisans stand poised to block any legislative initiative that cannot secure the sixty votes required to overcome a filibuster in the contemporary Senate.¹⁴ And even if such a super-majority is attained, the president wields a veto pen that requires only thirty-four senators to toe the party line.¹⁵

While acknowledging Congress’s theoretical capacity to check presidential assertions of power, the conventional wisdom rightly notes that in only the rarest of circumstances will Congress actually pass legislation to counter such actions. Even the constitutional power of the purse—mandating that funds can only be spent subject to a lawful appropriation—provides less leverage in practice than is often supposed. Congress has routinely failed to defund programs and initiatives unilaterally instituted by the president. One need only recall congressional Democrats’ futile efforts to force the Bush administration to begin a phased withdrawal from Iraq through the appropriations process in 2007 to be reminded that the power of the purse is a remarkably blunt instrument of coercion.¹⁶

In sum, Congress faces daunting odds when trying to combat the president legislatively. Information asymmetries, steep transaction costs in coalition building, and the looming threat of a filibuster or presidential veto all suggest that legislative efforts to constrain presidents will often fail, even when a strong majority of members opposes the president’s action.

We agree with the conventional assessment that Congress is often institutionally hamstrung when trying to use legislation to rein in assertions of presidential power. However, existing scholarship has largely failed to consider how Congress might systematically retain a check on the executive branch through more informal means.¹⁷

We focus here on one specific mechanism through which Congress might counter presidential aggrandizement: by using investigative oversight to expose wrongdoing, force executive-branch officials to answer difficult questions, and raise the political costs of noncompliance. These investigations fall within the broad category of congressional “oversight,”¹⁸ but have the particular feature of focusing on allegations of wrongdoing, mismanagement, or abuse of power, rather than simply evaluating the quality of the executive branch’s performance in implementing the law.

In an oft-overlooked chapter of his seminal 1991 study, Divided We Govern, David Mayhew argues, “Beyond making laws, Congress probably does nothing more consequential than investigate alleged misbehavior in the executive branch.”¹⁹ Yet few scholars have followed up on Mayhew’s assertion by exploring the dynamics governing investigative activity and its ultimate consequences for politics and policymaking.

We believe this is a mistake. Investigations are a crucial tool precisely because they avoid the most severe problems that plague legislative efforts to check presidential power. Most obviously, veto threats are irrelevant. Rather than requiring supermajority support, investigations can be commenced with only the swing of a chairman’s gavel. Moreover, transaction costs are also less likely to pose an important obstacle. Since adoption of the Legislative Reorganization Act of 1946, all Senate committees have had the power to issue subpoenas. On the House side, subpoena power was granted to three committees in 1946 (Appropriations, Government Operations, and Un-American Activities), with the authority extended to the rest of the committees in 1974. Before 1946, committees generally had to receive floor approval for investigations. But even then, the transaction costs were fairly limited. On the House side, the procedure was for the Rules Committee to decide whether to forward proposals for investigations to the floor; given approval from Rules, it required a simple majority vote on the floor to authorize an investigation.²⁰

Finally and more subtly, collective action problems may pose a less severe obstacle to investigative oversight activity than to legislation. The key is that the individual members who are most active in spearheading an investigation are likely to gain publicity that is often an individual benefit—helping boost their reelection and personal power—even as they contribute to the collective good of congressional power. Similarly, under divided party government, investigations can be used by party leaders and committee chairmen as an instrument to serve majority party members’ shared interest in tarnishing the brand name of the president’s party, even as those inquests simultaneously defend Congress’s institutional role. Investigation...