Last time Congress got its mojo back
Ever since they retook control of the House of Representatives last November, Democrats have been itching for a proper fight with President Trump. Still, at the behest of their leaders, they’ve avoided rushing into total war with the administration and focused on preparing for the day of reckoning. It has been one ginger step after another: from “just getting back to the basics of oversight!” to “impeachment inquiry underway, if not yet ready to take hard votes about it,” and perhaps from here onto an unrestrained clash with the administration.
But where would it go from there? The legislative branch has for decades handed off power to the executive branch and allowed its own in-house capacities to atrophy, leaving our constitutional system lopsided. Could this Congress wring some sort of broader institutional rebalancing from its impeachment struggle against the president? Or, as the president’s allies allege, are Democrats looking no further than the 2020 election, and readying themselves to build up the presidency to new heights once they get another progressive in the Oval Office?
In our current political moment, all-partisan-posturing, all-the-time is the safe bet. But the institutional path is a real possibility, and in fact it was traveled quite earnestly by the Democratic majorities that chased Richard Nixon from office in 1974. Far from just biding their time until they could empower the next Democratic president, legislators made themselves the dominant political force of the 1970s, frequently frustrating Gerald Ford and Jimmy Carter. Perhaps most strikingly, Congress acted over and over to build itself up as an institution, showing a self-confidence and boldness difficult to imagine today.
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Moaning about the sorry state of Congress is a permanent and utterly dependable feature of American political life. Harry Truman managed to unexpectedly win reelection in large part by campaigning against the “Do-Nothing” 80th Congress of 1947-48, never mind that its Republican majorities had actually passed more legislation than average, including the Taft-Hartley Act (over Truman’s veto) and the Marshall Plan (with his emphatic support). At the end of the 1950s, James Burnham’s Congress and the American Tradition lamented legislators’ spinelessness in the face of executive aggrandizement all the way back to the Woodrow Wilson administration. If it’s not one thing, it’s the other.
By the 1960s, complaints about Congress took on a shape quite familiar to us today: The body was charged with giving reactionaries the power to block progress. Channeling liberal frustration with the conservative southern Democrats whose committee chairmanships determined so much about Congress, the influential presidential scholar, James MacGregor Burns, indicted The Deadlock of Democracy in 1963. Striking a similar chord, Senator Joseph S. Clark, the former mayor of Philadelphia elected to the Senate in 1956, denounced his institution as “The Sapless Branch” in a 1964 book. What frustrated liberals wanted most of all was for Congress to get with the president’s program—first JFK’s New Frontier, then LBJ’s Great Society.
Remarkably, being confronted by a pugnacious president of the opposite party after the election of 1968 did not entirely change liberals’ desire to empower the president and executive branch. In the Economic Stabilization Act of 1970, over President Nixon’s protestations, in 1970 they empowered the president to impose wage and price controls to combat inflation. They gave his appointee considerable budgetary discretion in waging a “War on Cancer,” even though he had originally opposed the effort. (No, Joe Biden wasn’t the first to take on the burden.) There were plenty of tensions between the two branches, leading the Senate Judiciary Committee to create a subcommittee dedicated to the separation of powers in 1971, but in general the story was still of liberals hoping to empower the president to do more.
Watergate changed everything. In styling itself as Nixon’s adversary, Congress renewed its sense of independence and won the American people’s respect. This new posture was not primarily ideological; staunch conservative Senator Sam Ervin became the face of the Senate’s investigations, and generally sought to frame the issues in high constitutional terms. Senate Majority Leader Mike Mansfield warned of “an ominous shift to one-branch government” and declared, “To excise Watergate and what it implies before it becomes fatal to liberty is a fundamental responsibility of this government.”
Congress’s prosecutorial zeal on Watergate continued into President Ford’s first months in office. Congress wanted to make sure that Ford—who had been House Minority Leader until his appointment as Vice-President in December 1973—had not offered Nixon a quid pro quo promise of a pardon in return for the presidency. To address the charge, Ford actually testified before the House Judiciary Committee in October 1974, making him just the second president ever to do so. The symbolism of this act can’t be overstated—Congress had humbled the presidency.
The question then became how to really put Congress in the saddle, so that it could actually take the lead in directing the nation’s affairs.
That process began while Nixon was still in office with the Budget and Impoundment Control Act of 1974, which created the Congressional Budget Office, budget committees in each chamber, and the modern budget process, as well as significantly constraining the president’s ability to refuse to spend appropriated dollars. It may be hard to imagine today, when this same budget process is in shambles, but in its first years the new system seemed to work fairly well. The Ford and Carter administrations found the new budget committees to be serious forces to contend with, and they produced real, congressionally driven spending restraint. In 1980, Congress would make its first use of the budget reconciliation process in a valiant attempt to balance the budget (a goal which a tanking economy ultimately frustrated). Fiscal policy became a signal example of congressional rehabilitation.
In foreign policy and war making, too, Congress made a concerted effort to take the lead. Legislators cut off funding for war in Indo-China in 1973, passed the War Powers Resolution over Nixon’s veto, and created a series of special committees designed to rein in abuses of American intelligence agencies. Congress rebuffed a Henry Kissinger-led attempt to involve America in anti-Communist efforts in Angola in 1976, and in general it proved a much less willing partner for the president in the long wake of Vietnam.
Congress also discovered a new tool that it made use of in both domestic and foreign policy: the legislative veto. Although the device had occasionally been used since the 1930s, it was not until the 1970s that Congress began to rely on it almost as a matter of course. By giving Congress the chance to stop executive agency actions before they took effect, legislative veto provisions seemed to offer a way to delegate the day-to-day work of administration while still retaining control over policy. Many of the major statutes of the 1970s contain multiple, and sometimes dozens, of veto provisions. Some created the possibility of a congressional negative—that is, they gave each chamber the time-limited opportunity to vote down an action, sometimes singly and sometimes in concert—but many required the executive branch to secure Congress’s sign-off before their proposed actions became law.
Congress sought to make itself more central to policymaking in other ways, too. It increasingly added sunset provisions that required programs to secure reauthorization every few years. In 1978, it created Inspectors General to keep a watchful eye on executive branch agencies. Perhaps most strikingly, Congress radically overhauled the profile of its own staff in order to better match up with the executive branch. In 1975, every senator won the ability to have a committee staffer work directly for them for each of their three committee assignments. And in the House, permanent staff on each committee went from 12 to 42 (!), building out a vast subcommittee system theretofore unknown to the institution.
There is ample reason to doubt the wisdom of many of Congress’s institution-building efforts in the 1970s. If we do not remember Presidents Ford and Carter as distinguished, neither do we tend to look back on Congress’s accomplishments in the late 1970s with reverence. With the benefit of hindsight, some of the devices Congress put in place to control the executive, such as the War Powers Resolution, are regarded as abject failures. The legislative vetoes were largely wiped out by the Supreme Court in INS v. Chadha (1983), and were (rather fecklessly) replaced by Congress with provisions for joint resolutions, which require the president’s signature and thereby leave him firmly in control. Even the build-up in staffing was problematic, as by the early 1980s commentators were worrying of staff running rampant, acting as “Unelected Representatives.”
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Still, however one evaluates the work of the post-Watergate Congresses, what is most striking about them is their sheer audacity—their willingness to renovate the institution in pursuit of a constitutional rebalancing.
It’s unclear whether our contemporary Congress will discover a similar willingness to flex its constitutional muscles. Obviously, having opposite parties in control of the two chambers makes it considerably more difficult. But legislators’ problems seem to lie even deeper than that. Although Democrats howled at the president’s plan to divert money to build a wall on America’s southern border, against their expressed wishes, they have largely sought to vindicate their position by repairing to Article III courts, rather than making use of their power of the purse or other Article I tools. And many would-be reformers’ vision resembles the 1960s version, in which what America really needs is a strong progressive president taking the lead and a Congress easily brought to heel.
But maybe Ukrainegate will change everything. All this has happened before.