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The Imperial Congress
An impetuous and sometimes corrupt Congress has often hamstrung the efforts of the president since the earliest days of the Republic
Fall 2010 | Volume 60, Issue 3
On a little-remarked, steamy day in late June 1973, a revolution took place in Washington, D.C., one that would transfer far more power and wealth than did the revolt against King George III in 1776. On the 29th, a sweaty, angry majority of the House of Representatives and the Senate defied the president of the United States and voted to end armed American involvement in Vietnam.
Whether this was a day of ignominy or triumph, the cowardly abandonment of a small ally or the casting off of an albatross from around the Republic’s neck, is a matter of debate to this day. But what remains clear is that the vote was the Bastille Day of a major upheaval; on its heels came a series of laws asserting unprecedented congressional power, climaxed by the humiliating resignation of a president one step ahead of impeachment. Since that day, Americans have been living in—some would say enduring—another era of congressional government.
While this revolution has been largely ignored by the media, congressional government is a historical reality that profoundly affects how the U.S. government operates. A Johns Hopkins graduate student named Woodrow Wilson first named the phenomenon in 1884, identifying it as a serious threat to stability: “In proportion as you give [Congress] power it will inquire into everything, settle everything, meddle in everything.” The ultimate danger was legislative tyranny, which Wilson feared would result in despotism far worse than the rule of a dictator. Unlike a single man, Congress could become a despot “who has unlimited time—who has unlimited vanity—who has, or believes he has, unlimited comprehension.”
Mr. Madison’s War
Writing in the midst of America’s first era of congressional government, Wilson was echoing a warning issued by the father of the Constitution, James Madison, who had nervously drawn attention in the Federalist Papers to the tendency of legislatures to encroach on the rights and prerogatives of the executive branch. At the Constitutional Convention, Madison forcefully advocated for a powerful presidency; he remembered all too well how the 40 to 50 quarrelsome politicians in the Continental Congress had hamstrung Gen. George Washington during the eight years of the Revolutionary War. But the majority of the convention’s delegates were far too steeped in fear of executive tyranny to envision the office with much clear-cut power.
As the convention’s presiding officer, Washington could not join the debates. However, the convention occasionally resolved itself into a committee of the whole, in which Washington sat and spoke as a member of the Virginia delegation. In the debate on executive power, he urged that the president be given a truly monarchical veto over any and all acts of Congress, without conceding the legislature even the ability to override it by a two-thirds majority. This went too far for his colleagues—and the power to override was retained.
When Washington became president, he announced his intention to take charge of the nation’s foreign policy by writing a circular letter to foreign governments, advising them that thenceforth all communications should be addressed to him rather than to Congress. Without an iota of consultation—Congress was in recess—he issued a proclamation of neutrality in the war between revolutionary France and England. He delegated Chief Justice John Jay to negotiate a complex treaty of reconciliation, then used his personal prestige to win its approval from Congress. The House of Representatives at first refused to vote the necessary implementing funds of about $90,000; but when the congressmen demanded all relevant papers, the president invoked executive privilege and declined their request. Opposition collapsed.
Meanwhile, Washington’s Secretary of the Treasury, Alexander Hamilton, introduced the doctrine of broad construction of the Constitution, which expanded executive powers to a degree that alarmed Secretary of State Thomas Jefferson and many congressmen, including Madison. Hamilton stunned Congress with a series of bills that funded the Revolutionary War debt, created a Bank of the United States, and proposed to push the federal government into the manufacturing business and end American dependence on foreign goods.
“Congress may go home,” grumbled Sen. William Maclay of Pennsylvania, irked by the way the executive was turning his branch simply into a group of men wielding rubber stamps. “Mr. Hamilton is all-powerful and fails in nothing he attempts.”
Although other cabinet members also drafted bills, no one approached Hamilton’s aggressive style. He helped select the committees that reviewed his proposals and even participated in their debates. President Washington approved and supported his policies, which corresponded perfectly with his vision of a strong executive.
Washington’s vigorous leadership became an ironic contrast to the feckless performance of President Madison, who saw his fears of legislative tyranny fulfilled before his eyes. “Congress,” he lamented to his predecessor Jefferson, was in “an unhinged state.” Henry Clay and other headstrong congressmen were calling for war with England in response to the seizure of American ships and the impressment of seamen. Madison agreed with their sentiments but believed the dispute could be solved without war and did nothing to prepare for the imminent conflict. The War of 1812 became a series of military disasters, climaxing in the British burning of the White House and almost every other government building in Washington, D.C. Calls for Madison’s impeachment swirled through the nation.
By the time Madison had become chief executive, Congress had acquired a sense of its importance in the constitutional scheme of things. Committees, originally improvised to deal with proposals from the president, had become permanent affairs, and many legislators had become semipermanent residents of Washington. They had learned a primary lesson: presidents may come and go, but incumbent lawmakers, if they have even a modicum of shrewdness, can go on and on. The party caucus, which President Jefferson devised to muscle lawmakers on Capitol Hill, became a vehicle through which powerful congressmen could run the country. But strong presidents, notably Andrew Jackson and James Polk, managed to impose their wills on the legislature in crucial matters without triggering a showdown about the balance of power.
When the Civil War erupted, Abraham Lincoln, whom long apprenticeship as a Whig had already made a firm advocate of presidential power, showed no hesitation in wielding unprecedented authority as commander in chief. He suspended habeas corpus and other rights, issuing the Emancipation Proclamation and a stream of executive orders that bypassed the slow-moving Congress. After his four years of presidential rule, an assassin’s bullet triggered a confrontation with an already restive legislature.
The upheaval began when Andrew Johnson, Lincoln’s less than tactful successor, tried to implement the dead man’s conciliatory Reconstruction policy toward the defeated South. Aware that Lincoln had already clashed with Congress on this sensitive topic, Johnson decided to “steal a march on the legislature” by establishing pardon and amnesty programs before the lawmakers convened in December 1865.
In that fateful month, the Republican majority in Congress assembled with very different ideas, their righteousness reinforced by Johnson’s low opinion of the freed slaves’ potential for citizenship and the South’s manifest lack of repentance. Thaddeus Stevens, the leader of the House Republicans, sounded the battle cry: “Though the President is Commander-in-Chief, Congress is his commander, and, God willing, he shall obey. He and his minions shall learn that this is not a Government of kings and satraps but a Government of the people, and that Congress is the people.”
The zenith of this congressional counterrevolution occurred on April 9, 1866, when the House of Representatives overrode a significant presidential veto for the first time in American history. The new law made the federal government responsible for protecting the civil rights of the freed slaves in the defeated states, abrogating the Black Codes that Southerners had imposed to control their former chattels. Johnson had condemned the bill as an unconstitutional invasion of states’ rights.
Stevens and his Senate ally Benjamin “Bluff Ben” Wade of Ohio swiftly responded by setting up the Joint Committee of Fifteen, composed of six senators and nine congressmen, a body that made regular reports to Congress and drafted legislation. The committee rammed through a series of punitive laws that made Reconstruction a hated word in the South.
The Joint Committee also drafted legislation that drastically contracted the president’s authority. Early in 1867 they passed laws that could keep Congress in continuous session if it was so inclined and added the power to call itself into special session, a right hitherto reserved to the chief executive. They struck at the president’s role as commander in chief by ordering him to issue all military orders through Gen. Ulysses S. Grant, forbidding Johnson to remove or transfer Grant without Senate consent. To cripple his patronage powers, they passed the Tenure of Office Act, which made it a “high misdemeanor” for the president to fire any federal official without the Senate’s approval.
When Johnson challenged this latter law by dismissing Secretary of War Edwin Stanton, Congress moved to impeach him. Most of the charges dealt with the Tenure of Office Act, but the president’s accusers threw in a final article that delineated the real nature of the clash: he was guilty of “defaming Congress.” Fortunately for the future of the nation, some Republican senators began to have second thoughts about what their party was doing. “Once set the example,” warned Lyman Trumbull of Illinois, “and no future president will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important.”
In the final vote, Trumbull and six other Republicans destroyed their careers rather than give Congress this ultimate power, which a majority was eager to grasp. The vote—35 for conviction, 19 against—was one short of the needed two-thirds majority.
Although the impeachment failed, Johnson emerged from the ordeal a shattered president who barely ventured out of the White House for the rest of his term. Thad Stevens’s dictum that Congress and the people were identical became the virtual law of the land. “The executive department of a republic like ours should be subordinate to the legislative department,” Sen. John Sherman remarked a few years later, as if discussing something as obvious as the changing of the seasons.
When the Republicans elected General Grant to the presidency, Grant nominated department store magnate Alexander T. Stewart as his Secretary of the Treasury. Congress vetoed him and insisted instead on Rep. George S. Boutwell, one of the leaders of Johnson’s impeachment effort. Grant asked them to repeal the Tenure of Office Act. Congress declined. To make things perfectly clear, a delegation of senators visited the new president in the White House to lecture him on how unpleasant congressional opposition could become. A chastened Grant declared himself for “harmony.”
Three decades of weak presidents and an ever more powerful Congress began. Of 13 pieces of major legislation passed between 1873 and 1897, only one was taken at presidential initiative. Sen. George F. Hoar of Massachusetts remarked that most senators of this era would have considered it a “personal affront” if the White House were to ask for their vote on a bill. A senator visited the White House “to give, not to receive advice.”
With this lofty attitude came a less hallowed hallmark of congressional government: rampant corruption. Crédit Mobilier of America, a holding company organized to build the Union Pacific Railroad, purchased congressmen and senators in wholesale lots. The Russian minister Eduard de Stoeckl sold Alaska to the United States in 1867 with similar tactics. In 1876, deprived of the White House by disgusted voters, the Republican leaders of Congress stole the election by purchasing the electoral votes of Southern states—and abandoned the freed slaves to Jim Crow to win congressional Democrats’ cooperation with “Rutherfraud” B. Hayes as president.
With power the only test of legitimacy, the Senate became the headquarters of political bosses such as Roscoe Conkling of New York, Simon Cameron of Pennsylvania, and Zachariah Chandler of Michigan. Presiding over state and city machines fueled by immense amounts of boodle, they inspired Henry Brooks Adams to remark in his 1880 novel Democracy that the United States had a government “of the people, by the people, for the benefit of Senators.” Only half in jest, Mark Twain wrote: “It could probably be shown by facts and figures that there is no distinctly American criminal class except Congress.”
Viewing this scene with high-minded dismay in 1884, Woodrow Wilson put his astute finger on the fundamental flaw of congressional government: it was impossible to fix responsibility for decisions emanating from a body composed of hundreds of politicians. “Nobody stands sponsor to the policy of the government,” he wrote. “A dozen men originate it; a dozen compromises twist and alter it; a dozen officers whose names are scarcely known outside Washington put it into execution.”
Wilson wondered whether the whole system should be junked—wouldn’t the clear-cut lines of party power and responsibility of Great Britain’s parliamentary government work better? But he eventually realized that American voters would never swallow such a switch, and he decided that the only alternative to congressional government was a strong presidency: “The president is at liberty, both in law and in conscience, to be as big a man as he can.”
For almost 20 years after Wilson wrote these words, they remained in the realm of prophecy. The presidents of the 19th century fought an essentially defensive battle against congressional attempts to further erode their office. In these struggles, public opinion tended to favor the president, who was elected by all the people and could claim to be their spokesman with considerable effectiveness. In 1887 Grover Cleveland was emboldened to challenge the constitutionality of the Tenure of Office Act; Congress repealed it.
In 1901 the assassination of William McKinley brought Theodore Roosevelt into the White House, and a far more vigorous assertion of presidential power began. Roosevelt’s initiatives in foreign policy, such as the construction of the Panama Canal, his dispatch of the Great White Fleet on a world tour, and his challenge to the country’s “malefactors of great wealth” left Congress gasping. Executive orders created national forests out of public lands, initiated antitrust prosecutions, and settled a coal strike by threatening a government takeover of the mines.
Agitated congressmen demanded that TR file all his executive orders with them and hired a team of lawyers to critique their legality. Roosevelt ignored them, loudly identifying himself with the “Jackson-Lincoln theory of the presidency” and maintaining it was “not only his right but his duty to do anything that the needs of the nation demanded, unless such action was forbidden by the Constitution or the laws.”
After TR’s departure, Congress seemed to resume control of the nation. His rotund successor, William Howard Taft, was soon described as “a large body surrounded by men who know exactly what they want.” But in 1912 the public decisively repudiated Taft, giving more votes to Roosevelt (running on the improvised Progressive “Bull Moose” ticket) and throwing the election to the Democratic candidate—none other than Woodrow Wilson. “The public expects the President to manage Congress,” one editor wrote after Taft’s humiliation. “A failure to dominate Congress was Mr. Taft’s chief shortcoming in the public mind.”
As the man who had diagnosed the malaise of congressional government and its cure, Wilson came to the White House determined to be the master of Congress—and he succeeded for more than six years. With a program of domestic reform that included the Federal Reserve Act, the Clayton Antitrust Act, and the Keating-Owen Act banning child labor, his superb oratorical gifts, and a startling ability to manipulate the press, Wilson was able to marshal intimidating degrees of popular support. He was the first chief executive since John Adams to appear before Congress to deliver his messages and the first to use the president’s room in the Capitol to meet with legislators to push his proposals. An alarmed constitutional scholar wrote that Congress was “in eclipse” and compared the situation to a coup d’état.
But Wilson’s mastery deserted him in his second term, which was dominated by his decision to intervene in the war devastating Europe. Whether his role as commander in chief gave him delusions of grandeur, or the hardening arteries that ultimately felled him were to blame, he bungled the 1918 midterm elections, which returned Republican majorities to both houses of Congress. His attempt to play the autocrat when he submitted the Treaty of Versailles to the Senate backfired even more disastrously, and Congress laid him low in their historic clash over the League of Nations.
Wilson’s successor in a larger-than-life-size presidency was Franklin D. Roosevelt, who seized command of Congress and the nation from the moment he took office in the Depression-wracked America of 1933. He had obviously absorbed the examples of Wilson and his fifth cousin Theodore. In an interview with the New York Times on November 13, 1932, a week after his election, FDR said: “The presidency is not merely an administrative office. That is the least of it. . . . It is preeminently a place of moral leadership. . . . Without leadership alert and sensitive to change, we are all bogged up or lose our way.”
Along with moral leadership and a tidal wave of legislative proposals, Roosevelt added a new ingredient to the president’s relationship with Congress—a merciless use of the veto. He rejected 631 measures—more, if we discount Grover Cleveland’s vetoes of minor private bills than all 30 of his predecessors combined. Presidential leadership, as Roosevelt practiced it, was by no means synonymous with harmony. It was more often accompanied by the sound of gnashing congressional teeth.
During World War II, Roosevelt expanded the powers of the presidency to global proportions, creating dozens of federal agencies and spending billions of dollars with blank checks supplied by a passive Congress. As the war wound down, there were ominous signs that many senators and representatives in both parties were unhappy with the endless stream of diktats from the White House. If FDR had lived longer, he would have faced a Congress as surly and hungry for power as the ones Andrew Johnson and Wilson had confronted.
The lawmakers lost no time in trying to intimidate Roosevelt’s successor, Harry S Truman, by ignoring virtually all his legislative proposals. When the Republicans won control of both houses in 1946, Sen. William Fulbright suggested that Truman should appoint a Republican as secretary of state and resign. With no vice president, this putative leader of the opposition would become president.
This fantasy of congressional supremacy was aborted by a snort of contempt from Truman—and by a new historical phenomenon: the Cold War. The confrontation with communism institutionalized the president’s role as a world leader towering above Congress. Over the next two decades, the executive branch grew exponentially: the CIA became a private presidential army with a secret, seemingly unlimited budget; the Defense Department sent millions of soldiers, sailors, and fliers to Europe and Asia; fought the Korean War; and made secret commitments to nations around the world with little more than a ceremonial bow toward Congress. The National Security Council swelled into a second State Department inside the White House.
Between 1926 and 1959 the executive department budget ballooned from $10 million to $38 billion, with 95 percent of the expansion coming after 1932. By the late 1950s it was 800 times larger than Congress’s budget. As recently as 1964, Congress was considered an almost superfluous branch of the American government.
Under Presidents Lyndon Johnson and Richard Nixon, presidential power reached a new zenith. While waging war in Vietnam, Johnson was the first chief executive who chose not to spend huge amounts of money voted by Congress for pet projects such as federal highway and housing programs—in 1967 a staggering $10.6 billion, or 6.7 percent of the federal budget.
This policy of “impoundment” was continued by Nixon with even more ruthless regularity. By 1973 he had impounded funds for more than 100 federal programs, arguing that it fell within his constitutional power as the guardian of the nation’s fiscal stability.
Nixon’s overwhelming electoral victory in 1972 over Sen. George McGovern, a leading congressional opponent of the war in Vietnam, seemed to rocket his presidency into the very empyrean of political power—until a seemingly insignificant burglary and the White House’s fumbling attempt to cover it up precipitated the earthquake of Watergate.
Once more, Congress laid the presidency low, and a second era of congressional government began. After abandoning South Vietnam, the lawmakers quickly asserted jurisdiction over the CIA; then they put the president on a 60-day leash should he send troops into combat without its approval with passage of the War Powers Act. In the Congressional Budget and Impoundment Control Act of 1974 they arrogated the power to decide how much to spend, and spend again.
In 1976, when the voters sent a Democrat to the White House, the Democratic chairman of the House International Affairs Committee, Clement Zablocki, announced: “We are not going to roll over and play dead just because Jimmy Carter is president.” Before his first year in office was over, Carter was complaining vehemently about congressional interference and usurpation.
Perhaps the most serious development of this second era of Capitol Hill supremacy was the creation of a shadow executive branch under congressional control. The Congressional Budget Office began confronting the executive Office of Management and Budget (OMB), regularly issuing facts, figures, and predictions that differed with the latter’s by billions. The Office of Technology Assessment challenged the experts from the Defense Department and NASA. The Government Accounting Office ballooned to more than 5,000 employees, compared to the OMB’s 500. It too regularly disputed facts and figures from the executive branch.
Over the past four decades, Congress has become the only legislature in the world that plays an active role in its government’s foreign policy. It has regularly undermined, contradicted, and sometimes reduced to utter incoherence White House attempts to deal with the rest of the world.
President Nixon negotiated a promising trade agreement with the Soviet Union, offering them “most favored nation” status and credits with the Export-Import Bank of the United States in return for a promise to repay their World War II Lend-Lease debt and pursue a moderate course in foreign policy. Congress torpedoed the deal by tying it to a liberalization of Jewish emigration. When Greece and Turkey clashed in Cyprus, Congress waded into the imbroglio with an embargo upon Turkey that came close to alienating one of America’s most important Middle Eastern allies.
In 1976 the United States became involved in a covert struggle with the Soviet Union for control of Angola. In search of an issue that would give him visibility in a tough reelection fight, Sen. John Tunney of California seized on Angola and tacked an amendment to a Defense Department appropriations bill, ordering the immediate termination of all assistance to the anticommunists. Although Tunney was not on the Foreign Relations Committee and had previously not uttered a word on the subject, the Senate voted 54–22 to abandon Angola, leaving President Gerald Ford and Secretary of State Henry Kissinger flabbergasted. “The Angola War,” remarked one historian, “was lost in the California primary.”
In its long-running clash with Ronald Reagan over Nicaragua, Congress resorted to outright subversion. House Speaker Jim Wright leaked details of CIA support to the Contra rebels at a press conference and met with officials of the Sandinista government to advise them on how to build backing in Congress. Congressmen David Obey used his control of foreign aid to pressure other Central American governments to tilt toward the Sandinistas.
By the time Bill Clinton entered the White House, congressional interference in foreign policy had become routine. In the fall of 1993, as the new president wrestled with bleeding Bosnia and its rapacious Serbs, starving Somalia and its devious warlords, and recalcitrant Haiti and its defiant generals, representatives and senators from both parties rushed before the television cameras to warn the White House of imminent resolutions that would demand withdrawal from Somalia, bar troops from Haiti, and offer all sorts of recommendations, including how airpower alone could resolve the Bosnian mess. The White House plaintively protested that Congress was interfering with the president’s right to conduct foreign policy. In the nation’s newspaper columns and editorial pages, the lament received barely a word of support.
During the 1970s the legislative veto had become another route to usurpation. Congress wrote a provision into more than 200 laws that enabled it to invalidate regulations or policies recommended by the president or federal departments or agencies by a simple majority vote in a single chamber—or in some cases by the majority vote of a single committee. The tactic so infuriated Jimmy Carter that he sent a special message to Congress listing—and denouncing—48 of these shackles. When Ronald Reagan took office, he ordered his solicitor general to take the matter to the Supreme Court, which ruled the legislative veto unconstitutional.
That judicial punch in the snoot did not intimidate Congress. Its leaders soon developed other less obvious ways of imposing control upon the executive branch and the rest of the country. In the nineteenth century, Congress had passed fewer than 100 bills annually, most less than a page in length. The typical law now arrives for passage with thousands of pages of minute regulations attached to it. Worse, legislators typically introduce more than 10,000 bills in a session and pass between 400 to 500. Presidential historian Forrest McDonald has noted that it’s “obviously impossible for members of Congress to read, let along seriously consider, more than a small fraction of the proposals on which they vote.”
The latest classic was the more-than-2,000-page health care bill this year. The House of Representatives voted this prodigy into law late on a Sunday night, after a weekend of wrangling and deal making. A New York congresswoman remarked, without a hint of irony, that they would have to “pass this bill to find out what’s in it.”
Congress has also discovered the earmark, a legislative device that combines corruption and favors to certain constituents. Casually inserted into measures with which they are entirely unconnected, the earmark is virtually immune to investigation. The 2009 stimulus bill, touted as the answer to the job crisis, contained more than 6,000 of them. President Obama held his nose and signed it, probably with the same resigned sigh of his recent predecessors.
There may be a lot more corruption beneath the surface of Congress, but the lawmakers have taken pains to make it as difficult as possible to find it or prosecute them for it. They have exempted themselves from the provisions of the Ethics in Government Act and a host of other laws, such as the Civil Rights Act of 1964, the Freedom of Information Act of 1966, and the Equal Employment Opportunity Act of 1972. Simultaneously they voted themselves the most generous health-care benefits in the nation. Obviously they—and the voters—have forgotten James Madison’s solemn warning that the only protection against federal tyranny is the requirement that Congress too must live under the laws it passes.
Few measures or new laws are likely to persuade Congress to change its ways as conclusively as a strong president with the power to demand reforms and the skills to sell them to the American people. Congress is, of course, a necessary part of the effective American system of checks and balances. Today almost every nation has a legislative assembly of some kind. On the other hand, the American presidency is a distinctive office, created in a rare historical moment by a fusion of tradition and invention and the intuitive leadership of George Washington. This precious political asset must—and will—be rescued from the vagaries and power plays of congressional government. One can almost hear Woodrow Wilson asking: “What’s taken you so long?”