The system of checks and balances
My friend Bill Gilmartin wrote an op-ed for the Times addressing the questions “Are we in a Constitutional Crisis?” and “While We’re Talking About It, What is a ‘Constitutional Crisis’, Anyway?” He looked at it from years of experience working in the Legislative and Executive branches and concluded “No, we’re (not quite) in a Constitutional Crisis, but there may be one just around the corner.”
I’m going to take the other side, at least for this discussion, and argue that it’s already here. And, since I’m the editor of this newsletter, I’m going to allow myself about twice as many words to do it.
First, a little history. In Federalist #70, Alexander Hamilton discussed the power of the chief executive. Even the most monarchical of the Founders envisioned a chief executive very different from what we see today.
Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.
But the Founders recognized the threat posed by a strong Executive. James Madison, the most studious and brilliant of the Founders, studied every form of government and every political writing in existence. Of particular concern to him were the questions why did the Greek democracy and the Roman Republic fail? He constructed an elaborate system of divided powers with a strong Executive but a strong network of other institutions that limited the president’s authority. Madison made it clear that he didn’t expect every American leader to be a philosopher-prince like Pericles – or even a conscientious leader like George Washington. He built a system of divided responsibility to protect the small states from the large states (and vice versa); the slave states from the free states; the states collectively (and the people) from a too-strong federal government. The system also protected important civic institutions and groups (churches, the press, people accused of a crime, political opponents of the government) from excessive government power.
In Federalist 51, James Madison addressed the system of checks and balances.
The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Congress is one of the chief instruments of Madison’s constitutional system. Even within Congress, authority is divided. The Senate approves or disapproves nominations and treaties; both Houses vote on tax and spending bills, but they must originate in the House. Congress must declare war.
Congressional Oversight
The Constitution gives the legislative branch authority to appropriate funds, enact laws, raise and support armies, provide for a Navy, declare war, and impeach and remove from office the President, Vice President, and other officials. These powers strongly imply oversight responsibility, since Congress couldn’t do any of these things without knowing what the executive branch was doing; how programs were being administered and what they cost; and whether officials were obeying the law and complying with legislative intent. Regardless of constitutional intent, Congress has clarified its oversight authority several times.
The legislative reorganization act of 1946 explicitly called for “legislative oversight.”. It directed House and Senate standing committees “to exercise continuous watchfulness” over programs and agencies under their jurisdiction; authorized professional staff; and enhanced the powers of the Comptroller General, the head of Congress’s investigative and audit arm, the Government Accountability Office (GAO).
Later, the Legislative Reorganization Act of 1970 (P.L. 91-510) and the Congressional Budget Act of 1974 (P.L. 93-344) gave each standing committee the authority to “review and study, on a continuing basis, the application, administration and execution” of laws and to conduct reviews of programs under its jurisdiction.
Like Bill, I’m going to anchor my piece in my memories of my time on Capitol Hill. I worked for Senator Proxmire, a gadfly, during most of the Ford and all of the Carter presidencies. With the two committees I worked for (Joint Committee on Defense Production and Senate Banking) I mainly did oversight. We were intrusive. The agencies generally understood that we wouldn’t be doing the oversight if we thought things were going fine. In my six years, there were no party line votes and few filibusters. People understood they were there to do the public’s business> Legislation was legislation, not the Battle of Verdun. Your opponent today is your co-sponsor tomorrow; you take your shot and move on.
The longest and most intrusive investigation I was ever involved with was an 18-month committee staff review of national bank chartering policy. We thought we were going to find political influence in award of bank charters and bias against minority owned banks. Instead, what we found was a pervasive bias in favor of the big banks against everyone else. But in any event, this was Democrats investigating a current Democratic president (and his predecessors). We asked for every file on every NB charter application for a 7 year period. This was highly sensitive, confidential financial information. At first, they said no way that’s totally confidential information. But the final result? The Office of the Comptroller of the Currency (the people who gave or denied bank charters), gave us a conference room for our use for 18 months and the services of a staffer to get files and answer questions for us.
In doing this study, we were the latest of a long federal tradition of Congressional investigations. Congressional committees have had a mixed record in doing these reviews. Some, like the Civil War’s Joint Committee on the Conduct of the War, served as a vehicle for Radical Republicans to second-guess the Administration and the army, demanded generals discuss operational plans in open session, and openly persecuted generals who found the committee’s disfavor. But during World War II, the Truman committee did important work highlighting areas where the preparedness program was ineffective and exposing examples of waste and inefficiency. More recently, the Church committee (intelligence community abuses), the Senate Watergate committee, the Kefauver committee investigations of the mob, record industry payola, and corporate price-fixing, and the Proxmire hearings on DoD cost overruns all made important contributions.
But the point wasn’t that one or another of the committees did a good or a bad job. The point was, they were recognized to be a part of the system. The president didn’t cooperate when he thought they were being “fair: -- the president NEVER thinks these things are fair. The president cooperates because he has to, because he recognizes his role and the role of the legislative branch, and because he wants to be remembered by history as a decent man who didn’t embarrass or diminish the presidency.
An evaluation like the bank chartering study would be unthinkable today. The Trump administration has instituted a scorched earth approach to Congressional oversight. The administration is defying requests (and subpoenas) for information as well as witnesses. Even after two years of the Trump presidency, nobody, as recently as two months ago, would have imagined this would happen.
Leon Reed is a retired Congressional aide and defense consultant. He is a member of the Government Accountability Task Force of the Gettysburg Democracy for America.