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Matt's Five Points, May 17: Let's Get Ready To Rumble

May 17 · Issue #8 · View online
Matt's Five Points
Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s my regular newsletter that usually includes five points at the intersection of DC politics and political science, and often some links to interesting things I’ve been reading or listening to this week. 
In this issue, I discuss constitutional crises, the structural primacy of Congress, the role of the public sphere in interbranch battles, the congressional power of the purse, and the structural resource problem of Congress.
Feedback? Drop me a line or just respond to this email. And you can always catch up with me on Twitter.

This is not a constitutional crisis.
Separation of powers requires that you accept confrontation as normal.
As you probably know, President Trump and the House of Representatives are locked in a variety of disputes. The House is seeking documents related to the Mueller investigation, the president’s finances, and his tax returns. They are seeking testimony from Mueller, from Attorney General Bill Barr, and from former White House Counsel Don McGahn. In some cases, they have issued (or are threatening to issue) subponeas or contempt citations. The Trump administration is refusing (or threatening to refuse) to comply with subpoenas for witnesses or documents, and has already sought court relief from some House demands.
A lot of people are looking at this and saying we are in a “constitutional crisis.” House Judiciary Chairman Jerry Nadler was blunt about it. So was House Speaker Nancy Pelosi. If you just google it, you’ll find everyone and their brother weighing in on the question. I would particularly point you to this Vox piece, which has assessments from 11 constitutional scholars and a wide range of perspectives, both about what constitutes a “constitutional crisis” and whether the current circumstances place us in one.
How do we know if we’re in a constitutional crisis? 11 experts explain.
In my view, we are not in a constitutional crisis.
I tend to roughly follow Keith Whittington’s views on constitutional crises, which is that they only arise when political disputes cannot be resolve within the existing constitution, or when political actors stop adhering to the constitutional commitments as commonly understood.
So the 1860-61 secession was a clear constitutional crisis, as was the inability of the Articles of Confederation to provide tax revenue in the face of state opposition. But Watergate, the Clinton impeachment, and the disputed 2000 presidential election were not. Such events were, in theory, political crises, but they were contested within the boundaries of a well-functionig and widely-supported constitution.
The existence of a constitutional crisis is something that politicians—often behaving quite rationally in seeking other goals—will often try to allege, as Nadler and his Democratic allies are doing now. But that’s almost always an attempt to win public support (see below), not a legitimate assessment of the situation.
What is going on now is better seen, in my view, as constitutional confrontation. This is when political actors are contesting constitutional powers through constitutional means. And, in my view, this is not only not a problem, but actually a healthy and normal feature of our system.
Two broad points I’d make about thinking about our constitutional system:
First, embrace political conflict. The essence of politics is confrontation, a public struggle over who gets what. And the essence of the separation of powers system is the channeling of that confrontation into everyday politics. Unlike parliamentary systems, the Americans system purposefully rejects the idea of a unified government acting in a sovereign capacity between elections; confrontation over where government power lies is the core principle of our system.
What we have right now is political actors in both branches aggressively using their constitutional tools to pursue their political goals. There will be winners and losers, on policy, electoral outcomes, and future power arrangements between the branches. But none of that is inconsistent with a functioning constitution; it’s the essence of the design. You may be upset by the outcome on any of these dimensions, but the constitution supports a wide variety of power arrangements, and today’s losers may be tomorrow’s winners.
Too often, people make it their goal to suppress political conflict. The dangerous outcome is not any given arrangement of power dynamics within the separation of powers system, but the growing belief that all conflict is itself a crisis, one that needs to be avoided, or at least contained. The fear of using political tools to actually fight has led to many perverse outcomes in our system, most notably the willingness of the political branches (and the voters) to submit to court decisions as the ultimate arbiter of politics.
But the political branches—particularly Congress—have a myriad of tools they can use to press claims even in the face of judicial rulings that go against them, and they can use these tools without having to ignore court orders. There’s every chance the House Democrats will fold if they lose their court battles with the president over subpoenas. But they have lots of tools to strike back at the president, most notably the power of the purse and the impeachment power. Preemptively taking these off the table and instead submitting to the outcome of court decisions enfeebles the branch, and in my view weakens our politics.
Second, accept partisanship as an ingredient, and not always a bad one. Many observers are concerned about the rise of partisanship, and have blamed it for destroying our traditional constitutional order, by rendering the separation of powers unworkable, as political actors put party ahead of institution. Some people even see our system as doomed.
There are certainly dangers—and even constitutional crises—that can and will arise from increased partisan polarization. Imagine a party in control of the Senate that refused to approve any cabinet officials for an opposition president, essentially refusing to allow a government to be formed.
But partisanship can also, as we are seeing now, be channeled into confrontations between the institutions, within the existing constitutional framework. We shouldn’t expect democratic politics to be neat or orderly or conform to some textbook; it’s never going to be the case that the entire Congress decides to stand up to the president simply because they want to defend their institution; political conflict always exists in the context of actual issues and actual political stakes.
If you are waiting for a fully unified Congress—that is, members from across the partisan and ideological spectrum—to take an institutional stand against presidential power, you will not only be waiting forever, but you will be seeking a situation that has literally never existed in our past.
There is no Whig Party, willing to defend the power of Congress even when they control the presidency. Perhaps there never was. But a decent second-best substitute is an opposition party pressing the claims of the legislature, even if they will abandon those claims the minute they hold the presidency. It does not seem proper to me to somehow discount such defenses of legislative power, simply because they are partisan and self-serving in the short-term.
And it’s simply ahistorical and silly to argue that some alternative set of noble principles guided the institutional defense of the legislature in the past. It wasn’t altruism that led the GOP to take on Obama over recess appointments in 2013 or refuse to take up the Garland nomination in 2016, and it isn’t altruism that has the House Democrats pressing the claims of a broad investigatory power of the legislature. Nevertheless, in each case, the power of the legislature is being defended within the context of a highly partisan system. That’s not necessarily what the Framers intended, but it certainly isn’t evidence of party polarization creating a complete neglect of institutional prerogatives.
The Constitution gives primacy to Congress...
And it’s not because the legislature is found in Article I.
If you spend any time at all around members of Congress, you will inevitably hear that “Congress is the first branch of government” and “Article I is the legislative branch.” Both of those things are true, of course, but there’s often an implied consequence that simply isn’t true: that because Congress is found in Article I in the Constitution, that gives it special standing within the system of separation of powers.
That’s false. The ordering of the branches in the constitution may reflect the Framers beliefs about their relative importance—indeed, there’s plenty of reason to believe that the Framers did believe Congress was the primary branch and did place it first because that’s what they thought—but that ordering doesn’t make the legislature more powerful than the other branches, anymore than the existence of congressional powers in both Article I (ex. power to tax) and in Article IV (ex. power to govern the territories) says anything about the relative strength of those powers.
That said, the Framers did create a system in which Congress has primacy. They did this not by ordering it first, but by creating a structural relationship between the branches that is not symmetric, but instead makes Congress supreme, at least in theory. Congress has the power to unilaterally remove actors in the other two branches. The other two branches do not have the unilateral (or collective) power to remove members of Congress.
That is, Congress can impeach and remove both civil officers in the executive branch as well as federal judges, including the constitutional actors (president and supreme court justices). But the only power to remove members of Congress lies with the Congress itself (through the expulsion power granted to each chamber) or with the voters (via the periodic federal elections.)
This is often overlooked. Whatever one might say about the “equality” of the branches of government, the constitution lays bare that one branch, and only one branch, can sit in unilateral existential judgement of the actors who comprise the other branches.
While it has not shaken out this way as a matter of historical/modern development, it is not hard to imagine alternative course of events in the late 18th century and early 19th century that led to a wholly different development of the U.S. constitutional system, one in which the separation of powers remained as a parchment fiction, but in practice the system became a Congress-dominated parliamentary-style government, with the House and Senate simply removing the symbolically-elected POTUS and installing the Speaker as POTUS/prime minister.
What makes this rather important right now is that there are currently dueling charges of “abuse of power” between the branches, and among their respective supporters. Actors in both branches are asserting that there are things going on in each branch that may not be criminal, but nevertheless are not good and should not be tolerated.
At first glance, these charges appear symmetric. And, in fact, they may very well be symmetric—anyone holding public office, legislative or executive, can certainly abuse their power. But the structural primacy of Congress within the constitutional system makes the remedies available completely different.
If a judge or member of the executive branch is abusing their power, it is within the power of Congress (and arguably the *duty* of Congress) to rectify the behavior, either through impeachment or the threat of impeachment. But if *Congress* is abusing its power, there is no formal recourse for POTUS or the judiciary. The only remedies are expulsion (if it’s an individual member) or the elections.
All branches, of course, can try to influence the public sphere debate in order to affect the elections (see below). That’s both normal and healthy. So there’s no inherent problem with POTUS or any other actor in any branch arguing Congress is abusing power and should be punished.
But in the case of collective abuse of power by Congress, there’s only one formal judge: the voters. The other branches have two: the voters *and* Congress. Consequently, it’s a bit odd to charge Congress with abusing its power for investigating other branches abuse of power.
Obviously, the executive branch can/should investigate criminal or other illegal activities by members of Congress, and challenge unlawful/unconstitutional practices of Congress collectively. That’s the executive enforcing Congress’s law and guarding its power, respectively.
But the role of the executive in assessing or punishing any abuse of congressional power is totally informal, no different than any voter in the public sphere. They can argue the case, but it is not their job to judge. Unlike Congress, which has both informal and formal power.
Congress is in a much tougher spot than the President in trying to defend its power. Presidents are unitary actors, and most presidents have noted after leaving office the immense sense of responsibility they felt to maintain the power of the presidency. Not so in Congress. Individual members may not feel the responsibility to defend their institution, and even those who do man not feel like they have any ability to do so.
And cross-pressures are constantly attacking them: public policy goals (supporting POTUS war powers because they believe in the war aims), partisan goals (not wanting to embarrass a co-partisan POTUS or hurt their party by sinking legislation that decreases congressional power), and electoral goals (running “against Congress” in their reelection campaigns) all conflict with the goal of maintaining or enhancing institutional power. This collective action problem strongly hints toward power drifting toward the President, absent concerted efforts by Congress to maintain it.
...But the balance of power is adjudicated by voters
The most powerful force in the Constitution is the public sphere.
Some matters of power disputes between Congress and the President in our system are purely constitutional law—legal issues for the Court to decide—the vast majority of contests over power take place at the political level in the public sphere.
Presidents make political moves to augment their power—by asserting authorities they may or may not have and building public support for them, and by challenging similar encroachments from other branches. They start wars without authorization, they withhold documents from Congress, they stretch the interpretation of statutes. Congress does the same. They subpoena documents they normally couldn’t get, they create agencies headed by non-presidential appointees, they setup legislative vetoes. And fights start. In most cases, there is no referee beyond public opinion. And so the actions of each branch today affect the future balance of power between them.
As we are witnessing right now, actors in our political system always have constitutional tools they can use raise the stakes in any battle. Congress can seek information from the executive branch. The president can refuse to provide it. Congress can issue a subpoena. The president can ignore it and direct the justice department not to enforce it. Congress can seek court enforcement. The courts can issue orders. The president can ignore the courts. Congress can impeach the president. And the president can refuse to leave office.
But, as it turns out, not every oversght fight results in a coup.
And this is because political actors judiciously use their available tools, as Josh Chafetz would put it. And they do that because they know they are operating in the public sphere, where their actions are continuously being judged by both other political actors and by the voters, who may punish escalating confrontational behavior for any number of reasons.
The system operates in an equilibrium, in which escalating a fight can be costly with the public, and as such political actors must carefully weigh their choices to employ certain tools. Often, they fold, figuring the risk is too high. Sometimes, as with McConnell and the Garland nomination, the risk pays off. And actors gain new information about the dangers of escalating a fight.
Political actors, of course, don’t have to sit around and wonder what the public sphere is going to think of their actions. They can actively work to shape the beliefs of the public sphere, in hopes of making the other side back down before having to call their bluff and risk using more aggressive tools to raise the stakes even further.
This is why politicians spend so much time working the public during a separation of powers fight. By winning over the public, you expand the tools legitimately available to you, while limiting the tools legitimately available to other side, by demonstrating that the public cost to you will be minimal and to your opponent will be unacceptable.
One of the things fascinating about president Trump is that (consciously or not, foolishly or not) he is willing to test the received wisdom about the public sphere reaction to the use of many aggressive tools, and risk serious political losses from injudicious actions.
Past presidents, and many past and current presidential advisers, almost certainly would counsel that a blanket refusal to respond to subpoenas for documents and witnesses would fail because the public sphere would reject it, and consequently restrain your political possibilities both in the instant and going forward.
Trump doesn’t listen or doesn’t care, and has often paid the price (as with the shutdown), but his attitude seems much more willing to be defeated in the public sphere rather than to be risk-averse and miss some chances. This wil often backfire, but it also may reveal spots he or future presidents can press their claims further than previously thought possible. McConnell’s actions on Garland are similar. Bold action has a much wider set of potential outcomes.
The purse, not impeachment, is Congress's key tool.
And the key power of the purse is not spending money, but limiting it.
A few wees back, the House Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies released its draft FY2020 bill, and subsequently approved it in a markup held on Wednesday. In some respects, this was all very normal; the MilCon bill (as it is widely known) is often one of the first appropriations bills moved through the House, as it is generally popular and relatively free of divisive provisions.
This year, however, the MilCon bill contains a provision that will almost certainly prove controversial: section 612 bars use of any MilCon funds for the purpose of building a wall on the southern border. The exact language reads:
Notwithstanding any other provision of law, none of the funds appropriated in this or any other Act for a military construction project, as defined by section 2801 of title 10, United States Code, for any of fiscal years 2015 through 2019 or for fiscal year 2020 may be obligated, expended, or used to design, construct, or carry out a project to construct a wall, barrier, fence, or road along the Southern border of the United States or a road to provide access to a wall, barrier, or fence constructed along the Southern border of the United States.
This is a direct response to President Trump’s declaration of a national emergency in February, which may allow him to transfer MilCon funds previously appropriated for other purposes to construction of a southern border wall. Congress has thus far refused to directly appropriate the wall funding requested by the president, and also approved legislation in March to end the national emergency. President Trump, however, vetoed that legislation and Congress was unable to override the veto. The president’s authority to transfer the funds is now the subject of several lawsuits. While those lawsuits may ultimately block him from using MilCon funds to build a border wall, the language in section 612 of the FY2020 draft, if made law, would definitely have that effect.
This technique—known in the world of appropriations as a limitation provision, or limitation rider—is one of the most common ways Congress exercises the power of the purse, essentially allowing Congress to make policy through the appropriations process. While the executive branch may have the authority to do something, if they are specifically barred from using any appropriated funds to do so, the authority is almost useless.
While many people think of the power of the purse as a positive power of Congress, allowing them to fund priorities as they see fit, its more powerful form is negative: the ability to specifically limit, or completely bar, the use of funds. In general, there are three types of limitations that Congress can put on an appropriation: duration, scope, and amount. The first two are well-known; Congress passes annual appropriations bills, requiring the executive branch to return each year to justify further spending, and Congress circumscribes the use of those funds by offering specific conditions on their use.
But the third type of limitation—the ability to limit the amount of funds, and specifically to limit the amount to $0—is the most powerful. Hundreds of such limitation provisions can be found in appropriations acts each year. Many high-profile congressional policies, ranging from the detention of prisoners at Guantanamo Bay to the use of the F-35 by the Air Force, are continued annually by using appropriations acts to specifically block any funding from being used to implement alternative lines of policy. The Vietnam War was ultimately ended when Congress specifically barred the use of appropriations for any military activity in Southeast Asia.
The FY2020 draft MilCon bill contains a dozen limitation provisions completely barring use of funds for specific purposes, which is not uncommon. The limitation provision regarding the border wall, however, is somewhat unusual. It not only limits the use of FY2020 MilCon funds for the wall, but also prohibits the use of previously appropriated funds from FY2015 through FY2019. This reflects the existence of some five-year money appropriated for military construction and would prevent the president from accessing any of it for a border wall.
Although the limitation provision regarding the border wall is being pursued by House Democrats who are generally opposed to the wall, there are general reasons for appropriators to favor this particular limitation. Given the president’s declaration of a national emergency, it will be impossible for Congress to guarantee that any appropriated MilCon funding gets used for its congressionally-intended purpose if they do not limit the ability of the president to transfer it to wall construction. In that sense, the limitation provision isn’t a guarantee that a wall won’t be built, it’s a guarantee that all the other money provided in the MilCon bill ends up going to the specific purpose Congress intends.
Using limitation provisions in appropriations bills also gives Congress packaging leverage in negotiations with the president. While the president might veto a stand-alone bill that prohibited a given policy, appropriations bills by their very nature are omnibus actions, providing money for a large range of activities across a variety of unrelated policy areas. As the president can only sign or veto a bill in total, Congress can use limitation provisions in combination with spending priorities the president desires to force him to accept some things he doesn’t like as part of an overall package.
It is not clear how the politics of the MilCon border wall limitation provision will play out in Congress. If the president was faced with a MilCon measure containing the limitation provision, he might be concerned about vetoing a bill that included funding for veterans’ affairs and prefer no such bill cross his desk. There was a bare majority in both chambers to overturn the national emergency declaration, but appropriations bills are subject to a filibuster in the Senate, requiring 60 votes to end debate. The Senate will most likely take up and pass a Republican MilCon bill (or MilCon provisions in an omnibus) that do not include the limitation provision. At that point, the border wall may once again become a high-profile issue in the final deal for the FY2020 appropriations.
Congress will always be underfunded. It's structural.
There’s a dark side to the power of the purse.
In any political fight between the branches in the public sphere, information is power. If your branch can collect, analyze, and disseminate more high quality information, you win. It’s often that simple.
And that’s capacity. If Congress wants to investigate the executive branch, it needs money for staff. If Congress wants to have independent economic numbers from CBO so it doesn’t have to trust the numbers coming from the President’s team in OMB, it needs to pay for it. And the bottom line is that the President has tons of resources. Not only can he draw on the entire executive branch, but he’s got close to 2,000 staffers in the EOP who are there to help him build a public information case for why his policies—and his ideas for power arrangements—are correct. And he also has the media spotlight.
The rub, of course, is that Congress provides this for him. Once upon a time (1933), there were only about a dozen staffers at the White House. And even today, Congress can turn the lights off down there any time they want; POTUS has no constitutional right to staff or a house or a phone to call our allies from. But of course we want the President to have advisers and be able to manage the government effectively, so with the growth of the executive branch in the 20th century, Congress gave it to him.
And in response to the imbalance they created, Congress has taken steps to beef up its own capacity, so they aren’t completely outgunned. In both 1946 and 1970, Congress passed laws significantly increasing their staffing and resources. They also beefed up their non-partisan capacity, augmenting CRS and creating CBO in direct response to economic number fights with Nixon.
But times have changed. Staffing cuts in 1995 reduced House committee staffing sharply, and non-partisan support agencies are at a local nadir. There are people yelling and screaming to beef Congress up or face all sorts of consequences, even beyond POTUS sapping away power in public fights: uninformed legislating and/or domination of information by lobbying groups, lack of oversight of executive branch agencies, demoralization and inability to retain good staff when they want to be here, and the shift in power away from individual members and committees toward leadership. It’s all related, and there are lots of good things you can read about it.
The problem is that it’s really hard to get Congress to spend money on itself. It’s certainly not the case that members don’t want more staff; I’ve never met a member who wouldn’t love to have more staffers and be able to pay them better. But voters hate when Congress spends money on itself. They can’t stand it. And so there’s a massive downward democratic pressure on the Hill to never take any vote that can be seen or spun as even remotely personally greedy.
And this creates an imbalance. Because it’s not as hard for Congress to spend money beefing up the support staff for the president. Some of this is that the president has developed a better standing in public that Congress; many citizens see him as the center of the government, and more deserving of resources.
But some of it is structural: because Congress allocates the money, allocations to the legislative branch inherently look selfish, while allocations to the president do not. There’s simply no way for Congress to spend money on itself without creating at least the minimal public appearance of impropriety. Why do those guys keep voting gifts for themselves?
In this sense, the legislature will always be chronically underfunded, and there will always be those in Congress who seek to gain public sphere appeal by forcefully opposing Congress spending money on Congress.
You should listen to our podcast.
We feed Congress experts beer and get them talking.
My colleagues at the Government Affairs Institute and I regularly talk congressional politics with Hill scholars, reporters, and other experts on our podcast, Congress, Two Beers In. And they’re always on their second beer when they start talking.
Congress, Two Beers In by Government Affairs Institute on Apple Podcasts
We have some great guests lined up for June, but are always looking for more. If you think you’d make a good fit, let us know. 
Thanks for reading. I’ll be back again next week! In the meantime, follow me online or reach out via email. I’d love to hear from you!
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