“It is not possible to give each department an equal power of self-defense,” wrote James Madison in Federalist 51. “In republican government, the legislative power necessarily predominates.” Yet once the Constitution was ratified and the new, reconfigured Congress started its business, the legislative branch immediately found itself at a disadvantage. Joseph Cooper described this phenomenon more than a half century ago (“Jeffersonian Attitudes toward Executive Leadership and Committee Development in the House of Representatives, 1789–1829, The Western Political Quarterly 18[1], 1965): The initial House rules permitted legislators to refer subjects to executive officers for a report; though they were unable to introduce legislation themselves, Alexander Hamilton and Thomas Jefferson as the Secretary of Treasury and Secretary of State, respectively, were key sources of information and direction over policy.
Congressional weakness in the face of a strengthening executive branch has been lamented for decades if not centuries. Numerous scholars have diagnosed the problem; solutions arguably have proved elusive. Alexander Bolton and Sharece Thrower enter into this long-standing conversation with their new study of legislative capacity. Their book comes at a time of renewed attention to Congress’s ability to adequately check executive power and make use of its own: In 2019 the House of Representatives created a Select Committee on the Modernization of Congress that holds hearings on a range of topics from how committees meetings can be scheduled with fewer time conflicts, to the conditions that improve oversight of the executive branch and private sector; Congress increased staff pay in 2021 for the first time in decades; and earmarks (“congressionally directed spending”) have returned in 2022 after Congress acknowledged that their absence ceded budgetary power to the executive branch.
Two questions animate Bolton and Thrower’s analysis: How does legislative capacity enhance the ability to constrain the executive branch? And how does that capacity influence executive branch decisions about when and how to exercise power? They argue that executives can act unilaterally to “evade” stronger legislative responses when legislative capacity is low and therefore unable to enact “retribution” (p. 12).
The book’s strengths include clear and concise descriptions of Bolton and Thrower’s broader argument, its underlying theoretical assumptions, and their definition of legislative capacity as a two-dimensional concept incorporating both resource and policy-making capacity as necessary conditions. The former refers to tangible materials and human capital (such as staff) while the latter represents opportunities to act. The authors argue that both ambition and capacity are required for legislatures to check the executive branch. Through a logically progressive series of chapters, Bolton and Thrower test their hypotheses regarding the relationship between congressional capacity and exercises of executive power. Whether the subject is agency budget authority, oversight hearings and committee investigations, or the use of unilateral executive policy tools, the authors consistently find that during divided government, higher levels of committee staff are associated with more legislative checks—or more caution on the executive’s part—but we do not see similar dynamics with lower levels of staff, even under divided government when we might expect the presidential out-party to constrain the executive branch.
Bolton and Thrower’s final empirical chapter moves to the state level. The authors call this chapter “the key test for the sum of [their] theoretical claims” (emphasis in original), though their earlier review of fluctuations over time in legislative and executive power focuses solely on national-level institutions. Their measure of resource capacity also changes for state legislatures, to the average number of staff per legislator as well as an index that includes the staff data, expenditures per member, and whether the legislators are term limited in office. Still, the combination of national- and state-level analysis is a welcome contribution to the study of legislative capacity that more often focuses on one or the other.
For its addition to our understanding of the relationship between legislative capacity and executive power, Checks in the Balance could be read in tandem with other recent works. These include John Dearborn’s (2021) Power Shifts, Josh Chafetz’s (2017) Congress’s Constitution, and Timothy M. LaPira, Lee Drutman, and Kevin R. Kosar’s (editors) (2020) Congress Overwhelmed as well as older studies like James Sundquist’s (1981) The Decline and Resurgence of Congress and Lawrence Dodd and Richard Schott’s (1979) Congress and the Administrative State.
Bolton and Thrower’s study inspires deeper reflection about whom in the executive branch the legislature should be checking. We have a whole literature on policy subsystems and the close working relationships between legislative committees and bureaucratic agencies; that is, the idea that the legislative and executive branches can work together to achieve common goals. Even under unified government, the chief executive never gets their budget request enacted wholesale as legislatures are keen to retain their prerogative over the purse. How worried should the legislature be about the “administrative state” rather than simply power claimed by individual presidents? And as a corollary how powerful are those exercises of power, really? Richard Neustadt’s (1960) Presidential Power and its progeny remind us that executives act unilaterally because they could not convince other political actors to agree with them; while they represent presidents getting (some of) what they want, executive orders and similar actions really come from a place of weakness; that we see executive orders at all means Congress has limited a president’s other options in some way.
Another contribution that Bolton and Thrower’s book makes is inviting us to rethink the underlying question of how a separation-of-powers system should function, in no small part because the “problem” of growing executive power relative to the legislature persists even as Congress has responded and adapted to prior eras’ discontents. Committees and subcommittees once were seen as the source of legislative frailty because they were too close to agencies; eliminating an ineffective program or agency meant losing a subcommittee’s reason for being and thus a seat of power. Wilson’s oft-quoted statement in Congressional Government (1885) that “Congress in its committee rooms is Congress at work” was not meant as a compliment. The solution offered in the 1960s, 1970s, and 1980s was to centralize and empower party leaders to provide “coherence” to the legislative process. We have a party-driven Congress today, along with a shift to top-down macrobudgeting that has taken some discretionary spending decisions out of the committees’ hands. Yet one is hard-pressed to find arguments that the congressional centralization for which political scientists spent decades advocating has served as a more effective check on either presidents or the administrative state, and indeed Bolton and Thrower’s study seem to offer an alternate solution by defining legislative capacity in terms of committee staff and experience.
Readers also may wonder whether this larger conversation can continue without an adequate place for the courts. One reason Congress enacted the Congressional Review Act, which imposes a de facto supermajority vote threshold in each chamber to override a presidential veto and disapprove of regulation, is because the Supreme Court declared the previous legislative veto process unconstitutional in the 1980s. Checks on executive power require not just legislative capacity and ambition but also judicial acquiescence. The conversation about separation of powers and the legislative branch’s ability to check the executive continues to be one not just one for practitioners and academics but also for American society, and that conversation is one which Checks in the Balance effectively joins and enriches.
