Investigating the President: Congressional Checks on Presidential Power

by Douglas L. Kriner, Eric Schickler

Overview

Although congressional investigations have provided some of the most dramatic moments in American political history, they have often been dismissed as mere political theater. But these investigations are far more than grandstanding. Investigating the President shows that congressional investigations are a powerful tool for members of Congress to counter presidential aggrandizement. By shining a light on alleged executive wrongdoing, investigations can exert significant pressure on the president and materially affect policy outcomes.

Douglas Kriner and Eric Schickler construct the most comprehensive overview of congressional investigative oversight to date, analyzing nearly thirteen thousand days of hearings, spanning more than a century, from 1898 through 2014. The authors examine the forces driving investigative power over time and across chambers, identify how hearings might influence the president's strategic calculations through the erosion of the president’s public approval rating, and uncover the pathways through which investigations have shaped public policy. Put simply, by bringing significant political pressure to bear on the president, investigations often afford Congress a blunt, but effective check on presidential power—without the need to worry about veto threats or other hurdles such as Senate filibusters.

In an era of intense partisan polarization and institutional dysfunction, Investigating the President delves into the dynamics of congressional investigations and how Congress leverages this tool to counterbalance presidential power.

Product Details

ISBN-13:	9781400883639
Publisher:	Princeton University Press
Publication date:	08/23/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	304
File size:	1 MB

About the Author

Douglas L. Kriner is associate professor of political science at Boston University. Eric Schickler is the Jeffrey and Ashley McDermott Professor of Political Science at the University of California, Berkeley.

Read an Excerpt

Investigating the President

Congressional Checks on Presidential Power

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By Douglas L. Kriner, Eric Schickler

PRINCETON UNIVERSITY PRESS

Copyright © 2016 Princeton University Press
All rights reserved.
ISBN: 978-1-4008-8363-9

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CHAPTER 1

Introduction

In 1944, Missouri senator Harry S Truman, who four years earlier had cast little shadow on the American political stage, joined Franklin Roosevelt atop the Democratic ticket as the vice-presidential candidate. What could account for the meteoric rise of a junior senator once known as a pawn of Kansas City powerbrokers like Tom Pendergast to a figure of national stature, whom the media judged to be "one of the ten most valuable officials in Washington"? Strikingly, Truman built his public reputation not through legislating, but by investigating as chair of the Senate Special Committee to Investigate the National Defense Program. Truman lobbied to create the committee to discover and correct instances of fraud and abuse in government contracting and war procurement programs. While the Roosevelt administration initially resisted any move that would empower congressional snooping into its conduct of the war effort, it eventually relented, and the committee compiled an impressive record of rooting out fraud, abuse, and maladministration during its three-year history.

In a speech to the Senate upon resigning his chairmanship of the committee, Truman extolled investigations as critical to ensuring Congress's place in our separation of powers system: "In my opinion, the power of investigation is one of the most important powers of Congress. The manner in which the power is exercised will largely determine the position and prestige of the Congress in the future." Writing in the immediate aftermath of the Watergate scandal, in which President Richard Nixon orchestrated a massive cover-up of illegalities committed by the Committee to Reelect the President, the historian Arthur Schlesinger Jr. echoed Truman's assessment. Indeed, Truman "could have gone further," Schlesinger argued. "The manner in which Congress exercises the investigative power will largely determine in years to come whether the problem posed in the 51st Federalist can be satisfactorily answered — whether the constitutional order will in the end oblige the American government to control itself."

The intervening forty years since Schlesinger wrote have produced no shortage of congressional investigations of alleged executive-branch malfeasance. Moreover, as Iran-Contra and the Monica Lewinsky scandal made clear, Richard Nixon would not be the last chief executive to fret over the very future of his presidency in the face of an investigative maelstrom on Capitol Hill. And yet, scholarly assessment of congressional investigations has been limited both in quantity and in scope. A legal literature has traced the evolution of the constitutional and legal authority underlying congressional investigations of the executive branch. Historians have largely focused on the dynamics of individual investigations, or traced the evolution of the investigative power over time. While valuable, these studies tell us comparatively little about the extent to which Congress is able to use the investigative arm of its committees to combat the steady increase in presidential power since World War II. Finally, apart from a handful of isolated studies, political science has paid scant attention to investigations as a potential mechanism for legislative influence.

Building on Truman's and Schlesinger's insight, we take seriously the idea that investigations offer Congress a valuable tool for constraining an ascendant executive. Investigations do not require the assent of both chambers, the construction of a supermajority to avoid a Senate filibuster, or the president's approval. Critically in an era of intense partisan polarization and seeming institutional dysfunction, Congress can therefore investigate when it cannot legislate. To be sure, investigations cannot, on their own, compel presidential compliance and mandate changes in public policy. Moreover, Congress's investigative zeal waxes and wanes over time depending on the mix of incentives encouraging members to expose or pass over alleged executive-branch misconduct. However, when Congress does investigate, it can focus public scrutiny on the executive branch and bring public pressure to bear on the White House in ways that can materially affect politics and policy.

Of course, investigations are a somewhat blunt instrument of counter-attack. Congress does not and cannot investigate every instance of presidential aggrandizement. However, Congress can use the investigative tool to weaken the president politically. And because presidents anticipate Congress's capacity to inflict political damage, the threat of investigations can limit presidential autonomy more broadly, even if the political costs investigations impose may often be fairly general, rather than tied to reversing a specific abuse.

Why Congress Can Investigate When It Cannot Legislate

If the constitutional framework of separation of powers sets up an "invitation to struggle" among the branches, the Congress enters the battle at a distinct disadvantage vis-à-vis the executive. Despite the paucity of formal powers enumerated in Article II, presidents have repeatedly stretched the bounds of their authority by shifting policy unilaterally, by tightening their control over the bureaucracy to enhance their influence over the policy implementation process, and by making broad assertions of wartime power in both the international and domestic arenas. The Constitution grants Congress an array of tools to defend its institutional prerogatives and restore the balance of power. Yet, while the Framers plainly believed that Congress would be the most powerful branch, Congress confronts several institutional limitations on its ability to respond to presidential power grabs.

First, as Terry Moe has stated most forcefully, Congress is beset by collective action problems. Unlike the president, Congress is not a unitary actor. Rather, "Congress is made up of hundreds of members, each a political entrepreneur in his or her own right, each dedicated to his or her own reelection and thus to serving his or her district or state." While members share a stake in the power of Congress vis-à-vis the White House, "this is a collective good that ... can only weakly motivate their behavior." By contrast, presidents are motivated to defend the power of their institution, since doing so will also directly enhance their power as individuals.

Second, the legislative process is riddled with transaction costs that make it difficult for Congress to respond in a coherent fashion when its interests are threatened. Passing a bill typically requires the coordinated efforts of committees and leaders in two chambers; as a result, a supportive majority coalition is no guarantee of action. Instead, the transaction costs of putting together a coalition to fight the president are simply too great for individual members to bear, given that the benefits are shared by all members, regardless of their contribution to the collective good.

Third, even if Congress succeeds in mustering majorities in both the House and Senate behind legislation to rein in the executive, such efforts will often fail to become law. Presidential co-partisans stand poised to block any legislative initiative that cannot secure the sixty votes required to overcome a filibuster in the contemporary Senate. And even if such a super-majority is attained, the president wields a veto pen that requires only thirty-four senators to toe the party line.

While acknowledging Congress's theoretical capacity to check presidential assertions of power, the conventional wisdom rightly notes that in only the rarest of circumstances will Congress actually pass legislation to counter such actions. Even the constitutional power of the purse — mandating that funds can only be spent subject to a lawful appropriation — provides less leverage in practice than is often supposed. Congress has routinely failed to defund programs and initiatives unilaterally instituted by the president. One need only recall congressional Democrats' futile efforts to force the Bush administration to begin a phased withdrawal from Iraq through the appropriations process in 2007 to be reminded that the power of the purse is a remarkably blunt instrument of coercion.

In sum, Congress faces daunting odds when trying to combat the president legislatively. Information asymmetries, steep transaction costs in coalition building, and the looming threat of a filibuster or presidential veto all suggest that legislative efforts to constrain presidents will often fail, even when a strong majority of members opposes the president's action.

We agree with the conventional assessment that Congress is often institutionally hamstrung when trying to use legislation to rein in assertions of presidential power. However, existing scholarship has largely failed to consider how Congress might systematically retain a check on the executive branch through more informal means.

We focus here on one specific mechanism through which Congress might counter presidential aggrandizement: by using investigative oversight to expose wrongdoing, force executive-branch officials to answer difficult questions, and raise the political costs of noncompliance. These investigations fall within the broad category of congressional "oversight," but have the particular feature of focusing on allegations of wrongdoing, mismanagement, or abuse of power, rather than simply evaluating the quality of the executive branch's performance in implementing the law.

In an oft-overlooked chapter of his seminal 1991 study, Divided We Govern, David Mayhew argues, "Beyond making laws, Congress probably does nothing more consequential than investigate alleged misbehavior in the executive branch." Yet few scholars have followed up on Mayhew's assertion by exploring the dynamics governing investigative activity and its ultimate consequences for politics and policymaking.

We believe this is a mistake. Investigations are a crucial tool precisely because they avoid the most severe problems that plague legislative efforts to check presidential power. Most obviously, veto threats are irrelevant. Rather than requiring supermajority support, investigations can be commenced with only the swing of a chairman's gavel. Moreover, transaction costs are also less likely to pose an important obstacle. Since adoption of the Legislative Reorganization Act of 1946, all Senate committees have had the power to issue subpoenas. On the House side, subpoena power was granted to three committees in 1946 (Appropriations, Government Operations, and Un-American Activities), with the authority extended to the rest of the committees in 1974. Before 1946, committees generally had to receive floor approval for investigations. But even then, the transaction costs were fairly limited. On the House side, the procedure was for the Rules Committee to decide whether to forward proposals for investigations to the floor; given approval from Rules, it required a simple majority vote on the floor to authorize an investigation.

Finally and more subtly, collective action problems may pose a less severe obstacle to investigative oversight activity than to legislation. The key is that the individual members who are most active in spearheading an investigation are likely to gain publicity that is often an individual benefit — helping boost their reelection and personal power — even as they contribute to the collective good of congressional power. Similarly, under divided party government, investigations can be used by party leaders and committee chairmen as an instrument to serve majority party members' shared interest in tarnishing the brand name of the president's party, even as those inquests simultaneously defend Congress's institutional role. Investigations can thus serve as a "common carrier" for the goals of ambitious members and for all members' shared stake in congressional power.

Attention to members' multiple goals can also help explain the important variation in the volume and intensity of congressional investigations over time. Specifically, we argue that the interplay between legislators' partisan and institutional interests — a struggle the Framers themselves feared — significantly shapes the calculus of when Congress acts. We show that Congress, and particularly the House of Representatives, investigates most aggressively precisely when partisan and policy differences between the legislative and executive branches are maximized. That is, investigations are more likely when there is divided party control of Congress and the White House, particularly when the parties are highly polarized from one another.

How Investigations Shape American Politics

Congressional investigations of the executive branch have produced some of the most dramatic moments in American political history: the impeachment and near conviction of President Andrew Johnson; the sensational Credit Mobilier corruption scandal, which targeted both a sitting vice president and future president in the midst of the volatile 1872 election season; the Army-McCarthy hearings; Watergate; Iran-Contra; Whitewater; and Lewinsky. But are investigations mere political theater? Or do they routinely have concrete implications for interbranch politics and policy outcomes?

While the desire for time in the spotlight may have motivated many investigators throughout congressional history, we argue that investigations are more than opportunities for public posturing. Rather, because they can systematically inflict political damage on the president, investigations can influence policy outcomes both in the specific issue area under investigation and — by informing presidents' anticipatory calculations — more broadly in areas unrelated to the investigation itself.

But how can investigations impose political costs? We argue that one of the most important mechanisms through which investigations raise the costs of noncompliance for the president is by eroding his support among the public. To examine this dynamic, we marshal more than sixty years of public opinion data and couple it with a series of original survey experiments. Taken together, our data convincingly demonstrate that congressional investigations systematically depress presidential job approval ratings, one of the most important and visible metrics on which the president's political capital is judged.

Because investigations can lower presidential approval and change the political landscape, they also can have tangible consequences for policy outcomes. We propose three pathways through which investigations can effect concrete changes in policy. The first two pathways are direct. When Congress investigates the president's actions in a specific policy sphere, it shines a public spotlight on alleged maladministration. By raising the salience of a policy problem and by turning public opinion against the president, an investigation may trigger a legislative response mandating a change in policy. In this way, investigations help Congress overcome collective action dilemmas and other barriers to legislative redress by creating a political environment that incentivizes legislative action. The end result is legislation being written into law that never would have emerged in the absence of the political pressure generated by the investigation.

Even without spurring legislation, however, investigations can lead to direct policy changes by prompting the president to change course on his own initiative. In such cases, the president attempts to preempt further damaging investigative hearings by making policy concessions. We explore these pathways through a series of illustrative case studies that detail how each pathway operates and what conditions must be met for an investigation to influence policymaking (see Chapter 4).

While these direct pathways of influence are important, investigations may be even more consequential to interbranch politics because of their ability to influence presidential behaviors and policy outcomes beyond the immediate focus of ongoing investigations. When deciding what course to chart, presidents anticipate Congress's likely reaction. Most prior scholarship focuses on anticipations of the likelihood that Congress would enact legislation to overturn a presidential action and directly alter policy. However, we argue that the president also surely considers Congress's capacity to impose political costs on the White House through high-profile investigations should the administration stray too far from congressional preferences. Testing for indirect influence through anticipatory calculations is notoriously difficult. However, we marshal substantial evidence that presidents who have experienced heavy investigative oversight are more reluctant to use force in response to international disputes than are presidents who have experienced a relatively quiescent Congress.

(Continues...)

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Excerpted from Investigating the President by Douglas L. Kriner, Eric Schickler. Copyright © 2016 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

List of Tables and Figures ix
Acknowledgments xiii
Chapter 1: Introduction 1
Chapter 2: When Congress Investigates 21
Chapter 3: Investigations and Public Opinion 74
Chapter 4: The Direct Influence of Congressional Investigations on Policy Outcomes 124
Chapter 5: The Indirect Influence of Congressional Investigations on Policy Outcomes 172
Chapter 6: Investigations in the Age of Obama 210
Chapter 7: Conclusion 244
References 259
Index 273

What People are Saying About This

From the Publisher

"Brightly illuminating how Congress's formidable powers of publicity constrain the president's choices, Kriner and Schickler map out the pathways by which congressional investigations affect presidents' public standing and policy leadership. Readers will be impressed by this book's causal analyses and its many clear, concise case examples."—Frances E. Lee, University of Maryland

"This book is the last word on congressional investigations of the presidency. With rich case studies extending back most of a century, Kriner and Schickler show beyond doubt that major probes have swerved U.S. politics and policymaking, particularly when the media world is paying attention."—David R. Mayhew, Yale University

"Making a major contribution to the literature on the relationship between Congress and the president, Investigating the President uses congressional investigations as a lens to explore important constitutional, political, and policy issues. An exemplary combination of historical data, experiments, case studies, and thoughtful analysis, this ambitious book stakes out new ground in innovative ways."—Linda L. Fowler, University of Michigan

"This impressive book's broad historical sweep yields a persuasive new treatment of the politics and implications of congressional investigations. Carefully argued and crafted, it rescues congressional investigatory activity from the dustbins of political grandstanding, and in doing so, offers a strong contribution to our understanding of the twentieth century and contemporary U.S. Congress."—Sarah Binder, George Washington University and Brookings Institution

Editorial Reviews

Winner of the 2017 Richard E. Neustadt Award, Presidents and Executive Politics Section of the American Political Science Association

Winner of the 2017 Richard F. Fenno, Jr. Prize, Legislative Studies Section of the American Political Science Association

From the Publisher

"Kriner and Schickler have written an important and timely work that deepens our understanding of the relationship between Congress and the executive branch, and fills a gap in the scholarly literature. This state-of-the-art study demonstrates that Congress's power to investigate executive misconduct is not just a vehicle for political grandstanding but an effective check on presidential power."

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