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Free Riding Hobbles Congress’s Ability to Stop Expansion in Presidential Power

U.S. Capitol Dome: Washington DC

U.S. Capitol Dome: Washington DC

James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51. The separation-of-power system of the US national government aimed to harness the self-interest of politicians in the separated branches to promote the public good rather than threaten it. The system would use the power-hungry inclinations of politicians in each branch to counteract any power grabs by politicians in the other branches. This would limit the national government’s power overall despite the possibility that politicians in all of the branches would desire to accumulate power for themselves.

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.  . . .  Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.  . .

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

Despite this system being in place, today analysts on all sides of the political spectrum worry about the expansion of presidential power. What might explain the gradual shift in relative power from Congress to President from the 19th Century to today?

There are undoubtedly multiple causes. But a sufficient cause for this shift could lie in an obvious feature of each of the institutions: Congress is a plural legislature while the President is a unitary executive. And this feature, given enough time, is sufficient to hobble the ability of Congress to maintain checks and balances over the presidency.

Legislators (and their staff) divide their time between activities that create goods directly for the particular legislator – constituency service, home district activities with an eye to reelection, etc. – and activities that create goods that are public among legislators. Legislation has a public-goods like quality. One legislator can specialize in a policy area, spend time drafting legislation, introduce and shepherd it, etc. But all constituents benefit from enacted policies, usually without knowing the legislator who initiated the policy.

So, too, time and energy spent protecting legislative prerogative relative to the President is a public good among legislators. Someone needs to invest the time and energy into leading a legislative effort to check and balance any presidential overreach. But all legislators benefit from that effort. As a result, legislators face incentives to free ride on the efforts of others: Each legislator wants congressional prerogative maximized and presidential overreach checked. But each legislator would prefer another legislator assume the burden of doing so in order that the free-riding legislators can devote more time and energy to producing the “private” legislative goods that maximize their popularity among constituents.

If supplying checks and balances to the executive is indeed a public good among legislators, then standard rational choice theory predicts that the good will be undersupplied relative to the optimum for the legislators as a whole.

On the other hand, the President, as a unitary executive, obviously faces no intra-institutional collective action problem. Any presidential activity invested in maintaining the prerogatives of the presidency, or invested in checking any congressional overreach, inures to the benefit of the President. As a unitary executive, there is no free riding. So Presidents invest the optimal amount of time and effort to checking and balancing Congress, while Congress undersupplies checks and balances to the President.

Over time the prediction would be that, ceteris paribus, Congress would gradually lose power to the Oval Office.

To be sure, everything is not always equal. Congressional committees can reduce free-riding incentives, leadership strategies. Legislators, such as the late Sen. Robert Byrd, who carved out a role for himself seeking to protect congressional prerogatives, etc., can do the same. At the same time, there have been changes over time that increase incentives for congressional free riding. The rise of the permanent campaign in modern times places a premium on time and effort spent on constituency services and campaigning in the district. This shifts relative rewards to legislators for “private” constituency-related activities relative to activities that supply institution-wide benefits.

Over the long-run, in a Madisonian world of competition of political power, we would consequently expect a plural legislature gradually to lose out to a unitary executive, because Congress faces a collective action problem that the President does not face. At least that would be a sufficient cause for the graduate shift in relative power between the two institutions.

Reader Discussion

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on February 28, 2017 at 11:31:27 am

Excellent analysis. There does, however, appear to be a check upon the Executive, perhaps never before so apparent as since Trump took office; by the fourth unofficial Branch of the Federal Government - Perhaps one never foreseen by the founders, comprised of the unelected, really what amounts to be life-tenured, unionized career administrative agency employee; more difficult to displace than the unelected, life-tenured judiciary. And, the more detrimental.

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Paul Binotto
on February 28, 2017 at 12:24:00 pm

Nice essay. I hadn't really thought of this as a free rider problem, but I think it fits that framework well.

So, too, time and energy spent protecting legislative prerogative relative to the President is a public good among legislators. Someone needs to invest the time and energy into leading a legislative effort to check and balance any presidential overreach. But all legislators benefit from that effort. As a result, legislators face incentives to free ride on the efforts of others: Each legislator wants congressional prerogative maximized and presidential overreach checked. But each legislator would prefer another legislator assume the burden of doing so in order that the free-riding legislators can devote more time and energy to producing the “private” legislative goods that maximize their popularity among constituents.

Is there some way to quantify the value of various committee assignments? (Seniority, perhaps?) That would let us document that committees created to check executive prerogatives -- judiciary, for example--while they get a lot of attention from policy wonks, are deemed less desirable than committees that enable legislators to deliver benefits to (well-heeled) constituents.

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nobody.really
on February 28, 2017 at 13:36:15 pm

Free rider Legislature - I love it!

Good essay but....

"On the other hand, the President, as a unitary executive, obviously faces no intra-institutional collective action problem."

Is this true - or is it only true when a President is from the left pole of the political spectrum.
Yes, this situation may not fit the classic free rider definition, in that there are not a large number of folks who will enjoy the benefits consequent to the actions of others; however.....

Intra-institutional collective action, which the author rightly argues may increase the relative power of the Executive, is not a given. Look only to the current *turmoil* in the Executive Agencies all designed to effectively deny the incoming Executive the advantages assumed under intra-institutional collective action. Now here is a case where subordinate, not even co-equal political actors, as is the case in the Legislative, may be said to view themselves to supply the "defect of better motives." It appears that we may have a case wherein the only Branch exhibiting the competing ambitions of which Madison spoke is the ONE Branch that he did not envision it occurring as it was to be a unitary "countering ambition" wielded against the distinct possibility of Legislative supremacy.

So the question: what happens to the Madisonian scheme when one Branch must contend with internal "ambition countering ambition."

BTW: Agree with nobody re: committee assignments. Most of the citizenry are unaware of a) the Committees, b) their membership and c) the actual work that the committees perform and / or efforts at "countering ambition."

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gabe
on February 28, 2017 at 15:04:58 pm

Oops, Paul... did not see your comment as I was typing (Pacific time) same time as you.

Apparently WE agree on internal FAS problems and ambition countering ambition WITHIN the Executive.

seeya

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gabe
on February 28, 2017 at 17:41:21 pm

Ha - Yes, we do agree, Mr. Gabe! I think your comments better illustrate the issue.

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Paul Binotto

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