The topic of this episode is, “What is the lost history of Congress’s Offices of Legislative Counsel?”
My guest is Beau Baumann, a doctoral candidate in law at Yale University. He studies the intersection of administrative law and legislation. He has published articles in a number of law journals and previously worked as an attorney for the US Department of Justice and clerked for a federal district court. He is the author of a really interesting, new article titled, “Resurrecting the Trinity of Legislative Constitutionalism.” In it he describes some of the lost history of Congress’s offices of legislative counsel (OLC).
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
Beau, welcome to the podcast.
Beau Baumann:
Thanks for having me, Kevin.
Kevin Kosar:
Some listeners are aware that the House of Representatives and Senate each have an Office of Legislative Counsel, which employs attorneys to assist Congress with the drafting of legislation, but you’ve written about a lost history of these agencies. Before we get into the substance of that lost history, how did you find this topic?
Beau Baumann:
I became interested in this research when I read Jesse Cross and Abbe Gluck’s The Congressional Bureaucracy, which is a law review article that got published in 2020. I read a draft in 2019, and the term that they coined was the “congressional bureaucracy,” which is all the nonpartisan bureaucratic components that have taken over a huge swath of the legislative process.
And I’m not really a legal historian. I try to do work on American political development, and where that’s fun for me is the intersection of new ideas and institutions. So reading that article, I just had this picture in my head that you could tell a whole story about Congress that’s just before and after the congressional bureaucracy because the act of bureaucratizing the legislative process must have been this huge shift in how lawmakers conceived their role. That’s what I was really interested in.
Kevin Kosar:
So just to drill down a little bit more: was there something inside the Cross and Gluck article that referenced like an opinion that the OLC of old had released or did you just go down a wormhole and stumble across some files?
Beau Baumann:
I was reading it their article and the first thing that I noticed is that they try to talk history, but the footnotes don’t cite to any primary sources and then I started reading the other stuff that’s about the congressional bureaucracy and nobody was citing the primary sources there either.
So I thought, we’ve got a history that’s almost like a folk legend about the rise of the congressional bureaucracy, but I’m not sure that people have looked at the primary sources, and that’s a really important observation for me because that makes me want to go look. Then I started rounding up all of the different primary sources that I could get my hands on for the different bureaucratic components, and the Office of Legislative Council jumped off as soon as I found what’s the subject of this article, which is the opinions that they wrote from 1919 to 1959.
Kevin Kosar:
So this story—as you tell it—starts in the Progressive Era, a century ago. Industrialization had occurred, cities were growing bigger, and the whole country was in a growth spurt. During this time, Progressives and some of their allies decided that, in general, government at all levels needed to do more things to deal with these major developments, such as passing laws to limit the number of hours a company could demand employees work, child labor, etc.
But courts, in many instances, struck down those early laws. And this collision between legislative and judicial power seems to have set the stage for the “Columbia Triumvirate,” as you term them. In brief, who were the Columbia Triumvirate, and what did they do?
Beau Baumann:
The Columbia Triumvirate were three lawyer-academics who worked at Columbia Law School, where they set up the first clinic dedicated to legislative drafting. These were hardcore progressives who looked at the Lochner era with a little bit of trepidation, because from their vantage point, the problem in the progressive era is urbanity and modernity creating new social issues. So they wanted legislatures to take the driver’s seat and pump out social legislation that would ameliorate all those problems.
And what’s the problem if you want to aggrandize legislative power in the Lochner era? It’s courts that are aggrandizing themselves at the same period with new judicial doctrines that are curbing legislative power and flexibility. So their goal was always to find a way to build institutions within legislatures that would counteract the pull of judicial self-aggrandizement and lead lawmakers to assert their own authority across time.
Kevin Kosar:
So in order to help Congress win in a battle against the judiciary, they wanted to give it better lawyering. Is that the essence of it? And when did that start to happen?
Beau Baumann:
So there’re two periods that really matter is they get together in around 1910 and they make a big push with the Republican progressives. Theodore Roosevelt and Woodrow Wilson sign onto this effort where they try to set up what became the Offices of Legislative Counsel. That effort goes down in flames from 1910 to 1914.
And the reason why is because when they were pitching the Congressional bureaucracy to lawmakers, the lawmakers took great offense. If you’re a senator in 1912 and you have somebody telling you that you need to start forking over huge parts of the legislative process to these unelected bureaucrats, the first instinct of many—especially Southern—lawmakers was I don’t need a schoolmarm telling me how to do my job. And the minute that I do is when the voters need to start sending somebody else to Capitol Hill.
So there’s huge resistance and they fail miserably from 1910 to 1914, and they have to regroup, and they restart their effort with a new political coalition that brings in the newly ascendant Democratic Party. How did they pitch themselves to Democrats?
First, by Middleton Beaman going to Capitol Hill and offering his services to the House and demonstrating that he is not just able to draft the tax legislation that the Democratic Party needs to replace the tariff system. He is the most prolific and most astute statute drafter of his generation, maybe of all American history. And that’s a huge impetus for the Democratic Party to co-sign their institution-building because the Democratic Party is busy with nation-building. They need all kinds of different programs. They need to set up agencies. They need to set up a new tax system. At the same time, Thomas Parkinson goes to the Senate and advises them on the constitutional issues that are arising with child labor reform
Through this two pronged effort, they build the support they need among Democrats and Southern Democrats to successfully set up the offices that eventually became the Offices of Legislative Council in 1918.
Kevin Kosar:
This was an interesting point in congressional history where the citizen legislature—a well-intended amateur model of what a member of Congress or Senator should be—was still very regnant, yet at the same time, there was a dawning awareness that this is a big, important job, and maybe we should professionalize our operations a little bit.
So at that time, we saw things like the creation of the Legislative Reference Service, which became the Congressional Research Service. The General Accounting Office was established around this time, which ultimately became the GAO that we know today.
Beau Baumann:
JCT [Joint Committee on Taxation] as well.
Kevin Kosar:
Absolutely.
Now, your article leads with an interesting story. It describes how Senator David Reed, a Pennsylvania Republican, a guy who worried a lot about immigration and supported reducing it, went on the floor of the Senate in 1929 and declared he would not vote for a bill curbing immigration because the OLC told him the proposal contained a provision of the legislation was unconstitutional. What does this incident illustrate about OLC’s role?
Beau Baumann:
So, what’s this paper about? It’s about legislative constitutionalism. Legislative constitutionalism is our ability to study the constitutional culture on Capitol Hill. In 1997, the recently departed, great law professor, Frederick Schauer wrote that the problem with the whole literature about legislative constitutionalism is that we have basically no examples of the Constitution trumping politics. That accusation has hung over this whole literature for decades. When you try to talk to law professors about this, many of them operate under the suspicion that the Constitution doesn’t really exert much pull at all on lawmakers on Capitol Hill. So when I started writing this project, I knew that background, and I was going to start the article with the gold standard in this sub-literature, which is showing the Constitution trumping party politics, but also lawmakers own policy preferences.
So who’s David Reed? He’s a Senator who comes out of World War I with this huge jingoistic nationalist project—all time, worst Senate racist. One of the most reprehensible senators we’ve ever had. He co-signed the law that basically shuts down immigration in the 1920s.
So his political project comes to a head in 1929 when Republicans realized that, oh, we should go further. We need to destroy the political power of new non-citizens, not just keep new ones from coming in. So they realized, we’ll just take non-citizens off the census and that will just crush urban power and non-citizens’ political power. This legislation comes to a head.
David Reed goes out on the Senate floor and he says, I would love to pass this legislation. This is my dream. This is great. This is my whole political project, right? But he says, I can’t do it. I can’t do it because it’s unconstitutional. And his co partisans start standing up. They’re like, what is happening? What’s going on? And he says, I received an opinion from the Office of Legislative Counsel.
And that example shows why this whole finding is so important. It’s a bunch of examples of just how important the Constitution is on Capitol Hill and has been for a very long time. So it kind of upends this whole suspicion in law schools that legislative constitutionalism is a non sequitur.
Kevin Kosar:
This brings to mind that a fellow I’ve known for some years, Michael Stern, who served as a counsel in the House of Representatives for a long time. He once said to me that law schools tend to turn out people who, if they’re doing the sort of law around Congress and federal policy, they tend to have an executive branch-centric perspective. So very few people get trained to think of it from a legislative centric perspective.
Beau Baumann:
That’s so true, Kevin. What does law school teach you? Appellate opinions, and it’s all about process, a reasonable procedure, a neutral lawgiver. So you come out looking at the judiciary and think, that’s the crème de la crème. You look at an executive agency—that’s pretty solid. And then you look at the chaos of the legislative process, and you’re like, whoa, that is chaos. That’s not law. The Constitution must not exist there.
And that’s what you’re operating against every time in the legal academy you want to write a serious piece about Congress. That’s what you have to overcome.
Kevin Kosar:
Yeah, and he had argued that there’s basically a downstream effect to it. Law schools are churning out people educated this way, and then they go and they work in the executive branch, and some of them cycle back to the law schools and take that executive branch-centric perspective. They also often end up in the judiciary and so it kind of creates this it kind of aids and abets the growing presidentialism where you can always find a good lawyerly reason why a president should be allowed to do something.
And so this article is a great reminder that there was this force inside the Congress itself that made the case for Congress’s power and took that as a touchstone.
You use the word opinion. For the non lawyer audience out there, I just want to underscore that. First, you say a little bit about what an opinion is, but what came clear from your article is that some—if not many—of these opinions—or all, you tell us—took a stand. They weren’t simply revisiting case law and saying, on the one hand, this, on the other hand that. Here’s what the case law is; I leave it to you as a legislator to just figure out whether this provision makes any sense or is constitutional, which is kind of the modern approach to lawyering that emanates from the Congressional research service today to a degree and also within the chambers.
Beau Baumann:
Let me wind back when I say opinion. What these guys from Columbia did was they set up a hierarchy of precedence. So at the bottom you have briefs. A brief is what is produced when a lawmaker comes to you and says I already know what I think I want you to dress it up for me. That has no precedence. Above that you have memoranda, which are non-precedential views where the bureaucrat is giving you their best view of the law. And then an opinion is a “binding” written document that tells you the bureaucrats’ unanimous view as to whether or not legislation is constitutional or resolving some other subconstitutional legal question.
So what’s the point of an opinion? This is why this group matters. You might think—and I had this question when I was writing, which is—why did they care what these bureaucrats had to say? And the reason—which is really the most interesting part of the paper for me—is today, all this legal work in Congress is diffuse. GAO does legal work. CRS does legal work. The drafting still gets done by the Offices of Legislative Council and the Law Revision Council.
Everything’s become so diffuse and specialized that you don’t have a lot of overlap. But back in the day, you have these bureaucracies kind of centralized under the call and command of Middleton Beaman, who’s at the time viewed as one of the most successful legislative attorneys of all time. And when an opinion gets drafted, that is not just an opinion that goes to the lawmaker. That becomes the law in the office.
Why does that matter? Because that law becomes the written law that informs statute drafting, law revision—all the little tasks that are just in one bureaucratic unit. So an opinion becomes incredibly consequential.
Let me give you an example. They ask about the non-delegation doctrine. They get several opinions on it. Those opinions define the rules of how Congress can get around the non-delegation doctrine. We see that salient legislation uses those opinions for drafting, so it becomes this law internal to Congress. And it matters because they’re the only game in town. They have the most elite lawyers on Capitol Hill, so it’s not just about the practical effect, but also the persuasiveness. They’re getting these young hotshots out of Harvard and Columbia to write this stuff, so it has this extra added advantage of persuasiveness.
But, what was the other thing that you asked me?
Kevin Kosar:
I think you’ve touched on it. The idea that you have these folks saying, this is what the law means as we see it, and that’s what the chamber was taking up as a basis as opposed to people in Congress saying, well, you may feel one way about this provision of the constitution, but I feel another way—we’re not collectively united, whereas the executive branch obviously has Department of Justice and its own office in there, which has their own idea of what the law and the Constitution mean.
Beau Baumann:
Yeah. And why is that important? It’s because of what separation of powers scholars been saying for 40 years, since before I was born?
“Congress is the only branch that doesn’t have an institutional setup for lawyers who are committed to their own branch.” The president has OLC. The Supreme Court has no shortage of lawyers who are interested in its own institutional prerogatives. Today we have nothing like this, but back then it was important to have non-partisan Article I ideologues who were pursuing the institution’s best interests.
That’s what’s lost today.
Kevin Kosar:
Right. I started in the Congressional Research Service back in 2003 and we had people at that time who had started at CRS in 1967 and you could still see traces of this in some of the folks who were working there at that time where they felt perfectly comfortable when a Senator called up and asked him to come over to talk about something to say that the executive branch is wrong on the interpretation of the law here and telling the Senator this is what the law means.
Your article also notes that the Triumvirate came in and also thought that the Office of Legislative Counsel in these chambers should play a sort of bridging role between congressional drafting and the executive branch’s execution of the law. It’s almost as if they weren’t just lawyers, but they took some interest in public administration and the specifics of how does policy get executed so that they could write the law so it would work better. Is that right?
Beau Baumann:
Two things.
One is, I just want to get this out there because I think people misread the paper sometimes, and think these guys were precedentialists. That’s not accurate.
Nobody really thinks like this anymore, but in their headspace, there was a difference between administrators and the president. From their perspective, the idea of the unitary executive wasn’t just unheard of, but it was unfathomable to them, because Congress was setting up and structuring these federal agencies. They worked for Congress. They didn’t work for the president in the sense the unitary people think today.
So it was natural to them that to draft better statutes, would bring in skilled administrators who worked for Congress to draft better laws. And they didn’t see a problem with that like I think some people would see today.
You also have to remember that these were people who were in real time living through Prohibition. So what was Prohibition? Prohibition was passing a constitutional amendment, supplemented by federal laws that completely fail in every meaningful respect because they didn’t take into account administration.
So this is the first generation—and this is part of their genius—that realizes it’s a total waste of time to draft statutes unless you’re carefully studying the administration side of it. From their perspective, they needed to bring in those administrators to write good laws.
Kevin Kosar:
OLC eventually receded from playing these roles. When did it fade and why?
Beau Baumann:
They were operating the opinions from 1919 to 1969, and as far as I can tell it did not go away because Senators or representatives had a problem with it. They were avid consumers of these materials.
Rather, with the death of Middleton Beaman, there was a new generation that came in and took over these organizations, but they don’t share the same kind of constitutional politics because they weren’t born in the Progressive Era.
So they kind of look back on this project—which was kind of secret and under the table—in a bit of horror. What happens is the same thing that happens to every component of the Congressional bureaucracy: eventually, new bureaucrats come to the table who adopt a kind of hyper neutrality. We see this over and over again.
Now, the Columbia Triumvirate were really non-partisans—I don’t ever want to mistake that. But they were rabid ideologues in favor of Article One power. They are like John Yoo for Congress. But these new bureaucrats adopted a more hyper neutral stance where they didn’t believe it was appropriate for them to answer lawmakers questions on such high salience political issues.
So they really take the wind out of the sales of this project in the Eisenhower administration. And by the end of the 1960s, it’s pretty much dead. So the short answer is that these bureaucrats rejected what they inherited.
Kevin Kosar:
I’m thinking about the sort of folks who may have been flowing into that job around the 1950s and they’re coming out of law schools where they probably were trained in a lot of law about New Dealism. And New Dealism involved a lot of delegation to presidential power—astonishing regulation and things that were just not comprehensible 30 years earlier were being done and we’re being in many instances upheld.
Beau Baumann:
Also think like what’s ascendant in the legal academy in the 1950s? It’s the legal process.
And I’m not the first person to point out that the legal process folks who really took a grip on the legal academy weren’t that interested in Congress or aggrandizing Congress. That wasn’t really like their pursuit. So the lawyers that you’re going to be getting across that time are going to be less and less interested in legislative process, procedure, and politics.
Kevin Kosar:
Got it. Beau Baumann, thank you very much for telling us about the forgotten history of Congress’s offices of legislative counsel.
Beau Baumann:
For sure, thanks Kevin.
Kevin Kosar:
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at AEI. Once again, thank you for listening, and have a great day.
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