Resurrecting the Trinity of Legislative Constitutionalism
abstract. For generations, scholars have called on Congress to counter the Department of Justice’s Office of Legal Counsel, which offers legal advice that bolsters presidential power. They argue that a “congressional Office of Legislative Counsel (OLC)” could safeguard Congress’s prerogatives in the face of executive and judicial aggrandizement. Recently, these calls have prompted Congress to consider creating such a body. But participants in this conversation have assumed that nothing like a congressional OLC has ever existed on Capitol Hill.
This Article corrects the record. It provides the first analysis of five hundred opinions and memoranda showing that Congress had something like a congressional OLC for a half-century. From 1919 to 1969, the two Offices of the Legislative Counsel—one in the Senate and one in the House of Representatives—developed a system for resolving lawmakers’ constitutional questions using a hierarchy of precedential opinions, nonprecedential memoranda, and briefs. When these Offices constructed constitutional meaning, they put a thumb on the scale for congressional power with a novel reasonable-doubt standard designed to vindicate Article I power. Lawyers in Congress used these opinions to construct constitutional meaning, establish drafting conventions, flesh out Congress’s role in the administrative state, and build up Congress’s hard and soft powers.
This Article unpacks this opinions-drafting practice and its implications for constitutional law, administrative law, the separation of powers, and legislation. Using new tools and untouched primary sources, this Article exhumes a lost vision. Three Progressives—the “Columbia Triumvirate”—built an institution that could vindicate Congress’s ability to enact social legislation by bringing “harmony” to the political branches. This vision, which is best preserved in the opinions-drafting practice, helps reveal a missing link in the Progressives’ vision for Congress.
The Columbia Triumvirate’s actions provide an important example of institution building amid today’s “congressional declinism.” Like many Americans now, the Columbia Triumvirate looked at Capitol Hill with anguish. Their agenda depended on the construction of a new and implicit governing paradigm. While the opinions are important historical artifacts, their very existence is the more consequential discovery. Ultimately, this Article provides a thick history of the opinions-drafting practice to help us better understand institutional development within Congress. This Article simultaneously aims to help us rediscover the spirit of institutional innovation that gripped the Columbia Triumvirate. If today we are unsatisfied with Congress, we should imagine and build the institutions that will help our national legislature maintain its place of primacy.
author. Ph.D. Candidate, Yale Law School. I thank Jenné Ayers, Josh Chafetz, Jesse Cross, Blake Emerson, Bill Eskridge, Nick Parrillo, Noah Rosenblum, Stephen Skowronek, Chad Squitieri, Allen Sumrall, and Alex Zhang. Thanks go to the families of Thomas I. Parkinson, Clayton E. Turney, and Thomas R. Mulroney, who provided new documents and fresh insights into the lawyers described in this Article. I am grateful to the Oscar M. Ruebhausen Fund for financially supporting my research. The research behind this Article would have been impossible without the phenomenal assistance of Adam Berenbak of the National Archive’s Center for Legislative Archives.
Finally, I appreciate the tireless efforts of the Yale Law Journal editors, who elevated this Article in ways that would have been impossible without them. Thank you all for taking a chance on a young scholar with an admittedly unusual piece of legal scholarship.
Introduction
On May 27, 1929, Senator David Reed (R-PA) strode onto the Senate floor near the pinnacle of his institutional prestige.1 Reed, a decorated veteran of the Meuse-Argonne offensive, personified the postwar period’s jingoistic patriotism.2 Five years earlier, Reed helped codify the national zeitgeist with the 1924 Immigration Act (the Johnson-Reed Act).3 The Act sharply limited the flow of new immigrants.4 It fit within Reed’s project, which emphasized the reification of Anglo-American political and cultural power.
Reed arrived on the floor to discuss measures that would further limit the role of immigrants in American life. Having restricted immigration to a trickle, nativists looked forward to the 1930 census as an opportunity.5 The Senate was debating a provision that would exclude noncitizens from the census count and curb their political influence.6 Because the law implicated the same nativist feelings that were behind the 1924 Immigration Act, all eyes fell on Reed.
Reed’s first remarks that day were entirely in keeping with his reputation and legacy. He said, “I do not remember a time when I have been faced in the Senate with a proposition which has my more ardent support than this amendment.”7 The avatar of Senate jingoism could appreciate the provision’s allure, its potential for siphoning political power away from cities and immigrant communities. “I want to vote for it,” Reed said.8 “[E]verything in my experience and outlook would lead me to vote for this amendment if that possibly could be done.”9
But from there, Reed broke from the expected script. As much as he “wish[ed] that it [was] possible,” he was “oath bound” to vote against it.10 In his telling, excluding noncitizens from the census “would be unconstitutional” under the Fourteenth Amendment and would “jeopardize the entire measure.”11
When the stunned Senator Henry Allen (R-KS) demanded that Reed name his authority,12 Reed responded that he reached this conclusion after consulting an opinion prepared by the Office of the Legislative Counsel for the U.S. Senate.13
The measure failed after the defection of Reed, who was arguably the most successful nativist lawmaker in Congress.14 Reed helped set a precedent that stands to this day.15 Although courts have only rarely addressed this legislative precedent, most observers think that Congress lacks the power to exclude noncitizens from the census.16
***
This story confounds the literatures of legal scholars, political scientists, and historians. When the Reed episode took place, the Office of the Legislative Counsel was a fledgling drafting office.17 What was it doing advising Reed on the constitutionality of pending legislation? And why should Reed have cared what the Office had to say? Scholars have dismissed the Office’s pre-1970s influence, characterizing it as weak and inconsequential.18 The existing literature has no answer to the influence on display in the Reed incident. And the neglected historical record shows that this was no isolated incident: this Office wielded an uncanny ability to convince lawmakers that even their own legislation had to be abandoned as unconstitutional.19
Several strands of scholarship are implicated. Legal scholars are newly interested in the “congressional bureaucracy,” the nonpartisan offices that help Congress legislate.20 These scholars mine the congressional bureaucracy for doctrinal insights and to model Congress’s performance in the separation of powers. For example, Jesse M. Cross and Abbe R. Gluck argue that Congress built its bureaucracy to counter executive aggrandizement.21
Separately, scholars have spent decades lamenting the absence of any congressional equivalent to the Department of Justice’s (DOJ’s) Office of Legal Counsel.22 DOJ’s Office of Legal Counsel provides legal opinions that settle constitutional and subconstitutional questions as they arise in the executive branch.23 Historically, the Office of Legal Counsel has been populated by lawyers and scholars with an outsize view of presidential power, prompting scholars to complain that the Office has abetted the rise of presidentialism for almost a century.24 The simultaneous expansion of judicial power and fears of “juristocracy” have left scholars with the impression that Congress is the only branch of government without lawyers dedicated to vindicating its own constitutional power.25
Scholars claim that a congressional equivalent to the Office of Legal Counsel is necessary to safeguard Congress’s interests.26 As a result, Congress is considering whether to build such a counterweight.27 Lawmakers recently asked the Government Accountability Office (GAO) to examine the feasibility of this proposal.28 In December 2023, GAO’s report weighed Congress’s options without taking any concrete stance.29 The GAO report followed the literature in assuming that nothing like DOJ’s Office of Legal Counsel has ever existed in Congress.
This Article corrects the record by providing the first analysis of five hundred opinions and memoranda showing that Congress had something like DOJ’s Office of Legal Counsel for a half-century.30 From 1919 to 1969, lawmakers solicited “opinions of the Office” from the Senate Office of the Legislative Counsel (Senate OLC) and the House Office of the Legislative Counsel (House OLC).31 These opinions constructed constitutional meaning, set drafting conventions, and helped Congress build its “hard” and “soft” powers.32 The congressional OLCs maintained this practice in excess of their statutory mandate, which was entirely focused on statute drafting.33
Congressional OLC opinions provided a substantive law within Congress defined by a strong form of stare decisis.34 An opinion of the Office was precedential: it bound the congressional OLCs prospectively in drafting opinions and statutes.35 This Article discusses the force-of-law drafting convention, a way of drafting statutes that flowed from opinions.36 This is a key example of how precedential opinions could impact the drafting of consequential legislation. The congressional OLCs wrote opinions and drafted statutes; the mutually reinforcing relationship between these two activities is a major theme in this Article.37 This practice resembles the opinions later issued by DOJ’s Office of Legal Counsel. Separately, the congressional OLCs issued nonprecedential memoranda that resolved less consequential issues, cemented drafting conventions, and preserved institutional memory.38 Third, the Offices issued briefs that did not represent the drafters’ view of the law.39 Instead, lawmakers would assign the congressional OLCs a particular viewpoint to flesh out in writing. The congressional OLCs kept these three categories separate with signals in their work product.
The congressional OLCs’ system also helps us better understand the nature of legislative constitutionalism within Congress. If legislative constitutionalism were just politics by another name,40 then this category of opinions would be pointless. Lawmakers’ eager consumption of the Offices’ views of the law, marketed as legal products distinct from briefs, shows that lawmakers had a genuine interest in vindicating their constitutional oaths. This point is further illustrated by this Article’s empirical findings, which show that the opinions-drafting practice was especially powerful among a cadre of bipartisan lawmakers who made constitutionalism a key part of their legislative politics.41 This is the grouping of lawmakers in both chambers who communicate to their constituents and to their colleagues with a heavy emphasis on constitutional norms and ideas.
To understand the rise of the opinions-drafting practice, this Article details the historical contingencies that made it possible,42 including developments inside Congress (e.g., the 1910 rebellion in the House and the rise of Southern Democrats) and in the broader culture (e.g., Progressives’ emergence as a distinct social class). It also discusses internal developments within the congressional OLCs that powered and then doomed the opinions-drafting practice.43
Though influential,
the opinions-drafting practice ultimately failed to overcome the material
realities of Congress.44 The congressional OLCs depended on the
support of Southern Democrats who were newly ascendant in the “Jim Crow
committee
system.”45 These Southerners allowed the congressional
OLCs to skirt the thin specifications of the Offices’ organic statute.46 While these Southerners could cosign
state-building projects, their influence required the opinions-drafting
practice to declare unconstitutional bills that would have ameliorated the
worst realities of the racial caste system.47
They constructed a “southern cage” that constrained the practice’s potential
for decades.48
This lost history of the opinions-drafting practice should inform extant calls for a congressional equivalent to the Office of Legal Counsel. The history recovered in this Article shows that these reform efforts are more than a pipe dream—they are an attempt to rebuild what was lost. In a time when fears of “congressional declinism”49 are “rampant,” the story of the Columbia Triumvirate is a tonic.50 These insights will be instructive as scholars think about how to reify Congress’s role in our government. And as policymakers weigh the 2023 GAO report, the lessons of the Columbia Triumvirate should loom large.
Part I of this Article overcomes what is perhaps the greatest barrier to understanding the opinions-drafting practice: the legal academy has almost completely ignored the practice’s architects. The congressional OLCs and the Offices’ opinions-drafting practice were created by three Progressives known as the “Columbia Triumvirate.”51 These three—Joseph P. Chamberlain, Thomas I. Parkinson, and Middleton Beaman—set out to reform Congress so that it could enact “social legislation.”52 By focusing on the Columbia Triumvirate at the expense of other, more familiar figures (whether Harlan Stone or Ernst Freund in the United States, or the likes of James Bryce in the United Kingdom), this Article casts unexpected light on the Progressives’ designs on Congress.
Part II examines several layers of context that help us understand the Columbia Triumvirate’s world. These layers include the different political constituencies in favor of a bill-drafting bureau, a 1910 rebellion in the House of Representatives that paved the way for the Columbia Triumvirate’s work, and a wave of bureaucratization that swept through Anglo-American legislatures, including the U.S. Congress.
Part III narrates the creation of the congressional OLCs and the opinions-drafting practice. In particular, it highlights the historical contingencies at play and the Columbia Triumvirate’s role as savvy “policy entrepreneurs.”53 From 1910 to 1914, the Columbia Triumvirate mobilized a wide-ranging coalition to create what would become the congressional OLCs. They were directly involved in efforts to pass legislation that would have established the congressional OLCs, deploying different arguments to target key legislators.54 Congress ultimately failed to enact the legislation, thwarting the Columbia Triumvirate for several years.55 After regrouping, the Columbia Triumvirate pried open the “policy window” by recalibrating their pitches around the agenda of a newly ascendant Democratic Party.56 This second attempt proved successful. But the triumvirs’ initial failure portended problems that would later undermine the opinions-drafting practice.57
Part III’s second-order objective is to correct the literature on the congressional bureaucracy. The existing literature tends to provide a linear story of consistencies across different Congresses.58 The resulting narrative surrounding the congressional bureaucracy ignores its relationship to distinct constitutional politics and political economies.59 It misses how each component of the congressional bureaucracy was designed around particular ends. The congressional OLCs, for example, were built to ensure the production of social legislation and new modes of regulation.60 This Article pivots to politics to contextualize the congressional bureaucracy’s development.61 It describes “disjointed pluralism”: institutional developments within Congress are stacked on top of one another in ways that can be in tension or inconsistent.62 In this case, a coalition came together to create the congressional OLCs and the opinions-drafting practice, only to be displaced by subsequent developments in the 1950s and 1960s.63
Part IV gives an overview of the opinions-drafting practice. Because the materials are too voluminous to discuss each opinion in detail, this Part focuses on some of the practice’s outputs to illustrate the Article’s broader themes and to illuminate the practice’s inner workings. It provides a brief glimpse into the world of the congressional OLCs with new materials absent from the existing literature. Within a few years of the creation of the congressional OLCs, the Columbia Triumvirate created a powerful institution with connections across Capitol Hill, the administrative state, and even the White House. This new institution, and the personalities that drove it, laid important groundwork for the New Deal, and ultimately helped realize Franklin Delano Roosevelt’s reconfiguration of the American state.64
Part V discusses the downfall of the opinions-drafting practice. By the end of the 1940s, the Columbia Triumvirate and its followers had achieved many of their objectives. They were followed by a younger generation of congressional bureaucrats who were in the process of abandoning the Triumvirate’s vision. In the end, the opinions-drafting practice drowned in still waters. Instead of a counterrevolution, the practice was quietly snuffed out by a generation of bureaucrats who flinched at the Triumvirate’s aspirations. While the existing legislation literature presents a Whiggish history of progress,65 this Article suggests that some developments between and after the 1946 and 1970 Legislative Reorganization Acts presented serious setbacks to the congressional bureaucracy’s influence and functioning.66
The Conclusion gestures at future avenues of research with a focus on institutional developments within Congress. Because of the vast scope of the materials unearthed (including materials beyond the opinions-drafting practice), this Article sets the table for a multi-article agenda that will be published over several years. One article in this series will focus on the opinions-drafting practice’s implications for our conception of legislative constitutionalism. A second article will show that the Columbia Triumvirate’s techniques revolutionized Congress’s statute drafting and made the statutory state possible. This second article will deal with related doctrinal questions, such as whether the congressional OLCs made textualism and purposivism possible by making Congress’s statutes professional and legible. Finally, a third article will place the Columbia Triumvirate in a jurisprudential lineage that complicates our understanding of twentieth-century legal schools of thought.
Before proceeding, a
caveat. I do not mean to suggest that the Columbia Triumvirate used the
opinions-drafting practice to “capture” Congress and dictate outcomes.67
Instead, the practice was an implicit governing paradigm—a practice that
specified a means for analyzing legal questions in Congress that sustained its
creators’ own normative priors.68
The opinions-drafting practice did not ensure any particular outcome in the
legislative process. But that does not mean that it was neutral. It embedded
the Triumvirate’s worldview, norms, and priorities in the legislative
process.69 Because lawmakers, like bureaucrats, are
shaped by the institutions they inhabit, institutional developments may shape
official actions.70
This means of institutional hegemony was also reinforced by the revolving doors
between the Legislative Drafting Research Fund (LDRF), the congressional OLCs,
agency positions, and the private sector. The Columbia Triumvirate’s students
headed to Capitol Hill and were greeted by a procedure that sustained their
teachers’ mission. This dynamic behind the opinions-drafting practice is worth
studying and, perhaps, replicating.
***
The Appendix for the Article can be found here.71 Cong. Rec. 1958 (1929). Senator Reed was little more than one year away from gracing the cover of Time. Time, July 21, 1930, https://content.time.com/time/covers/0,16641,19300721,00.html [https://perma.cc/6JT6-7A8E]. As Time documented, the period was maybe the height of Reed’s prestige after he took the lead in negotiating the London Naval Treaty. The Congress: Treaty Debate: The First Week, Time (July 21, 1930), https://time.com/archive/6745390/the-congress-treaty-debate-first-week [https://perma.cc/Q9K3-ZLEX]; see also Sunday Star (D.C.), Dec. 22, 1929 (carrying a picture of Reed and his colleagues on the American delegation in anticipation of the London conference). But in this period, Reed’s political prestige was tied closely to the reigning political establishment. Reed was ultimately swept aside by the New Deal, which precipitated his failed reelection race in 1934 and his growing sympathies with fascism. See Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time 12 (2013) (“If this country ever needed a Mussolini, it needs one now.” (quoting 75 Cong. Rec. 9644 (1932) (statement of Sen. Reed))).
For a general review of the ways that nativism influenced the 1930 census, see David Hendricks & Amy Patterson, The 1930 Census in Perspective, Nat’l Archives (2002), https://www.archives.gov/publications/prologue/2002/summer/1930-census-perspective.html [https://perma.cc/YS6H-KQGW].
Id. (“[T]he Senator will find [the authority] in a memorandum prepared by the legislative counsel of the Senate.”). For the Senate Office of Legislative Counsel (OLC) opinion, see Memorandum on Power of Congress to Exclude Aliens from Enumeration for Purposes of Apportionment of Representatives from C.E. Turney, Law Assistant, Off. of the Legis. Couns., U.S. Senate (Apr. 30, 1929), reprinted in 71 Cong. Rec. 1821-22 (1929).
Id. at 10 (“[A] constitutional amendment . . . would likely be necessary in order to exclude any individuals from the census count for the purpose of apportioning House seats.”). But see, for example, Justice Breyer’s dissent in Trump v. New York, 592 U.S. 125, 146 (2020) (Breyer, J., dissenting), which addressed Reed’s reliance on the Senate OLC opinion. The episode was addressed in more depth in a district-court opinion. See City of San Jose v. Trump, 497 F. Supp. 3d 680, 691, 725-26 (N.D. Cal. 2020).
See Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 Colum. L. Rev. 807, 812 (2014) (“[The congressional OLCs] were historically small with a narrow focus, but over the last few decades [they] have experienced a dramatic expansion that has allowed professional drafters to be involved in virtually every legislative project.”); Jesse M. Cross, The Staffer’s Error Doctrine, 56 Harv. J. on Legis. 83, 91 (2019) (asserting that Congress’s nonpartisan staff were “confined to clerical duties” through the New Deal); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale. L.J. 266, 389-90 (2013) (emphasizing the lack of professional staff in Congress prior to the 1960s and 1970s).
See Don S. Warren, Case Switches Tactics on D.C. National Vote, Evening Star (D.C.), Jan. 31, 1954, at A-12, A-12 (detailing Senator Francis Case’s abandonment of his own measure to provide a vote for President to District of Columbia residents after the Senate OLC declared the measure unconstitutional).
Scholars habitually lament the role played by the Department of Justice’s (DOJ’s) Office of Legal Counsel and call for a congressional equivalent on the understanding that no similar organization has ever existed. See, e.g., Oona A. Hathaway, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, 68 UCLA L. Rev. 2, 83-88 (2021) (proposing the creation of a congressional OLC); Emily Berman, Weaponizing the Office of Legal Counsel, 63 B.C. L. Rev. 515, 562 (2021) (“Congress also could adopt internal mechanisms to better serve its long-term institutional interests. The obvious suggestion is for Congress to create a legislative equivalent of [the Office of Legal Counsel].”).
See About the Office, U.S. Dep’t Just., https://www.justice.gov/olc [https://perma.cc/W4PT-U5KR].
William Ford, What Might a Congressional Counterpart to the Office of Legal Counsel Look Like?, Lawfare (May 17, 2022, 12:47 PM), https://www.lawfaremedia.org/article/what-might-congressional-counterpart-office-legal-counsel-look [https://perma.cc/JT3E-WC3J].
Id. (“During the 116th Congress, the House Select Committee on the Modernization of Congress recommended that the Government Accountability Office (GAO) study the feasibility of establishing a Congressional Office of Legal Counsel—a legislative counterpart to [the Office of Legal Counsel] that would respond to the growing body of executive branch legal opinions that undermine . . . Congress’s powers.”).
See Beau J. Baumann, Resurrecting the Trinity of Legislative Constitutionalism: Appendix, Yale L.J. (May 2025) [hereinafter Appendix], https://www.yalelawjournal.org/files/134.7.BaumannAppendix_ng2pawgy.pdf [https://perma.cc/4DNR-ELP8] (indexing all these new materials).
See id. I use these abbreviations as shorthand for convenience. I do not mean to suggest that the Offices of Legislative Counsel of today operate anything like Congress’s answer to DOJ’s Office of Legal Counsel. To the contrary, the congressional OLCs of today have shrunk from their historical role and do not offer any answer to DOJ. See infra Part V.
In a review of the available sources, I have found no reversals in the opinions-drafting practice’s substantive outcomes. To the contrary, the opinions exhibited a strong form of stare decisis across the decades. See infra note 47 (citing two memos separated by two decades that asserted the same constitutional defects in pending antilynching bills); see also Jonathan S. Gould, Law Within Congress, 129 Yale L.J. 1946, 1964, 1980 (2020) (describing parliamentary precedent as “procedural” law characterized by “a strong form of stare decisis”).
An opinion of the Office was “binding” in a soft sense. It was internally binding as a matter of drafting and carried weight with lawmakers. Compare Beau J. Baumann, The Turney Memo, 97 Notre Dame L. Rev. Reflection 155, 155-56 (2022) [hereinafter The Turney Memo] (finding one congressional OLC memorandum expounding on a drafting convention), with Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 493-528 (2002) (hypothesizing the same convention’s existence and showing how it was deployed across the U.S. Code). In this sense, the opinions of the congressional OLCs mirror the “binding” nature of the Office of Legal Counsel in DOJ. See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1456 n.31 (2010) (“[T]here is actually some uncertainty whether [the Office of Legal Counsel’s] opinions are truly binding within the Executive Branch as a technical matter. But there is a longstanding practice of treating them as binding.”).
In releasing a draft of this Article, I became familiar with the view, popular in sections of the legal academy, that Congress does not actually take the Constitution seriously as a general matter. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1368 (1997) (asserting without citation that there are vanishingly few examples of Congress forgoing preferred policy for constitutional principles). Although this surprisingly widely held view has always been unsubstantiated, this Article reveals that it is little more than some constitutional-law professors’ cynicism for legislative politics. See, e.g., supra note 19 and accompanying text (describing an instance in which a constitutional opinion from the Senate OLC killed legislation by appealing to lawmakers who preferred the legislation as a matter of policy); Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465, 472 & n.43 (2023) (discussing the legal professoriate’s cynical views of legislative politics).
The opinions-drafting practice grew out of the push to create the congressional OLCs. See infra Part III. The reformers’ successful sales pitch hinged on the Democratic Party’s need for assistance in redesigning the nation’s revenue system. See infra Section III.B.1. Ultimately, then, much of the story contained in this Article depended on broader economic conditions that brought the Democrats to power and incentivized them to pursue new fiscal policy. See generally David I. Macleod, Inflation Decade, 1910-1920: Americans Confront the High Cost of Living (2024) (describing price increases starting in 1897 as the driver of much of Progressive Era policy).
Like other kinds of bureaucracies, the congressional OLCs became dependent on a particular faction, gained stability, and then contorted themselves to avoid offending that faction. See id. (“[W]hen an enterprise begins to be more profoundly aware of dependence on outside forces, its very conception of itself may change . . . . As a . . . government agency develops a distinctive clientele, the enterprise gains the stability that comes with a secure source of support . . . . At the same time, it loses flexibility.”).
Daniel Schuman, Eras of Control of the House of Representatives, First Branch Forecast (Aug. 30, 2022), https://firstbranchforecast.com/2022/08/30/eras-of-control-of-the-house-of-representatives [https://perma.cc/T2D6-ZC4M]; see Katznelson, supra note 1, at 15-18 (casting Southern Democrats as a critical faction in the New Deal Congresses).
See, e.g., Memorandum in re Constitutionality of Dyer Anti-Lynching Bill from Charles F. Boots, Off. of the Legis. Couns., U.S. Senate, to Sen. Charles S. Deneen 9 (Apr. 2, 1928) [hereinafter Memo No. 72] (on file with Nat’l Archives, Ctr. for Legis. Archives, Rec. Grp. 46, Ops. of the Off. of the Legis. Couns. for the U.S. Senate, Memo No. 72); Memorandum on the Power of Congress to Create a Federal Crime of Lynching and to Provide a Criminal Penalty upon Persons Convicted of Such Crime 11-13 (Apr. 10, 1948) (on file with Nat’l Archives, Ctr. for Legis. Archives, Rec. Grp. 46, Ops. of the Off. of the Legis. Couns. for the U.S. Senate, Memo No. 269).
See John W. Kingdon, Agendas, Alternatives, and Public Policies 179 (2d ed. 2003) (describing “policy entrepreneurs” as “advocates who are willing to invest their resources—time, energy, reputation, money—to promote a position in return for anticipated future gain in the form of material, purposive, or solidary benefits”).
See Letter from J.P. Chamberlain to Thomas I. Parkinson (n.d.) (on file with Univ. of Wy., Am. Heritage Ctr., Thomas I. Parkinson Papers, 1900-1959, Box 3, Correspondence, Professional, 1911-1914) (discussing which lawmakers—the “Progressive Republicans”—to target when Thomas I. Parkinson and Middleton Beaman traveled to Capitol Hill in support of legislation that would create the forerunner to the congressional OLCs).
The Columbia Triumvirate was an exceptional band of “policy entrepreneurs” in that they overcame their initial failure to reopen the policy window from 1916 to 1918. Cf. Kingdon, supra note 53, at 175-78 (explaining a model of “policy entrepreneurs” that hinges on their ability to seize the moment when the “policy window” is open).
See Cross & Gluck, supra note 20, at 1565 (describing the 1940s and 1970s as moments of progress in the development of the congressional OLCs); Shobe, supra note 18, at 816 (describing the 1970s in the same way); Shobe, supra note 18, at 820-21 (“The modernization of the Offices of the Legislative Counsel began with the Legislative Reorganization Act of 1970.”).
Cf. Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020) (pivoting away from the usage of “political economy” in economics departments, which refers to “the application of rational-choice models to governmental actors and institutions,” and toward a usage that “investigates the relation of politics to the economy”).
Cf. Ashraf Ahmed, Lev Menand & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131, 2136 (2024) (offering a new history of presidential administration that moves away from a narrative of “a smooth working out of a particular notion of administrative governance” toward a narrative of contestation in the realm of “the political, intellectual, and legal”).
Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress 4 (2001) (“By pluralism, I mean that many different coalitions promoting a wide range of collective interests drive processes of change.”); id. (“By disjointed, I mean that the dynamics of institutional development derive from the interactions and tensions among competing coalitions promoting several different interests.”).
See infra Part V (describing the downfall of the opinions-drafting practice); see also Schickler, supra note 62, at 12 (“Multiple collective interests typically shape each important change in congressional institutions.” (emphasis omitted)); Schickler, supra note 62, at 14 (“Entrepreneurial members build support for reform by framing proposals that appeal to groups motivated by different interests.” (emphasis omitted)).
See, e.g., Richard E. Farley, Wall Street Wars: The Epic Battles with Washington That Created the Modern Financial System 112 (2015) (“Despite his less than charming disposition, Beaman was perhaps the most important unelected official in Congress during the Roosevelt years. He was religiously non-partisan and was trusted by both parties to be a fair practitioner in the drafting of legislation.”).
This Article takes no position on whether the hyperneutrality of the contemporary congressional bureaucracy is normatively justifiable in a time of hyperpartisanship. The midcentury occupants of the congressional OLCs pushed beyond the Columbia Triumvirate’s nonpartisanship to embrace neutrality on questions of congressional power. In this, the congressional OLCs set a precedent for other components of the congressional bureaucracy—for example, CRS—that have been stymied by a kind of hyperneutrality that demands that congressional bureaucrats avoid answering consequential questions entirely. See, e.g., Daniel Schuman, The Balance of Powers Demands a Strong Congressional Research Service, Wash. Monthly (July 24, 2024), https://washingtonmonthly.com/2024/07/24/the-balance-of-powers-demands-a-strong-congressional-research-service [https://perma.cc/49DT-PD46]. Whatever we make of this kind of hyperneutrality, one downside is that we lack any contemporary institution that is devoted to pushing an aggrandized view of congressional power.
This is not to say that the Columbia Triumvirate failed to benefit from the system they established. Joseph P. Chamberlain, then described as the American Association for Labor Legislation’s point person for the “technical work of bill drafting,” appeared before Congress to advocate in favor of the Association’s new workmen’s compensation bill for marine workers. Lloyd F. Pierce, The Activities of the American Association for Labor Legislation in Behalf of Social Security and Protective Labor Legislation 208-11 (May 25, 1953) (Ph.D. dissertation, University of Wisconsin), https://minds.wisconsin.edu/bitstream/handle/1793/6589/Pierce1953.pdf?sequence=1&isAllowed=y [https://perma.cc/DT2V-N7PY]. Chamberlain’s appearance in Congress focused on whether the bill that became the Longshoremen’s and Harbor Workers’ Compensation Act of 1927 comported with a dense web of Supreme Court precedent. Id. After his testimony, lawmakers were uncertain as to the legality of the bill. They turned to the Senate OLC for the Office’s opinion, which eventually greenlit revised legislation. Id. at 211-12. In a recurring pattern, a member of the Columbia Triumvirate supported legislation that was ultimately vindicated by one of the congressional OLCs populated with the Triumvirate’s students.
See K. Sabeel Rahman, Structural Change and Administrative Practice 11 (Feb. 5, 2024) (unpublished manuscript) (on file with author). Rahman identifies a growing literature on the study of bureaucracies showing that “everyday practices” order the normative purposes of the state. Id. at 5 (quoting William Boyd, With Regard for Persons, 86 Law & Contemp. Probs., no. 3, 2023, at 101, 126). Even minute practices affect the world state actors inhabit and thus are key to “shaping the degree of success [in] translating political moments and new legislation into policies that embody more democratic [and] egalitarian values.” Id. at 6. This Article shows how a particular political moment, the Progressive Era, led to the creation of a practice that structured the realities of the nascent congressional bureaucracy.
Cf. id. (describing “the micro and internal level of bureaucratic procedure, where concepts and frameworks are encoded into day-to-day practice of governance”); Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1081-82 (2013) (describing a “‘small-c’ approach” to the Constitution as concerned with the “web of documents, practices, institutions, norms, and traditions that structure American government”).
See Rahman, supra note 68 (manuscript at 11); see also Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & Pol. 345, 392 (2003) (“For while the legislature is at bottom a collection of preference-bearing individuals . . . its simple foundation is adorned with a variety of decision-shaping structures and procedures.”).