Measuring party polarization in Congress: lessons from congressional participation as amicus curiae.

• Author: Devins, Neal
• Position: Introduction through III. some Concluding Observations with Specific Reference to Zivotofsky v. Kerry, p. 933-955 - Symposium: Executive Discretion and the Administrative State

CONTENTS INTRODUCTION I. PARTY POLARIZATION AND THE BALANCE OF POWERS II. CONGRESSIONAL AMICUS FILINGS: COMPARING THE LESS POLARIZED 1974-1985 TERMS WITH THE HIGHLY POLARIZED 2002-2013 TERMS A. Why Study Congressional Amicus Filings? B. Methodology C. The Findings D. A Closer Look at Abortion and Separation of Powers Cases E. The Changing Role of Institutional Counsel III. SOME CONCLUDING OBSERVATIONS WITH SPECIFIC REFERENCE TO ZIVOTOFSKY V. KERRY APPENDIX A: CONGRESSIONAL AMICUS FILINGS, 1974-85 & 2002-13 APPENDIX B: CONGRESSIONAL AMICUS FILINGS IN SELECT ABORTION CASES, 1973-2007 APPENDIX C: CONGRESSIONAL AMICUS FILINGS IN SELECT SEPARATION OF POWERS CASES, 1974-2014 INTRODUCTION

This Article will assess patterns in congressional amicus filings over the past forty years and, in so doing, call attention to how judicial filings by Congress are an excellent measure of party polarization. My findings are hardly surprising. By looking at briefs filed both by individual members of Congress and institutional counsel for the House and Senate, I document how today's lawmakers are less likely to file bipartisan briefs than earlier less polarized Congresses. Correspondingly, Democrats and Republicans are more likely to line up on the opposite side of the same case. For example, litigation over the Affordable Care Act, the Defense of Marriage Act, campaign finance, and abortion have divided Democrats and Republicans in Congress. (1) Finally, the House is far more likely than the Senate to participate as an institutional litigant, for the majority party controls House participation and participation of the Senate Legal Counsel requires bipartisan support. (2)

Each of these findings is to be expected, and much of this Article highlights how congressional amicus filings are a reliable measure of party polarization. Beyond these findings, this study examines why today's polarized Congress is less prone to defend its institutional prerogatives than earlier less polarized Congresses. In particular, lawmakers are less apt to work together to defend congressional power. There are comparatively fewer filings in separation of powers cases, and there is often a partisan divide on cases that implicate the scope of congressional power--whether it be the Senate's power to confirm or congressional authority under the commerce clause. (3) For these reasons, a study of congressional amicus filings (although principally about Congress and the courts) offers important insights into the balance of power between Congress and the Executive and, for that reason, is an appropriate subject to explore in this symposium on executive power.

This paper will be organized as follows: First, I will detail the prevalence of party polarization and how party polarization has limited congressional interest in its institutional prerogatives vis-a-vis the executive. Second, I will discuss my research findings governing congressional amicus briefs. I will consider patterns in bipartisan filings over time (comparing the less polarized 1974-1985 Supreme Court terms with the more polarized 2002-2013 terms). I will also consider the types of issues lawmakers and their institutional counsel have pursued in their filings. This investigation will reveal a decline in briefs in institutional cases and an upswing in briefs on politically salient issues that divide the parties (abortion, same-sex marriage, campaign finance, etc.). Third, I will draw some conclusions from this study and also draw some contrasts between filings by individual members of Congress and filings by the institutional counsels for the House and Senate.

Before starting my analysis of party polarization and its impact on congressional amicus filings, two observations about what this Article does and does not accomplish: First, in studying changing patterns in congressional amicus filings, I am not contending that these briefs are highly influential and that these changes are likely to spill over to Supreme Court decision-making. I suspect that these briefs are sometimes helpful to the Court, but often they are not influential at all. My interest is measuring party polarization and its manifestations. These briefs, as noted above, are a revealing measure of congressional interest in defending institutional prerogatives and, in so doing, checking the executive branch. Second, for reasons I have detailed elsewhere and will again discuss in this Article, party polarization simultaneously deflates lawmaker interest in asserting their institutional prerogatives and increases the likelihood that members of the party not in the White House will--when in power--aggressively use congressional oversight to embarrass the President. (4) For this reason, today's House Republicans are aggressively using oversight and related litigation to question the lawfulness of various actions of the Obama administration.

1. PARTY POLARIZATION AND THE BALANCE OF POWERS

   Congress is poorly positioned to assert its institutional prerogatives against the President. Where the President has incentive to expand power, lawmakers have incentive to trade off institutional prerogatives in order to secure personal advantage. (5) Party polarization generally exacerbates lawmakers' tendencies to discount institutional prerogatives. Most notably, lawmakers are unlikely to come together in a bipartisan way to check the President. On the other hand, when the party in opposition to the President is in control of the House or Senate, efforts to embarrass the executive might tick up, and, with it, there might be increasing congressional oversight of the executive. For reasons I will explain at the end of this section, the increasing tendency of lawmakers to put party ahead of institution is likely to spill over to the types of briefs that are filed by lawmakers and their institutional counsel--matters that will be explored in greater detail in Part II.

   Unlike Congress, Presidents inevitably expand the scope of presidential power by pursuing the policy initiatives they support. While lawmakers fight over the scope of congressional power (embracing it when it supports their policy goals and opposing it when it does not), (6) the unitary President is not at war with himself--the President claims the authority to act and leaves it to Congress to check him. Political scientists Terry Moe and William Howell put it this way: "[W]hen presidents feel it is in their political interests, they can put whatever decisions they like to strategic use, both in gaining policy advantage and in pushing out the boundaries of their power." (7) In sharp contrast, members of Congress often sacrifice institutional interests in favor of individual interests (reelection and advancing their and their constituents' policy goals). Lawmakers, in other words, are "trapped in a prisoners' [sic] dilemma: all might benefit if they could cooperate in defending or advancing Congress's power, but each has a strong incentive to free ride in favor of the local constituency." (8)

   In today's polarized Congress, lawmakers are especially apt to discount institutional prerogatives. Aside from their natural disinclination to prioritize institutional objectives that might vary from their personal objectives, today's lawmakers increasingly identify with party-defined messages and seek to gain power by advancing within their respective party. (9) In so doing, Republican and Democratic lawmakers are increasingly distant from each other and increasingly unlikely to seek common ground in order to advance congressional prerogatives.

   The rise in party-line voting exemplifies this phenomenon. Two noteworthy examples: (1) the enactment and proposed repeal of the Affordable Care Act (ACA) almost perfectly divided Republicans and Democrats in Congress (no Republican voted for the initial enactment in 2010, and no Democrat backed the 2015 repeal) (10); (2) the then-Democratic Senate's November 2013 repeal of the filibuster in order to push through Obama nominees whom had been blocked by Senate Republicans (a measure supported by all but three Democrats and no Republicans). (11) The ACA and filibuster, while striking, are hardly anomalies: House Republicans now vote along party lines around 92 percent of the time, and Senate Democrats vote with their party around 94 percent of the time. (12)

   Beyond party-line voting, there are essentially no instances of Democrats and Republicans coming together to stand up to the President and defend congressional prerogatives. (13) Unlike the less partisan Congresses of the 1970s, there is no prospect that Republicans and Democrats in today's Congress would come together to enact the War Powers Resolution, the Impoundment Control Act, the Ethics in Government Act, or vote articles of impeachment against the President. (14) Moreover, the only circumstances where one or the...