AJIL Symposium: Comments by Daniel Abebe on “Congress Underestimated”

[Daniel Abebe is Professor of Law and Walter Mander Teaching Scholar at the University of Chicago]

In Congress Underestimated: the Case of the World Bank, Professor Daugirdas studies the World Bank to gain better traction on two important debates in the foreign affairs law literature, namely the extent to which the President, vis-à-vis Congress, is dominant in foreign affairs and the claim that international organizations like the World Bank weaken democracy by enfeebling domestic legislatures.  As I understand it, her argument is that contrary to the conventional wisdom of presidential dominance, Congress has used the threat of reduced World Bank funding and specific voting instructions to force the President to at least embrace, if not implement, Congress’s preferences.  Moreover, Congress’s influence on U.S. policy at the World Bank challenges the view that international organizations undermine democracy by enfeebling Congress’s capacity to influence policy outcomes.  If correct, her overall argument challenges existing conceptions of the relationship between the President and Congress in foreign affairs, and complicates our understanding of the interaction between domestic legislatures and international organizations.

Congress Underestimated: the Case of the World Bank is filled with rich institutional detail about the World Bank’s internal operations and the negotiations between Congress and the President over World Bank policy.  Although much of the detail warrants discussion, due to the space constraints of a blog post I will focus my comments on the two related arguments and the evidence offered in support.  Let me start with the presidential dominance claim and move from there.

It is important to define the conventional wisdom – the target of the argument – regarding the President’s dominance role in foreign affairs.  Perhaps the most reasonable and charitable exposition of the conventional wisdom is that, for high salience foreign affairs issues regarding national security, grand strategy, and the creation and execution of foreign policy, the President is the dominant actor in foreign affairs.  If this definition is accurate, is the World Bank of sufficient importance to the President specifically and U.S. foreign affairs generally to serve as an appropriate case study for drawing inferences about Congress’s role in foreign affairs?  Some might argue that the World Bank is an international organization of tertiary importance to the President, U.S. foreign affairs, and international politics after the United Nations, the World Trade Organization, and the International Monetary Fund, and maybe even the International Court of Justice.  Therefore, it is very well possible that the President, with limited resources and bandwidth, might not care enough about the World Bank to aggressively fight Congress on policy outcomes.   This might limit the generalizability of the claim that Congress is playing a greater role than commonly assumed.

On a related point, it is not clear what kind of evidence would disprove the claim that Congress might be more influential in foreign affairs than the conventional wisdom suggests.  For example, even assuming that Congress plays the predominant role in shaping U.S. policy at the World Bank, it is not clear that that fact, by itself, is sufficient to show that Congress is more influential in foreign affairs than previously understood.  A reasonable construction of the presidential dominance thesis doesn’t suggest that Congress plays no role in foreign affairs or, alternatively, that the President controls all aspects of the foreign affairs power. If Congress hypothetically played no role in influencing the formation of U.S. policy at international organizations, yet was influential in the creation of foreign policy, would that prove or disprove the claim that Congress plays a greater role in foreign affairs? The issue here is a baseline problem, namely that it isn’t clear what constitutes presidential dominance on one hand, or what demonstrates congressional influence on the other. And, to be fair, this problem exists for the proponents of the presidential dominance thesis as well.

Let me turn to some of the evidence.  As Professor Daugirdas correctly delineates, the President’s apparent willingness to follow Congress’s voting instructions at the World Bank does not, by itself, prove that Congress is playing a greater role in foreign affairs than commonly assumed.  In her careful presentation of the evidence, she is wise to note that despite Congress’s voting instructions, the President’s representatives at the World Bank could still act in a less than vigorous manner, and they could quietly lobby other World Bank members to vote against proposals that the U.S. ostensibly supports. In addition, she acknowledges that the President’s interests might align with Congress’s, making voting instructions from Congress superfluous, or that Congress and the President might be of the same party and have similar policy preferences.  All of these possibilities challenge the sufficiency of her evidence that Congress is really influencing U.S. policy at the World Bank, or at least they limit the conditions under which Congress is truly forcing the President to act against his clear policy preferences.

This observation becomes more powerful when we consider the interactions between the President and Congress regarding the World Bank in a broader context, including issue-linkages with other foreign affairs issues or domestic priorities.  We can imagine logrolling and other legislative tradeoffs that complicate assessments of congressional or presidential influence.  When aggregated, these concerns perhaps narrow the scope of congressional influence.

Moving to the role of legislatures and international organizations, assuming heterogeneous interests, international organizations cannot be perfectly democratically accountable to every member state at the same time.  Nonetheless, some argue that increased legislative involvement would address the democratic deficit of international organizations.  Professor Daugirdas points out correctly that the President is democratically elected and still represents U.S. interests as the World Bank, partially addressing accountability concerns.  But she also notes that Congress influences the President and World Bank policy with riders or threats from one or two Senators – undesirable mechanisms for her – rather than through deliberation and consensus, common positive attributes associated with legislatures. Given this practice, Professor Daugirdas argues that Congress’s involvement might not address the democratic deficit, yet Professor Daugirdas still seems to make a normative claim that the Congress’s role in the World Bank context has been positive.

This depiction of how Congress exercises its influence over the President with respect to the World Bank isn’t dissimilar to the way that Congress acts in the purely domestic context and, if that is right, it might mean that congressional involvement in almost everything has some democratic deficit.  To make the point concrete, if only the President and a few chief advisors formulated World Bank policy, instead of a Senator attaching a rider, it is not obvious that we would say that there is a democratic deficit in the executive branch as well.   Finally, it is very hard to know if greater congressional involvement in the formation of World Bank policy is a good thing on substantive grounds.  Although the President might have to publicly defend positions on various issues in a world with greater congressional involvement, it is not always the case that more discussion produces better outcomes, especially when the Congress and the electorate often lack knowledge and are disinterested in foreign affairs.

In the end, Professor Daugirdas has made a valuable contribution to our thinking about the role of the President, Congress, and international organizations in U.S. foreign affairs law.  Her case study of the World Bank forces us to think more deeply about the institutional details and interactions between the President and Congress and questions the simple assumptions about congressional or presidential dominance in foreign affairs common in the literature.