Horizontal Accountability
#23Key Findings
The United States performs relatively poorly internationally (rank 23) in the category of horizontal accountability.
Inspectors general monitor government agencies for unlawful or inefficient actions. They are highly respected, and seen as less politicized than other government actors. While there is no single national data protection authority, the Federal Trade Commission and state attorneys general fulfill some of these functions.
The United States has two legal systems: federal law and state law. The Supreme Court’s decisions are binding across all courts, though most cases are handled by state systems. Federal judges are appointed in alignment with the president’s legal philosophy. State judges are often subject to election, sometimes with a partisan label.
The Department of Justice is a significant actor in pursuing entities that infringe on individual rights. The individual chambers of Congress have their own ethics and anticorruption rules. Congress has very extensive resources, and participates in shaping policy. However, if the majority is of the same party as the president, it rarely seeks to hold the executive accountable.
Inspectors general monitor government agencies for unlawful or inefficient actions. They are highly respected, and seen as less politicized than other government actors. While there is no single national data protection authority, the Federal Trade Commission and state attorneys general fulfill some of these functions.
The United States has two legal systems: federal law and state law. The Supreme Court’s decisions are binding across all courts, though most cases are handled by state systems. Federal judges are appointed in alignment with the president’s legal philosophy. State judges are often subject to election, sometimes with a partisan label.
The Department of Justice is a significant actor in pursuing entities that infringe on individual rights. The individual chambers of Congress have their own ethics and anticorruption rules. Congress has very extensive resources, and participates in shaping policy. However, if the majority is of the same party as the president, it rarely seeks to hold the executive accountable.
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Is there an independent audit office? To what extent is it capable of exercising effective oversight?
10
9
9
There exists an effective and independent audit office.
8
7
6
7
6
There exists an effective and independent audit office, but its role is somewhat limited.
5
4
3
4
3
There exists an independent audit office, but its role is considerably limited.
2
1
1
There is no independent and effective audit office.
In the 1970s, in response to the Watergate scandal, Congress created numerous regulatory agencies responsible for overseeing the executive branch, including those from within the executive branch itself (Roberts and Dull 2013). These independent agencies and auditors have collectively become known as the “accountability state” (Hilliard, 2017).
Inspectors general play an important role in the federal government, regularly monitoring for unlawful or inefficient behavior by the agencies (Potter 2019). They are generally regarded with a high level of respect and seen as having mostly avoided the partisan politicization that characterizes much of the U.S. government (Spence 2019).
Some concerns have been raised about a chilling effect caused by U.S. presidents dismissing inspectors general who seem to frustrate or embarrass their administration (Dodds 2020). Various presidents have entered office and tried to remove inspectors general. Ronald Reagan removed more than a dozen in his first few weeks in office. His successor, George H. W. Bush, tried to remove all of them but came under intense political pressure and relented. More recently, Donald Trump was known for removing inspectors general whom he found troublesome (Thompson et al. 2020).
Congress can insist on the reinstatement of inspectors general, and this sometimes happens, but generally the president’s party in Congress tends to side more with the president of their own party than with government bureaucrats in such disputes (Michaels 1997).
Citations:
Nadia Hilliard. 2017. The Accountability State. Lawrence: University Press of Kansas.
Patrick Roberts and Matthew Dull. 2013. “Guarding the Guardians: Oversight Appointees and the Search for Accountability in US Federal Agencies.” Journal of Policy History.
Joel Aberbach and Bert Rockman. 2009. “The Appointments Process and the Administrative Presidency.” Presidential Studies Quarterly.
Judith Michaels. 1997. The President’s Call. Pittsburgh: Pittsburgh University Press.
Frank Thompson, Kenneth Wong, and Barry Rabe. 2020. Trump, the Administrative Presidency, and Federalism. Brookings.
Graham Dodds. 2020. The Unitary Presidency. New York: Routledge.
Rachel Potter. 2019. Bending the Rules: Procedural Politicking in the Bureaucracy. Chicago: University of Chicago Press.
David Spence. 2019. “The Effects of Partisan Polarization on the Bureaucracy.” In Can America Govern Itself?, eds. F. Lee and N. McCarty. Cambridge: Cambridge University Press.
Inspectors general play an important role in the federal government, regularly monitoring for unlawful or inefficient behavior by the agencies (Potter 2019). They are generally regarded with a high level of respect and seen as having mostly avoided the partisan politicization that characterizes much of the U.S. government (Spence 2019).
Some concerns have been raised about a chilling effect caused by U.S. presidents dismissing inspectors general who seem to frustrate or embarrass their administration (Dodds 2020). Various presidents have entered office and tried to remove inspectors general. Ronald Reagan removed more than a dozen in his first few weeks in office. His successor, George H. W. Bush, tried to remove all of them but came under intense political pressure and relented. More recently, Donald Trump was known for removing inspectors general whom he found troublesome (Thompson et al. 2020).
Congress can insist on the reinstatement of inspectors general, and this sometimes happens, but generally the president’s party in Congress tends to side more with the president of their own party than with government bureaucrats in such disputes (Michaels 1997).
Citations:
Nadia Hilliard. 2017. The Accountability State. Lawrence: University Press of Kansas.
Patrick Roberts and Matthew Dull. 2013. “Guarding the Guardians: Oversight Appointees and the Search for Accountability in US Federal Agencies.” Journal of Policy History.
Joel Aberbach and Bert Rockman. 2009. “The Appointments Process and the Administrative Presidency.” Presidential Studies Quarterly.
Judith Michaels. 1997. The President’s Call. Pittsburgh: Pittsburgh University Press.
Frank Thompson, Kenneth Wong, and Barry Rabe. 2020. Trump, the Administrative Presidency, and Federalism. Brookings.
Graham Dodds. 2020. The Unitary Presidency. New York: Routledge.
Rachel Potter. 2019. Bending the Rules: Procedural Politicking in the Bureaucracy. Chicago: University of Chicago Press.
David Spence. 2019. “The Effects of Partisan Polarization on the Bureaucracy.” In Can America Govern Itself?, eds. F. Lee and N. McCarty. Cambridge: Cambridge University Press.
Is there an independent authority that effectively holds government offices accountable for their handling of data protection and privacy issues?
10
9
9
An independent and effective data protection authority exists.
8
7
6
7
6
An independent and effective data protection authority exists, but its role is somewhat limited.
5
4
3
4
3
A data protection authority exists, but both its independence and effectiveness are considerably limited.
2
1
1
There is no effective and independent data protection office.
There is no single national authority for data protection. With some exceptions, such as banks, credit unions, and insurance companies, the Federal Trade Commission has jurisdiction over most commercial entities. It has the authority to issue and enforce federal privacy regulations, including those for telemarketing, email marketing, and children’s privacy, and to take enforcement action to protect consumers against unfair or deceptive trade practices, including materially unfair privacy and data security practices.
Many state attorneys general have similar enforcement authority over unfair and deceptive business practices, including the failure to implement reasonable security measures and violations of consumer privacy rights, which harm consumers in their states.
Because the costs of varying privacy protections by state can be prohibitively expensive, many businesses follow the rules set by the state with the highest standards, which is currently California. This follows the California Consumer Privacy Act of 2018, subsequently amended by the California Privacy Rights Act of 2020 (Shatz and Chylik 2020). The Californian legislation gives consumers robust protections against businesses holding their data, and many companies, especially those that do business on the internet with clients in California, now follow this standard (Pardau 2018). The California legislation also created the California Privacy Protection Agency, the first state agency dedicated to the protection of consumer privacy rights (Harding et al 2019).
At the federal level, there is the Federal Privacy Council, created by an executive order in 2016 by President Barack Obama. The order requires agency heads to designate a Senior Agency Official for Privacy who must maintain an agency-wide data privacy program. The federal government also has a body known as the Chief Information Officers (CIO) Council, a collection of CIOs who come together to improve IT practices across the federal government (Hyman and Kovacic 2019).
Citations:
David Hyman and William Kovacic. 2019. “State Enforcement in a Polycentric World.” Brigham Young University Law Review.
Sanford Shatz and Susan Cylik. 2020. “The California Consumer Privacy Act of 2018.” Business Lawyer.
Stuart Pardau. 2018. “The California Consumer Privacy Act: Towards a European-Style Privacy Regime in the United States?”
Elizabeth Harding, Jarno Vanto, Reece Clark, Hannah Ji, and Sara Ainsworth. 2019. “Understanding the Scope and Impact of the California Consumer Privacy Act of 2018.” Journal of Data Protection and Privacy.
Many state attorneys general have similar enforcement authority over unfair and deceptive business practices, including the failure to implement reasonable security measures and violations of consumer privacy rights, which harm consumers in their states.
Because the costs of varying privacy protections by state can be prohibitively expensive, many businesses follow the rules set by the state with the highest standards, which is currently California. This follows the California Consumer Privacy Act of 2018, subsequently amended by the California Privacy Rights Act of 2020 (Shatz and Chylik 2020). The Californian legislation gives consumers robust protections against businesses holding their data, and many companies, especially those that do business on the internet with clients in California, now follow this standard (Pardau 2018). The California legislation also created the California Privacy Protection Agency, the first state agency dedicated to the protection of consumer privacy rights (Harding et al 2019).
At the federal level, there is the Federal Privacy Council, created by an executive order in 2016 by President Barack Obama. The order requires agency heads to designate a Senior Agency Official for Privacy who must maintain an agency-wide data privacy program. The federal government also has a body known as the Chief Information Officers (CIO) Council, a collection of CIOs who come together to improve IT practices across the federal government (Hyman and Kovacic 2019).
Citations:
David Hyman and William Kovacic. 2019. “State Enforcement in a Polycentric World.” Brigham Young University Law Review.
Sanford Shatz and Susan Cylik. 2020. “The California Consumer Privacy Act of 2018.” Business Lawyer.
Stuart Pardau. 2018. “The California Consumer Privacy Act: Towards a European-Style Privacy Regime in the United States?”
Elizabeth Harding, Jarno Vanto, Reece Clark, Hannah Ji, and Sara Ainsworth. 2019. “Understanding the Scope and Impact of the California Consumer Privacy Act of 2018.” Journal of Data Protection and Privacy.
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To what extent does an independent judiciary ensure that the government, administration and legislature operate in accordance with the constitution and law?
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9
9
The judiciary effectively ensures that the government and legislature act in accordance with the law.
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7
6
7
6
The judiciary usually manages to ensure that the government and legislature act in accordance with the law.
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3
4
3
The judiciary fails to ensure effective legal compliance in some crucial cases.
2
1
1
The judiciary fails to ensure effective legal control.
The United States has two legal systems: federal law and state law. In both, judges exercise strong judicial review, with the authority to issue sweeping judgments that can strike down legislation and constrain executive action (Whittington 2007).
Federal judges interpret the U.S. Constitution and review federal statutes in relation to it. They also interpret federal statutes passed by Congress and evaluate the actions of various actors, including the executive branch, to ensure their compatibility with these laws. The U.S. Constitution is brief and vague on many of its core principles, granting the court significant discretion in its interpretation and application (Levinson 2011). For example, the Supreme Court must ultimately determine what punishments are impermissibly “cruel and unusual” or what constitutes individual “liberty.”
The Supreme Court is the highest court in the land, and its judgments are supreme over all lower levels of the federal court system and the state court systems (Amar 2012). However, the vast majority of litigation in the United States takes place in the state court systems (Zackin 2013). These judges interpret and apply their state’s constitution as well as relevant state law. When federal and state law conflict, if the power is properly one accorded to the federal government in the U.S. Constitution, then federal law is supreme. However, if the federal government has wrongly become involved in an area of law that properly belongs to the state governments, according to the U.S. Constitution, the Supreme Court might rule in favor of the state government. In this respect, the federal courts play a very important role in policing the boundaries of national and subnational authority (Riker 1964).
The Supreme Court is a very powerful institution and has been a venue for major policy shifts throughout U.S. history (Hall 2017). There are a couple of reasons for this. First, as the final interpreter of the U.S. Constitution, the Court serves as a potent and almost unchallengeable authority on the law. If citizens disagree with a Supreme Court decision based on the justices’ interpretation of the Constitution, they have limited recourse, each demanding significant effort. They might amend the Constitution, though no newly proposed amendment has been successful in more than half a century, or they might seek to change the composition of the Court, a challenge given that justices serve for life.
Another reason for the Court’s influence is its ability to regulate the boundaries of federalism, shaping the relationship between state and national authority. In this respect, the Supreme Court can act as a powerful nationalizing force for federal policy (Dahl 1957). If the Supreme Court declares an issue to be a fundamental individual liberty protected by the Ninth and Fourteenth Amendments, it can overturn any state laws that seek to minimize that right.
For instance, while marriage regulation has traditionally been considered a state government competence, the Court has ruled that marriage is a fundamental liberty that cannot be infringed upon based on the race or gender of the partners. Additionally, the Court has determined that protected sexual intimacy is a fundamental right of marriage that state governments cannot limit either.
The process for appointing judges at the federal and state levels has been subject to criticism (Tushnet 2022). At the federal level, judges are appointed by the president – subject to confirmation by the Senate – and serve for life with good behavior. At the state level, the systems differ. In nearly all states, judges undergo some form of election (Kritzer 2019). In some states, judges are directly elected, sometimes standing on a partisan label. In other states, judges are appointed but then subjected to a confirmatory public election where voters can choose to remove them from office (Canes-Wrone et al. 2014).
In both systems, courts are regarded in political and even partisan terms (Nicholson and Hansford 2014). Neither appointment nor election seems to mitigate this fact. Federal judges are appointed based on a legal philosophy that aligns with the policy aims of the incumbent president. Democrats tend to favor judges with an expansive interpretation of the Constitution’s vague elements. Republicans tend to prefer those who interpret the Constitution more narrowly or strictly.
Subjecting judges to elections, as many states do, is also politicizing. Many state judges must campaign for election or reelection, which requires them to raise funds, produce leaflets, and run advertisements like other candidates. This is an unusual aspect of the U.S. political system. It might be seen as more “democratic,” but at the same time, critics argue it undermines judges’ role to remain above politics. Ironically, many state constitutions established judicial elections because their framers wanted to promote the independence of the judiciary. They were concerned that if state judges were appointed similarly to federal judges, they could not be truly independent of the executive or legislative branches. By giving them their own separate electoral mandate, judges in state courts do have greater “independence” from these two branches, if not from politics itself (Baum 2018).
Citations:
Baum, Lawrence. 2018. “Supreme Court Elections: How Much They Have Changed, Why They Changed, and What Difference It Makes.” Law and Social Inquiry.
Herbert Kritzer. 2019. Justices on the Ballot: Continuity and Change in State Supreme Court Elections. Cambridge: Cambridge University Press.
Brandice Canes-Wrone, Tom Clark, and Jason Kelly. 2014. “Judicial Selection and Death Penalty Decisions.” American Political Science Review.
Stephen Nicholson and Thomas Hansford. 2014. “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions.” American Journal of Political Science.
Mark Tushnet. 2022. Taking Back the Constitution: Activist Judges and the Next Age of American Law. New Haven: Yale University Press.
Matthew Hall. 2017. The Nature of Supreme Court Power. Cambridge: Cambridge University Press.
Robert Dahl. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law.
Keith Whittington. 2007. Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in US History. Princeton: Princeton University Press.
Akhil Amar. 2012. America’s Unwritten Constitution. Cambridge: Harvard University Press.
Federal judges interpret the U.S. Constitution and review federal statutes in relation to it. They also interpret federal statutes passed by Congress and evaluate the actions of various actors, including the executive branch, to ensure their compatibility with these laws. The U.S. Constitution is brief and vague on many of its core principles, granting the court significant discretion in its interpretation and application (Levinson 2011). For example, the Supreme Court must ultimately determine what punishments are impermissibly “cruel and unusual” or what constitutes individual “liberty.”
The Supreme Court is the highest court in the land, and its judgments are supreme over all lower levels of the federal court system and the state court systems (Amar 2012). However, the vast majority of litigation in the United States takes place in the state court systems (Zackin 2013). These judges interpret and apply their state’s constitution as well as relevant state law. When federal and state law conflict, if the power is properly one accorded to the federal government in the U.S. Constitution, then federal law is supreme. However, if the federal government has wrongly become involved in an area of law that properly belongs to the state governments, according to the U.S. Constitution, the Supreme Court might rule in favor of the state government. In this respect, the federal courts play a very important role in policing the boundaries of national and subnational authority (Riker 1964).
The Supreme Court is a very powerful institution and has been a venue for major policy shifts throughout U.S. history (Hall 2017). There are a couple of reasons for this. First, as the final interpreter of the U.S. Constitution, the Court serves as a potent and almost unchallengeable authority on the law. If citizens disagree with a Supreme Court decision based on the justices’ interpretation of the Constitution, they have limited recourse, each demanding significant effort. They might amend the Constitution, though no newly proposed amendment has been successful in more than half a century, or they might seek to change the composition of the Court, a challenge given that justices serve for life.
Another reason for the Court’s influence is its ability to regulate the boundaries of federalism, shaping the relationship between state and national authority. In this respect, the Supreme Court can act as a powerful nationalizing force for federal policy (Dahl 1957). If the Supreme Court declares an issue to be a fundamental individual liberty protected by the Ninth and Fourteenth Amendments, it can overturn any state laws that seek to minimize that right.
For instance, while marriage regulation has traditionally been considered a state government competence, the Court has ruled that marriage is a fundamental liberty that cannot be infringed upon based on the race or gender of the partners. Additionally, the Court has determined that protected sexual intimacy is a fundamental right of marriage that state governments cannot limit either.
The process for appointing judges at the federal and state levels has been subject to criticism (Tushnet 2022). At the federal level, judges are appointed by the president – subject to confirmation by the Senate – and serve for life with good behavior. At the state level, the systems differ. In nearly all states, judges undergo some form of election (Kritzer 2019). In some states, judges are directly elected, sometimes standing on a partisan label. In other states, judges are appointed but then subjected to a confirmatory public election where voters can choose to remove them from office (Canes-Wrone et al. 2014).
In both systems, courts are regarded in political and even partisan terms (Nicholson and Hansford 2014). Neither appointment nor election seems to mitigate this fact. Federal judges are appointed based on a legal philosophy that aligns with the policy aims of the incumbent president. Democrats tend to favor judges with an expansive interpretation of the Constitution’s vague elements. Republicans tend to prefer those who interpret the Constitution more narrowly or strictly.
Subjecting judges to elections, as many states do, is also politicizing. Many state judges must campaign for election or reelection, which requires them to raise funds, produce leaflets, and run advertisements like other candidates. This is an unusual aspect of the U.S. political system. It might be seen as more “democratic,” but at the same time, critics argue it undermines judges’ role to remain above politics. Ironically, many state constitutions established judicial elections because their framers wanted to promote the independence of the judiciary. They were concerned that if state judges were appointed similarly to federal judges, they could not be truly independent of the executive or legislative branches. By giving them their own separate electoral mandate, judges in state courts do have greater “independence” from these two branches, if not from politics itself (Baum 2018).
Citations:
Baum, Lawrence. 2018. “Supreme Court Elections: How Much They Have Changed, Why They Changed, and What Difference It Makes.” Law and Social Inquiry.
Herbert Kritzer. 2019. Justices on the Ballot: Continuity and Change in State Supreme Court Elections. Cambridge: Cambridge University Press.
Brandice Canes-Wrone, Tom Clark, and Jason Kelly. 2014. “Judicial Selection and Death Penalty Decisions.” American Political Science Review.
Stephen Nicholson and Thomas Hansford. 2014. “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions.” American Journal of Political Science.
Mark Tushnet. 2022. Taking Back the Constitution: Activist Judges and the Next Age of American Law. New Haven: Yale University Press.
Matthew Hall. 2017. The Nature of Supreme Court Power. Cambridge: Cambridge University Press.
Robert Dahl. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law.
Keith Whittington. 2007. Political Foundations of Judicial Supremacy: The President, the Supreme Court, and Constitutional Leadership in US History. Princeton: Princeton University Press.
Akhil Amar. 2012. America’s Unwritten Constitution. Cambridge: Harvard University Press.
How well does the executive branch and its members uphold and safeguard civil rights, and to what extent do the courts effectively protect citizens against rights violations?
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9
9
There are no limits or constraints on the realization of civil rights.
8
7
6
7
6
There are no significant limits or constraints on the realization of civil rights.
5
4
3
4
3
There are some significant limits or constraints on the realization of civil rights.
2
1
1
There are multiple significant limits or constraints on the realization of civil rights.
Since the 1870s, the U.S. federal government has maintained a department dedicated to upholding the fundamental rights of citizens: the Department of Justice (DOJ). The DOJ is one of the most significant institutional actors in the federal government and has played a vital role in U.S. history in pursuing those who seek to infringe upon individual rights, both inside and outside of the government (Foner 1988).
Ultimately, the effectiveness of the DOJ is tied, in part, to the quality of its staff. Generally speaking, the DOJ staff have a high reputation for competence and commitment to the department’s historic mission (Johnson 2019).
The head of the Justice Department is the attorney general, and leadership from attorneys general has varied over the years. There have been instances of attorneys general who appeared to be more committed to the political project of the president in whose Cabinet they served. For example, Alberto Gonzales, attorney general under George W. Bush, was accused of orchestrating the removal of federal prosecutors deemed unfriendly to Republican politicians or failing to pursue Democrats for alleged wrongdoings (Eisenstein 2007).
Individuals who believe their fundamental rights have been violated can pursue their claims through the judicial process. The federal courts have heard various cases relating to sex, gender identity, sexual orientation, physical and mental ability, health, age, ethnic origin, social status, political views, or religion. Most of these characteristics are protected by the Constitution – for example, the Equal Protection Clause of the Fourteenth Amendment – or federal statutes such as the Civil Rights Act of 1964 and its subsequent amendments. The Supreme Court has also expanded historic legislation to cover new groups. For instance, the Court recently ruled that the Civil Rights Act protects gay and transgender employees from discrimination, even if this was not part of the original interpretation by the drafters of the legislation in the 1960s (Valenti 2021).
Citations:
Eric Foner. 1988. Reconstruction: America’s Unfinished Revolution, 1863-1877. New York: HarperCollins.
Richard Johnson. 2019. “Racial Policy Under Trump.” In The Trump Presidency: From Campaign Trail to World Stage, eds. M. Oliva and M. Shanahan. Palgrave.
Alix Valenti. 2021. “LGBT Employment Rights in an Evolving Legal Landscape: The Impact of the Supreme Court’s Decision in Bostock v Clayton County, Georgia.” Employee Responsibilities and Rights Journal.
James Eisenstein. 2007. “The US Attorney Firings of 2006.” Seattle University Law Review.
Ultimately, the effectiveness of the DOJ is tied, in part, to the quality of its staff. Generally speaking, the DOJ staff have a high reputation for competence and commitment to the department’s historic mission (Johnson 2019).
The head of the Justice Department is the attorney general, and leadership from attorneys general has varied over the years. There have been instances of attorneys general who appeared to be more committed to the political project of the president in whose Cabinet they served. For example, Alberto Gonzales, attorney general under George W. Bush, was accused of orchestrating the removal of federal prosecutors deemed unfriendly to Republican politicians or failing to pursue Democrats for alleged wrongdoings (Eisenstein 2007).
Individuals who believe their fundamental rights have been violated can pursue their claims through the judicial process. The federal courts have heard various cases relating to sex, gender identity, sexual orientation, physical and mental ability, health, age, ethnic origin, social status, political views, or religion. Most of these characteristics are protected by the Constitution – for example, the Equal Protection Clause of the Fourteenth Amendment – or federal statutes such as the Civil Rights Act of 1964 and its subsequent amendments. The Supreme Court has also expanded historic legislation to cover new groups. For instance, the Court recently ruled that the Civil Rights Act protects gay and transgender employees from discrimination, even if this was not part of the original interpretation by the drafters of the legislation in the 1960s (Valenti 2021).
Citations:
Eric Foner. 1988. Reconstruction: America’s Unfinished Revolution, 1863-1877. New York: HarperCollins.
Richard Johnson. 2019. “Racial Policy Under Trump.” In The Trump Presidency: From Campaign Trail to World Stage, eds. M. Oliva and M. Shanahan. Palgrave.
Alix Valenti. 2021. “LGBT Employment Rights in an Evolving Legal Landscape: The Impact of the Supreme Court’s Decision in Bostock v Clayton County, Georgia.” Employee Responsibilities and Rights Journal.
James Eisenstein. 2007. “The US Attorney Firings of 2006.” Seattle University Law Review.
To what extent are public officeholders prevented from abusing their position for private interests?
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9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms are effective and provide disincentives for public officeholders to abuse their positions.
5
4
3
4
3
Few integrity mechanisms are effective and provide disincentives for public officeholders to abuse their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
The U.S. Constitution has few explicit rules limiting corrupt activities by members of Congress. The Ineligibility Clause bans members of Congress who vote for an executive branch pay increase from subsequently being appointed to that office (Mayer and Sulkowski 2018). However, this restriction can be easily circumvented. For example, when Barack Obama appointed Senator Hillary Clinton as his Secretary of State, she was constitutionally ineligible because she had voted for a pay increase for the Secretary of State position as a senator. Clinton circumvented this by accepting a voluntary pay decrease. The Twenty-Seventh Amendment, the final amendment to the U.S. Constitution, prohibits members of Congress from voting for their own pay increase without another election intervening (Tillman 2018).
Beyond this, the Constitution leaves each chamber of Congress with the responsibility to regulate its own internal affairs (Thompson 2000). This means that the House and the Senate can set their own rules to guard against corruption. As a result, certain practices that may be banned in one chamber can be permissible in the other. For example, House members are not allowed to sit on corporate boards, but senators are allowed to do so.
Over the years, various ethics laws have been passed to limit members’ activities.
There are many loopholes in the existing arrangements. For example, members of Congress and their families are permitted to hold financial interests in businesses they oversee in Congress.
Enforcement is left to each chamber of Congress, which each have their own ethics committees. These committees enforce the rules inconsistently. It is rare for a member to be ejected from Congress for violating ethics rules, but it is not unheard of. In December 2023, the Republican-controlled House of Representatives voted to expel Republican Congressman George Santos after the House Ethics Committee accused him of misusing his campaign funds for personal gain (Martin 2023).
The problem of self-regulation also applies to the Supreme Court. Some members of the Court claim that Congress cannot regulate them, but this is inconsistent with long-standing practices in other areas. In 1922, Congress created the Judicial Conference of the United States, which sets administrative standards for the federal court. Although the body consists of judges and is currently self-regulating, Congress could establish more stringent ethics standards (Gephardt 2023).
Citations:
Michael Gephardt. 2023. “Supreme Myth Busting.” Wisconsin Law Review.
John Martin. 2023. “A Congressional Incapacity Amendment to the United States Constitution.” Stanford Law Review.
Dennis Thompson. 2000. Ethics in Congress. Washington, D.C.: Brookings Institution.
Seth Tillman. 2016. “Who Can Be President of the United States?” British Journal of American Legal Studies.
Don Mayer and Adam Sulkowski. 2018. “The US Constitution’s Emoluments Clauses.” British Journal of American Legal Studies.
Beyond this, the Constitution leaves each chamber of Congress with the responsibility to regulate its own internal affairs (Thompson 2000). This means that the House and the Senate can set their own rules to guard against corruption. As a result, certain practices that may be banned in one chamber can be permissible in the other. For example, House members are not allowed to sit on corporate boards, but senators are allowed to do so.
Over the years, various ethics laws have been passed to limit members’ activities.
There are many loopholes in the existing arrangements. For example, members of Congress and their families are permitted to hold financial interests in businesses they oversee in Congress.
Enforcement is left to each chamber of Congress, which each have their own ethics committees. These committees enforce the rules inconsistently. It is rare for a member to be ejected from Congress for violating ethics rules, but it is not unheard of. In December 2023, the Republican-controlled House of Representatives voted to expel Republican Congressman George Santos after the House Ethics Committee accused him of misusing his campaign funds for personal gain (Martin 2023).
The problem of self-regulation also applies to the Supreme Court. Some members of the Court claim that Congress cannot regulate them, but this is inconsistent with long-standing practices in other areas. In 1922, Congress created the Judicial Conference of the United States, which sets administrative standards for the federal court. Although the body consists of judges and is currently self-regulating, Congress could establish more stringent ethics standards (Gephardt 2023).
Citations:
Michael Gephardt. 2023. “Supreme Myth Busting.” Wisconsin Law Review.
John Martin. 2023. “A Congressional Incapacity Amendment to the United States Constitution.” Stanford Law Review.
Dennis Thompson. 2000. Ethics in Congress. Washington, D.C.: Brookings Institution.
Seth Tillman. 2016. “Who Can Be President of the United States?” British Journal of American Legal Studies.
Don Mayer and Adam Sulkowski. 2018. “The US Constitution’s Emoluments Clauses.” British Journal of American Legal Studies.
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Do members of the legislature possess sufficient personnel and structural resources to effectively monitor government activities?
10
9
9
As a group, legislative members have access to a range of resources that are suited for effectively monitoring all government activity.
8
7
6
7
6
As a group, legislative members have access to a range of resources that are suited for effectively monitoring a government’s key activities.
5
4
3
4
3
As a group, legislative members have access to a range of resources that are suited for selectively monitoring some government activities.
2
1
1
The resources provided to legislative members are not suited for any effective monitoring of the government.
The United States is an example of a system with a “strong” legislature (Polsby 1968). The executive branch has little control over Congress.
Congress accrues its own financial resources, sets its own operational rules, can sit at a manner and time of its choosing, and allocate time to legislation as it sees fit. Congress has the legal authority to compel members of the executive branch to provide evidence and testimony and can even imprison individuals who resist its subpoenas (Kornberg 2023). Until a century ago, Congress held prisoners in the Capitol building, but now it allows penalties to be determined through the courts (Jones et al. 2019). For example, in January 2024, Peter Navarro, an adviser to President Donald Trump, was sentenced to four months in prison for failing to adhere to a subpoena from the House of Representatives to testify about the Jan. 6, 2021, attacks on the U.S. Capitol.
Congress has extraordinary legislative powers (Johnson 2020). The president’s signature is not required for legislation to go into effect. If the president fails to sign a bill within ten days (excluding Sundays) of its passage by both houses, it will become law without his signature. A president can try to prevent a bill from becoming law by vetoing it, but if two-thirds of each chamber override the president’s veto, the bill will become law anyway. This enables Congress to pass legislation that might be opposed by the president. Although this happens rarely in practice, in theory, Congress could pass transformative legislation even if the president did not support it.
In addition, the Senate has the special power to block the president’s appointments to the federal judiciary and executive branches (Swift 2019). This is an extraordinarily powerful authority, which the Senate regularly uses to stymie presidents. For example, a president cannot even reshuffle a Cabinet without the Senate’s votes for each individual change, making such changes within the executive branch rare during a president’s term (Mayhew 2005).
Citations:
Bryan Jones, Sean Theriault, and Michelle Whyman. 2019. The Great Broadening. Chicago: Chapter 9 – ‘The Administrative State and Its Legislative Oversight.’
David Mayhew. 2005. Divided We Govern. 2nd ed. New Haven: Yale University Press.
Elaine Swift. 1996. The Making of an American Senate. Michigan: University of Michigan Press.
Nelson Polsby. 1968. “The Institutionalization of the US House of Representatives.” American Political Science Review.
Richard Johnson. 2020. The End of the Second Reconstruction. Cambridge: Polity.
Congress accrues its own financial resources, sets its own operational rules, can sit at a manner and time of its choosing, and allocate time to legislation as it sees fit. Congress has the legal authority to compel members of the executive branch to provide evidence and testimony and can even imprison individuals who resist its subpoenas (Kornberg 2023). Until a century ago, Congress held prisoners in the Capitol building, but now it allows penalties to be determined through the courts (Jones et al. 2019). For example, in January 2024, Peter Navarro, an adviser to President Donald Trump, was sentenced to four months in prison for failing to adhere to a subpoena from the House of Representatives to testify about the Jan. 6, 2021, attacks on the U.S. Capitol.
Congress has extraordinary legislative powers (Johnson 2020). The president’s signature is not required for legislation to go into effect. If the president fails to sign a bill within ten days (excluding Sundays) of its passage by both houses, it will become law without his signature. A president can try to prevent a bill from becoming law by vetoing it, but if two-thirds of each chamber override the president’s veto, the bill will become law anyway. This enables Congress to pass legislation that might be opposed by the president. Although this happens rarely in practice, in theory, Congress could pass transformative legislation even if the president did not support it.
In addition, the Senate has the special power to block the president’s appointments to the federal judiciary and executive branches (Swift 2019). This is an extraordinarily powerful authority, which the Senate regularly uses to stymie presidents. For example, a president cannot even reshuffle a Cabinet without the Senate’s votes for each individual change, making such changes within the executive branch rare during a president’s term (Mayhew 2005).
Citations:
Bryan Jones, Sean Theriault, and Michelle Whyman. 2019. The Great Broadening. Chicago: Chapter 9 – ‘The Administrative State and Its Legislative Oversight.’
David Mayhew. 2005. Divided We Govern. 2nd ed. New Haven: Yale University Press.
Elaine Swift. 1996. The Making of an American Senate. Michigan: University of Michigan Press.
Nelson Polsby. 1968. “The Institutionalization of the US House of Representatives.” American Political Science Review.
Richard Johnson. 2020. The End of the Second Reconstruction. Cambridge: Polity.
Are legislative committees able to exercise oversight of government activities in practice?
10
9
9
The legislature is able to exercise its oversight function.
8
7
6
7
6
The legislature is able to exercise its oversight function most of the time.
5
4
3
4
3
The legislature faces constraints in exercising its oversight function in a significant number of cases.
2
1
1
The legislature’s oversight function is frequently and severely compromised.
Congressional committees routinely compel executive branch agencies to furnish documents about their functions as a form of oversight. Some of this oversight occurs through regularly scheduled reports submitted to relevant congressional committees (Kornberg 2023). However, Congress can also direct these agencies to provide information on an ad hoc basis (McCubbins and Schwartz 1987).
The executive branch sometimes attempts to withhold information by claiming executive privilege (LaPira et al 2020). The Supreme Court has confirmed the existence of this privilege, though it is qualified. The privilege is most clearly defined in cases where confidentiality is considered a matter of national security. The judicial branch can, albeit infrequently, evaluate whether information held by the executive should be deemed materially important for legislative or judicial oversight.
Citations:
Matthew McCubbins and Thomas Schwartz. 1984. “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms.” American Journal of Political Science.
Kornberg, Maya. 2023. Inside Congressional Committees: Function and Dysfunction in the Legislative Process. Columbia: Columbia University Press.
Timothy LaPira, Lee Drutman, and Kevin Kosar, eds. 2020. Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform. Chicago: University of Chicago Press.
The executive branch sometimes attempts to withhold information by claiming executive privilege (LaPira et al 2020). The Supreme Court has confirmed the existence of this privilege, though it is qualified. The privilege is most clearly defined in cases where confidentiality is considered a matter of national security. The judicial branch can, albeit infrequently, evaluate whether information held by the executive should be deemed materially important for legislative or judicial oversight.
Citations:
Matthew McCubbins and Thomas Schwartz. 1984. “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms.” American Journal of Political Science.
Kornberg, Maya. 2023. Inside Congressional Committees: Function and Dysfunction in the Legislative Process. Columbia: Columbia University Press.
Timothy LaPira, Lee Drutman, and Kevin Kosar, eds. 2020. Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform. Chicago: University of Chicago Press.
Do legislative committees have the capacity to investigate unconstitutional or illegal activities carried out by the executive branch?
10
9
9
The legislature is able to exercise its investigation function.
8
7
6
7
6
The legislature is able to exercise its investigation function most of the time.
5
4
3
4
3
The legislature faces constraints in exercising its investigation function in a significant number of cases.
2
1
1
The legislature’s investigation function is frequently and severely compromised
Congress has the power to remove any executive branch official for treason, bribery, or other “high crimes and misdemeanors.” This last category of offense is undefined and gives the legislative branch, in theory, wide discretion to investigate and prosecute members of the executive branch (Gerhardt 2024).
In practice, however, the impeachment power is rarely exercised. Only eight individuals have been successfully convicted and removed from office by the Senate. All of these were judges, not members of the executive branch. The threat of impeachment, however, has occasionally driven executive branch officials to resign. President Richard Nixon resigned from office in 1974 rather than be convicted by the Senate, as he expected. William Belknap, the Secretary of War, resigned in anticipation of being impeached in 1876 over his corrupt dealings with Native American trading posts.
The threshold for a successful removal is quite high – two-thirds of the U.S. Senate. It is almost unheard of for a single political party to enjoy that kind of strength in the Senate. Thus, impeachments must be bipartisan to be successful. Because they are deeply embarrassing for the party affected, there is rarely such widespread support.
There is a serious issue at the presidential level because it is generally accepted that presidents cannot be tried for criminal offenses while in office. For them to face penalties for crimes committed as president, they must first be impeached and removed from office. In practice, this means presidents can evade consequences for crimes as long as one-third of the Senate is willing to back them up, which is a troubling state of affairs (Howell and Moe 2023).
Citations:
Michael Gerhardt. 2024. The Law of Presidential Impeachment. New York: NYU Press.
William Howell and Terry Moe. 2023. “The Strongman Presidency and the Two Logics of Presidential Power.” Presidential Studies Quarterly.
In practice, however, the impeachment power is rarely exercised. Only eight individuals have been successfully convicted and removed from office by the Senate. All of these were judges, not members of the executive branch. The threat of impeachment, however, has occasionally driven executive branch officials to resign. President Richard Nixon resigned from office in 1974 rather than be convicted by the Senate, as he expected. William Belknap, the Secretary of War, resigned in anticipation of being impeached in 1876 over his corrupt dealings with Native American trading posts.
The threshold for a successful removal is quite high – two-thirds of the U.S. Senate. It is almost unheard of for a single political party to enjoy that kind of strength in the Senate. Thus, impeachments must be bipartisan to be successful. Because they are deeply embarrassing for the party affected, there is rarely such widespread support.
There is a serious issue at the presidential level because it is generally accepted that presidents cannot be tried for criminal offenses while in office. For them to face penalties for crimes committed as president, they must first be impeached and removed from office. In practice, this means presidents can evade consequences for crimes as long as one-third of the Senate is willing to back them up, which is a troubling state of affairs (Howell and Moe 2023).
Citations:
Michael Gerhardt. 2024. The Law of Presidential Impeachment. New York: NYU Press.
William Howell and Terry Moe. 2023. “The Strongman Presidency and the Two Logics of Presidential Power.” Presidential Studies Quarterly.
To what extent are the organization and operations of legislative committees effective in guiding the development of legislative proposals?
10
9
9
The organization and operations of legislative committees are well-suited for effectively monitoring ministry activity.
8
7
6
7
6
The organization and operations of legislative committees are, for the most part, suited for effectively monitoring ministry activity.
5
4
3
4
3
The organization and operations of legislative committees are rarely suitable for monitoring ministry activity.
2
1
1
The organization and operations of legislative committees are not at all suitable for monitoring ministry activity.
Congressional committees have sometimes been described as “Congress at work” (Bianco 2000). They are where bill drafting, markup, debate, investigation, and information collection take place (Kornberg 2023). Congress has strong committees that are well-resourced and contain expert staff who support committee members. Committee places are highly coveted and usually assigned based on some familiarity or connection with the policy area. Members can spend many years on the same committee, building policy expertise and gaining insights into the workings of the relevant executive branch agencies they are responsible for scrutinizing.
One issue for congressional committees today is the significant difference in their willingness to investigate the executive branch, depending on whether the committee’s majority party aligns with that of the president. This discrepancy has led some commentators to suggest that the United States now has a system more clearly structured by the separation of parties than by the separation of powers (Rubin 2017).
Citations:
Maya Kornberg. 2023. Inside Congressional Committees: Function and Dysfunction in the Legislative Process. New York: Columbia University Press.
Ruth Bloch Rubin. 2017. Building the Bloc: Intraparty Organization in the US Congress. Cambridge: Cambridge University Press.
William Bianco. 2000. Congress on Display, Congress at Work. Ann Arbor: University of Michigan Press.
One issue for congressional committees today is the significant difference in their willingness to investigate the executive branch, depending on whether the committee’s majority party aligns with that of the president. This discrepancy has led some commentators to suggest that the United States now has a system more clearly structured by the separation of parties than by the separation of powers (Rubin 2017).
Citations:
Maya Kornberg. 2023. Inside Congressional Committees: Function and Dysfunction in the Legislative Process. New York: Columbia University Press.
Ruth Bloch Rubin. 2017. Building the Bloc: Intraparty Organization in the US Congress. Cambridge: Cambridge University Press.
William Bianco. 2000. Congress on Display, Congress at Work. Ann Arbor: University of Michigan Press.