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precedential opinions, nonprecedential memoranda, and briefs.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. Reed, a decorated veteran of the
Meuse-Argonne offensive, personified the postwar period’s jingoistic
patriotism.
Five years earlier, Reed helped codify the national zeitgeist with the 1924
Immigration Act (the Johnson-Reed Act).
The Act sharply limited the flow of new immigrants. 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.
The Senate was debating a provision that would exclude noncitizens from the
census count and curb their political influence. 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.”
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. “[E]verything
in my experience and outlook would lead me to vote for this amendment if that
possibly could be done.”

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. In his telling, excluding noncitizens from
the census “would be unconstitutional” under the
Fourteenth Amendment and would “jeopardize the entire measure.”

When the stunned Senator Henry Allen (R-KS)
demanded that Reed name his authority,
Reed responded that he reached this conclusion after consulting an opinion
prepared by the Office of the Legislative Counsel for the U.S. Senate.

The measure failed after the defection of
Reed, who was arguably the most successful nativist lawmaker in Congress.
Reed helped set a precedent that stands to this day.
Although courts have only rarely addressed this legislative precedent, most observers
think that Congress lacks the power to exclude noncitizens from the census.

***

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.
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.
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.

Several strands of
scholarship are implicated. Legal scholars are newly interested in the “congressional
bureaucracy,” the nonpartisan offices that help Congress legislate.
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.

Separately, scholars
have spent decades lamenting the absence of any congressional equivalent to the
Department of Justice’s (DOJ’s) Office of Legal Counsel.
DOJ’s Office of Legal Counsel provides legal opinions that settle
constitutional and subconstitutional questions as they arise in the executive
branch. 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. 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.

Scholars claim that
a congressional equivalent to the Office of Legal Counsel is necessary to
safeguard Congress’s interests. As a result, Congress is considering
whether to build such a counterweight. Lawmakers recently asked the Government
Accountability Office (GAO) to examine the feasibility of this proposal. In December 2023, GAO’s report weighed
Congress’s options without taking any concrete stance. 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.
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). These opinions constructed constitutional
meaning, set drafting conventions, and helped Congress build its “hard” and “soft”
powers.
The congressional OLCs maintained this practice in excess of their statutory
mandate, which was entirely focused on statute drafting.

Congressional OLC
opinions provided a substantive law within Congress defined by a strong form of
stare decisis.
An opinion of the Office was
precedential: it bound the congressional OLCs prospectively in drafting
opinions and statutes.
This Article discusses the force-of-law drafting convention, a way of drafting
statutes that flowed from opinions. 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.
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.
Third, the Offices issued briefs that
did not represent the drafters’ view of the law.
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,
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. 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, 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.

Though influential,
the opinions-drafting practice ultimately failed to overcome the material
realities of Congress. The congressional OLCs depended on the
support of Southern Democrats who were newly ascendant in the “Jim Crow
committee
system.” These Southerners allowed the congressional
OLCs to skirt the thin specifications of the Offices’ organic statute. 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.
They constructed a “southern cage” that constrained the practice’s potential
for decades.

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” are “rampant,” the story of the Columbia
Triumvirate is a tonic. 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.” These three—Joseph P. Chamberlain, Thomas
I. Parkinson, and Middleton Beaman—set out to reform Congress so that it could
enact “social legislation.” 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.”
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.
Congress ultimately failed to enact the legislation, thwarting the Columbia
Triumvirate for several years. After regrouping, the Columbia Triumvirate
pried open the “policy window” by recalibrating their pitches around the agenda
of a newly ascendant Democratic Party. This second attempt proved successful. But
the triumvirs’ initial failure portended problems that would later undermine
the opinions-drafting practice.

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.
The resulting narrative surrounding the congressional bureaucracy ignores its
relationship to distinct constitutional politics and political economies.
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. This Article pivots to politics to
contextualize the congressional bureaucracy’s development.
It describes “disjointed pluralism”: institutional developments within Congress
are stacked on top of one another in ways that can be in tension or
inconsistent.
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.

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.

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, 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.

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.
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.
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. Because lawmakers, like bureaucrats, are
shaped by the institutions they inhabit, institutional developments may shape
official actions.
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.