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Congress Underestimated: The Case of the World Bank

  • Kristina Daugirdas (a1)

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International organizations undermine democracy, or so their critics charge: not only do international organizations themselves operate undemocratically, but they undercut democratic governance within their member states. In particular, when states participate in international organizations, they lose control over policy outcomes because each state must share decision-making authority with other member states. And within member states, national legislatures—the bodies specifically designed to be responsive to popular control—are marginalized. Legislatures lack direct influence over international organizations and also have little influence over the executive branch’s interactions with such organizations.

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1 See, e.g., Rubenfeld, Jed, Unilateralism and Constitutionalism, 79 N.Y.U.L. Rev. 1971, 2017–18 (2004) (“The existing international governance organizations are famous for their undemocratic opacity, remoteness from popular or representative politics, elitism, and unaccountability. International governance institutions and their officers tend to be bureaucratic, diplomatic, technocratic— everything but democratic.”); Stein, Eric, International Integration and Democracy: No Love at First Sight, 95 AJIL 489, 491 (2001) (international organizations are “considered ‘undemocratic’ since they operate with little transparency or public and parliamentary scrutiny”); Vagts, Detlev F., International Agreements, the Senate, and the Constitution, 36 Colum. J. Transnat’l L. 143, 154 (1997).

2 See, e.g., Dahl, Robert A., Can International Organizations Be Democratic? A Skeptic’s View, in Democracy’s Edges 19, 22 (Shapiro, Ian & Hacker-Gordon, Casiano eds., 1999); Kaiser, Karl, Transnational Relations as a Threat to the Democratic Process, 25 Int’l Org. 706, 714 (1971) (“As the number and activities of international organizations expand, an area grows in which major decisions are made without much democratic control by the peoples and institutions which are affected or which support these activities financially.”); McGinnis, John O., Medellin and the Future of International Delegation, 118 Yale L.J. 1712, 1714 (2009). At the same time, states participating in international organizations gain traction on problems that would be difficult or impossible for them to address individually. See, e.g., Hathaway, Oona A., International Delegation and State Sovereignty, 71 Law & Contemp. Probs. 115 (2008); Keohane, Robert O., Macedo, Stephen & Moravcsik, Andrew, Democracy-Enhancing Multilateralism, 63 Int’l Org. 1, 4 (2009) (“This is the state of the current debate: critics of multilateralism point to the ways in which international institutions undermine democracy; defenders respond by stressing pragmatic benefits.”).

3 Curtis A. Bradley, International Law in the U.S. Legal System 100 (2013) (identifying concern that international organizations will empower the executive branch at the expense of the legislature); José E. Alvarez, International Organizations as Law-Makers 396 (2005) (same); Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers 15 (2005) (same).

4 See, e.g., Stein, supra note 1, at 490 (“A new level of normative activity superimposed on national democratic systems makes citizen participation more remote, and parliamentary control over the executive, notoriously loose in foreign affairs matters, becomes even less effective.”).

5 See, e.g., Moe, Terry M. & Howell, William G., The Presidential Power of Unilateral Action, 15 J. L. Econ. & Org. 132, 161–65 (1999); Harold Hongju Koh, The National Security Constitution (1990) (titling chapter 5 “Why the President Almost Always Wins in Foreign Affairs: Executive Initiative and Congressional Acquiescence”).

6 This perception of Congress has been forged largely through analyses of its performance during national security crises that may, or actually do, involve military action. See, e.g., Koh, supra note 5, at 117–33. Some commentators argued that presidential dominance, built up by wars and crises, has eroded Congress’s ability to check executive dominance in foreign and domestic affairs alike. Eric A. Posner & Adrian Vermeule, The Executive Unbound (2010); Bruce Ackerman, The Decline and Fall of the American Republic (2010).

7 See, e.g., Levinson, Daryl J., Empire-Building, 118 Harv. L. Rev. 915, 955–56 (2005); Stephan, Paul B., Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17 NW. J. Int’l L. & Bus. 681, 697–99 (1997).

8 see Bradley, Curtis A. & Morrison, Trevor W., Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).

9 see Moe & Howell, supra note 5, at 144–46; Bradley & Morrison, supra note 8, at 438–44; Mortenson, Julian Davis, Executive Power and the Discipline of History, 78 U. Chi. L. Rev. 377, 412–16 (2011).

10 Benvenisti, Eyal, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 188–89 (1999) (describing courts’ “extreme deference to the executive” in foreign affairs as “enabl[ing] a sizable amount of executive activity, having major ramifications on domestic interests, to remain completely beyond judicial reach and effective public scrutiny”); Stein, supra note 1, at 531 (describing lack of parliamentary scrutiny of International organizations).

11 See, e.g., Abbott, Kenneth & Snidal, Duncan, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3, 18 (1998) (suggesting that International financial institutions offer the executive branch a way to circumvent Congress’s preferences on distributing foreign aid); see also Alvarez, supra note 3, at 396 (“[T]reaty-making may enhance the power of executive branches within governments, at the expense of national parliaments or legislatures, and sometimes permits the executive branch to accomplish legal changes that it alone could not accomplish or, in those states that accord treaties superior status to a national constitution, even to take legal actions otherwise not authorized to any branch of government.”).

12 As treaties cover an increasingly broad and diverse range of subjects, wars and crises are making up a smaller share of the foreign affairs field. See, e.g., Stewart, Richard B., U.S. Administrative Law: A Model for Global Administrative Law? 68 Law & Contemp.Probs. 63, 63–64(2005) (observing “explosive development of a great variety of International economic and social regulatory regimes” in recent decades).

13 See, e.g., Hathaway, Oona A., Treaties’ End, 117 Yale L.J. 1236, 1308–12 (arguing that congressional-executive agreements approved by majorities of both houses are more democratic than treaties approved by two-thirds of the Senate); McGinnis, supra note 2; Bradley, Curtis A., International Delegations, The Structural Constitution, and Non-Self-Execution, 55 Stanford L. Rev. 1557 (2003); Julian Ku & John Yoo, Taming Globalization 87–112 (2012). An exception is Anne-Marie Slaughter, who describes growing efforts to develop international networks of legislatures and legislators to influence International organizations. Anne-Marie Slaughter, A New World Order 104–30 (2004).

14 Stein, supra note 1, at 531 (“At the national level, experience has shown that the legitimacy of a state’s adhesion to an IGO [intergovernmental organization], grounded in the act of approval by an elected legislature, dissipates quickly as the national delegation, appointed and instructed by the national executive, often acts within the organization in alliance with other delegations and IGO staff, and finds itself with little actual supervision by, or accountability to, the legislature.”).

15 More precisely, the Bank does not impose obligations on member states unless they borrow from it. Laurence Boisson de Chazournes, Policy Guidance and Compliance: The World Bank Operational Standards, in Commitment and Compliance:The Role of Non-Binding Norms in the International Legal System 289 (Dinah Shelton ed., 2000). For other examples of International organizations that do not impose binding obligations, see, for example, Commitment and Compliance, supra; Bradley, Curtis A. & Kelley, Judith G., The Concept of International Delegation, 71 Law. & Contemp. Probs. 1, 14–16 (2008).

16 Dep’t of the Treasury, Department of the Treasury Compilation of Legislative Mandates Applying to U.S. Participation in the IFIS (10th ed. 2010).

17 See infra part II.

18 These constitutional debates have received surprisingly little attention in the literature about the Bank. See infra note 53 and accompanying text.

19 Daryl Levinson and Rick Pildes argue that the dynamics between Congress and the president are largely determined by whether government is divided or unified by political party. Levinson, Daryl J. & Pildes, Richard H., Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006). Political party affiliation appears to be relatively unimportant to understanding dynamics regarding the Bank. Congress has enacted numerous voting and negotiation instructions during periods of unified government. The most prominent fight over the constitutionality of Congress’s legislated instructions took place during a period of unified government at the beginning of President Obama’s first term. And Congress has legislated instructions that have been energetically implemented during periods of divided government.

20 See infra part III.

21 See infra part IV.

22 See infra part V.

23 See infra part VI (addressing the generalizability of the Bank example).

24 Other commentators have argued that International organizations may enhance liberal democratic governance even if they do undermine legislatures. see Keohane, supra note 2 (arguing that participation in International organizations enhances democracy by limiting the power of special interest factions, protecting individual rights, and improving the quality of democratic deliberation); Raustiala, Kal, Rethinking the Sovereignty Debate in International Economic Law, 6 J. Int’l Econ. L. 841 (2003).

25 See, e.g., Nzelibe, Jide, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. Rev. 1217, 1249 (2006).

26 See, e.g., Beermann, Jack, Congressional Administration, 43 San Diego L. Rev. 61,88(2006) (“riders...often fly below the political radar, placed in the bill by a few connected members of Congress”); McGarity, Thomas, Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age, 61 Duke L.J. 1671 (2012) (describing riders as “the tools of special-interest lobbyists with access to key congressional players”).

27 See supra note 9.

28 As Kathryn Lavelle describes, shifting constellations of interest groups have both supported, and sought to influence, the Bank and the IMF since their establishment in 1945. Quite often these interest groups have demanded that Congress pursue policy changes at the Bank and the IMF as a condition of their support for funding these institutions. The extent to which Congress has embraced these demands for change has varied over time. To explain this variation, Lavelle focuses on exogenous shifts in the International political economy and on internal changes in how Congress operates. Kathryn Lavelle, Legislating International Organization (2011).

29 Cf. Barr, Michael S. & Miller, Geoffrey P., Global Administrative Law: The View from Basel, 17 Eur. J. Int’l L. 15, 32–33 (2006) (describing how public disagreement among U.S. agencies over negotiations concerning international financial regulation can help the public identify key issues in dispute and can contribute to more reasoned decision making).

30 Articles of Agreement of the International Monetary Fund, July 22, 1944, 60 Stat. 1401, 2 UNTS 39; Articles of Agreement of the International Bank for Reconstruction and Development, July 22, 1944, 60 Stat. 1440, 2 UNTS 134 [hereinafter IBRD Agreement].

31 World Bank, The World Bank Annual Report 2011: Year in Review 2 (2011).

32 Since 1946, members have paid into the Bank about $11 billionin capital. This amount represents only a small fraction of each member’s capital stock subscription; the rest is subject to call should the Bank become unable to pay its obligations. IBRD Agreement,supra note 30, Art. II, §5. The callable capital has helped the Bank to maintain a triple-A rating since 1959. see World Bank,How IBRD Is Financed, at http://go.worldbank.org/LAG4BZ1VD1; Sarah Babb, Behind the Development Banks 35 (2009).

33 In fiscal year 2011, the Bank’s profits totaled $996 million. World Bank, supra note 31. This income covers the IBRD’s operating expenses, goes into reserves to strengthen the Bank’s balance sheet, and provides an annual transfer to the IDA. see World Bank, supra note 32.

34 see http://siteresources.worldbank.org/BODINT/Resources/278027-1215526322295/BankGovernors.pdf (listing names and titles of IBRD and IDA governors).

35 IBRD Agreement, supra note 30, Art. V, §2(a). The board can delegate nearly all of its powers to the executive directors. Id., Art. V, §2(a), (b).

36 The Board of Governors meets too rarely and is “too large a body to do more than ratify proposals put to it and serve as a general indicator of trends of thought.” Edward S. Mason & Robert E. Asher, The World Bank Since Bretton Woods 63 (1973).

37 The Bretton Woods Agreements Act, Pub. L. No. 79-171, §3(a), 59 Stat. 512 (1945) [hereinafter BWAA].

38 IBRD Agreement, supra note 30, Art. V, §4(b).

39 Id., §4(g).

40 Id., §3(a), (b).

41 World Bank, International Bank for Reconstruction and Development Subscriptions and Voting Power of Member Countries (June 30, 2013), at http://siteresources.worldbank.org/BODINT/Resources/278027-1215524804501/IBRDCountryVotingTable.pdf (noting that the United States casts 297,459 votes out of a total of 1,956,440 votes, or 15.2 percent).

42 Id. (noting that Palau casts 594 votes out of a total of 1,956,440 votes, or 0.03 percent).

43 IBRD Agreement, supra note 30, Art. VIII(a) (requiring approval of amendments by members having 85 percent of total voting power).

44 Id., Art V, §5(a), (b); see also infra note 51.

45 see Cogan, Jacob Katz, Representation and Power in International Organization: The Operational Constitution and Its Critics, 103 AJIL 209 (2009); Gwin, Catherine, U.S. Relations with the World Bank, 1945–1992, in 2 The World Bank: Its First Half Century 195, 246 (Kapur, Devesh, Lewis, John Prior & Webb, Richard eds., 1997) (“This prerogative was initially granted not only because the United States was the Bank’s largest shareholder but also because it was the key guarantor and principal capital market for Bank bonds.”).

46 The Bank’s president, officers, and staff “owe their duty entirely to the Bank and to no other authority”; the Bank’s members are obligated to “respect the International character of this duty” and to “refrain from all attempts to influence any of them in the discharge of their duties.” IBRD Agreement, supra note 30, Art. V, §5(c).

47 Id., §5(a).

48 Mason & Asher, supra note 36, at 383.

49 IDA loans, or “credits,” typically carry no or low interest charges, have grace periods of five to ten years, and are repaid over a period of twenty-five to forty years. The IDA also provides some outright grants. World Bank,What Is IDA?, at http://go.worldbank.org/ZRAOR8IWW0.

50 Mason & Asher, supra note 36, at 380–81 (“As an International organization affiliated with the World Bank, IDA is an elaborate fiction. Called an ‘association,’ and possessed of Articles of Agreement, officers, governmental members galore, and all the trappings of other International agencies, it is as yet simply a fund administered by the World Bank.”); Libby, Ronald T., International Development Association: A Legal Fiction Designed to Secure an LDC Constituency, 29 Int’l Org. 1065 (1975).

51 Articles of Agreement of the International Development Association, Art. VI, Jan. 26, 1960, 11 UST 2284, 439 UNTS 249; see also International Development Association Act, Pub. L. No. 86-565, §3, 74 Stat. 293 (June 30, 1960).

52 Articles of Agreement of the International Development Association, supra note 51, Art. VI, §3; World Bank Group Finances: IDA Voting Power, at https://finances.worldbank.org/Shareholder-Equity/IDA-Voting-Power/4g6v-z4mt.

53 Most of the literature on the Bank assumes that Congress has the authority to issue such instructions. Jonathan Sanford, for example, observes without comment that “the President and Congress both have this power [to instruct the executive director] and both are inclined to use it.” Sanford, Jonathan Earl, U.S. Policy Toward the Multilateral Development Banks: The Role of Congress, 22 Geo. Wash. J. Int’l L. & Econ. 1, 15 (1988) (emphasis added); see also Nielson, Daniel L. & Tierney, Michael J., Delegation to International Organizations: Agency Theory and World Bank Reform, 57 Int’l Org. 241, 255–56 (2003) (“Also, Congress can dictate the votes of the director by statute (subject to veto and overrides, of course).”). Thomas Franck and Edward Weisband observe that the “making... of... country-by-country rules” regarding votes in the International financial institutions is “clearly more appropriate to the executive than the legislative branch,” but they do not directly assess the instructions’ constitutionality. Thomas M. Franck & Edward Weisband, Foreign Policy by Congress 93(1979). Ian Bowles and Cyril Kormos briefly consider and ultimately reject constitutional objections to legislated instructions. Bowles, Ian A. & Kormos, Cyril F., Environmental Reform at the World Bank: The Role of the U.S. Congress, 35 Va. J. Int’l L. 777, 813–19 (1995). Kathryn Lavelle mentions the dispute over a signing statement issued by President Obama in 2009 but does not address other signing statements or debates over the scope of the president’s exclusive negotiation authority. see Lavelle, supra note 28, at 166.

54 U.S. Const. Art. II, §§2, 3; see also David J. Barron, Office of Legal Counsel,Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act 4–5 (June 1, 2009), at http://www.justice.gov/olc/2009/section 7054.pdf.

55 see Banco Nacional de Cubav. Sabbatino 376 U.S.398,410(1964);Goldwaterv. Carter 444 U.S.996,1007 (1979) (Brennan J., dissenting); Bradley, Curtis A. & Goldsmith, Jack L., Foreign Relations Law 479 (4th ed. 2011).

56 United States v. Louisiana, 363 U.S. 1, 35 (1960); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936); Ex parte Hennen, 38 U.S. (13 Pet.) 225, 235 (1839).

57 See, e.g., Corwin, Edward S., The President: Office and Powers, 1787–1984, at 208 (5th Rev. ed. 1984) (“[W]hile the President alone may address foreign governments and be addressed by them, yet in fulfilling these functions he is, or at least may be, the mouthpiece of a power of decision that resides elsewhere.”). Putting this question in the framework that Justice Jackson sets out in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the question is whether the president’s power is “preclusive” and allows him to “take[ ] measures incompatible with the expressed or implied will of Congress” regarding the positions that he or other members of the executive branch will stake out. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952); see also Barron, David J. & Lederman, Martin S., The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 691–98 (2008).

58 Earth Island Institute v. Christopher, 6 F.3d 648, 652 (9th Cir. 1993).

59 Compare Henkin, Louis, Foreign Affairs and the US Constitution 249 (2d ed. 1996) (“Attempts by Congress to instruct U.S. representatives [to International organizations] are highly questionable as a matter of constitutional separation of powers, and are usually only hortatory or are likely to be treated as such by the President.”), and Powell, H. Jefferson, The President’s Authority over Foreign Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev. 527, 558–59 (arguing that the executive branch has the exclusive authority to determine the time, scope, and objectives of all negotiations), with Damrosch, Lori Fisler, Treaties and International Regulation, 98 Asil Proc. 349, 351(2004) (describing the Justice Department’s position that statutes cannot direct the president to vote a certain way in an International forum as “wrong as a matter of democratic political theory, historical experience, common sense, and constitutional law”); see also Bowles & Kormos, supra note 53, at 813–19; Edward Swaine, International Organizations (2012) (unpublished manuscript) (on file with author) (suggesting that the constitutional analysis may depend on the type of instruction at issue).

60 Moe & Howell, supra note 5, at 145; Bradley & Morrison, supra note 8.

61 See Youngstown, 343 U.S. at 610–11 (Frankfurter, J., concurring); Mortenson, supra note 9, at 377–78; see also Spiro, Peter, War Powers and the Sirens of Formalism, 68 N.Y.U. L. Rev. 1338, 1355 (1993) (describing how war powers law is developed by “an accretion of interactions among the branches, that gives rise to basic norms governing the branches’ behavior in the area”).

62 Cf. Barron & Lederman, supra note 57, at 697 (arguing that Congress has enacted restrictions on the conduct of military campaigns “too often, and Presidents challenged their legality too infrequently..., for anything like a tradition of preclusive power to have taken root”); Barron, David J. & Lederman, Martin S., The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 1101 (2008) (arguing that this history of congressional regulation coupled with executive acquiescence also “casts doubt on the functionalist contention that a President cannot possibly conduct a war so long as he understands himself to be subject to legislatively imposed restrictions”).

63 Robert B. Holland III, Op-Ed., The Real World Bank Scandal, Wall ST. J., Apr. 20, 2007, at A 15 (former U.S. executive director describing legislatively mandated voting requirements as “mind-numbing and influence diminishing”); telephone interview with Jan Piercy, former U.S. Executive Director of the World Bank (May 7, 2012) (explaining that other executive directors have little reason to accept modifications to loan terms proposed by the United States when there is no chance that accepting the U.S. proposal would shift the U.S. vote).

64 BWAA, supra note 37, §12.

65 Id.

66 Id., §13.

67 See, e.g., Hearings on H.R. 2211 Before the H. Comm. on Banking and Currency, 79th Cong. 253 (1945) [here inafter Hearings on H.R. 2211 ] (statement of Dean Acheson, assistant secretary of state).

68 See, e.g., Richard N. Gardner, Sterling-Dollar Diplomacy 129–43 (1969); Lavelle, supra note 28, at 39–61.

69 See Hearings on H.R. 2211, supra note 67, at 734–35 (statement of Ralph Flanders, president of the Federal Reserve Bank, Boston, and chairman, Research Committee, Committee for Economic Development); Lavelle, supra note 28, at 46–61.

70 Hearings on H.R. 2211, supra note 67, at 735.

71 Id. at 743.

72 W. Randolph Burgess, president of the American Bankers Association, praised the amended bill and noted that it included several of the ABA’s recommendations. Burgess Praises Bretton Changes, N.Y. Times, May 26, 1945, at 21.

73 see Ackerman, Bruce & Golove, David, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 861–96 (1995).

74 Bretton Woods Agreements Act: Hearings on H.R. 3314 Before the S.Comm. on Banking & Currency, 79th Cong. 533 (1945) [hereinafter Hearings on H.R. 3314 ].

75 Id. at 537.

76 Id. at 224.

77 National Advisory Council on International Monetary and Financial Problems, Report on Participation of the United States in the Fund and Bank to october 31, 1946, H.R. Doc. No. 80-53, at 8 (1947) (submitted by the president to Congress on January 13, 1947).

78 Id. at 9.

79 See infra notes 194–96 (discussing reasons for this gap).

80 118 Cong. Rec. 2045 (1972).

81 An Act to Provide for Increased Participation by the United States in the International Development Association, Pub. L. No. 92-247, 86 Stat. 60 (1972) (codified at 22 U.S.C. 284(k)).

82 H.R. Rep. No. 92-772, at 8 (1972); see also Staff of the Subcomm. on Foreign Assistance of the Comm. on Foreign Relations, 95th Cong., U.S. Policy and Multilateral Banks:Politicization and Effectiveness 9 (Comm. Print 1977) [hereinafter 1977 Staff Report].

83 see Schoultz, Lars, Politics, Economics, and U.S. Participation in Multilateral Development Banks, 36 Int’l Org. 537, 556 (1982); Mason & Asher, supra note 36, at 747.

84 As foreign affairs scholars have noted, by drafting statutory text with vague terms, Congress delegates significant authority to the executive branch to interpret it. See, e.g., Posner & Vermeule, supra note 6.

85 An Act to Provide for Increased Participation by the United States in the International Development Association, Pub. L. No. 92-247, 86 Stat. 60 (1972).

86 1977 Staff Report, supra note 82, at 10.

87 An Act to Provide for Increased Participation by the United States in the International Development Association, Pub. L. No. 93-373, §3, 88 Stat. 445 (1974).

88 Id.

89 Schoultz, supra note 83, at 558. The executive branch could have argued that it is the executive director, not the governor, who votes on loans—but it chose not to invoke this technicality as a reason for disregarding the legislation.

90 1977 Staff Report, supra note 82, at 8.

91 120 Cong. Rec. 22,030 (1974).

92 An Act to Provide for Increased Participation by the United States in the Inter-American Development Bank, Pub. L. No. 94-302, §§103, 211, 90 Stat. 591 (1976).

93 Franck & Weisband, supra note 53, at 85; Cohen, Stephen B., Conditioning U.S. Security Assistance on Human Rights Practices, 76 AJIL 246 (1982).

94 Lars Schoultz, Human Rights and United States Policy Toward Latin America 282–83 (1981); Franck & Weisband, supra note 53, at 92.

95 IDB and AFDF Authorization: Hearing on H.R. 9721 Before the S. Subcomm. on Foreign Assistance of the Comm. on Foreign Relations, 94th Cong., 1st Sess. 44 (1976).

96 IBRD Agreement, supra note 30, Art. IV, §10; see also Articles of Agreement of the International Development Association, supra note 51, Art. V, §6 (same).

97 See, e.g., Ibrahim F.I.Shihata, The World Bank in A Changing World 65–79 (1991); Catherine Weaver, The Hypocrisy Trap(2008) (describing how good governance and corruption came to be understood as appropriate topics for the Bank to address); Sarfaty, Galit, Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank, 103 AJIL 647, 658–65 (2009) (describing fierce contests and evolution in perspectives about whether the Bank’s Articles of Agreement permit the Bank to directly address human rights).

98 An Act to Provide for Increased Participation by the United States in the Inter-American Development Bank, supra note 92, §§103, 211.

99 Schoultz, supra note 83, at 559.

100 Gwin, supra note 45, at 225.

101 International Development Institutions Authorizations, 1977: Hearings on H.R. 5262 Before the Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 95th Cong. 9, 48 (1977).

102 An Act to Provide for Increased Participation by the United States in the International Bank for Reconstruction and Development, the International Development Association, the International Finance Corporation, the Asian Development Bank and the Asian Development Fund, and for Other Purposes, Pub. L. No. 95-118, §701(a)(1), (f), 91 Stat. 1067 (1977). The language closely tracks a prohibition on bilateral military assistance to human rights violators adopted in 1973. See supra note 93 and accompanying text.

103 see Schoultz, supra note 94, at 292–300.

104 Schoultz, supra note 83, at 564.

105 Id. at 565.

106 Schoultz, supra note 94, at 295.

107 Id. at 295–98.

108 Robert Putnam has argued that domestic constraints can enhance a state’s International bargaining position when, for example, that state’s legislature must ratify the negotiated agreement before it can enter into force. Putnam, Robert D., Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988). Congress’s ex ante voting instructions do not track this two-step model. They come closest when the U.S. executive director can credibly argue that, unless the other executive directors agree to a particular decision, Congress might withhold the next round of funding for the Bank.

109 see 1977 Staff Report, supra note 82, at 11–16 (describing other examples of such instructions).

110 An Act Making Appropriations for Foreign Assistance and Related Programs for the Fiscal Year Ending September 30, 1979, Pub. L. No. 95-481, §611, 92 Stat. 1591 (1978).

111 Quoted in BABB, supra note 32, at 185.

112 See subsection “Monitoring the Executive Branch” in part V, below.

113 Daniel Nielson and Michael Tierney do not take this point into account when they model the relationship between the Bank and its member states in principal-agent terms. see Nielson & Tierney, supra note 53. Nielson and Tierney acknowledge Congress’s importance by modeling it as a separate and independent principal of the Bank. But Congress is not a proximate principal of the Bank. Congress must work through the executive branch to influence the Bank, and as this article explains, the executive branch has many tools available to neutralize Congress’s efforts to shape Bank policy. Because Nielson and Tierney focus on environmental reform at the Bank— where Congress enjoyed remarkable success in motivating the executive branch (and ultimately in influencing the Bank), see infra part III—they do not consider the possibility that the executive branch might resist Congress’s efforts.

114 Gwin, supra note 45, at 244–45, 263; BABB, supra note 32.

115 See, e.g., KOH, supra note 5, at 128 –31 (describing appropriations limitations as an imperfect tool with many defects that nevertheless “remains one of Congress’s few effective legal tools to regulate presidential initiatives in foreign affairs”); Moe & Howell, supra note 5, at 147–48 (describing Congress’s constitutional power to appropriate money as a “very real” but not “crippling constraint” on presidents).

116 They also illustrate how Congress can shrink the universeof actions that the president might take unilaterally. see Moe & Howell, supra note 5.

117 Compare sources cited supra note 9 (describing collective action problems and high transaction costs of congressional action).

118 Cf. Bradley & Morrison, supra note 8, at 446 (noting that Congress can more easily push back against the executive branch by using “soft law” tools that are not subject to the collective action problems that beset the formal legislative process); see also Chafetz, Josh, Congress’s Constitution, 160 U. PA. L. Rev. 715 (2012) (describing soft law tools in greater detail). Chafetz notes that withholding money is easier than appropriating it because either the House or Senate, acting alone, can withhold money. Id. at 725. As this part explains, however, the point goes even further: some individual members of Congress can credibly threaten to withhold money.

119 Although internal House and Senate rules prohibit substantive provisions in appropriations legislation, these rules are often waived. Lazarus, Richard J., Congressional Descent: The Demise of Deliberative Democracy in Environmental Law, 94 Geo. L.J. 619, 636–37 (2006).

120 In contrast, failure to pass a new authorization statute preserves the status quo. Id. at 634; see also Krutz, Glen S., Hitching A Ride: Omnibus Legislating in the U.S. Congress 2 (2001)

121 Krutz, supra note 120, at 3–4.

122 Id. at 4, 32–35.

123 Id. at 2.

124 This discussion brackets the questions raised earlier about whether congressional action is necessary for international organizations to be democratically accountable.

125 See supra note 108. The Reagan administration actively and repeatedly sought reduced funding from Congress for other International organizations—most notably, the United Nations—precisely to enhance the United States’ leverage. Alvarez, José E., Legal Remedies and the United Nations’ á la Carte Problem, 12 Mich. J. Int’l L. 229 (1991).

126 Schoultz, supra note 83, at 567.

127 Bartram S. Brown, The United States and the Politicization of the World Bank 175 (1992).

128 An Act Making Appropriations for Foreign Assistance and Related Programs, Title III, Pub. L. No. 94-11, 89 Stat. 17, 23 (1975).

129 H. Comm. On Banking, Currency & Housing, Increased U.S. Participation in the Inter-American Development Bank, H.R. Rep. No. 94-541, at 17 (1975) (reprinting text of letter from Ortiz Mena to Treasury Secretary William E. Simon).

130 see Letter from Robert S. McNamara, World Bank President, to W. Michael Blumenthal, Treasury Secretary (July 5, 1977), reprinted in Foreign Assistance and Related Agencies Appropriations for 1979: Hearings Before the Subcomm. on Foreign Operations and Related Agencies of the H. Comm. on Appropriations, 95th Cong. 535–36 (1978).

131 Schoultz, supra note 83, at 567.

132 Sanford, supra note 53, at 50.

133 see Lavelle, supra note 28, at 100; Schoultz, supra note 83, at 568–69.

134 see John Felton, Freeze on Vietnam Loans Ends Effort to Restrict U.S. Funds for World Bank, Cong. Q., Nov. 3, 1979, at 2504 (describing conferees as “argu[ing] heatedly among themselves about who was more opposed to Vietnam, and who disliked McNamara the most”).

135 Id.

136 IBRD Agreement, supra note 30, Art. III, §2.

137 Brown, supra note 127, at 187; Schoultz, supra note 83, at 570.

138 Felton, supra note 134, at 3.

139 see 125 Cong. Rec. 34,414–15 (1979) (at Representative Young’s request, reprinting newspaper article that quotes the text of the letter).

140 Id.

141 Id.

142 William Clark, Robert McNamara at the World Bank, Foreign Aff., Fall 1981, at 167.

143 see Robert Wade, Greening the Bank: The Struggle over the Environment, 1970 –1995, in 2 The World Bank, supra note 45, at 611, 658; Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders 129 (1998).

144 Wade, supra note 143, at 658–59.

145 Come and Get Me: Argentina Is Putting International Arbitration to the Test, Economist, Feb. 18, 2012, at 38.

146 Wade, supra note 143, at 667.

147 Lazarus, Richard J., The Greening of America and the Graying of United States Environmental Law, 20 Va. Envtl L.J. 75, 85–87 (2001).

148 Babb, supra note 32; id. at 110–14.

149 Id. at 117–20.

150 Bruce Rich, Mortgaging the Earth 113 (1994); Environmental Impact of Multilateral Development Bank–Funded Projects: Hearings Before the Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 98th Cong. (1983).

151 Environmental Impact of Multilateral Development Bank–Funded Projects, supra note 150, at 1–119.

152 Id. at 489–535.

153 Id. at 522, 528, 535.

154 Joint Resolution Making Further Continuing Appropriations for the Fiscal Year 1986, Pub. L. No. 99-190, §540(a)(1)–(4), 99 Stat. 1185, 1309–10 (1985).

155 Id., §540(a)(6), 99 Stat. at 310.

156 Joint Resolution Making Further Continuing Appropriations for the Fiscal Year 1987, Pub. L. No. 99-591, §539, 100 Stat. 3341, 3341-232 to 3341-236 (1986).

157 Joint Resolution Making Further Continuing Appropriations for the Fiscal Year 1988, Pub. L. No. 100-202, §537(a), 101 Stat. 1329, 1329-161 to 1329-64 (1987).

158 No signing statements accompanied the signing of Pub L. No. 99-190,99 Stat. 1185 (1985) (containing provisions described supra notes 154–55 and accompanying text); Pub. L. No. 99-591, 100 Stat. 3341 (1986) (containing provisions described supra note 156 and accompanying text); Pub. L. No. 100-202, 101 Stat. 1329 (1987) (containing provisions described supra note 157 and accompanying text).

159 See generally Wade, supra note 143, at 665–72; Babb, supra note 32, at 187–91.

160 Rich, supra note 150, at 145 (1994).

161 Foreign Assistance and Related Programs: Appropriations for 1987: Hearings Before a Subcomm. of the H. Comm. on Appropriations, 99th Cong. 595 (1986) (prepared statement of Treasury Secretary James A. Baker III identifying “the privatization of burdensome and inefficient public enterprises,” “growth oriented tax reform,” “improvement of the environment for both domestic and foreign direct investment,” and “trade liberalization and the rationalization of import regimes” as desired policy changes).

162 Gwin, supra note 45, at 232.

163 BABB, supra note 32, at 132.

164 1 Devesh Kapur, John Prior Lewis & Richard Webb, The World Bank:Its First Half Century 626–27 [hereinafter 1 The World Bank].

165 Wade, supra note 143, at 668; Babb, supra note 32, at 128 –31.

166 Wade, supra note 143, at 663.

167 Rich, supra note 150, at 126–46.

168 Lazarus, supra note 147, at 85– 87.

169 Cf. Wade, supra note 143, at 664 (“Leading the fight to reform the Bank’s environmental performance would also earn [Senator Kasten] electoral credit from the strong environmental movement back home in Wisconsin without incurring the wrath of Wisconsin’s environmentally unfriendly industries.”).

170 Draft Recommendations on the Multilateral Banks and the Environment: Hearing Before the Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 98th Cong. 11 (1984) (“In appearing before you in June 1983, I could honestly say that I was unaware of particular problems in these aspects of the [multilateral development bank] programs.”).

171 Statement by President Ronald Reagan upon Signing H.R. 1777, 23 Weekly Comp. Pres. Doc. 1547 (Dec. 28, 1987) (objecting on constitutional foreign policy grounds to provisions that require the initiation of foreign negotiations and the termination of the U.S.-Soviet Embassy Agreements, and that prohibited diplomatic contact with the Palestine Liberation Organization).

172 Philippe Le Prestre, The World Bank and the Environmental Challenge 198–201 (1989); Wade, supra note 143, at 674–75.

173 See supra note 102.

174 Human Rights and U.S. Policy in the Multilateral Development Banks: Hearings Before the H. Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 97th Cong. 48 (1981) (statement of Ernest B. Johnston Jr., senior deputy assistant secretary of state) (“In casting our future votes..., we will observe statutory requirements of the International Financial Institutions Act.”).

175 Id. at 37 (statement of Walter J. Stoessel Jr., under secretary of state for political affairs), 49–50.

176 Id. at 25 (statement of Ernest B. Johnson Jr., senior deputy assistant secretary of state).

177 Id. at 142 (statement of Representative Jerry M. Patterson).

178 Id. at 25 (statement of Ernest B. Johnston Jr., senior deputy assistant secretary of state).

179 John M. Goshko, Administration Reiterates Aim of Scuttling Carter Rights Policies, Wash. Post, July 10, 1981, at A 12.

180 Id.

181 See supra note 148 and accompanying text.

182 An Act Making Supplemental Appropriations for the Fiscal Year Ending September 30, 1984, Pub. L. No. 98-181, §1004, 97 Stat. 1153, 1286 (1983).

183 Human Rights and U.S. Voting Policy in the Development Banks: The Case of Chile: Hearing Before the Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 99th Cong. 60 (1985).

184 Id. at 65 (prepared statement of Elliott Abrams).

185 Id. at 69.

186 Id.

187 Current Directions for United States Policy Toward Chile: Hearing Before the Subcomm. on Int’l Dev. Inst. & Fin. of the H. Comm. on Banking, Fin., & Urban Affairs, 100th Cong. 33 (1987).

188 The Bank’s first general capital increase, in 1959, provided the Bank with more callable capital but did not require additional paid-in capital from member states. 1 The World Bank, supra note 164, at 12.

189 Id. at 2–3.

190 Id. at 1120.

191 see An Act to Permit Investment of Fund of Insurance Companies Organized Within the District of Columbia in Obligations of the International Bank for Reconstruction and Development, Pub. L. No. 83-513, 68 Stat. 494 (1954) (permitting insurance companies organized within the District of Columbia to buy IBRD securities); An Act to Further Amend Section 5136 of the Revised Statutes, as Amended, with Respect to Underwriting and Dealing in Securities Issued by the Central Bank for Cooperatives, Pub. L. No 82-305, 66 Stat. 49 (1952); An Act to Amend the National Bank Act and the Bretton Woods Agreement Act, Pub.L. No. 81-142, 63 Stat. 298 (1949) (authorizing national banks to purchase IBRD securities).

192 Babb, supra note 32, at 27; Mason & Asher, supra note 36, at 88.

193 See supra note 50 and accompanying text.

194 1 The World Bank, supra note 164, at 1131; Schoultz, supra note 83, at 544–45.

195 See generally, e.g., Franck & Weisband, supra note 53 (describing Congress’s growing activism in the wake of the Watergate scandal and the Vietnam War).

196 Lavelle, supra note 28, at 97–98; Gwin, supra note 45, at 220.

197 Cf. Barron & Lederman, supra note 57, at 952.

198 Signing statements asserting constitutional problems are sometimes, but not always, a prelude to the executive branch’s non-enforcement of, or noncompliance with, the legislated provision. See, e.g., Bradley, Curtis A. & Posner, Eric A., Presidential Signing Statements and Executive Power, 23 Const. Comment. 307, 343 (2006); U.S. Gov’t Accountability Office, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, Study No. B-308603 (2007) (reviewing nineteen provisions singled out in signing statements issued by President George W. Bush and finding that ten provisions were executed as written, six were not, and three were not triggered); McGinnis, John, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, 56 Law & Contemp. Probs. 293, 310 n.81 (1993) (describing noncompliance with legislated provision regarding composition of U.S. delegation to specified International meetings).

199 See, e.g., Bowles & Kormos, supra note 53 (discussing merits of constitutional objections to legislated instructions but not mentioning signing statements). Bruce Rich, a leader in the reform efforts, never mentions signing statements in his book. see Rich, supra note 150.

200 Devins, Neal & Prakash, Saikrishna, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507, 545 (2012).

201 see Fisher, Louis, The Legislative Veto: Invalidated, It Survives, 56 Law & Contemp. Probs. 273, 288 (1993) (describing presidents and their legal advisersas able to “indulge in confrontations with Congress” onconstitutional questions, whereas executive agencies “cannot risk these types of collisions with the [congressional] committees that authorize their programs and provide funds”).

202 Babb, supra note 32, at 13–15.

203 See, e.g., Carol Lancaster, Foreign Aid: Diplomacy, Development, Domestic Politics 76 (2007).

204 155 Cong. Rec. H7907 (daily ed. July 9, 2009).

205 Telephone interview with anonymous source familiar with U.S. participation in multilateral development banks over the years (Mar. 13, 2012).

206 Wade, supra note 143, at 680; Rich, supra note 150, at 148–53.

207 An Act Making Appropriations for Foreign Operations, Export Financing, and Related Programs for the Fiscal Year Ending September 30, 1990, Pub. L. No. 101-167, §522, 103 Stat. 1195 (1989) (codified at 22 U.S.C. §262(h)) (requiring the use of the voice and vote of the United States to oppose assistance by the Bank for the production or extraction of any commodity or mineral for export if the competition would injure U.S. producers).

208 Id., §533 (requiring vigorous promotion of programs to address global climate change by specified means, including by augmenting and expanding the professional staff of the Bank with the requisite expertise).

209 Id., §563 (requiring opposition to loans to countries that have been designated by the secretary of state as state sponsors of terrorism).

210 Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990, Pub. L. No. 101- 167, §561, 103 Stat. 1195 (1989).

211 International Development and Finance Act of 1989, Pub. L. No. 101-240, §§407(b), 501, 512, 103 Stat. 2492 (1989).

212 Id., §521.

213 Id.

214 George H. W. Bush, Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990, 2 Pub. Papers 1573 (Nov. 21, 1989).

215 Bush, George H. W., Statement on Signing the International Development and Finance Act of 1989, 25 Weekly Comp. Pres. Docs. 1973 (Dec. 25, 1989).

216 Foreign Operations, Export Financing, and Related Programs Appropriations for Fiscal Year 1991; Hearings on H.R. 5114 Before a Subcomm. of the S. Comm. on Appropriations, 101st Cong. 169, 180–81 (1990) [hereinafter Hearings on H.R. 5114 ] (“This is an area in which we have received a substantial mandate from Congress to press for wide-ranging reforms over the past several years. At last count, we had thirty-five separate legislative provisions encouraging us to promote more rapid progress toward one or another environmental objective.”).

217 Id. at 195.

218 Id. at 193.

219 Wade, supra note 143, at 686–87.

220 Hearings on H.R. 5114, supra note 216, at 192 (statement of Senator Leahy).

221 Bowles & Kormos, supra note 53, at 793.

222 Id.

223 Bush, George H. W., Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991, 26 Weekly Comp. Pres. Docs. 1770 (Nov. 12, 1990) (expressing concern about provisions that “purport to direct, or forbid, negotiations with foreign governments or entities” and that “require the executive branch... to present specific positions to International organizations”). The statute includes provisions requiring the U.S. executive director to encourage greater reliance on field offices in assessing project proposals and to hold open hearings in the borrowing country during project identification and preparation. see An Act Making Appropriations for Foreign Operations, Export Financing, and Related Programs for the Fiscal Year Ending September 30, 1991, Pub. L. No. 101-513, 104 Stat. 1979 (1990).

224 See, e.g., Clinton, William J., Statement on Signing the Department of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act, 2001, 36 Weekly Comp. Pres. Docs. 3153 (Dec. 21, 2000) (objecting to provisions regarding Kyoto protocol); Clinton, William J., Statement on Signing the Holocaust Victims Redress Act, 34 Weekly Comp. Pres. Docs. 263, 263 (Feb. 23, 1998) (objecting to a provision that “purports to direct the President on how to pursue negotiations with foreign states”).

225 see Clinton, William J., Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001, 36 Weekly Comp. Pres. Docs. 2809 (Nov. 13, 2000); Clinton, William J., Statement on Signing the Global AIDS and Tuberculosis Relief Act of 2000, 36 Weekly Comp. Pres. Docs. 1906, 1907 (Aug. 28, 2000) (objecting to “provisions [that] seem to direct the Administration on how to proceed in negotiations related to the development of the World Bank AIDS Trust Fund”); Clinton, William J., Statement on Signing Consolidated Appropriations Legislation for Fiscal Year 2000, 35 Weekly Comp. Pres. Docs. 2458 (Dec.6,1999); Clinton, William J., Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 34 Weekly Comp. Pres. Docs. 2108 (Nov. 2, 1998); Clinton, William J., Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 30 Weekly Comp. Pres. Docs. 948 (May 9, 1994).

226 See, e.g., An Act Making Appropriations for Foreign Operations, Export Financing, and Related Programs for the Fiscal Year Ending September 30, 1995, Pub. L. No. 103-306, §§514, 526, 108 Stat. 1608, 1633 (1994).

227 See, e.g., Foreign Operations, Export Financing, and Related Programs Appropriations for 2001: Hearings Before a Subcomm. of the H. Comm. on Appropriations, 106th Cong. 311 (2000) (“Under legislative sanctions imposed in 1998, we are required to oppose (i.e., abstain or vote ‘no’) any multilateral lending to India except for loans that support basic human needs. In April 2000, we abstained on one IBRD loan and one IDA credit... in accordance with this mandate.”) (response by Treasury Secretary Lawrence H. Summers to question for the record).

228 See, e.g., Bush, George W., Statement on Signing the Consolidated Appropriations Act, 2008, 43 Weekly Comp.Pres.Docs 1638(Dec.26,2007); Bush, George W., Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006, 41 Weekly Comp. Pres. Docs 1718 (Nov. 14, 2005); U.S. Government Accountability Office, supra note 198, at 33–34 (finding that the Treasury Department implemented voice-and-vote instructions not with standing constitutional objection made in signing statement).

229 see Omnibus Appropriations Act, Pub. L. No. 111-8, §§7026, 7030(b), 7070(e), 7071(b), 123 Stat. 524 (2009).

230 see An Act Making Supplemental Appropriations for the Fiscal Year Ending September 30, 2009, Pub. L. No. 111-32, §§1110–12, 1404, 123 Stat. 1859 (2009).

231 See id., §§1112(d), 1404.

232 Barack Obama, Statement on Signing the Omnibus Appropriations Act 2009, 2009 Daily Comp. Pres. Doc. 145 (Mar. 11, 2009); see Barack Obama, Statement on Signing the Supplemental Appropriations Act 2009, 2009 Daily Comp. Pres. Doc. 501 (June 24, 2009).

233 Bob Davis & Greg Hitt, Major IMF Contribution Faces Resistance in U.S. Congress, Wall St. J., June 10, 2009, at A 6.

234 See, e.g., Anne Flaherty, Democrats Irked by President’s Signing Statement: Obama Criticized George W. Bush for Doing the Same, Boston Globe, July 22, 2009, at 8.

235 155 Cong. Rec. H 7907 (daily ed. July 9, 2009); see supra note 204 and accompanying text. Representatives Frank and Obey, along with two other colleagues, sent a letter to President Obama reiterating both the complaint about the signing statement and the accompanying threat to cut funding. see Letter from Barney Frank and David Obey to President Obama (July 21, 2009), reprinted in Press Release, House Financial Services–Democrats, House Chairs Warn President of Dangers of Signing Statements (June 21, 2009), at http://democrats.financialservices.house.gov/press/PRArticle.aspx?NewsID=515.

236 see 155 Cong. Rec. H7907 (daily ed. July 9, 2009) (reproducing amendment offered by Representative Kirk on behalf of Representative Granger); id. at H7913 (recording 429-2 vote in favor).

237 Id. at H7908 (statement of Representative Kirk).

238 Telephone interview with Edwin (Ted) Truman, former Treasury Department Assistant Secretary for international Affairs (1998–2001) and Counselor to the Secretary (2009) (Mar. 13, 2012).

239 Id.

240 Id.

241 See id. (statement of Representative Frank) (“I’ve been told by Treasury they intend to abide by them.”).

242 See the U.S. and the G-20: Remaking the International Economic Architecture: Hearing Before the S. Comm. on Foreign Relations, 111th Cong. 36 (2009) (responding to a question for the record, Geithner stated, “Treasury takes very seriously its responsibility to carry out the legislative mandates that apply to U.S. participation in the six [international financial institutions].”).

243 Dep’t of the Treasury, supra note 16, at 1.

244 Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, §§7026(c), 7030(b), 7070(i), 7071(b)(1), 7089(e),123 Stat. 3034 (2009); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, §§7025, 7029(b), 7042(j)(1), 7046(d)(4),125 Stat. 786 (2011).

245 Compare Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, §7026, 123 Stat. 524, with Consolidated Appropriations Act, 2010, §7026(c), with Consolidated Appropriations Act, 2012, §7025(c) (containing identical provisions regarding loans for commodities or minerals that compete with U.S. producers); compare Consolidated Appropriations Act, 2009, §7030,with Consolidated Appropriations Act, 2010, §7030(b) (containing nearly identical language regarding loans that would require user fees or services charges on poor people for primary education or primary health care); compare Omnibus Appropriations Act, 2009, §7070(e)(1), with Consolidated Appropriations Act, 2012, §7042(j), and Consolidated Appropriations Act, 2010, §7070(i) (regarding loans to Zimbabwe); compare Omnibus Appropriations Act, 2009, §7071(b), with Consolidated Appropriations Act, 2010, §7071(b), and Consolidated Appropriations Act, 2012, §7044(b) (regarding loans to Burma).

246 see Consolidated Appropriations Act, 2010, §7089; Consolidated Appropriations Act, 2012, §7046(d)(4).

247 Charlie Savage,Obama Takes New Route to Opposing Parts of Laws, N.Y. Times, Jan.9, 2010, at A10 (quoting White House spokesperson Ben LaBolt).

248 See infra notes 274–75 and accompanying text.

249 James M. Lindsay, Congress and the Politics of U.S. Foreign Policy 115 (1994).

250 McCubbins, Mathew D. & Schwartz, Thomas, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. j. Pol. Sci. 165, 168 (1984).

251 Id. at 166.

252 Stewart,supra note 12, at 80. For an example of how administrative law procedures can be applied to an international regime, see Barr & Miller, supra note 29, at 29–31.

253 see Schoultz, supra note 83, at 546.

254 Wade, supra note 143, at 614–15 (describing shortcomings in the Bank’s reporting regime before 1987 as “too weak to pick up more than egregious cases of damage, and perhaps not all of those”); see also Rich, supra note 150, at 113 n.*.

255 Compare, e.g., Nielson & Tierney, supra note 53, with Gutner, Tamar, World Bank Environmental Reform: Revisiting Lessons from Agency Theory, 59 Int’l Org. 773, 778–79 (2005).

256 IBRD Agreement, supra note 30, Art. III, §2.

257 see 22 U.S.C. §288(a), (d); Exec. Order No. 9751, 11 Fed. Reg. 7713 (July 11, 1946); Exec. Order No. 11966, 42 Fed. Reg. 4331 (Jan. 19, 1977).

258 There were some exceptions in the Bank’s very early history: in 1948 and 1949, IBRD officials testified voluntarily before several congressional committees. Sanford, Jonathan & Goodman, Margaret, Congressional Oversight and the Multilateral Development Banks, 29 Int’l Org. 1055, 1056 n.2 (1975).

259 Id. at 1060–61; see also Staff of S. Comm. On Foreign Relations, 111th CONG., Report on the International Financial Institutions: A Call for Change 18 (Comm. Print 2010) [hereinafter A Call for Change] (citing the Government Accountability Office’s lack of access to Bank officials to complete report requested by members of Congress).

260 see 22 U.S.C. §288a(b), d(b).

261 see Sanford & Goodman, supra note 258, at 1059–61.

262 A Call for Change, supra note 259, at 3 (noting that Senator Lugar met personally with the head of each multilateral development bank); Bowles & Kormos, supra note 53, at 808 n.212.

263 Interview with Nilmini Gunaratne Rubin, former Senior Professional Staff Member for Senator Richard Lugar (Mar. 29, 2012).

264 See, e.g., Bowles & Kormos, supra note 53, at 801; Wade, supra note 143, at 727; Udall, Lori, The World Bank and Public Accountability, in The Struggle for Accountability: The World Bank, Ngos, And Grass Roots Movements 403 (Fox, Jonathan A. & Brown, L. David eds., 1998).

265 Shihata, Ibrahim F.I, The World Bank Inspection Panel 22–23 (2d ed. 2000).

266 see A Call for Change, supra note 259.

267 see World Bank, News and Broadcast, World Bank Broadens Public Access to Information (July 1, 2010), at http://go.worldbank.org/L3HF51WOX0.

268 see IBRD Resolution 93-10 (1993); IDA Resolution 93-6 (1993); see also Bowles & Kormos, supra note 53, at 801–07 (describing legislated instructions and threats to cut funding, specifically in relation to the establishment of the Inspection Panel).

269 See generally Boisson de Chazournes, supra note 15, at 292; Nielson & Tierney, supra note 53 (describing Inspection Panel as an example of fire-alarm oversight).

270 Congressional hearings, like threats to cut funding, are not subject to the collective action problems that beset legislating. Bradley & Morrison, supra note 8, at 446.

271 Babb, supra note 32, at 69.

272 BWAA, supra note 37, §4(b)(5), (6).

273 See, e.g., 22 U.S.C. §262r-6 (2006) (requiring annual reports on actions that borrowing countries have taken to strengthen governance and reduce bribery and corruption).

274 D. Roderick Kiewiet & Mathew D. Mccubbins, The Logic of Delegation 31–32(1991)(“The agent has incentives to shade things... or to Reveal information in some other strategic manner.... Even if agents can some how be constrained to be truthful in their reports, the principal will still not know what they are not reporting.”).

275 Hawkins, Darren G., Lake, David A., Nielson, Daniel L. & Tierney, Michael J., Delegation Under Anarchy: States, International Organizations, and Principal-Agent Theory, in Delegation and Agency in International Organizations (Hawkins, Darren G., Lake, David A., Nielson, Daniel L. & Tierney, Michael J. eds., 2006) (“If the principal observes an unsatisfactory outcome, it cannot tell for sure whether this was the result of slack by the agent, in which case the latter should be sanctioned, or some unfortunate event that disrupted the best efforts of a sincere agent, who should not be punished.”).

276 See, e.g., U.S. Gov’t Accountability Office, International Environmental Oversight: U.S. Agencies Follow Certain Procedures Required by Law, But Have Limited Impact (2008); U.S. Gen. Accounting Office, More Effective United States Participation Needed in World Bank and International Development Association, Rep. B-161470 (1973); A Call for Change, supra note 259; 1977 Staff Report, supra note 82.

277 See, e.g., International Environmental Oversight, supra note 276, at 25–26 (describing sources).

278 Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, §581, 118 Stat. 3, 202–04 (2004) (codified at 22 U.S.C. §262o-3) (requiring online posting of all negative votes and abstentions made by U.S. executive directors at any multilateral development institution); Foreign Operations, Export Financing, and Related Appropriations Act, Pub. L. No. 109-102, §599B, 119 Stat. 2172, 2241–43 (2005) (codified at 22 U.S.C. §262o-4(e)) (requiring online posting of explanations of U.S. positions on proposals that would have a significant effect on the environment).

279 World Bank, The World Bank Policy on Access to Information, para. 23 (July 1, 2010), at http://go. world bank.org/L3HF51WOX0. Verbatim transcripts of board meetings, as well as statements of executive directors and staff in the context of board meetings, remain unavailable to the public under the new policy for a period often years. Id., para. 33.

280 A related question (one that is beyond the scope of this article) is whether legislatures in other member states can replicate Congress’s success. To the extent that Congress is aided by the United States’ disproportionate influence over the Bank, Congress’s successes may be difficult for other legislatures to replicate.

281 See supra note 74 and accompanying text (discussing Congress’s constitutional authority relevant to the Bank’s work).

282 See generally Lancaster, supra note 203, at 62–109 (describing shifts in congressional approaches to foreign aid policy over time).

283 Lindsay, supra note 249, at 40–43.

284 Victoria Nourse,Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L.J. 1119, 1125 (2011) (“There is nary a political scientist who does not believe that the electoral connection—whether viewed as a rosy aim to further the public good or a craven attempt to extract interest-group rents—is Congress’s most distinctive feature.”).

285 Moe & Howell, supra note 5, at 147.

286 Bradley & Kelley, supra note 15, at 16.

287 see J. Lawrence Broz & Michael Brewster Hawes, US Domestic Politics and International Monetary Fund Policy, in Delegation and Agency in International Organizations, supra note 275, at 77, 77 n.2.

288 See subsection “Constitutional Confrontation” in part IV, above.

289 This process has been followed for the other organizations that make up the World Bank Group as well as for the IMF, regional development banks, the WTO, and commissions established by the North American Free Trade Agreement, including the Commission for Environmental Cooperation and the Commission for Labor Cooperation.

290 For example, compare the International Cotton Institute (participation approved by legislation) with the International Coffee Organization (participation approved by two-thirds of the Senate).

291 Cf. Hathaway, supra note 13 (making this same point regarding the pattern for International agreements gen erally, not just those that create International organizations).

292 See, e.g., Chemical Weapons Convention Implementation Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681– 856 (following Senate consent to ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21); Great Lakes Fishery Act of 1956, Pub. L. No. 557, 70 Stat. 242 (following Senate consent to ratification of the Convention on Great Lakes Fisheries, U.S.-Can., Sept. 10, 1954,6 UST 2836); International Atomic Energy Agency Participation Act of 1957, Pub. L. 85-177, 71 Stat. 453 (following Senate consent to ratification of the Statute of the International Atomic Energy Agency, Oct. 26, 1956, 8 UST 1093, 276 UNTS 3).

293 International Coffee Agreement, Aug. 28, 1957, Pub. L. 85-177, 14 UST 1911.

294 See generally Robert H. Bates, Open-Economy Politics: The Political Economy of the World Coffee Trade 125–27 (1997).

295 International Coffee Agreement Act of 1965, Pub. L. No. 89-23, §2, 79 Stat. 112 (1965).

296 Renegotiation Amendments Act of 1968, Pub. L. No. 90-634, §302, 82 Stat. 1345 (1968).

297 Coffee Agreement Act of 1968, Continuation, Pub.L.No. 91-694, §3,84 Stat. 2077 (1971);An Act to Continue Until the Close of September 30, 1973, the International Coffee Agreement Act of 1968, Pub.L. No. 92-262, 86 Stat. 113 (1972).

298 See supra note 41.

299 GA Res. 64/248 (Feb. 5, 2010); Report of the Secretary-General, Implementation of General Assembly Resolutions 55/235 and 55/236, UN Doc. A/64/220 (Sept. 23, 2009); Basic Facts About the United Nations 28–29 (2011).

300 World Health Assembly, Scale of Assessments for 2012–2013 (May 24, 2011), at http://apps.who.int/gb/ ebwha/pdf_files/WHA64/A64_R21-en.pdf.

301 World Trade Organization, Members’ Contributions to the WTO Budget and the Budget of the Appellate Body for the Year 2011, at http://www.wto.org/english/thewto_e/secre_e/contrib11_e.htm.

302 Organization of American States, Program-Budget of the Organization 2012, Annex II, tbl.A, at http://www.oas.org/consejo/sp/CAAP/docs/Approved%20Program%20Budget%202012%20ENG%20_%20No%20posts.pdf; 2008 Annual Report of the Inter-American Tropical Tuna Commission, App. 2, at http://www.iattc.org/PDFFiles 2/AnnualReports/IATTC-Annual-Report-2008.pdf.

303 UN Charter, Arts. 27, 108; IBRD Agreement,supra note 30, Art. VIII. The United States also has the capacity to veto individual loans made by the Inter-American Bank’s Fund for Special Operations, which, like the IDA, extends concessional loans on below-market terms. Agreement Establishing the Inter-American Development Bank, Art. IV, §§1, 9, Apr. 8, 1959, 10 UST 3029, 389 UNTS 69.

304 Convention on International Civil Aviation, Art. 50, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295.

305 Constitution of the International Labour Organization, Art. 7, June 28, 1919, 49 Stat. 2712, TS No. 874.

306 Cogan, supra note 45, at 257, 261.

307 Id. at 257– 62.

308 Kingsbury, Benedict, Kirsch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15, 38–39 (2005).

309 International Monetary Fund,IMF Members’ Quotas and Voting Power, and IMF Board of Governors, at http://www.imf.org/external/np/sec/memdir/members.aspx.

310 Cogan, supra note 45.

311 Patricia A. Wertman & Pamela Hairston, The IMF And “Voice and Vote” Amendments: A Compilation (Congressional Research Service, Library of Congress, 1998); U.S. Dep’t of Treasury, supra note 16.

312 22 U.S.C. §262o-2(a)(9) (2006).

313 22 U.S.C. §262o-2(a)(4) (2006).

314 Broz & Hawes, supra note 287, at 103.

315 David Gartner, Uncovering Bretton Woods, 44 Geo. Wash. Int’l L. Rev. (forthcoming).

316 Alvarez, supra note 3, at 10.

317 Gwin, supra note 45, at 269.

318 See, e.g., Lavelle, supra note 28, at 6; Gwin, supra note 45, at 269–70.

319 Gwin, supra note 45, at 269–70.

320 McGinnis, supra note 2, at 1714.

321 Id. at 1714, 1725 n.43; Dahl, supra note 2, at 30.

322 See supra note 2 and accompanying text.

* Many thanks to Tabatha Abu-El Haj, Sam Bagenstos, Nick Bagley, Michael Barr, Deb Burand, John Ciociari, Sherman Clark, Alicia Davis, David Fontana, Monica Hakimi, Daniel Halberstam, Scott Hershovitz, Don Herzog, Jim Krier, Nina Mendelson, Julian Mortenson, Richard Primus, Steve Ratner, Margo Schlanger, Paul Stephan, Ed Swaine, and the participants at the ASIL International Organizations and International Law in Domestic Courts workshops and the Wharton–Colorado University Junior International Law Scholars Workshop for helpful comments and conversations. My special appreciation to John Broderick for excellent research assistance, Seth Quidachay-Swan at the University of Michigan Law Library, and the individuals who agreed to be interviewed for this project.

Congress Underestimated: The Case of the World Bank

  • Kristina Daugirdas (a1)

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