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A wake-up call for the 111th Congress

COMMENTARY | February 04, 2009

Andrew Rudalevige, author of 'The New Imperial Presidency,' calls on Congress to reassert itself as a coequal branch of government, reclaim powers it abdicated to the executive branch under President Bush, demand information, conduct aggressive oversight and use its power of the purse.

By Andrew Rudalevige

Two years ago, with a Democratic majority taking charge of both chambers of Congress for the first time since 1994, I suggested a “to-do” list for the incoming lawmakers.  Much of it represented a plea for Congressional involvement in the major issues of the day after a period when legislators responded with startling deference to the Bush administration’s aggressive claims of unilateral authority.

That deference changed less than might have been expected when the Democrats took over in 2007. Though the scope and intensity of legislative investigations certainly intensified, the “cataclysmic fight to the death” predicted by one Bush aide over legislative oversight never materialized, and certain presidential claims (for instance, with regard to the amendments to FISA to support the NSA’s warrantless wiretapping program) were actually endorsed in statute. The president continued to dominate national security policy. While Bush did have to dust off his veto pen after having to use it only once in his first six years, Congress could muster few overrides, mostly for bills drawn from the pork barrel.

With a new president and expanded Democratic majorities, a new to-do list awaits. The idea is for Congress to avoid repeating the mistakes of commission and omission it made during the Bush years, and to work better as an institution, healing what Thomas Mann and Norman Ornstein have aptly termed The Broken Branch.  None of this will be easy, for despite the constant refrain of “hard choices” invoked by those in government since 2001, most of those hard choices have been deferred rather than accomplished. Under re-unified government, Congressional Democrats may be tempted to see themselves as part of President Obama’s team, rather than representatives of an equal, coordinate branch of government. Republicans may be tempted to cling stubbornly to repudiated ideas and form a blind rather than a loyal opposition. In the face of the crises that already define the 21st century, either path would deny us the thoughtful deliberation those crises require – and that American citizens deserve.

In general, the 111th Congress should:

Demand Access to Information

Upon taking office, President Obama declared his commitment to “creating an unprecedented level of openness in government,” told the executive branch that it should respond to Freedom of Information Act requests with the presumption that “in the face of doubt, openness prevails,” and overturned a November 2001 executive order allowing presidents (and vice-presidents, and even the heirs to both) to suppress the release of presidential records long after a given incumbent had left office. These are very promising signs. Congress should put into statute its renewed commitment under the Presidential Records Act to opening the historical record fully and as quickly as legitimate issues of privacy and national security allow. And it should put Obama’s promises to the test in the present day. Will the president allow his White House aides to testify before Congressional committees? How will the Obama Justice Department handle contempt of Congress charges renewed against former Bush aides who used executive privilege as a shield against even appearing (much less answering questions) before investigative committees? Knowing what has occurred in the past will be crucial to knowing how what questions to ask about current policy, thus allowing Congress to…

Conduct Rigorous Oversight

How well have executive branch agencies been run? How has government money been spent? How are contracts issued, and with what value for money? What regulatory programs are in place? Is there a coherent vision driving the foreign and domestic policy agendas? These are questions both of policy deliberation and of institutional pride. Even while Congress delegated huge discretionary powers to the executive branch in recent years – in measures ranging from the Patriot Act (twice) to the 2008 financial bailout – it did little to follow up how those powers were used and to what substantive result. Implementation, it seems fair to say, was not the Bush administration’s strong suit: monitoring, feedback, and follow-up will help its successor perform better, however much legislative involvement may be resented by the White House in the short term. Congress has the power to hold hearings, to start investigations, to make executive branch actors uncomfortable (because accountable) in public. It should use those powers. Further, legislators need to back up their collective auditing wing, the Government Accountability Office (GAO) – unlike in 2002, when its efforts to gain information about a vice-presidentially led energy task force was undercut by the Congressional leadership.

Oversight is just one way Congress can…

Recall Its Article I Powers

The theory of the “unitary executive,” as practiced in recent years, argued that Congress had no role in policing the use of presidential powers, especially in wartime. The administration’s Office of Legal Counsel in 2002, for instance, held that “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield,” and laws that “seek to prevent the President from gaining the intelligence he believes necessary” themselves “would be unconstitutional.” 

This stance was always dubious in light of the trinitarian, not unitarian, Constitution. Indeed, it was rejected by the Supreme Court in its 2006 Hamdan decision, which pointed out the clear legislative role in regulating the detention and treatment of terrorism suspects. Congress should reject it too. It might start by revisiting the Military Commissions Act it passed later that year (some of which was overturned by the Court in 2008) to provide enhanced oversight of the detention regime and especially of the power that law gave the president to name and detain “enemy combatants.”  Likewise, Congress should enforce the provisions of the Intelligence Oversight Act, which require the Select Committees on Intelligence be kept abreast of “any significant anticipated intelligence activity” and consulted on those activities in a “timely fashion.” Legislators should take seriously their responsibility to examine the substance and framing of intelligence so that they can credibly weigh in on critical foreign policy issues – whether in South Asia, the Gaza Strip, Afghanistan, or Iran.

Congress should also:

  • Insist that important deals with foreign governments (such as the Status of Forces Agreement negotiated with Iraq) be ratified as treaties, not implemented without congressional involvement as executive agreements;
  • Play a constructive role in the nomination and confirmation process;
  • Explore the process of regulatory review, both in the executive agencies and by the Office of Management and Budget, combing through the rush of regulations put in place in the dying days of the Bush administration (with an eye towards invoking the Congressional Review Act of 1996 to overturn those not in the public interest).

And, most importantly, Congress should..

Reclaim the Power of the Purse

Congress has yet to pass a budget for fiscal 2009, which began last October 1. This is not an isolated failure: budget expert Philip Joyce has pointed out that Congress has passed all of its required appropriations bills on time only four times since 1977. Likewise, according to a February 2008 Congressional Research Service report, the deadline for a budget resolution – an umbrella document supposed to direct spending priorities and assure sufficient revenues to meet them -- has been met just six times in the last thirty-three years. The power of the purse is one way to enforce congressional preferences on the executive branch. More broadly, with the national debt past $10.6 trillion and annual deficits approaching $1 trillion in their own right, we are surely owed serious and timely debate about fiscal issues. Such debate will require legislators to…

Think About the Long Term

Bismarck said that a statesman is a politician who thinks about his grandchildren. By that standard American politics have been woefully short of statesmen, and -women, though at least those grandchildren were thought about long enough to be handed a big bill. Very big. The GAO calculated at the end of 2007 that current commitments into the future total an astounding $53 trillion in unfunded liabilities, a figure which has only grown during 2008. 

Legislators need to consider how the need for short-term stimulus fits with the long-term fiscal discipline needed in the face of growing entitlement programs and fragmented tax policy. Bipartisan efforts will be needed to rework Social Security and Medicare, and to pick up the fallen gauntlet of fundamental tax reform. Similar comity will be needed to address long-term environmental issues. To achieve it, all sides will need to…

Speak Up, But Listen

Partisan polarization is much stronger in Washington than it is out in the “purple” public. Still, the Republican minority no longer contains many moderate members, and will seek points of disagreement – partly to show signs of life after two disastrous elections, partly because conflict attracts media coverage, partly (even largely) because they have substantive disagreements to air. How the minority is treated, and whether it is included in policy formulation, will matter. The temptation to use the tools of legislative procedure to shut out dissenting voices should be resisted; some lessons in the art of exclusion (such as keeping minority members from attending meetings of conference committees) should be unlearned. Where lonely voices have good ideas, those ideas should be used; where they do not, treating them fairly will show up obstructionism practiced for its own sake. As far as the latter goes, in a blogosphere filled with paeans to the Reagan era, it is worth remembering just how flexible Reagan was in dealing with congressional Democrats. In fact, he agreed to tax increases five times after the 1981 tax cut (in 1982, 1984, 1985, 1986, and 1987).  Reagan, in short, was willing to…

Get to Work

Finally, we shouldn’t overlook one key thing that members of Congress could do to get to know each other better and restore a sense of collective responsibility: they could spend more time together. This is not to belittle how busy representatives and senators are. But in all their busy-ness they spend very little time actually legislating – the House was in session just 93 days in 2006, bouncing up to 164 days in 2007 before falling back to 118 days in 2008. And many of those “days” were hardly 9 to 5. Overall, the collective ethos of Congress – the simple fact of members getting to know each other as people instead of as harsh talking heads - has been transformed by a truncated Tuesday p.m.-Thursday a.m. schedule of votes arranged around members’ eagerness to get out of Washington. But this is a time for Washington work. Hard choices are overdue.

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