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FEATURES: The Coming Ascent of Congress
By John J. Pitney, Jr.
And the diminishing power of the presidency
Honest and principled he may not have been,
but President Clinton seemed in 1999 to be the very model of an effective executive. He
had turned impeachment against the congressional Republicans. He was setting the domestic
agenda on issues ranging from health insurance to gun control. And he used massive
airpower in the Kosovo conflict, overcoming the deep reservations of lawmakers and the
initial skittishness of ordinary citizens.
Apparently, he had achieved an historic reversal. Just four years
earlier, quick House action on the "Contract with America" led many observers to
conclude that the balance of power had tipped from the president to the Congress. Newt
Gingrich went on television to deliver his own version of a state of the union address,
while Clinton had to remind the press that he was still relevant.
Now, Gingrich was gone and Clinton was back on top. The executive
branch would once again dominate Washington.
Or would it? With the Clinton administration, appearances and
expectations have only a faint resemblance to underlying realities. (Recall how we were
going to bring democracy and domestic tranquility to Haiti?) Despite all the attention
they got at the time, Clintons political victories were more personal than
institutional. He could win, not because the presidency itself was getting stronger, but
because his gop opponents had weaknesses he could attack. On the House side, Republicans came to
power without real experience in national governance: Not one of them had ever chaired a
committee. Moreover, they had only a thin majority, which put them at the mercy of every
small band of internal dissidents. On the Senate side, where individual talents and flaws
make more difference, the majority had a distressing number of weak links. Some routinely
broke ranks on major issues, while others provided Democratic opposition researchers with
a wealth of ammunition. During the Whitewater hearings, chaired by Sen. Al DAmato of
New York, White House aides supplied reporters with the "DAmato Ethics
Sampler," a set of clippings documenting the senators own stumbles.
There is nothing permanent about such weaknesses. Politicians can learn
from mistakes, and elections can transform the Capitol roster. Madisons ghost does
not respect party lines. During the Reagan-Bush years, many conservatives wanted to give
the presidency the upper hand over Congress, whereas liberals thought the natural order of
things should favor the legislature; the change in control of both branches has since
brought an outpouring of contrary sentiment. In a farsighted article in the summer 1990 Public
Interest, then-Rep. Mickey Edwards, Oklahoma Republican, warned that neither party had
a lock on either branch.
In any case, Congress and the presidency are more than the people who
occupy them. On this level, we see a different picture, where the institutions change
gradually as a result of laws, precedents, and social trends. Notwithstanding
Clintons short-term successes, the institutional balance has not shifted to the
White House. In important ways, the presidency has grown weaker, partially because Clinton
cared more for his own survival than for the health of the institution. And in spite of
partisan stalemate, Congress retains basic strengths and has the potential for greater
power in the new century.
Madison, Tocqueville, and the bomb
To anticipate the future, we need to start by
understanding some institutional history. "In republican government," Madison
wrote in Federalist 51, "the legislative authority necessarily
predominates." The nineteenth century bore out this observation. Most of the time,
policy came from Capitol Hill instead of the White House, and congressional leaders left
bigger footprints than presidents. Henry Clay, Daniel Webster, and John C. Calhoun remain
major historical figures while William Henry Harrison and Zachary Taylor are notable
mainly because they died on the job. Of course, the most important exception to the
pattern of weak presidents was Abraham Lincoln.
Coming to America three decades before the Lincoln presidency, Alexis
de Tocqueville shrewdly explained why the White House stood at a disadvantage. A
nations executive power mainly involves foreign affairs, he wrote, but since vast
oceans separated America from the rest of the world, its international dealings were
meager. Without large fleets and armies, the commander in chiefs power existed
mostly on paper. "The President of the United States possesses almost royal
prerogatives, which he has no opportunity of exercising. . . . The laws allow him to be
strong but circumstances keep him weak." James K. Polks assertiveness in the
Mexican War offered a glimpse of this potential power, but it was Lincolns
leadership in the Civil War that showed how far a president could reach when the guns
started to fire. Detractors accused him of tyranny, citing such measures as the suspension
of the writ of habeas corpus. Even then, however, he could not keep lawmakers from
influencing policy and investigating the war effort. At one point, the House Judiciary
Committee briefly looked into charges that Mary Lincoln was a security risk.
Right after
the conflict, Congress resumed its ascendancy. In a political fight with President Andrew
Johnson, Congress passed legislation forcing a president to get Senate approval before
firing anyone from any post requiring Senate confirmation. When Johnson defied the law,
the House impeached him and the Senate came within a single vote of removing him. Lacking
spinmeisters such as James Carville, Johnson could not depict the outcome as a triumph
over the politics of personal destruction. Public opinion sided with Congress, which
continued to work its will over policy. The next several presidents were unwilling or
unable to take the lead, though Grover Cleveland did cast 414 vetoes in his first
administration, more than twice the combined total of all his predecessors.
During the twentieth century, the balance shifted toward the executive.
This change grew out of several developments, the most important of which was
Americas rise as a global power. To stir morale during World War I, the Wilson
administration set up an elaborate propaganda operation. It worked so well that it not
only supplied a template for later military conflicts, but also laid the foundation for
the modern public relations industry. (Mrs. Clinton may have known of this historical link
when she dubbed her husbands communications center the "War Room.") A
generation later, Pearl Harbor convinced Americans that the oceans would no longer protect
us. Believing that the nations survival was at stake, lawmakers authorized the
president to run a massive mobilization. Quietly and with few questions, congressional
leaders agreed to hide funding for the Manhattan Project.
After Hiroshima, the nation did not demobilize as thoroughly as with
previous wars. Americas world leadership, together with the growing threat from the
Soviet Union, required an ongoing commitment to a large defense establishment. In 1947,
Congress passed the National Security Act, which created the Defense Department, the
Central Intelligence Agency, and the National Security Council, the latter consisting only
of executive officials and reporting only to the president. Congress did not take the
parallel step of reorganizing its relevant committees. Scholar James Sundquist writes,
"The picture was clear: the president would prepare the unified and coordinated
policy; if legislation or appropriations were required, the Congress would review and
respond."
As the Cold War unfolded, presidents would fight in Korea, mount
countless covert operations, and generally leave their own personal stamp on American
foreign policy. More than that, they gained a new standing in the public mind, for they
held something that no one had ever had before: the power to cause or prevent the
destruction of all life on earth. A century earlier, a president was simply the chief
magistrate. Now he was the Man Who Kept the Missiles Away. Naturally enough, presidents
used this stature to gain support on foreign policy issues and with less success
in domestic affairs. Kennedy argued that civil rights legislation was a matter of
national security, reasoning that the Soviets were exploiting American segregation for
propaganda purposes. Nixon even cited national security to justify the sacking of
Watergate special prosecutor Archibald Cox. "Elliot," he reportedly told
Attorney General Richardson, "Brezhnev wouldnt understand if I didnt fire
Cox after all this."
The Cold War confirmed two of Tocquevilles prophecies. The first
was that America and Russia each were called "by some secret design of Providence one
day to hold in its hands the destinies of half the world." The second was about the
presidency: "If the Unions existence were constantly menaced, and if its great
interests were continually interwoven with those of other powerful nations, one would see
the prestige of the executive growing, because of what was expected from it and of what it
did."
The blunted sword
Vietnam diminished presidential primacy.
Though Congress bowed to lbjs war policy with the Tonkin Gulf Resolution, lawmakers grew
increasingly frustrated as the years passed. After failing to stop funding for the war,
they resolved not to let another president get the country into such a conflict. One
result of this sentiment was the War Powers Resolution of 1973, an attempt to curb
presidential warmaking authority. The law was constitutionally questionable and has turned
out to be largely ineffectual. Nevertheless, it did signal that Congress would now make it
harder for the president to be the Lone Ranger of national security. Two years later, when
Gerald Ford asked the Senate Foreign Relations Committee for help in preventing the fall
of South Vietnam, Sen. Jacob Javits, New York Republican, told him: "I will give you
large sums for evacuation, but not one nickel for military aid." Congress prevailed,
South Vietnam fell, and the communists rule to this day. Tocqueville had yet another
relevant insight, this time about democracies in wartime: "[I]f present ills are
great, it is to be feared that they will forget the greater evils that perhaps await them
in case of defeat."
Ronald Reagan partially reversed the "Vietnam syndrome" by
articulating a clear vision of American principles and doggedly sticking to the goal of
rolling back the Soviet empire. In doing so, he still had to contend with congressional
micromanagement. For instance, the lawmakers enacted the Boland Amendments, which curbed
aid to the rebels fighting the Soviet-backed regime in Nicaragua. Administration efforts
to get around these restrictions resulted in the Iran-Contra scandal, which in turn gave Congress an
opportunity to go after Reagan with investigations and accusations. Fallout from the
scandal continued through the end of the Bush years.
More than Iran-Contra, we remember Bush for the American victory in the
Gulf War. We forget what a close-run thing it was. Though Bush believed that he could
constitutionally wage the war on his own authority, politics compelled him to welcome
congressional consideration of a resolution of support, and the shift of just three
senators would have defeated it. Once it became clear that the war was going well, the
opponents nimbly turned around and backed the president for the moment. Soon after
the war, Bush found that he had gained no real political capital, and congressional
critics were attacking him for spending too much time on foreign policy.
Tocqueville would have understood. The Cold War ended during
Bushs term, and Americans no longer perceived a constant threat to their
countrys existence. Accordingly, they redefined some would say
"downgraded" their job description for the presidency. Handling
international crises became less vital than understanding domestic problems and fixing the
economy. The First Guardian was out. Mr. Goodwrench was in.
The setting was perfect for the election of Bill Clinton in 1992.
During the campaign, he had hardly been a pillar of consistency on foreign policy. When a
reporter asked about the Gulf War, he said: "I guess I would have voted with the
majority if it was a close vote. But I agree with the arguments the minority made."
That did not matter, for voters wanted a domestic president. In a Nightline interview the
day after his election, Clinton said: "I am going to focus like a laser beam on this
economy." That focus had already become evident earlier in the day. When foreign
leaders phoned to congratulate him, aides asked them to leave a message because he was
sleeping.
In his 1996 reelection campaign, he liked to proclaim: "There are
no Russian missiles pointed at any American children tonight for the first time since the
dawn of the nuclear age." In typical Clinton fashion, the claim was misleading, since
the Russians could reprogram their missiles toward American targets within minutes. And by
implying that foreign policy had stopped being a life-or-death issue for average
Americans, he encouraged their tendency to shun international affairs. This implied
message also had the unintentional effect of undercutting presidential prestige, for it
devalued the one area in which the chief executive has greatest authority.
No president can ignore the world, and Clinton eventually found himself
dealing with a long international agenda. His efforts were spasmodic and unsystematic,
however. Even his dramatic air strikes against Iraq and Serbia were not nearly as
conclusive as they seemed, since
Saddam Hussein held onto his weapons of mass destruction, and Slobodan Milosevic remained
in power. Why couldnt Clinton bring things to completion? First, our armed forces
were already underfunded and overstretched. Second, he was in a weak position to ask
Congress and the people for the sacrifice of blood and treasure that would have resulted
from ground combat. After winning office on a platform of "the economy, stupid"
and telling Americans that their country no longer faced destruction, it would have been
hard to explain the need for body bags.
Further evidence of presidential weakness on foreign policy came in
fall 1999, when the Senate rejected the Comprehensive Test Ban Treaty. Thirty-six years
earlier, John F. Kennedy had put his offices prestige behind a limited test ban
treaty. Mindful of the need to close ranks before the Soviet Union, Senate Republican
Leader Everett Dirksen of Illinois dropped his earlier opposition and sided with jfk, saying: "with
consummate faith and some determination, this may be the step that can spell a grander
destiny for our country and for the world." The Senate approved the 1963 treaty by a
vote of 80-19, with Republicans voting in favor 25-8. Clinton idolized Kennedy but could
not repeat his accomplishment. The defeat stemmed from lingering impeachment animosity
among Senate Republicans as well as from serious flaws in the treaty. And to a large
extent, the defeat was also a symptom of the presidencys reduced leverage. "The
commander in chief says he needs it" had ceased to be a clinching argument for
lawmakers in the post-Cold War world. Public opinion, which used to rally around the
president on foreign policy, had become an uncertain resource. Polls showed that support
for the treaty was wide but passionless, which meant that a vote against it carried little
political cost. Clinton himself had fostered this crippling indifference: Why get all
worked up if the president has assured us that hostile missiles are not pointing at our
children?
In discussions of foreign relations, Clinton often spoke less of
military matters than of trade the international issue over which Congress has
clearest jurisdiction. Article I of the Constitution empowers it to "regulate
commerce with foreign nations," and through the early part of the twentieth century,
the institution held tight to its prerogatives. Change came during the Depression, when
the disastrous effects of the Smoot-Hawley bill persuaded lawmakers to delegate tariff
making to the executive branch. From then on, presidents would take the lead on trade. In
recent decades, lawmakers gave "fast-track" authority to the White House,
allowing presidents to negotiate international trade agreements, subject only to a simple
up-or-down vote by Congress. This authority strengthened the presidents hand in
trade talks, since other countries knew that a deal would not be open to amendments that
could either cripple it or require renegotiation. Fast-track authority lapsed in 1994.
Clinton twice tried to get Congress to revive it, but fell short because of opposition
from his own party.
Clintons failure further weakened the presidency. A future chief
executive will have to use up precious political resources in order to regain fast-track
authority. And if that proves impossible, then trade agreements will have to get past 535
potential hostage-takers on Capitol Hill, each with the power to demand concessions and
favors in return for withholding killer amendments.
The unlocked purse
If the executive branch has customarily
controlled the sword of national defense, then the legislative branch has controlled the
purse of national finance. In Federalist 58, Madison called the power over the
purse "the most complete and effectual weapon with which any constitution can arm the
immediate representatives of the people." Until 1921, Congress largely ignored the
president on fiscal matters, instead working directly with department heads on their
funding requests. With the sudden growth of government in World War I, this system proved
impractical. Reformers successfully pressed for the Budget and Accounting Act of 1921,
which empowered the president to submit a single budget, with the help a newly-formed
Budget Bureau. In the words of James Sundquist, "That act made the president a
leader, a policy and program initiator, and a manager, whether he wished to be or
not." After World War II, Congress further enlarged the presidents economic
role by establishing the Council of Economic Advisers.
For decades, the balance of power in economic policy making swung back
and forth on Pennsylvania Avenue. In the 1970s, lawmakers thought Nixon was tipping it too
far in his direction through large-scale impoundments, that is, refusals to spend money
that Congress had already appropriated. Together with a Watergate-inspired atmosphere of
distrust, this perceived overreach prompted Congress to pass the Congressional Budget and
Impoundment Act of 1974. In addition to stopping unilateral impoundments, the law created
a new congressional budget process, separate from the previously uncoordinated procedures
for spending and revenue bills. It also established the Congressional Budget Office, which
would issue its own estimates, freeing the legislative branch from dependence on the
executive branchs sometimes-dubious numbers.
For a few years, Congress regained its dominant position though
it was no great feat to snatch a purse from the hands of Jimmy Carter. Then, the need to
fight mounting deficits put a squeeze on the institution. The short-lived 1985
Gramm-Rudman-Hollings law limited congressional options by providing for automatic
across-the-board spending cuts in case the deficit exceeded certain targets. In his 1990 "read my lips"
budget summit with Congress, President Bush made the politically fatal concession of
agreeing to raise taxes. Little noticed at the time was something he got in return: the
Budget Enforcement Act of 1990, which superseded Gramm-Rudman-Hollings. The new law gave
the Office of Management and Budget greater authority over fiscal estimates and limited
Congresss ability to shift money from guns to butter.
The budget surplus has opened a new chapter in this saga, for without
the discipline of the deficit, Congress is showing a renewed lust for spending. While the
president retains much of the initiative in setting broad priorities, any budget
ultimately consists of a long list of specifics. If the devil isnt in the details,
Congress surely is. Along with friendly bureaucrats and interest groups, lawmakers are
hard at work to create new programs and reinvigorate old ones. And they are certainly not
above shameless pork barrel spending. According to the taxpayer-watchdog group Citizens
Against Government Waste, the appropriations bills for fiscal 2000 contained the
highest-ever level of spending earmarked for specific projects in the lawmakers
constituencies. The eight individually passed appropriations bills collectively included
more than $14.6 billion in earmarks, including $500,000 for research into swine waste
management at North Carolina State University, in the district of Appropriations Committee
member David Price.
In the 1980s and early 1990s, Republicans had proposed giving
presidents the line-item veto, precisely so they could strike out such projects. During
these years, the item veto would have had scant impact on the deficit, since the biggest
domestic spending increases lay in mandatory programs such as Social Security. But the
ability to threaten cherished hometown projects would have given Reagan and Bush a very
large bargaining chip in their dealings with Congress. After years of touting the item
veto, Republicans felt an obligation to pass it once they took control of Congress, even
though it would now belong to Bill Clinton. Their support cooled rapidly as soon as he put
gop projects on the hit list. The Supreme Court soon declared the statute
unconstitutional, and many congressional Republicans thought that the ruling had saved
them from themselves. Commenting on the courts decision, Sen. Robert Bennett, Utah
Republican, thanked Democratic Sens. Robert Byrd of West Virginia and Daniel P. Moynihan
of New York for their articulate opposition to the measure. He said: "I, as one
senator at least on the other side of the issue, throw in the towel, eat a little crow,
and declare my willingness to escape from a previous position."
More subtly and gradually, many members underwent a similar change of
heart on tax reform. In the mid-1980s, Reagan had talked about making the revenue system
so simple that people could file their returns on a postcard. Had such a radical change
passed, lawmakers would have lost clout. By writing tax preferences into the statute
books, members of Congress can influence every aspect of American life, as well as attract
campaign contributions to their own coffers. Though the 1986 tax bill closed some
loopholes, it fell far short of Reagans ideal and subsequent legislation has
added further complexity. In the age of surpluses, Democratic and Republican lawmakers
alike are talking about putting even more preferences into the tax code.
Congresss power of the purse is very much alive. And more purse
means more power.
Stewardship
It is useful to think of institutional leaders
as stewards. In the New Testament parable, the good stewards are those who put their
employers resources to work so they increase the sums with which he has entrusted
them. The bad steward is the one who does nothing with his portion. In this vein, we can
see that good leaders leave their institutions stronger than when the citizens granted
them charge. Bad ones do not.
Clintons stewardship invites harsh judgment. The actions that led
to his impeachment were not mere personal misdeeds, but lasting stains on the presidency.
For years to come, no matter who the incumbent may be, any photograph of the Oval Office
will call to mind Clinton and Monica Lewinsky as well as more dignified moments. Any
future president who asks for the peoples trust must grapple with the memory of a
president who betrayed it. Years ago, serious people would never have wondered whether the
president would launch a military attack to distract attention from his behavior. But such
speculation followed the 1998 strike on a Sudanese pharmaceutical factory, and subsequent
reporting has only added to the suspicion. Thanks to Clinton, we will keep hearing about
"Wag the Dog" scenarios in succeeding administrations.
Clinton damaged the institution in much more concrete ways. In the
course of the scandals, he tried to protect his personal interests by invoking executive
privilege, attorney-client privilege, and the confidentiality of the Secret Service. His
predecessors had tried to keep such issues out of court, for fear of setting adverse
precedents. C. Boyden Gray, White House counsel for President Bush, explained to Newsday:
"When you litigate something and lose it, youve lost it." Clinton
litigated and lost, fumbling away legal protections that could have shielded later
presidents.
His defenders assert that he protected his office by beating back a
"politically motivated" impeachment, thereby deterring future lawmakers from
going after his successors. Perhaps. Members of Congress will certainly hesitate to pursue
charges originating in sexual
misconduct. But suppose that the next big scandal involves money or the abuse of power.
The presidents foes will then be able to say: "This is no affair involving an
intern. This is serious business." Just as Watergate made the Lewinsky scandal look
less significant by comparison, the Lewinsky scandal will make the next one look
weightier. If Nixon raised the bar on impeachment, Clinton may have lowered it.
In one sense, Clinton did establish precedents that may bolster
presidential power. Through a variety of executive orders on everything from conservation
to health care, he stretched his authority and circumvented Congress. Even here, however,
he may end up kindling a reaction that restrains future presidents. For the first time in
years, lawmakers are seriously discussing legislation to limit the use of executive
orders.
A weakened executive does not necessarily mean a strengthened
legislature. So what of the Republicans stewardship of Congress? Here the picture is
less clear, owing to the short-term political circumstances mentioned earlier. Still, the
institution seems to be in reasonably good shape.
Perhaps the Republicans biggest innovation came as soon as they
organized the House in 1995 and set six-year term limits for committee chairs. The limits
have had their critics. "It would be kind of silly to take the lead dogs and throw
them out," Don Young, chairman of the Resources Committee, told the Washington Post
in 1998. "Theres an awful lot of institutional knowledge, and good chairmen
should stay." Others argue that term limits weaken the committees in dealings with
the executive branch by pitting greenhorn chairs against grizzled veterans of the
bureaucracy. There is merit to this argument. In another way, however, term limits can
actually energize the House by forcing the committee chairs to act with greater dispatch.
In his excellent study of the 1997 budget agreement, Daniel J. Palazzolo notes that Budget
Chairman John Kasich and Ways and Means Chairman Bill Archer both felt a sense of urgency
to achieve a balanced budget before they had to pass the gavel to somebody else. "I
have four years, and you have four years," Archer reportedly told the president in
1997.
In another institutional reform, Republicans also cut back on
congressional staff (though much more deeply in the House than the Senate). Some have
blamed Republican bumbling on these cutbacks, claiming they allowed the better-staffed
executive branch to outgun the gop in policy disputes. It is more likely, though, that gop
mistakes resulted from the members own inexperience with majority status. Staff can
actually hurt more than help. Walter Mondale, former vice president and senator from
Minnesota, once told a committee on congressional reform: "Bright, hard-working staff
inevitably create new demands and new work for a member of Congress. Some of it is
necessary and valuable; much of it is not. Staff begins to drive a congressmans
schedule and range of interests in ways that do not support the central tasks of his
office."
Some might claim that both Congress and the presidency have jointly
weakened themselves by devolving so much power to the states and localities. This claim
does not hold up. Apart from the 1996 welfare reform bill, it is hard to identify many
instances of serious devolution. If anything, Republicans have tried to increase
Washingtons authority, in areas ranging from euthanasia to product liability, while
Democrats have done the same on health and education. Sen. George Voinovich, Ohio
Republican, came to Washington with long experience in local and state government,
including two terms as governor of his state. Last fall, he complained to the Washington
Post: "Everybody up here is constantly saying we should send power out of Washington,
but we hardly ever do. I keep trying to get that across to people. Its just
impossible to get anyone to listen."
The millennial balance
The rise of presidential power coincided with
what Michael Barone calls "big-unit society," where big government could achieve
results by making deals with big business and big labor. Whenever the president appeared
on the three big broadcast networks, he could command attention from a huge fraction of
the public because there literally was nothing else to watch. In todays
"small-unit society," things are tougher for a chief executive. Interests are
more numerous and complicated, and it has become nearly impossible to summon the whole
country to the national fireside when cable and vcrs give them other choices. Whereas more than half of American
households would watch a state of the union address by Richard Nixon, less than a third
would watch one by Bill Clinton (though the great length of the latters was probably
a deterrent too).
In an article 20 years ago in The Futurist, a junior House
member and his wife looked ahead to how these trends would affect Congress. The new era
"is shifting power and influence away from the executive branch, toward the
legislative branch. Increased rates of change combined with growing decentralization of
society and an information explosion will put strains on all elected officials, but will
put those closest to the citizen the legislator at an advantage. Because of
their closeness . . . legislators are better able to recognize and evaluate the changes
taking place." The authors were Newt and Marianne Gingrich. In the past couple of
years, the congressional majority has had its share of difficulty, resulting in part from
the former speakers own problems. But personalities should not obscure genuine
insight.
Before going too far afield in Gingrichian speculation, we should
recognize that certain events could upset our assumptions. Economic reversals could wipe
out the surplus, requiring fiscal austerity that could again crimp Congresss style.
And of course, a new military conflict might rejuvenate executive power. That possibility
seems remote at the moment, but we ought to remember what George F. Will once said:
"When at peace the nation should always assume that it may be living in what
subsequent historians will call interwar years. "
Still, if the years ahead bring generally good news, political change
should remain on track. For most of the nineteenth century, Congress dominated the federal
government. For most of the twentieth century the initiative passed to the White House. As
the twenty-first century begins, the balance is shifting back. |
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