April & may 2000, No. 100
Published by The Heritage Foundation 

 

The Coming Ascent Of Congress

By John J. Pitney Jr.

onest 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, Clinton’s 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 D’Amato of New York, White House aides supplied reporters with the "D’Amato Ethics Sampler," a set of clippings documenting the senator’s own stumbles.

There is nothing permanent about such weaknesses. Politicians can learn from mistakes, and elections can transform the Capitol roster. Madison’s 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 Clinton’s 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

o 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 nation’s 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 chief’s 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. Polk’s assertiveness in the Mexican War offered a glimpse of this potential power, but it was Lincoln’s 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 America’s 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 husband’s communications center the "War Room.") A generation later, Pearl Harbor convinced Americans that the oceans would no longer protect us. Believing that the nation’s 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. America’s 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 wouldn’t understand if I didn’t fire Cox after all this."

The Cold War confirmed two of Tocqueville’s 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 Union’s 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

ietnam diminished presidential primacy. Though Congress bowed to lbj’s 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 Bush’s term, and Americans no longer perceived a constant threat to their country’s 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 couldn’t 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 office’s 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 presidency’s 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 president’s 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.

Clinton’s 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

f 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 president’s 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 branch’s 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 Congress’s 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 isn’t 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 court’s 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 Reagan’s 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.

Congress’s power of the purse is very much alive. And more purse means more power.

Stewardship

t is useful to think of institutional leaders as stewards. In the New Testament parable, the good stewards are those who put their employer’s 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.

Clinton’s 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 people’s 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, you’ve 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 president’s 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. "There’s 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 congressman’s 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 Washington’s 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. It’s just impossible to get anyone to listen."

The millennial balance

he 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 today’s "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 latter’s 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 speaker’s 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 Congress’s 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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