Hi Bill, Thanks for your kind words, your support of my post, and your help in calling Jason’s attention to it. It’s great to be writing in a community where people support one another even when they disagree.
I take your point that the presidency should be less powerful than it is, and I generally agree with it. I too, have been very concerned at the abuse of power by the Executive Branch, and about the dangers of concentrating power in a unitary executive, and I have thought quite a bit about how to put a stop to it. However, I don’t think it’s useful to either appeal to the viewpoint of the founders to solve the problem, or to think about the solution in terms of simply reducing the President’s power.
The reason for this is the question of the President’s power within our present system is a very complex one, and I think we have to think about that power in four of its aspects and also in terms of the distinction between the domestic and foreign policy/national security domains. The four aspects I have in mind are the power of the President to: 1) get legislation that he or she wants through Congress in more or less the form that he or she wants to see it; 2) avoid enforcing legislation passed by the Congress, and engaging in behavior that breaks duly enacted laws; 3) block legislation that he or she is against; and 4) get his or her appointees considered and confirmed or rejected within a reasonable time frame.
In the first of these areas, and with respect to the domestic policy domain, I think the power of the presidency is way lower these days than it should be. In the second, that power is way out of control and needs to be severely limited. In the third, the power to block is probably adequate formally and legally because of the veto and the President’s persuasive influence over what Congress will consider, but when combined with the power to avoid enforcement is probably too great. And in the fourth, the power of the President is far too little so that his/her key appointees can be made to wait for an unconscionable time before they can get a decision out of the Congress, and the efficiency and effectiveness of the executive branch in fulfilling its constitutional role can be, and often is, compromised by partisan politics in Congress. In brief, I think that any reform of the presidency needs to increase the first and fourth aspects of power, drastically decrease the second aspect of power until it is virtually non-existent, and reduce the third aspect somewhat, so that it stems primarily from the veto and nothing else.
In the foreign policy domain, the President is more powerful in all four aspects than he or she is in the domestic arena. In fact, I think the President has too much power to pass legislation he or she wants to see when it comes to foreign policy. He or she also has too much power to block legislation he or she doesn’t like. In the area of avoiding enforcement of certain laws and breaking laws, the President certainly has too much power. And in the area of appointments in foreign policy/national security, the President seems to have the power to push through appointments even when they’re questionable.
It’s important to ask why the President’s power is out of balance; that is, either too great or too little, in each of these instances? I think that one reason is that the President represents all the people, and that, over the past century, questions of international relations and national security have become much more urgent and risk-filled. The need for a quick response, which only the executive can deliver, has made the President far more powerful than Congress in this area. However, the second reason for the lack of balance is not so much a function of how historical developments, technological change, and modernization have influenced politics and government, as it is Congress’s failure to adapt its own internal organization, procedures and traditions to the massive changes that have occurred since the Constitution was adopted. So let’s turn to Congress and ask about the nature of its power in each of the aspects mentioned and how that power is related to its organization and institutions.
In the first area of being able to pass legislation it wants, I think we have to recognize that Congress’s internal organization and traditions, make it less than an effective positive legislative and hence problem-solving instrument. The reason for this is that it is very difficult for Congress to aggregate conflicting interests in conflicts over legislation, but very easy for it to bow to conflicting interests and do nothing. The difficulty arises because of two primary institutions that dilute the influence of party leaders in both houses and block action in the Congress.
The first is the seniority system. Seniority has led to congressional warlords (committee chairpersons) who dominate particular areas, or domains of policy. They are not accountable to the American people, but only to a single State or Congressional District. The warlords in Congress also have little accountability to their political party, because party discipline is so weak, and the seniority system so strong that the leaders of the two Houses are always reluctant to try to discipline committee chairs who are unresponsive to party interests or imperatives. These warlords can be, and are, bought by special interests who don’t want the United States Congress to pass legislation that may harm their interests. Since solving serious American problems often involves legislative proposals that will harm those interests, the role of the warlords is often not to pass legislation that will solve problems, but either to block such legislation, or to pass legislation in its place that is acceptable to the special interests, but that won’t solve the problems motivating the legislation in the first place.
The second factor in weakening the Congress is the undemocratic nature of the Senate. The Senate represents States and in doing so weights individuals unequally in terms of their influence as voters. Since every state has two Senators, the influence of an individual over the Senate is much greater if one lives in a small population state than if one lives in a large population state. This lack of democracy is extended even further in the Senate by the seniority system and, even more, by the filibuster that gives individual Senators the right to talk legislation to death that a majority of the Senate might favor. The effect of the seniority system and the filibuster is to fragment the Senate into many extremely powerful individuals, all of whom have a veto power over what goes on, but none of whom are able to exert decisive influence in getting legislation passed. If there are warlords in the House; there are warlords with veritable empires in the Senate, whose rulers must be paid tribute if any legislation is too pass that body.
Collectively, the combination of disproportionate small state influence, the seniority system, and the filibuster, is tremendously powerful in making the Senate an institution with a great deal of negative power to block change and problem solving. The Senate is able to put very strong brakes on attempts by the House to enact solutions to problems and to block those solutions. The Senate also creates very powerful individuals, who are not accountable to the national constituencies they make decisions about, but who are only accountable to individual and often small and unrepresentative states. The over-all situation in the Senate is one of fragmentation among very powerful individuals. It is a fragmentation that is hard for parties and leaders to overcome.
The overall effect of seniority in both Houses, and the filibuster in the Senate is fragmentation in both Houses and consequently the decline of Congressional authority and power. Sure, the fragmentation gives the Congress the negative power to block legislation and to serve the special interests by doing so, and also the power to delay presidential appointments in an unconscionable way, but it does nothing to create the power to pass positive domestic legislation that can solve the serious problems that have developed over the past 40 – 50 years in domestic politics. The immobilism of Congress means that serious problems fester and that the United States can’t adapt. It also means that among the three branches of Government, the Congress has the least authority, legitimacy, and prestige, simply because it is viewed as incompetent when it comes to passing legislation that will solve problems.
Even though Congress has plenty of negative power to block change and undermine executive functioning by constraining appointments, its negative but very important power to investigate the Executive and make sure that its laws are both enforced on society by the Executive, and not broken when those laws apply to the Executive itself is not very great. This is true for a number of reasons.
First, the Congress’s inability to pass positive legislation, and its responsiveness to special interests that finance Congressional campaigns undermines respect for Congress and trust in its ability to deliver full and fair oversight of the Executive Branch. People don’t believe that Congressional investigations will be impartial and non-political, that Congressional committees will get at the truth and hold people in the executive branch accountable when they come across irregularities, and finally, they don’t believe that congressional investigations will lead to new legislation that fixes the problems with old laws.
Second, the fragmented nature of Congress also reinforces this trust problem. Since investigations are under the control of committee chairpersons, they frequently seem to be about enhancing the reputations of the chairpersons and others on the committees and not about real oversight and uncovering of Executive Branch over-reach. To the public, such investigations seem very political, rather than being directed at getting at the truth.
Third, especially in the area of foreign policy and national security, Congress has greatly weakened its own hand relative to the Executive Branch. It has allowed Congressional Oversight sub-committees to be subject to restrictions about secrecy and classification that prevent it from actually performing oversight. Members of certain committees are not even able to have copies of certain documents, or take written notes about certain meetings, and what was said at them. As a result, Congresspersons and Senators can’t have records of what the Executive Branch is telling them about certain operations, even though the Executive has such records, and, therefore, it is impossible for Congress to hold the Executive Branch accountable for what it has and has not told the Congress.
Of course, Congress legislated these rules for itself, because members were afraid of being characterized as disloyal if they allowed themselves to have records, and the classified records got out. So because of their fear of being held responsible, they gave up the responsibility they are charged with by the constitution, and with it a good deal of their authority for what the Executive Branch does.
So, in short, individual Senators and Congresspeople currently have more power to block new legislation than they ought to have; while at the same time they have too little power to contribute to the passage of positive legislation. They also have too much power to delay executive appointments for partisan reasons, and they have too little power to investigate the Executive Branch to hold it accountable to investigate where laws they’ve previously passed are failing.
Based on all this, I think that the problems of Congress and the Executive Branch are complementary. The Executive has too little power to influence positive legislation in the domestic arena, because Congress itself allows its fragmentation to undermine its own power to pass legislation. The Executive’s power to block legislation, further, is also magnified by Congress’s own very great power to block legislation. Meanwhile, Congress’s too great power to delay appointments corresponds to the Executive’s lack of power to do anything about these delays. Finally, Congress’s lack of power and authority to investigate the Executive Branch and hold it accountable, fits very well with the Executive Branch’s capability to avoid enforcing laws and to break some of them.
Now, as I see it, the answer to these problems of imbalance in our institutions is not to weaken the Executive. In fact, I think we need a strong Executive to cope with the rapid changes the United States is experiencing today. However, I also think that the key to these problems is to strengthen the Congress as a collective institution, but to weaken individual Congresspersons and Senators relative to the party leaders in each House and to the institution as a whole. To do that, in turn, I think we have to get rid of the seniority system in both Houses and the filibuster institution in the Senate.
If we did these two things, the leaders in both Houses would be much stronger and more effective. If no filibusters were possible, majority rule could be restored to the Senate, and inordinate delays in passing legislation would no longer be possible. If committee chairmanships were no longer determined by seniority, but through selection by the leaders of the majority party in each House, the committee chairs would be accountable to the leaders. If the leaders, in turn, were accountable to the party caucuses, then we would have strong party and leader rule in both Houses. The parties, in turn, would be accountable to their stated party platforms, which would finally mean something after elections. Of course, in a situation like this, party discipline could also be enforced in the Congress as it is in the British system, and the majority party would have no problem passing positive legislation that it favored.
What about the interests? Right now, they can buy off individual warlords pretty easily, but they’d find it much harder to buy off party leaders in both Houses, because these leaders would have ample party funds to help with their re-election, and also would be committed to, and held responsible for, passage of party platforms in a way they are not now. Now they have all sorts of excuses for not passing legislation promised by their party. But without the seniority system, without the filibuster, and with party discipline, those excuses would not exist. And if they didn’t fulfill party promises, then the other members of the Congressional Party would immediately replace them as leaders.
Also, if Congress could and did pass positive legislation to cope with problems, trust for its actions, and its prestige and legitimacy, respect for its competence, would quickly increase. Once that happened, its oversight and investigative functions would be strengthened. The Executive Branch would find itself strongly challenged to enforce and obey the law, and previous violations of the law could be much more easily investigated and uncovered by Congressional committees. Lastly, with real majority party rule in both Houses of Congress, minority party members would not be able to place holds on presidential appointments for an inordinate amount of time, so the President would have strengthened access to his/her own appointments.
The upshot of all this, is that the solution to our problems lies not in doing anything directly to the Executive Branch to decrease the power of the President. We need a powerful Executive who can help us to cope with the modern world and its problems. In particular, we need an Executive Branch that will be more powerful than now in influencing positive legislation, and also one that will be less powerful than now in that its members won’t be so enabled to avoid enforcing laws it doesn’t like, and to break laws that constrain its own behavior. The balance in our Government can be restored by strengthening the Congress as a collective institution, and by weakening individual Congresspeople and Senators.
If we did that, and strengthened party rule in the Congress, we could strengthen its collective ability to pass legislation that both its leaders and the Executive support, and that can help us to solve problems and adapt to the 21st century challenges that surround us. This aspect of things is a win-win for both branches. The Congress’s capability to pass positive legislation also increases the Executive’s capability to get legislation passed that it likes, in the context of its veto power, and also its power to persuade the American people, as its only elected representative.
In addition, the increase in Congress’s investigative and oversight power resulting from its increased legitimacy due to perceptions of greater competence, will reduce the Executive’s power to avoid enforcing the Law and even to break it, thus bringing this aspect of Executive power into balance. The negative power of the Executive to block legislation will then be restricted to its persuasive power, and its capacity to veto legislation, and will no longer be amplified by its ability to sabotage legislation, or to break laws. Finally, Congress will stop placing holds on Executive appointments, thus increasing the power of the Executive to get the staff it wants.
In this way, abandoning both the seniority system and the filibuster, can restore the balance between the Executive and Legislative Branches of our Government. The balance is restored not by weakening the Executive, but by strengthening the Congress. However, the real problem here is not that this change can’t happen, or won’t work. It will certainly work. But the difficulty is in getting the Congress to strengthen itself and America by strengthening its leaders and its parties at the expense of individual congresspeople and Senators.
It shouldn’t be too hard to make this change in the House, since young “back-benchers” would have a better and quicker shot at leadership, and much to gain from the change, and would probably support a Speaker who wanted to make this move. But, in the Senate, every Senator, whether a committee chair or not, has the chance to be influential through the filibuster, and their ability to place holds on appointees, so it is far less certain that they will give up that power for the abstract idea of making American democracy work better.
Some, in fact, may even identify the ability to protect democracy with the filibuster. Not too long ago I saw an interview with Sen. Barbara Boxer (D-CA), in which she talked about her opposition to the filibuster when she first arrived in the Senate some years ago. Over the years, however, she said that she developed an appreciation for it as a protection for the gains made by previous Democratic Administrations from Republican Conservative initiatives, such as their proposal to privatize social security, or to entirely abolish the income tax. Of course, her views are reasonable, but they betray a lack of faith in democracy that is unseemly in a liberal Democrat like Barbara Boxer.
When a political party legitimately gains power from the voters, it ought to have the power to institute the changes it has a mandate to introduce, apart from changes in the constitution, of course. If those changes are ill-conceived and don’t work, then the voters have the option of changing things again. But I think it is inherently wrong, undemocratic, and arrogant, for a minority to be able to block substantive legislation changing society and the economy, when the people have voted in representatives that want to pass that legislation.
To support this is to say that the representative who wants to do this is so certain of the correctness of their views that they have the right to subvert the will of the majority. If we are real Democrats we cannot support such a right; and so we cannot support the filibuster. In short, every Democratic Senator should be against the filibuster, and since getting rid of the filibuster using “the nuclear option” requires only 50+ 1 vice-presidential votes in the Senate, my view is that the Senate Democrats ought to get rid of the filibuster the very next time someone on the Republican side tries to use the privilege of unlimited debate.
(Also posted at firedoglake.com where there may be more comments)