When Congress Checks Out

Norman J. Ornstein and Thomas E. Mann

From Foreign Affairs, November/December 2006

Summary:  Over the past six years, Congress' oversight of the executive branch on foreign and national security policy has virtually collapsed. Compounding the problem, the Bush administration has aggressively asserted executive prerogatives -- sometimes with dire consequences. The oversight problem must be fixed, ideally as part of a more fundamental effort to restore the balance between the two branches.

Norman J. Ornstein is a Resident Scholar at the American Enterprise Institute. Thomas E. Mann holds the W. Averell Harriman Chair and is a Senior Fellow in Governance Studies at the Brookings Institution. They are the authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track.

Consider, too, the Senate Armed Services Committee hearing in May 2004 on torture at the Abu Ghraib prison, a crucial test for the Defense Department and the U.S. military. During Senator McCain's tough questioning about who was responsible, Rumsfeld said that the military brass with him had prepared a chart showing the chain of command. When one of the generals said they had forgotten to bring it, Rumsfeld said, "Oh my."

Meanwhile, the Bush administration has aggressively asserted its executive power and displayed a strong aversion to sharing information with Congress and the public. In early 2001, the president issued an executive order granting former presidents, vice presidents, or their representatives the right to block the release of documents "reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the President and the President's advisors." (The order also directed the Justice Department to litigate on behalf of any such blocks.) The Bush administration has also refused to respond to requests for information under the Freedom of Information Act. In an October 2001 directive (planned well before 9/11), Attorney General John Ashcroft announced a departure from the Clinton administration's standard. Eschewing the "foreseeable harm" standard -- which required agencies to release records under the Freedom of Information Act as long as there was no foreseeable harm in doing so -- Ashcroft adopted a "sound legal basis" standard that allows agencies to withhold information if they have any legal basis to do so.

In addition to resisting congressional and public access to information, the Bush administration has substantially increased the number of documents it classifies and decreased the number it declassifies, blocked the release of documents and briefs requested as part of congressional investigations of the terrorist attacks, refused a House committee request for the numbers that were adjusted to reflect the undercounting in the 2000 census, invoked executive privilege in denying Congress access to information concerning the FBI's misuse of organized-crime informants in Boston, refused to share information on missile defense with the Senate subcommittee that oversees the project, delayed sending to Congress full cost estimates of the Medicare drug bill before it was signed into law, denied the Senate Homeland Security and Governmental Affairs Committee information about undisclosed meetings between Enron executives and top administration officials, and restricted Congress' access to environmental records. The administration has also engaged in many battles -- with Congress and in the courts -- over what information on the handling of terrorist detainees and enemy combatants it has to release. The NSA surveillance initiatives were shared with a bipartisan group of only eight top party and committee members -- all of whom were sworn to secrecy and could reveal nothing to their colleagues -- rather than with the full congressional intelligence committees. Members of both parties have been quite open with us about the dismissive attitude, indeed the contempt, with which President Bush and Vice President Dick Cheney have greeted requests for information. National security briefings were often considered a complete waste of time; reading the morning newspaper was much more informative. Senator Dianne Feinstein (D-Calif.) said, "The briefings go on ... but we could be anybody in those briefings. ... It doesn't matter what we think."

This behavior is entirely consistent with the Bush administration's view of executive prerogatives. At times, it has been difficult to discern the administration's motivations for denying information to Congress and the public. But avoiding political embarrassment must have factored into some of these decisions. As former Senator Daniel Patrick Moynihan (D-N.Y.) has argued, the net effect of avoiding transparency in executive decision-making may have done the country more harm than good.

President Bush has arguably been stonewalling in the hope of leaving a stronger executive behind. But that ambition cannot explain the behavior of Congress, which has been strikingly supine. Minority Democrats often demanded information with gusto. But without support from the majority, they had little chance of prevailing in battles with the executive or in getting media attention. Some Republican senators, such as McCain, Maine's Susan Collins, South Carolina's Lindsey Graham, and Iowa's Chuck Grassley, and Republican representatives, such as Indiana's Dan Burton and Connecticut's Christopher Shays, fought for the release of critical information, but they seldom had the support of their party's leadership or their colleagues. Even their exceptional efforts have had limited success.

AN AILING BODY

Why has Congress abandoned oversight when it is most needed? The most logical explanation, which has been confirmed by comments we have heard from many members of Congress, is that the body now lacks a strong institutional identity. Members of the majority party, including congressional leaders, act as field lieutenants in the president's army rather than as members of an independent branch of government. Serious oversight almost inevitably means criticism of performance, and this Republican Congress has shied away from criticizing its own White House.

The weakening of Congress' institutional identity probably began in the 1980s, when the insurgent Republican Newt Gingrich, of Georgia, campaigned to nationalize congressional politics, turning elections from individual referendums on incumbents into national referendums on what he claimed was a corrupt Congress long misled by Democrats. Candidates for congressional seats who picked up on that rhetoric and won in the November 1994 Republican sweep of the midterm elections settled into Congress with little regard for it as an institution. (This was not so, ironically, of Gingrich who, as Speaker of the House, was a staunch congressionalist.) Instead of arriving in Washington excited at the chance of belonging to the storied institution, the new lawmakers saw public service as a dirty job that someone had to do. Since 1994, most new members of Congress have left their families at home in the districts, and many have declared limits on their own terms.

Members of Congress have ratcheted down the amount of time they spend in Washington, which has led to a sharp decline in the number of days Congress is in session and the number of committee meetings that are held. When Congress is in session, both the floor and the committees are sparsely and intermittently attended, as members rush away from Capitol Hill whenever they can to make fundraising phone calls. During a typical week when Congress is in session, no votes occur before 6:30 pm on Tuesday or after noon on Thursday, leaving little time for extended oversight hearings or other related activities.

Close voting margins have also contributed to the problem, as members of Congress have focused more on holding (or overturning) slender majorities than on broad matters of governance. When Bush became president and the Republicans secured control of the House and the Senate, Republican congressional leaders reacted reflexively as members of his team, eager to advance his agenda and avoid any turmoil. (As he was leaving Congress in the fall of 2005, House Majority Leader Tom DeLay, of Texas, said that when the president and the congressional majority are of the same party, "You don't need the [oversight] hearings.") Ideological polarization combined with near parity between the parties raised the stakes of majority control, weakening the institutional incentives that the founders had designed to ensure vigorous congressional oversight of the executive.