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.

In recent months, spurred by revelations about the NSA surveillance program, the Supreme Court's ruling in Hamdan v. Rumsfeld (which scuttled the executive branch's efforts to try suspected terrorists before military commissions), Bush's defiant signing of presidential statements, and the growing unpopularity of the president and his conduct of the Iraq war, Congress has shown small signs that it may be steeling its backbone. The Senate Intelligence Committee voted to demand that the administration notify it of surveillance activity and intelligence operations. After the Hamdan decision, Congress also vowed to set new rules for the treatment of detainees. Senator Specter, who has stood out for his willingness to fulfill Congress' role, told USA Today in June, "If you ask me if I still feel like a lonely voice, I would say that I feel like a member of a small chorus."

But it is far from obvious that the chorus will grow. In the final weeks of the 109th Congress, efforts to craft serious legislative remedies to problems with the administration's detainee and surveillance policies played second fiddle to the congressional leadership's focus on framing these issues for the upcoming midterm elections. Were the House or the Senate to fall to the Democrats, they would certainly usher in aggressive challenges to executive actions, including requests for information, subpoenas for committee appearances, and frequent constitutional confrontations. Less obvious is how serious, informed, and constructive Democrat-led congressional oversight of the executive would be under a divided government and whether such oversight would translate into wiser policy and more effective implementation. (The record of the Republican Congress under Clinton is not encouraging.) It is also far from clear that reinvigorated congressional oversight would extend into whatever government emerges in the 2008 elections.

Although fixing the oversight problem is an urgent goal in and of itself, it is also part of a larger challenge: to mend the broken legislative branch and restore a healthy balance to U.S. democracy. At a minimum, oversight demands an aroused public willing to hold its elected representatives accountable and even to toss majority parties out of power when they underperform. That, in turn, means having enough competitive seats to permit more frequent changes of party control on Capitol Hill. Reforming campaign finance and redistricting would be a good place to start. Congress' composition should also be changed; having fewer ideological zealots and partisan warriors and more institutionalists would go a long way toward toughening congressional oversight of the executive. As the Washington Post columnist David Broder has put it, "We need an infusion of men and women committed to Congress as an institution -- to engaging with each other seriously enough to search out and find areas of agreement and to join hands with each other to insist on the rights and prerogatives of the nation's legislature, not make it simply an echo chamber of presidential politics." Institutionalists need to be encouraged and rewarded, by the public and the press.

More specifically, better oversight will require a commitment by Congress to do more sustained legislative work. Changing the congressional schedule is a necessary step. Congress has radically cut back on the time devoted to a panoply of traditional legislative activities, including by reducing the number of days spent in session and the number of overall committee meetings and hearings held. The current 109th Congress is slated to have the smallest number of days in session in our lifetimes, with fewer than 100 in 2006. In the 1960s and 1970s, Congress held an average of 5,372 committee and subcommittee meetings every two years; in the 1980s and 1990s, the average was 4,793; and in 2003-4, it was 2,135.

The best reform would be to require Congress to hold sessions five days a week for a minimum of 26 weeks a year, with members spending two weeks on, in Washington, and two weeks off, in their home districts. Members of Congress should not be distracted by permanent campaigning; accordingly, fundraising in the capital should be banned when the legislature is in session.

Congress also needs to overhaul its appropriations and authorization processes. In the past, much of the best oversight came from the House and Senate Appropriations Committees. But their activities have deteriorated, as the drive to earmark funds for particular projects in states or districts has replaced the desire to see that taxpayer dollars are spent wisely. Earmark reform would be a step toward revitalizing those committees. The authorization process, in which agencies and programs have to be reapproved every few years, has virtually collapsed in recent years. Leaders of the majority party should commit to reinstating annual or biannual authorizations for major programs. Exacting standards should be expected of the House and Senate majorities that are elected in November. Congressional leaders of both parties should be pushed to pledge that changes will be implemented when the new Congress is organized in January 2007. Meanwhile, Congress has plenty of urgent issues to oversee: whether the administration's plans for an eventual withdrawal from Iraq are appropriate, how to handle a possible confrontation with Iran over its nuclear weapons capacity, and how to deal with the global threat of radical Islamism. If Congress falters again, the chances of policy lapses, mismanagement, corruption, and mistakes borne of arrogance or stubbornness happening will be even higher -- and too high for Americans to tolerate.