Challenging Congress During Constitution Week

On September 17, 1787, thirty-nine Americans signed a Constitution for the fractious United States of America. In late 2004, Congress decreed that this anniversary – to be known as “Constitution Day” – must be honored by schools receiving federal funds. Ironically, on the two-hundred-twentieth Constitution Day our greatest constitutional problem is Congress’ failure to meet its own responsibilities.
The Framers of the Constitution envisioned a robust political life for the new nation. They balanced powers between an aggressive Congress and the natural force of the Presidency to ensure that neither could overwhelm the other.
Expecting our leaders to include churls and crooks, they designed the government accordingly. “If men were angels,” James Madison wrote in The Federalist, “government would be unnecessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
Few expected, though, that one branch of government would largely stop asserting its own powers. They certainly never anticipated that Congress would be the one to concede the field. Indeed, Madison warned darkly that the people “ought to indulge all their jealousy and exhaust all their precautions” against the “enterprising ambition” of the legislative branch.
He never met the United States Congress of the twenty-first century.
Elected to rein in our Iraq adventure, the current Congress has nibbled at the edges of the issue, exasperating the public and frittering away the support that shifted control to the Democrats.
Six years into a murky War on Terror, Congress still reflexively enacts any legislation the Executive demands to justify its contempt for civil liberties. Abuses under the USA PATRIOT Act? Wholesale violations of the Foreign Intelligence Surveillance Act? Not to worry. Congress won’t mind.
Desperately needed legislation on tough issues like immigration and energy cannot get through Congress. The will to agree simply is lacking.
Essential congressional oversight, which vanished while the Republicans were in the majority, still lacks focus and sophistication. Easy sound bites – like those over Alberto Gonzales – win out over grappling with tough policy issues.
And despite Madison’s expectation that our leaders would not be angels, the proportion of knaves seems unusually high. Try not to wince as the images roll by – Larry Craig in his “wide stance,” Duke Cunningham aboard the Duke-Stir, William Jefferson’s cash in the deep freeze, Mark Foley and the congressional pages, Bob Ney teeing off at St. Andrews.
The causes of Congress’ current decrepitude are easier to list than to remedy.
In times of national security risk, power naturally shifts to executive agencies from the messier, slower legislative branch.
For the first six years of the Bush Administration, the Republican majority abandoned its prerogatives and ignored executive blunders and outrages. Massive budget deficits? Secret surveillance of American citizens? Violations of international standards of conduct? All paled before tax cuts and Terry Schiavo.
The new Democratic majority, finding the levers of legislative power grown rusty from neglect, seems clueless how to use them.
With sophisticated gerrymandering of congressional districts, “swing” seats have almost vanished, taking with them much of the incentive for polarized adversaries to find common ground.
And then there are those pesky earmarks, the all-purpose solution to so many political problems. Not only the notorious “Bridge to Nowhere” in Alaska, but an estimated 12,000 projects were earmarked in a recent budget. In addition to inviting corruption and distorting spending policies, earmarks distract Congress from substantive legislative activity. Twelve thousand special projects require a lot of energy to manage.
Congress wasn’t always a doormat. After the Civil War, Congress was so enraged with President Andrew Johnson that it required Senate concurrence before he could sack his own officials. When a vacancy loomed on the Supreme Court, Congress eliminated the seat rather than let Johnson fill it.
During World War II, a committee led by Missouri Senator Harry Truman held 432 hearings on war profiteering, with 1,798 witnesses. His committee ultimately issued 51 reports between 1941 and 1948 that routinely embarrassed officials from his own party. Fierce congressional oversight during wartime is not treason; it’s patriotism.
In the 1970s, hearings led by Sen. Frank Church exposed American plots to assassinate six foreign leaders, forcing executive orders and legislation that sought to control secret foreign acts that violated our basic principles as a nation.
While Madison, the consummate theorist, saw Congress as the threat to constitutional government, the pragmatic Ben Franklin saw the whole picture. The 81-year-old statesman warned his fellow delegates that the new legislature could end up “in complete subjection to the will of the Executive.”
It was true, Franklin conceded, that the King of England never seemed to exercise his veto over legislation. But that was because the skillful use of “bribes and emoluments” ensured “everything being done according to the will of the [King’s] Ministers.” How closely does that vision fit today’s Congress, fat with earmarks, burrowed into safe districts?
It’s nice that Congress told the nation’s schoolchildren to celebrate Constitution Day, and so they should. Their first order of business is to challenge Congress to start doing its job.
Congress, heal thyself.