Wednesday, December 01, 2004

I've been away for awhile. Here's what I've been working on, called "The Institutional Biases Against Foreign Policy Expertise in Congress." It recommends a great political book; go find it at a library.

The second Iraq war was among the most controversial events in the Bush presidency, and it will remain so. The political dynamics of how the war came to pass are fascinating, and the issue is another colorful chapter in the history of allegedly acrimonious relations between the executive branch and Congress. I say “allegedly” because as we will see, Congress neither as a body nor as individuals has any interest in increasing its power to influence foreign policy decision making. Congressional acquiescence in these matters serves Congress well, as active participation threatens its true goal: the reelection of its members. This assertion is the central thesis of David Mayhew’s work, Congress: The Electoral Connection. It is wise for us to examine some key components of this work to establish the tension between collective action, and individual interest. Since the power to declare war belongs to the Congress, and is of such great import, this dichotomy highlights this unavoidable conclusion: the United States Congress is unwilling or unable to exercise proper authority in this area. The political maneuvering in the aftermath of H. J. Resolution 114 by members showed a distinct inability to distinguish between self-interest and a pressing need for apolitical collective action, which could have disastrous effects.[1] Once we have considered Mayhew, we can apply his theories to the war in Iraq, and the political ramifications. I will then suggest strategies for bringing Congress out of its dangerous insularity on matters of foreign policy.
The most common practice by members in pursuit of reelection which has bearing on foreign policy is position taking, defined by Mayhew as “the public enunciation of a judgmental statement on anything likely to be of interest to political actors” (61). One of the inferences we could make if Mayhew’s thesis were correct is that position taking is far less risky than voting for, or implementing legislation. A litany of strong statements against Saddam Hussein, for example, without a pressing need for action would be the ideal scenario for Mayhew’s typical Congressman. Indeed, he notes, “The congressman as position taker is a speaker rather than a doer.” (62) Unfortunately, position taking Mayhew acknowledges sometimes involves a roll-call vote. (61) If one feels compelled by political expediency to vote in a certain manner on a long-term foreign policy problem, and the issue demands more votes in the future, it’s highly likely that a contradictory vote will be cast. If these votes concerned flag-burning, contradiction would have little cost. In matters of war, however, contradiction is costly on two fronts: it forces a member to have a great deal of political skill explaining the contradiction, and it keeps the Congress from developing a coherent foreign policy in regard to the use of force. The first effect is clear enough, but what about the second? Only a select few have the foresight to disregard the political calculations of the moment to help develop a clear framework for American military intervention. Unless those few are extremely charismatic, or have such great influence that they could protect members from their own constituencies after an unpopular vote, Congress will not develop coherent foreign policy frameworks.
I assert that Congress misjudged the political cost of opposing President Bush on Iraq, greatly overestimating his ability to punish them for doing so. On this particular issue, we would expect to see rhetoric that diminished the roll call vote as a “step in the process” or “I voted to hold Saddam accountable, but I didn’t mean that.” It behooves us to look at H.J. Resolution 114 to see what was specifically authorized by Congress to either validate these kinds of statements, or to indict them. Here is the relevant text:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to-- (1) defend the national security of the United States against the continuing threat posed by Iraq; and(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.(b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that-- (1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001. (H. J. Res. 114, section 3.)

Section 3 (a) is significant because it grants specific statutory authority to wage war. Take note of, “as he determines to be necessary and appropriate…” To make the point abundantly clear, section (b) was added, granting the president personal sole authority to determine the continued efficacy of diplomatic efforts, presumably including any new UN resolutions. Nowhere in this text is Congress inserting itself into the decision making process as to the timing of enforcement, or the means with which it will be accomplished (i.e. to use force or not, when diplomacy has indeed failed, etc.) Therefore, we can infer two possibilities: (1) Congress did not wish to involve itself in the enforcement determinations; or (2) they were entirely unaware that they had given the president such authority. The first is mildly disconcerting, given Congress’ oft-stated claim to want to make such decisions. The second possibility would be horrifying; it would signal that Mayhew’s central thesis was true to an extent as to make Congress useless as a legislative body. This second possibility is highly unlikely, given the Congress’ ready access to a team of lawyers, who advise them on the results of legislation as written. Not to mention that many members are lawyers themselves. Doubtless some members who had voted in favor hoped that the public would view the action as symbolic, in essence, that the public would be as inclined to position taking as they are. Though it should be noted of course that not all votes in favor came from opportunists willing to exploit the public’s ignorance; some clearly favored the bill’s language and intent. But the classes of legislators which belong in the opportunist category underline Mayhew’s point: they believed that the blame for a failed mission would fall at the feet of the chief executive, not on Congress, or on them as individuals. If such a group of legislators exists, and I believe it does, that means foreign policy decisions are made based on electoral concerns, and not according to some set of principles governing the use of force, for example.
Mayhew acknowledges that his argument faces one problem: how does Congress retain its reputation? How does it serve the public interest in light of the obvious tension between electoral needs and collective action? To put it in Mayhew’s words, “American foreign policy can come down to a depressing choice between presidential imperialism and congressional symbolism.” (173) The answer lies in what Mayhew terms the “control committees (all in the House): Rules, Appropriations, and Ways and Means. As he notes, “The inducements to serve on them are the power and prestige within the House that go with membership.” (149) These committees “may deprive congressman of immediate gratification now and then, but its members are exalted for their service.” (156) We must also consider one aspect of Mayhew’s control committees discussion that could be overlooked: these control committees charged with institutional maintenance may be no more immune to serving members’ electoral interests than other parts of Congress. But a delicate balance exists between the rewards, and the institutional needs the committee helps to meet which masks these tradeoffs, even as the committees are the conscience and watchdog for others’ tendency toward particularized benefits. (150) That is, Ways and Means, Rules, and Appropriations still assist congressman and its sitting members in getting reelected, even as its primary function is to rein in the excesses of that single-minded pursuit. Mayhew is quite effective in demonstrating how the control committees especially enforce fiscal discipline, but an unanswered question for our purposes is whether foreign policy can be affected in a similar manner. Could coherent policy be formed under such an arrangement? Furthermore, what might the incentives be? The Senate Foreign Relations committee entitles members to make foreign policy speeches, (in the mind of the public) according to Mayhew, but it’s unclear whether they played any role in limiting presidential power in the run-up to the second Iraq war.
The institutional tensions related to electoral viability emphasize a central assumption: the U.S. Congress should have a trustee function in matters of foreign policy. Matters of war should not be subjected to majoritarian rule. Clearly, no usable foreign policy framework can ever emerge. The American public is like a hyperactive child with a short attention span. This is not to say they should never be consulted; they are, however, consulted too much. What strategies could we use to restore a trustee function in foreign policy? A good start might be the repeal of the seventeenth amendment, which to remind the reader, established the direct election of U.S. Senators. FindLaw notes that popular pressure had made the trustee function almost nonexistent before the amendment passed, but there’s no reason it cannot be recovered. The U.S. Senate is the last stop before wars begin, at least while the United States continues to defend its sovereignty governing the use of force (rather than defer to the U.N.). If inconsistent application of principles is caused by electoral concerns, it follows that this collective action problem could be solved by eliminating the election (at least directly). Would it be somehow less democratic? In the strictest sense, yes. But in the better measure, namely the rule of law and the separation of powers, it would harm these not at all. Indeed, it would strengthen them. Nearly everyone agrees that a Congress which rubber stamps executive initiatives, including wars, is a bad thing. Further, if the president’s office itself is able to compromise legislative independence by way of elections—that is, the executive is able to nationalize legislative races, making them center around the president’s popularity and support for his policies, then the Congress cannot share power in any meaningful way. We need look no further than the 2002 midterm elections to see the president at least attempting that very thing. And would the results not vindicate this approach? One certainly can detect a hint of disingenuousness in congressional protestations about “misusing” the authority granted in H.R. 114, as we have noted, but Congress’ power cannot be merely symbolic; it must be actual. There may be other ways to minimize symbolism on the part of Congress. Create an advisory committee whose only task is to monitor the granting of executive power in specific crisis situations. In the writing of bills granting military authority, Congress should be incredibly detailed. They should determine the mission objective. While the Congress cannot micromanage wars, it behooves them to grant conditional authority, not the wide authority granted in H.R. 114. Another natural question: Why did members not repeal the authorization if a great number feel that too much power was given?
Another possible solution goes hand in hand with repealing the 17th Amendment: term limits. The weakness of this solution is a possible loss of expertise. However, if we further limit the deleterious effects of elections on policymaking, it can be beneficial to long-term foreign policy expertise. The electorate as a whole does not always have a memory of how military interventions either fit into, or flatly contradict, established policy. In light of this, members scarcely are held to account for accommodating and deepening this ignorance with their roll-call voting. Some might be narrowly prevented from assuming the executive, but the voters of Massachusetts don’t seem to mind their dithering, conflicted Senator, John F. Kerry. We cannot expect congressmen to be saints, always acting with the highest principles in mind, but we can eliminate those structures which bear out the worst in them. This is crucial for foreign policy. As Mayhew noted, executives can be held to account at the end of the first term. There must be some instrumental rationality to executive decisions. (169) But the ongoing challenge is imposing in some fashion that rationality on Congress.
To end, it is desirable, ironically enough, to lessen the impact of the democratic process on Congress, especially in foreign policy. Constant pressure for reelection shows itself in sloppy work and position taking, which in and of themselves, increases executive power, rather than restraining it. President Bush was fortunate to be riding unprecedented waves of popularity when Iraq resurfaced as an issue in 2002. Increasing the paranoia of members was the remarkable sustained nature of that popularity. The U.S. Congress, hypersensitive to public opinion, and having vastly overestimated the political costs of opposing the president, gave him blanket authority. That authority was against their institutional interests, and consequently, against the peoples’ interests. Since no analogous control committee exists for foreign policy, it seems wise to eliminate foreign policy from members’ electoral concerns. The only way to do that would be to limit democracy altogether, with the repeal of the 17th Amendment and term limits. This would in turn cause more congressional involvement in actual foreign policy promulgation and implementation, since the electoral incentive invites an imperial executive. A congressman (and specifically a Senator) should not be a delegate, but a trustee, especially in foreign policy. This will indeed be a hard pill for the people to swallow, but their deference in a certain sense will preserve our liberty. Mayhew defends the Rules Committee in its undemocratic function of institutional maintenance. (155) Would it be that someone sees the inherent danger of over-democratization in foreign policy and war-making authority! Our great nation will be the better for quieting the passions of the people in these matters.

[1] I supported the Iraq war, and still do. However, if members cannot be at least somewhat insulated from political considerations when deciding whether to use force, they cannot restrain the executive, should it ever become necessary.