Upgrading GPRA

Today's Post has a story by Paul Light, who applauds Congress for upgrading the 1993 act that required government agencies to focus on the results of federal policy, rather than on government activities. A worthy cause, no doubt, though I am not as sanguine as Professor Light about the likelihood of real change.

A Reading List for New Members of Congress

In a column that appeared the day after the midterm elections, The Washington Post’s Steven Pearlstein offered his congratulations to the Representatives- and Senators-elect, while issuing a “reading list for the incoming Congressional class of 2010.” His “list” consisted of exactly one book: the recently published collection of the letters of Daniel Patrick Moynihan (1927-2003), well described by Pearlstein as a testament to the late New York Senator’s intellectual integrity, his seriousness of purpose, and his love of the English language. Pearlstein concluded by posing this unnerving question to the newly elected members of the 112th Congress: “Are you going to accept the low bar now set for political leadership, or will you commit yourself to bringing some Moynihan-like style, intelligence, candor and independence to an ailing institution? It’s your choice.”

I do not expect the new Members to agonize over Pearlstein’s challenge. Rather than opting for 720 pages of epistolary grace and erudition, I think it far more likely that they will turn instead to more prosaic studies of the national legislature. Among these one of the most distinguished is The Broken Branch: How Congress Is Failing America and How to Get it Back on Track, by Thomas E. Mann and Norman J. Ornstein.

The co-authors of The Broken Branch, respected Congress watchers of long standing, see the institution as a perfect storm of dysfunction. Particularly in their chapter reviewing the history of “The First Branch of Government,” Mann and Ornstein make it clear that while Congressional decline has been caused by external challenges of long standing, many of its wounds are relatively recent (they trace the “seeds of the contemporary problem” to 1969) and essentially self-inflicted. In the case of the House of Representatives, frequently adopted closed rules have severely restricted debate, standard rules of procedure have too often been honored in the breach, the role of the Speaker has been grotesquely inflated, strident partisanship has replaced the bipartisan camaraderie of the committee system, and deliberation has been eclipsed by the “permanent campaign” that necessitates non-stop fund-raising. Finally, the chamber has ceased to be interested in exercising oversight of the executive branch. Over on the Senate side, there has been an increased reliance on the filibuster, or filibuster threats; heavy reliance on anonymous “holds” that sidetrack bills and nominations; more aggressive use of the budget reconciliation process; and a decline of debate on the floor that makes a mockery of the Senate’s traditional claim to be “the world’s greatest deliberative body.” In both chambers, ideological purity trumps bipartisan comity.

The good news is that to the extent that Congress has broken itself, it should have the capacity to reform itself back to good health. Mann and Ornstein recommend—among many other things—turning redistricting over to the professionals, restoring the power of committee chairmen, rewriting the campaign finance laws, beefing up ethics guidelines, reinstituting legislative oversight of the executive branch, taming the filibuster, reining in reconciliation, bringing Congressional families to town, and reintroducing bipartisan lunches.

There are, however, those who believe that Congressional decline is much more the result of the exertion of executive and/or judicial muscle. If Congress has been “broken” from without, inward-looking reform strategies such as those advocated by Mann and Ornstein begin to look much less compelling. Our newly elected Representatives and Senators should perhaps be dipping into this literature as well.

Consider, for example, the argument of Matthew Crenson and Benjamin Ginsberg in Presidential Power: Unchecked and Unbalanced (New York: W. W. Norton & Company, 2007). The authors contend that while Abraham Lincoln did much to aggrandize the presidency (and, by extension, the national government) during the Civil War, it wasn’t until the twentieth century that unfettered “presidentialism” really took off (at the expense of Congress). Crenson and Ginsberg pay particular attention to three more or less concurrent developments having to do with control of the federal budget, war powers, and what the authors call “executive unilateralism.”

At a time when even the presumptive Republican Speaker of the House believes that it’s the Democratic president “who sets the agenda for our government,” it is amazing to think that prior to World War I everyone agreed that budget planning was a Congressional responsibility. In fact, Crenson and Ginsberg contend that the national legislature “maintained near-absolute control of the federal bureaucracy” and was understood to be the formulator of national fiscal policy. In the course of the twentieth century, Congress was gradually eclipsed. In 1921, the legislation authorizing the Bureau of the Budget (BoB) was passed. Later, during Franklin D. Roosevelt’s long watch, BoB was assigned to the executive office of the president. In 1974, it was upgraded to the Office of Management and Budget, at which time Congress thought to create the Congressional Budget Office as a kind of “counter-weight.” Could it be that the diminished role of Congress in the budget planning process has something to do with its inability to pass appropriations bills? Now some Republicans are talking about restoring a prominent role for Congress in budget planning, though perhaps one may be forgiven for wondering whether their motivations are more partisan than constitutional.

On the war-making front, Crenson and Ginsberg note that during the 70 years that have elapsed since the last time Congress exercised its exclusive power to declare war, the United States has been almost continuously engaged in hot or cold warfare. The expansion of the Commander-in-Chief clause has rendered declarations of war superfluous. And while the War Powers Act of 1973 often is celebrated as a post-Vietnam reassertion of Congressional initiative, it actually conceded powers to the President that go far beyond Constitutional provisions.

In a revealing anecdote, Crenson and Ginsberg ask their readers to keep in mind the kinds of powers relied upon by the Bush Administration in Iraq and Afghanistan while relating the story of James K. Polk’s attempt to prosecute the Mexican War. Polk, a Democrat, was able to persuade Congress to declare war on Mexico, but a freshman Congressman named Abraham Lincoln gave him a serious case of heartburn in the process. It didn’t help that both of Polk’s top generals, Winfield Scott and Zachary Taylor, were leading Whigs who harbored presidential aspirations. Cresson and Ginsberg emphasize that Polk was unable even to control the State Department functionary, Nicholas Trist, who was dispatched to negotiate a peace settlement with the Mexicans. When Trist encountered difficulty, Polk ordered him home. But Trist elected to stay in Mexico and negotiate a deal, the Treaty of Guadalupe-Hidalgo, instead. Polk, who disapproved of the treaty, then ordered that Trist be put under military arrest and put on a boat bound for Washington. Subsequently, the Senate ratified Trist’s treaty, celebrated Taylor’s military exploits, and censured Polk for “a war unnecessarily and unconstitutionally begun by the President of the United States.” The contrast with the Bush Administration’s twenty-first-century experience could hardly be more stark: with the conspicuous exception of Senator Robert Byrd (D-WV)—though others took up the cause later—Congress put up little or no initial resistance to the wars against terrorism, Afghanistan, and Iraq.

Regulatory review, too, once resided with Congress, but gradually it has migrated to the executive branch. The authors of Presidential Power: Unchecked and Unbalanced document the increased reliance on executive action, particularly as it has been promulgated through executive orders. Congress fought back with the Congressional Review Act of 2001, which seemed to give the legislature oversight over the independent regulatory agencies. “The problem,” however, as Crenson and Ginsberg explain, “is that a congressional decision to invalidate a regulation could be vetoed by the president.”

It is worth mentioning, too, that the judiciary—famously characterized by Alexander Hamilton as the “least dangerous” branch, also has had a hand in the emasculation of Congress. Since Louis Brandeis introduced “sociological jurisprudence” to the federal judiciary in the 1908 case of Muller v. Oregon, judges have gradually become used to legislating from the bench, an activity that liberals now take for granted and do not regard as particularly controversial—witness Justice Sotomayor’s casual acknowledgement that “the court of appeals is where policy is made.” What’s surprising is that even conservative judges seem to have lost their inhibitions about judicial activism. Congress’s instinct seems to be to roll over and play dead. Given the balance of partisan power in Washington at the moment, it seems highly unlikely, for example, that Congress will act to undo the electoral consequences of the Court’s controversial decision in the Citizens United case any time soon.

Congress, alas, cannot be portrayed simply as the hapless victim of an imperial presidency or activist judiciary. All too often, the House and Senate have acquiesced as aggressive presidents or appellate courts have assumed legislative prerogatives. Mann and Ornstein are particularly eloquent on this point, bemoaning how a supine Congress has too often shrunk from contesting and overseeing the executive, especially when partisan and ideological interests prevail over institutional responsibilities. But again, this is nothing new. The agenda for the New Deal was set by a hyper-partisan FDR White House, not by Congress. Likewise, the Civil Rights movement proceeded mainly in the judiciary, with courageous support provided at critical moments by the executive branch—Little Rock being the classic instance, with Congress managing to keep a discreet distance.

Similarly, it looks as if the contentious “Don’t Ask, Don’t Tell” policy will be resolved by an odd coalition of Pentagon bureaucrats and appellate court judges, rather than Congress. And after the failure of H.R. 2454, the American Clean Energy and Security Act of 2009, it appears that U.S. policy on global climate change will be forged, for better or worse, through executive orders drafted by functionaries in the Environmental Protection Agency or the Energy Department. In sum, members of the freshman class of the 112th Congress could do far worse, by way of orientation, than to study both The Broken Branch and Presidential Power to consider both internal and external challenges to Congressional authority.

And they’d better be prepared for partisan in-fighting that has become nasty and ingrained. Like most observers of Congress, Mann and Ornstein seem to assume that the unleashing of partisan and ideological passions is the cause of Congressional irresponsibility. I would argue that it is more effect than cause. It’s a disturbing thought, but it could be that Congressional politics is vicious for the same reason that university faculty politics is vicious: because “the stakes are so low.”

Pearlstein is probably right that the only cure for the disease from which Congress suffers would require “bringing some Moynihan-like style, intelligence, candor and independence to an ailing institution.” And so we have come full circle.

National Commission on Fiscal Responsibility and Reform

Over the next few weeks, it will be extremely interesting to follow reactions to the recent report of Erskine Bowles and Alan K. Simpson, co-chairmen of this bipartisan panel, which is looking into ways of making America solvent again. One thing is certain: there are profound implications for federal employees and prospective federal employees. Joe Davidson explores some of them in his Washington Post column, "The Federal Diary," of November 12. Meanwhile, Dana Milbank offers his views on how the No Regrets Democrats and the No Compromise Republicans are likely to view the unsettling prospect of fiscal responsibility.

It seems that the Glenn School's policy forum, "Avoiding Catastrophic Budget Failure," will be very timely, especially since the Commission is scheduled to release a report the next day. We're hoping for a big crowd of Washington-based Buckeyes on November 30.

November 17 update: Norman Ornstein weighs in on the Deficit Commission in today's Roll Call.

November 18 update: Roll Call's Morton Kondracke reviews three tax reform plans and urges President Obama to seize this opportunity to do something that would win popular approval because it would create jobs.

November 24 update: Today's Post has a terrific chart that compares the recommendations of the three panels (Simpson-Bowles, Rivlin-Domenici, and Galston-MacGuineas) that are looking for ways to reduce the deficit. Accompanying the summary table is a column by Ezra Klein.

November 29 update: The Brookings Institution's William Gale reviews five myths about cutting the deficit in the Outlook section of Sunday's Post.

December 2 update: Here, finally, is "The Moment of Truth: Report of the President's Commission on Fiscal Responsibility and Reform." And here is a persuasive argument by the Center on Budget and Policy Priorities that the Rivlin-Domenici plan is better.

An Intellectual's Guide to Public Service

On the morning after the 2010 midterm elections, The Washington Post published a column by Steven Pearlstein that congratulated the winners while offering a "reading list" to those who will be new members of the 112th Congress that convenes in January, 2011. The "reading list," it turns out, consisted of a single book: a collection of the letters of the late New York Senator, Daniel Patrick Moynihan, edited by Steven R. Weisman.

The 720-page volume of letters has been getting rave reviews. One of the most entertaining of which is Hendrik Hertzberg's "Politics and Prose," in the October 25, 2010, issue of The New Yorker. Moynihan was a larger than life character, to be sure. George F. Will couldn't resist pointing out that Moynihan had written wrote more books than most Senators had read. On the other hand, the droll Eric Severaid once complained that the trouble with Senator Moynihan was that he threatened to make it respectable to be a sociologist.

Once, long ago in a galaxy far away, I wrote a review of Moynihan's book about the United Nations, where he had served as U.S. Ambassador. His book was called A Dangerous Place. I thought it would be clever to submit a review entitled "A Dangerous Man," the point of which was that Ambassador Moynihan might have enough rhetorical power all by himself to pose a threat to the mendacity from which the U.N., and particularly the General Assembly, suffered in those days.

My editor had different ideas. He replaced my title with one of his own, which made my reference in the body of the review to Moynihan as "a dangerous man" seem very odd indeed. I was not happy when the review appeared in print, but I didn't expect any real fallout from it.

But I was wrong. Late in the summer of 1979, I received the following letter on the stationery of the United States Senate:

Pindars Corners, N.Y.
August 31, 1979

Dear Dr. Kolson,

Help me. My friends say yours was the most hostile review A Dangerous Place has received. I thought it friendly. Am I bonkers? Please write, as I need to know!

Best,

DPM

Not being all that accustomed to receiving letters from United States Senators asking me whether I considered them "bonkers," I sat down at once to compose something reassuring. I think I managed to explain the confusion over the title convincingly enough, but in the process I'm sure I demonstrated that as a correspondent I had very little entertainment value. Senator Moynihan's framed letter occupies a prominent place on the wall of my den at home. But he never wrote back.

A Diplomat's Progress--Book Review (reprise)

This week the Fall 2010 class of Glenn Fellows is reading Samuel Huntington's famous Foreign Affairs article on "The Clash of Civilizations." As an introduction to the not-always-glamorous world of professional diplomacy, I have also assigned a book called A Diplomat's Progress, written by Henry Precht, a retired foreign service officer. Mr. Precht was born in Savannah, Georgia, and educated at Emory University. He joined the foreign service in 1961 and served in U.S. embassies in Italy, Mauritius, Iran, and Egypt. He was the Department of State’s Desk Officer for Iran during the revolution and hostage crisis when the Shah was overthrown, and he was deputy ambassador in Cairo when Anwar Sadat was assassinated. His nomination by President Jimmy Carter to the post of U.S. ambassador to Mauritania was blocked by Senator Jesse Helms.

After leaving the foreign service, Mr. Precht served as president of the World Affairs Council in Cleveland, Ohio, where he also taught at Case Western Reserve University. A few years ago, he published A Diplomat’s Progress, a work of fiction consisting of a series of vignettes about a State Department official named Harry Prentice. It is an engaging work that reveals, as one reviewer has put it, the “grittier side of embassy life with a wry sense of humor and a bit of an edge.” To the extent that the work is autobiographical, A Diplomat’s Progress is rather remarkable.

For one thing, the “grittier” aspects of diplomacy are portrayed warts and all. In one of the vignettes, the young Harry Prentice and his wife attend a dinner party at the home of the foreign minister of Mauritius, during which the lecherous host assaults the drunken daughter of the Japanese ambassador. In a vignette set in Egypt, the protagonist must tend to a dead body and a suitcase full of drug money. In “Caviar and Kurds,” Prentice unwittingly leads the Shah’s secret police to an underground freedom fighter named Hassan, whom Prentice finds hanging from a lamppost the next day. In this account of embassy life, no good deed goes unpunished.

Most remarkable as an autobiography—and surely it must be regarded as partly that, in spite of the veneer of fiction—is the book’s unflattering portrait of its protagonist. Throughout A Diplomat’s Progress, Harry Prentice’s diplomatic efforts are undone by either his naivete or his cynicism. Typically, the reader is given a glimpse of a career diplomat preoccupied, not with the national interest, as one might suppose, but rather, with his own career advancement. At one point, for instance, Prentice seems to have been the unwitting accomplice of a Palestinian terrorist. What does he do about it? He gets up in the middle of the night to compose a somewhat Bardachian “balance sheet of possible courses of action.” There appear to be two:

First, the natural inclination of every Foreign Service Officer: Do nothing. Wait on events and react as necessary and as seems prudent at the time. . . . Alternatively, I could report my suspicions to the police. Playing it straight and admitting wrong might be partially redeeming. The key word was “partially.” The embassy surely would be informed and handle my future as if it had no value. The same with the Israeli authorities. I had to face it: Only I really cared about my future, not any American or Israeli career-building bureaucrat.

During his posting to Cairo, Prentice is asked to interview a Sheikh who might have been in a position to influence the extremists holding a number of American hostages in Beirut. Prentice’s efforts fail. “But never mind,” seems to sum up his reaction. “I could only hope that someone—the ambassador or an unknown friend in the department—would make an excellent report of my performance for my file.” The adventure, he concludes, “just might be a turning point—upward—in my career.” On the basis of the evidence provided by the author, the judgment handed down by Prentice’s first wife seems just: He has “a pretty good soul, even though sometime it seems quite lost in the bureaucratic maze.”

Mr. Precht is a charming gentleman who has visited our seminar in the past. Unfortunately for us, he is spending this fall in Paris.

The Brief against Brandeis (reprise)

There is no denying that the long-lived Louis D. Brandeis (1856-1941) was an American treasure. The son of Eastern European Jewish immigrants, he graduated at age 20 with the highest GPA in the history of Harvard Law School. He made his reputation as a Progressive lawyer and as a leader of the worldwide Zionist movement. In 1916, he was nominated for a seat on the United States Supreme Court by President Woodrow Wilson.

The definitive biography of Justice Brandeis was published by Pantheon in 2008. The work of Melvin I. Urofsky of Virginia Commonwealth University, the 955-page tome is getting rave reviews. One, written by Anthony Lewis, appeared in The New York Review of Books. Brandeis, according to Lewis,

was intensely interested in facts. His law clerks did research on facts as much as law. When the Court considered a case on presidential appointment power that involved the 1867 Tenure of Office Act, Brandeis had his law clerk, James M. Landis (who became the dean of Harvard Law School), go over the Senate journals of 1867 to see what the views of the times were. Landis spent months in the Library of Congress reading the journals page by page.

Brandeis even tried to get Justice Holmes, who read philosophy in the original Greek, to take more interest in facts. He urged Holmes to spend the summer break reading up on working conditions and visiting the textile mills in Lawrence, Massachusetts. A year later Holmes wrote Harold Laski that “in consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”

Brandeis’s obsession with facts continues to reverberate through American law and politics. Consider, for example, what Wikipedia has to say about the term “Brandeis brief,” which refers to

a pioneering legal brief that was the first in United States legal history to rely not on pure legal theory, but also on analysis of factual data. It is named after the litigator Louis Brandeis, who collected empirical data from hundreds of sources in the 1908 case Muller v. Oregon. The Brandeis Brief changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.

This week members of the Fall 2010 class of Glenn Fellows are reading essays and court cases organized around the theme of fact-finding and its jurisprudential consequences. As they read these materials, my hope is that they will perform a little thought experiment by asking themselves about the facts that the Court recognized in Muller, Brown, and Roe v. Wade, and whether it would have been wiser for the Court to base its rulings on strictly legal grounds, rather than conducting fact-finding expeditions.

In Brown, for example, the Supreme Court had the option of resurrecting Justice Harlan’s stirring dissent in Plessy v. Ferguson, which would have meant striking down school segregation on the grounds that “our constitution is color-blind,” rather than on the less substantial grounds that segregated schools inflict psychological damage upon African-American children. Likewise, in Roe v. Wade, there were a number of precedents that the Court, rather than wrestling with the question of fetal viability and formulating a national “right of privacy,” might have used to finesse the issue of abortion by declaring that public health is a matter that the Constitution, through the Tenth Amendment, reserves to the states. I hope the Fellows will ask themselves, in short, whether the Brandeis brief, so well intentioned, has inflicted a great deal of legal and political harm in the century since Muller v. Oregon.

October 25, 2010, update: As if on cue, The New York Review of Books has published an insightful review by Jonathan Zimmerman of Martha Minow's new book, In Brown's Wake: Legacies of America's Educational Landmark (Oxford University Press). Toward the end, Zimmerman observes, "Live by the social science, die by the social science." It could be Justice Brandeis's epitaph.

Is the British Parliament Broken?

This week the Glenn Fellows are reading Mann and Ornstein's The Broken Branch, an indictment of both houses of Congress on a number of different grounds, among which are excess deference to and minimal oversight of the executive branch.

The U.S. Constitution separates the legislative and executive branches of government. The British Constitution, in contrast, fuses them together. I think it was shrewd Walter Bagehot who referred to the cabinet as the buckle that fastens, the hyphen that joins, the executive and legislative powers in Great Britain. One of the consequences of that is that it is fairly easy for new governments to implement new policies, citing their electoral mandate and exploiting the advantage of a parliamentary majority.

The freshly minted coalition of Conservatives and New Democrats that recently threw out Gordon Brown and New Labour has now announced its program to attack deficit spending in Great Britain. (That's British Chancellor George Osborne, above, unveiling the government's plan. He is flanked by Prime Minister David Cameron, in the purple Tory tie, and Deputy Prime Minister Nick Clegg, with his yellow New Dem tie.) Here is a story in The Economist. And here is Andrew Sullivan's typically idiosyncratic take in the Daily Dish.

Implementation of the program will put Keynesian propositions to a systematic test and will likely usher in a new age of austerity, at least over the short run. Most assuredly, other countries, especially those, like the United States, where deficits are staggeringly high in relation to Gross Domestic Product, will be watching closely. Pull yourself a pint and pass the Spam.