Monday, October 16, 2006

More on the Decline of Institutionalism (at least in Congress)

As part of my erstwhile attempt to bore the living daylights out of most of you, I’m going to continue to rant about the decline of what I’ve termed “institutionalism” (I don’t really want to take credit for the term, so if anyone can point to another more respected scholar who has used the term in a manner similar to the way I do, please let me know). This time, however, I’ve got a couple of concrete examples from today’s Washington Post. Returning to previous form, click read more to see the rest of the post.

The first story is a front pager, albeit below the fold, about Speaker Hastert and his inner circle with respect to their dealing with the Foley issue. I’m not concerned or interested at all in the specifics of the story as they relate to “Foley-gate,” rather I found a couple of comments much more worthy of exploration. At several times the article notes that Hastert is the leader of the GOP caucus and that his focus has been on running that group as opposed to being the leader of the House of Representatives. For example, the article notes that “[e]ven Hastert’s defenders acknowledge that his top priority as speaker has been protecting the GOP majority, not investigating the president or his own caucus.” A couple of other quotes, one from a Democrat and one from a Republican, seem to bear this observation out. According to Rham Emmanuel (D-Ill), “[w]hen it’s come to a choice between the integrity of the House or the Republican majority, he's always put his thumb on the scale to protect the majority.” According to Grover Norquist, “… everyone knows he represents the caucus agenda, not his own agenda.”

The shift from viewing the role of Speaker first as the leader of the House and then as caucus or party leader, to Speaker as party leader and then, when it’s politically convenient, as leader of the House, has been one of many examples of the decline of “institutionalism” that I’ve witnessed over the last 6 years. Perhaps much of this decline is due to the fact that the President and the Congress are led by members of the same party. While that may explain some of the decline, I’m not convinced that it explains all, or even most, of it. Rather, what seems to be happening is a general lack of interest and understanding of the roles that our respective institutions qua institutions are supposed to have in our tri-partite system of separation of powers. More depressing, at least for people like me -- who see Congress (and to a lesser extent state legislatures) as the cornerstone of a republic like ours – is that the other institutions (SCOTUS and the President) don’t appear to be suffering from the same institutional malaise. One often hears the President speak of “the Presidency,” or more broadly, what is in the best interest of the Executive Branch, which he is the constitutionally appointed leader. Similarly, if one pays close attention to the Court, you’d find similar sentiments coming from the Office of the Chief Justice, who is the constitutionally appointed leader of the Judiciary, and the only named officer in Article III of the Constitution. Conversely, one never, or hardly ever, hears anyone, not the Speaker, Senate Majority Leader, or anyone else; speak about the House or the Senate as a body independent of the current political party that is currently in control. (I suppose one could point to the debates over the so-called “nuclear option,” where there was some mention of the “good of the Senate,” but outside of that I challenge anyone to find me examples of concern for the body itself)

Lest it not be forgotten, the Speaker of the House is a “constitutional officer,” at least in the sense that the position is specifically referenced in the Constitution. See U.S. Const. Art. 1, sec. 2, cl. 5. Unlike the Senate Majority Leader, who is not mentioned as the leader of the Senate (that is the Vice-President, though one could argue we’ve effectively changed that even without an amendment), the Speaker of the House arguably has a “constitutional” duty to protect and defend the interests of the body whenever challenged or threatened, either internally, by the actions or inactions of rank and file members, or externally, by the other branches. Again this harkens back to issues about rules and procedures, which are not the subject of our current political discourse, which, as previously noted, is preoccupied by innocuous spewing and meaningless platitudes about “issues” that aren’t ever going to be actually be addressed. The quiescence of Congress over the last 6+ years is doing damage to the institution itself. I say this regardless of which party controls.

By the way should one respond by saying that the Democrats are/were no better when they controlled the House, I’d have to respectfully disagree. For example, Speaker Thomas P. “Tip” O’Neil (D-Mass.) was arguably single-handedly responsible for the creation of the House General Counsel’s office, which is the body that represents the interest of the House during litigation. Prior to O’Neil, the House relied on the Department of Justice or individual Members to represent the body in litigation often merely though amicus briefs. While arguably not the most notable example or even a widely known one, it demonstrates a concern that the House as an institution needed its own legal representation and at times would have to defend its actions in court against a strong executive who’s positions may not always be in accord with what Congress needed or wanted done. I’ve got no sense that the current leadership (or any potential future democratic leadership) could do or would do what O’Neil did with respect to legal representation.

My second example deals with the line of Presidential succession, which was discussed in a small blurb on the federal page of today’s Washington Post. The article concerned the fact that there is a “non-public” (post says “secret”) document that contains a line of succession for the Speaker’s office for “continuity of Congress” purposes. This was reportedly done shortly after Sept. 11, due to the fear that a terrorist attack could potentially wipe out numerous Members of Congress and cripple the government. As I’m sure most of you know, the line of Presidential succession is determined in part by the Constitution and in part by a federal statute, 3 U.S.C. § 19 (2000). The Constitution, specifically the 25th Amendment, deals with succession from the President to the Vice-President, while the federal statute deals with other contingencies, including no eligible Vice-President, in which case the line proceeds to the Speaker of the House then the President pro-tempore of the Senate and down through the cabinet officials. Of course there has been a tremendous amount of debate over the statutory provisions as there constitutionality is at least questionable (though practically I think there is some merit to them). The fact that in the face of these unanswered and arguably unanswerable constitutional questions, the House would choose to potentially add further confusion to the issue by appointing a “non-public” line of succession to the Speaker’s office is a bit befuddling and at least to me demonstrates a bit of a “tin ear" with respect to the seriousness of these issues.

While there is nothing, in my opinion, illegal or unconstitutional (see U.S. Const. Art. 1, sec. 5, cl. 2 (granting each House the ability to make its own rules)) about a line of succession for the Speaker’s office in the event of a national emergency, the fact that such an action may have implications on the potential line of succession of the President appears not to have been considered, or if was considered, the rationale not made known. Moreover, I don’t really have a problem with the list itself being secret; what I object to is the potential oversight of the consequences (both intended and unintended) that the utilization of such a list might cause. One should keep in mind that the qualifications for Members of the House, the Senate, and Presidency are all different. Thus, it is possible for a person to be Speaker to be constitutionally ineligible to hold the office of President (for example, a Speaker could either not be 35 years of age, or he/she could not be a native born citizen). That’s just the tip of the iceberg with respect to potential legal/constitutional problems with such an action. While on one hand I applaud the House for taking steps to ensure its continuity during a crisis. On the other hand, it seems a rather ill-conceived formulation and something that the general public arguably has a right to know about. I suppose my point is to reference another example of long-term institutional security getting second fiddle, when it should be the ONLY concern of Members regardless of party. I don't mean to suggest anything untoward here, I'm sure there were good intentions as much of the continunity issues have been dealt with in a bi-partisian manner. I'm merely suggesting that concern for the institution wasn't the main concern when it should have been, and that reflects poorly on all Members involved.


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