Dispatches from the Creation Wars

Conservatives Against Republicans

Washington Monthly has an interesting set of essays by prominent conservatives on why they want the Republicans to lose in November. Joe Scarborough writes of the virtues of divided government during the 90s:

The fact that both parties hated each another was healthy for our republic’s bottom line. A Democratic president who hates a Republican appropriations chairman is less likely to sign off on funding for the Midland Maggot Festival being held in the chairman’s home district. Soon, budget negotiations become nasty, brutish, and short and devolve into the legislative equivalent of Detroit, where only the strong survive.

But in Bush’s Washington, the capital is a much clubbier place where everyone in the White House knows someone on the Hill who worked with the Old Man, summered in Maine, or pledged DKE at Yale. The result? Chummy relationships, no vetoes, and record-breaking debts.


In the 90s, when Republicans had Congress but the Democrats had the White House, the Republicans actually cared about attempts to expand executive authority beyond constitutional limits. If a Democratic congress had tried to pass the Medicare prescription drug boondoggle of a bill that the Republicans pushed through 3 years ago, a Republican president would have vetoed it in a New York minute. Having one party control both branches is the end of any chance for even minimal fiscal and legal restraint, as the last 6 years have clearly demonstrated.

Bruce Fein, the conservative firebrand from the Reagan justice department, goes much further and minces no words:

The most conservative principle of the Founding Fathers was distrust of unchecked power. Centuries of experience substantiated that absolute power corrupts absolutely. Men are not angels. Ambition must be made to counteract ambition to avert abuses or tyranny. The Constitution embraced a separation of powers to keep the legislative, executive, and judicial branches in equilibrium. As Edward Gibbon wrote in The History of the Decline and Fall of the Roman Empire: “The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive.”

But a Republican Congress has done nothing to thwart President George W. Bush’s alarming usurpations of legislative prerogatives. Instead, it has largely functioned as an echo chamber of the White House.

President Bush has flouted the Foreign Intelligence Surveillance Act of 1978 (FISA) for five years by directing the National Security Agency to target American citizens on American soil for electronic surveillance on his say-so alone. The president has defended his warrantless domestic spying with an imperial theory of inherent constitutional power that would empower him to open mail, break in and enter homes, or torture detainees, even in violation of federal criminal statutes. He has concealed details of the spying program indispensable to rational congressional oversight–for example, the number of Americans targeted, the earmarks employed to select the targets, or the intelligence yield of the spying. He has never explained to Congress why FISA could not have been amended to accommodate any unforeseen evasive tactics by al Qaeda in lieu of simply disregarding the law. Indeed, Congress has amended FISA six times since 9/11 at the request of the White House, and the Senate Intelligence Committee was informed by Bush’s Justice Department on July 31, 2002, that FISA was working impeccably. The president has also refused to disclose what legal advice he received to justify the NSA’s warrantless domestic spying at its inception. And Attorney General Alberto Gonzalez has confessed that President Bush is operating other intelligence collection programs that are unknown to Congress and the public and that will never be revealed, absent leaks to the media.

Republicans in Congress have bowed to the president’s scorn for the rule of law and craving for secret government. They have voted against Democratic Sen. Russell Feingold’s resolution to rebuke Bush for violating federal statutes and crippling checks and balances. They have resisted brandishing either the power of the purse or the contempt power (with which it can compel testimony) to end the president’s violation of FISA and to force full disclosure of his secret foreign-intelligence programs. Indeed, the Republican chairman of the Senate Judiciary Committee, Arlen Specter, is sponsoring a bill that in substance endorses President Bush’s FISA illegalities and authorizes an electronic-surveillance program warrant that would enable the NSA to spy on Americans indiscriminately without the particularized suspicion of wrongdoing required by the Fourth Amendment.

Republicans in the House and Senate have been equally invertebrate in the face of presidential signing statements that usurp the power to legislate. In approximately 800 cases, President Bush has both signed a bill and declared his intent to disregard provisions he believes are unconstitutional, the equivalent of a line-item veto. For instance, he signed the Detainee Treatment Act of 2005 prohibiting torture while issuing a signing statement declaring his intent to ignore the law in order to gather military or foreign intelligence.

The Presentment Clause of Article I, Section 7 gives the president but two options when presented with a bill passed by Congress: sign or veto the bill in its entirety. That was the holding of the Supreme Court when it found a line-item veto statute unconstitutional in 1998’s Clinton v. City of New York. The president is obligated to veto a bill that he believes to be unconstitutional; Congress may override that judgment by two-thirds majorities. In the 217-year history of the United States under the present Constitution, Congress has overridden only 28 constitutionally based vetoes, and on only one occasion did the override engender a constitutional battle between the president and Congress. Presidential signing statements further usurp the legislative power by resulting in the enforcement of laws that Congress has not passed. Members vote on all the provisions of a law collectively in the expectation that all will be executed if the president approves.

Signing statements also flout the president’s obligation in Article II of the Constitution to execute the laws faithfully. The Founding Fathers were acutely aware of the example of King James II, whose practice of suspending or dispensing with laws he believed encroached on royal prerogatives eventually occasioned his overthrow in the Glorious Revolution of 1688. With such precedents in mind, the framers of the United States Constitution directed the president to execute the laws without fail. The Republican Congress, however, has acted as a disinterested spectator while President Bush has stolen its legislative authority in plain view and exercised the tyrannical power of making, executing, and conclusively interpreting the law and the Constitution.

The most frightening claim made by Bush with congressional acquiescence is reminiscent of the lettres de cachet of prerevolutionary France. (Such letters, with which the king could order the arrest and imprisonment of subjects without trial, helped trigger the storming of the Bastille.) In the aftermath of 9/11, Mr. Bush maintained that he could pluck any American citizen out of his home or off of the sidewalk and detain him indefinitely on the president’s finding that he was an illegal combatant. No court could second-guess the president. Bush soon employed such monarchial power to detain a few citizens and to frighten would-be dissenters, and Republicans in Congress either cheered or fiddled like Nero while the Constitution burned. The Supreme Court ultimately entered the breach and repudiated the president in 2004’s Hamdi v. Rumsfeld. Republicans similarly yawned as President Bush ordained military tribunals to try accused war criminals based on secret evidence and unreliable hearsay in violation of the Uniform Code of Military Justice and the Geneva Convention. The Supreme Court again was forced to countervail the congressional dereliction by holding the tribunals illegal in 2006’s Hamdan v. Rumsfeld.

Republicans have shied from challenging Bush by placing party loyalty above institutional loyalty, contrary to the expectations of the Founding Fathers. They do so in the fear that embarrassing or discrediting a Republican president might reverberate to their political disadvantage in a reverse coat-tail effect.

Democrats, for their part, likewise place party above the Constitution, but their party loyalty at least creates an incentive to frustrate Bush’s super-imperial presidency. This could help to restore checks and balances. For the foreseeable future, divided government is the best bet for preserving both the letter and spirit of the Constitution. If Democrats capture the House or Senate in November 2006, the danger created by Bush with a Republican-controlled Congress would be mitigated or eliminated.

I couldn’t agree more. For the first time in my life, I may vote for one of the two major parties this year in an attempt to bring about divided government.

Comments

  1. #1 llDayo
    September 18, 2006

    Amazing, this is something I was actually thinking about this weekend. Personally, I think it should be required that no political party be able to control all three at once (Executive, Congress, House of Representatives). This may not have been something that our founding fathers foresaw as a problem but it’s obvious it can be. I’m not sure how something like that would be controlled since all members are voted in by the american populace but there has to be some way!

  2. #2 Matthew Young
    September 18, 2006

    It’s an interesting point, isn’t it. Over in England we have had a very similar problem – in that Tony Blair has basically been able to do exactly as he pleases for a number of years because there really has been no reasonable alternative to his or his party’s leadership. This has simply ended up giving him carte blanche to flaunt the will of the people he is supposed to be representing and behave as he pleases. With no opposition, it has been pretty much impossible to keep him under control.

    More than any one particular world view I am increasingly coming to the conclusion that the best form of government is exactly the sort of slightly unstable balance described above. Two or three competing ideologies pulling against each other should stand a reasonable chance of creating a decent equilibrium – certainly more so than a single, unchallenged victor, glorying in his own triumph.

  3. #3 Gretchen
    September 18, 2006

    Isn’t the only way a divided government is going to be successful at not growing larger political deadlock? Have we really resorted to hoping for that?

    I love the fact that the word “libertarian” is not mentioned in any of the seven essays.

  4. #4 Eric Juve
    September 18, 2006

    llDayo, I don’t believe that a two party system is what the framers had in mind. A lot of people assume that. One of the fixes that might work is an instant runoff. This would allow third ( fourth … ) to gain a foothold in the election system.

    see http://www.instantrunoff.com/.

  5. #5 Matthew Young
    September 18, 2006

    It is a good idea, for sure. The best thing about a genuinely multi-party system is that it lets the real nut-jobs form their own parties, leaving the main battleground slightly clearer for rational debate.

    The UK Independence Party springs very much to mind over here – absolutely barking, the lot of them, and very much good riddance!

  6. #6 DuWayne aka Treban
    September 18, 2006

    This may not have been something that our founding fathers foresaw as a problem but it’s obvious it can be.

    I think they did, they just weren’t sure how to deal with it.

    More than any one particular world view I am increasingly coming to the conclusion that the best form of government is exactly the sort of slightly unstable balance described above. Two or three competing ideologies pulling against each other should stand a reasonable chance of creating a decent equilibrium – certainly more so than a single, unchallenged victor, glorying in his own triumph.

    I am far more convinced that should be far more than two or three competing ideologies. I’m all for taking the damned parties out of politics. I would love to see politicians forced to form coalitions for the support of individual issues – not some blanket agenda. In effect your ally on one bill might be your bitterest adversary on another. Certainly it would slow the legislative proccess by quite a lot but it would also a, de-polarise politics b, provide better representation of we the people c, provide for “better” legislation d, cut out a lot of pork and e, absolutely ensure that what the U.S. has now will never, ever possibley happen again.

    In the short term I would argue that a vote for dems is a vote for chacks and balances. For the long term we need to fix a system that is broken, has been since the founding of the first political party in this country. We need to free ourselves from the tyrrany of a two-party system.

  7. #7 Matthew Young
    September 18, 2006

    I’m all for taking the damned parties out of politics. I would love to see politicians forced to form coalitions for the support of individual issues – not some blanket agenda

    Without giving it too much deep consideation (do I ever?), I think that is an excellent idea. Party politics has become something of a monopoly situation that we wouldn’t tolerate in business. If it’s bad for business to have that sort of concentration of power, surely it can’t be a great thing for politics.

  8. #8 Jamie
    September 18, 2006

    I remember when “gridlock” was the catchphrase of the day, and I recall even then pointing out that gridlock, while frustrating for often preventing the “grand” and “sweeping” changes you were hoping your party could enact, was actually quite good in terms of driving debate into the open, curbing backroom deals, and forcing legislation into a more centrist position – we may argue about what “centrist” is, and how good or bad it might be, but I certainly prefer it to the current system that appears to be a bunch of old men with cigars sitting around a table and dividing things up.

    Might I also point out, as a lifetime Democrat, that I would be extremely leery of any party controlling all 3 branches, Republican or Democrat.

  9. #9 tacitus
    September 18, 2006

    Until politicians start acting in the best interests of the people they represent instead of their own self-interest, then any democratic system–two-party, three-party, or multi-party–is doomed to repeat the same failings as before.

    It’s a classic conundrum. How to prevent the powerful from becoming too enamoured with their own power, and wanting to hold on to it, no matter the cost. I’ve said it before, but I believe that the colossal amount of money sloshing around the election process is one of the major problems (not the only one, of course).

    Aside from the necessity of spending most of their term in office raising funds for the next election instead of concentrating on public policy, the need to solicit mountains of cash from people and companies who expect some form of quid-quo-pro (i.e. legalized bribery) has got to have a debilitating effect on a politician’s desire to do what’s right for their constituents.

    Alas, I see no chance of change in the near future. Those in power are not likely to cut their own throats by imposing meaningful restrictions on the financing of election campaigns, and even if they tried, I suspect they would run into Constitutional issues concerning free speech.

    All we can do is hold our representatives accountable for their actions. But as you can see from what’s happening in Connecticut, it isn’t at all easy to prise the fingers of a intransigent incumbent away from the trappings of his political office.

  10. #10 drb
    September 18, 2006

    I am much less enthusiastic about divided government than many posters. While there may be some value in reaching a compromise in committee if the House and Senate are in opposite hands, the opportunity for the petty tyrannies of the minority party to play havoc with the potential for true legislative accomplishment are so great (in the real, as opposed to idealized, world) that I despair for democracy. Isn’t it interesting that so many other democratic societies elect to pursue a ministerial governing approach, effectively stifling the possibility of a minority exerting undue influence on the ability of the government to pursue its agenda, at least until the next election. They may also have the added “check and balance” of often needing minority partners to form a government, partners that may bolt if the dominant party pusues policies too far outside the spectrum of acceptibility. It seems to mean that the most important factor in maintaining effective governance in our system is not necessarily division of power between the legislative and executive branches, but rather a truly independent judiciary to keep them reined in. And the best way of achieving that is…um…sorry, I’ll have to get back to you. Alas.

  11. #11 Keanus
    September 18, 2006

    In 2004 not only did I change my registration from 45 years as a Republican to Democrat, but I also resolved to cast my votes in 2006 for the Senate and House for Democrats, regardless of who was running. Having the two branches of government under the control of one party has been the worst disaster I’ve witnessed since I began voting. For me Washington gridlock has looked positively enchanting the last two years. Here’s hoping we get it! If we don’t we may well see the third branch go hog wild conservative too and that would be even worse, given that it would likely endure for decades.

  12. #12 Troy Britain
    September 18, 2006

    Why does Bruce Fein hate America so much?

  13. #13 Uber
    September 18, 2006

    I find these posts humurous if for no other reason that I find it refreshing to be among such kindred spirits. I have long argued to my friends that a gridlocked or slowed government is preferable to having one party in control as now.

    I voted for the democrats last election as a registered republican for no other reason than control. Good to know I’m not alone.

  14. #14 Chiefley
    September 19, 2006

    Democracy is the worst form of government….

    Except for all the others.

  15. #15 Prup aka Jim Benton
    September 19, 2006

    Not only are the Republicans fighting Bush, but there are quite a few examples of elected officials switching parties — particularly in Kansas, but elsewhere as well — to avoid being stuck with him. Or for other reasons, my favorite is this story I came across in checking out the Bush/Moonie connection — which includes a prominent Moonie running for the Iowa legislature.

    But in this case, the Republican candidate was so sickened by an attack ad run against his opponent that he immediately declared himself an Independent.

    http://www.gazetteonline.com/2006/09/18/Home/gop.htm

    I wonder how many other Republicans will react against Rovism the same way.

  16. #16 Michael "Sotek" Ralston
    September 20, 2006

    Instant runoff is an incredibly bad voting method.

    Not only does it not help prevent the dominance of a two-party system, it also enables strategic voting (pretty generally considered undesireable) …

    … and it makes it much simpler for a small group of people to cheat!
    The counts cannot be done locally with IRV. With even a moderate number of candidates (7-8, which is hardly unrealistic for the presidency), the number of possible distinct votes easily outstrips the number of votes which will be cast in that district … and there’s no way to summarize. None. Even if everyone in the district votes for the same candidate first … the full details of every vote must be sent to a central office, because that district may be a wild exception.

    Approval voting and/or ranking would be far superior to IRV – both are summarizable, and both are less prone to strategic voting.

  17. #17 John Huizinga
    September 20, 2006

    Is “Approval voting and/or ranking” the same as range voting?
    http://en.wikipedia.org/wiki/Range_voting
    http://math.temple.edu/~wds/homepage/sciamlet.txt

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