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March 8, 2008

The Silent Coup Follow Up - The

Role of
Congress and Where To Go From
Here
By Liza Persson

Since I wrote The Silent Coup, about the plan to expand and isolate the power of the
Presidency and the Executive Branch, I have had comments about the complacency
of the Congress. Comments that have rightfully pointed out that the plan to realize
the theory of the “unitary executive” would not have been as successful as it has
been under the current administration’s eight years had there not been Senators and
Representatives of this conviction, using their positions to shape legislation and the
actions of Congress accordingly.
“EXECUTIVE POWER WOULD NOT BE SUCCESSFUL WITHOUT A DEAL
BETWEEN THE POLITICAL ELITE ON BOTH SIDES OF THE AISLE. It was not
a Cheney thing. It was a mutual agreement to 'tighten the knot' between
the Clintonian Dems and GOP hawks. They ARE the new WAR Party.
By Mark Sashine “
“It's good to know what has happened, but how do we undo it when the
democrats and are just as, or seemingly, even more responsible for
handing all this power over to the executive?
August Adams
I agree that there are Senators and Representatives who have and are facilitating the
expansion of the power of the presidency and the Executive Branch, while
correspondingly limiting the oversight and regulation by Congress.
However, I do not believe that it is necessary or likely, that every Senator or
Representative that has signed an act, passively or actively has been part of an
action – or failure to act – or decision that has resulted in yet another territorial gain
for the unitary Executive Branch camp, to have intended this.
In this article I have expanded somewhat on the reasons why there seems to be so
little Congressional challenge of the claims of presidential power. My hope is that by
laying out some the problems and constraints of affecting society through the
political system, people can better see how to maneuver to exercise their
constitutional power over their government.
I conclude with some general suggestions that I hope will inspire thought and action.
Influencing the Individual Congress Member
It is a great fallacy to think that party affiliation, the intentions professed during
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campaigning, or both combined, will be the only things determining how a Senator or
Representative will act when in office.
Unlike the Executive Branch, with the decision-making authority concentrated in one
position, the Congress is a collective that needs to make decisions as one voice.
Just as was the intent of the Founding Fathers, the set up of the Congress has a
moderating effect on individual members. Common ground is often sought because
little can be achieved without extensive and, often bi-partisan, agreement.
Something similar to the statistical law of averages applies, as uncommon views do
not find enough support. Very quickly, initiatives that deviate from the “norm” must
bend towards the middle to have any chance of surviving.
A factor that can enhance a particular initiative’s chances of surviving this
“equalizer,” is public attention and pressure.
One would hope that it is popular support that gets someone elected and reelected,
and many Congress members genuinely want to represent their constituency and the
public accurately. It should be risky not to listen to what people want. That is the
basis of the whole political system of representative democracy.
Congress candidates are not competing for election as individuals. They are typically
also representatives of a party, and that creates another instance where they must
bend their own interests towards a collective norm. For parties to win majority, they
need to appear somewhat cohesive in what they offer voters. Parties typically do not
want to risk loosing voters because of too much internal difference and disparity in
political opinions.
Another factor is the influence of lobby groups and other representatives of group
interests. Because of their ability to offer campaign funding, lucrative deals and
beneficial connections, advocates for interests not representative of the interests of a
Senator’s or Representative’s constituency can gain disproportional influence on the
political decisions of a Congress member.
The Court as a Last Resort
“Only the Supreme Court has limited the executive sweep of power…” Arlen Specter
said at the hearing for the nomination to the post of Deputy Attorney General.
He stated several instances in which the President has blocked the oversight of the
Legislative Branch into the doings of the Executive Branch – even in cases of
suspected criminal activity and the abuse of power.
He could surmise that only the courts have been able to exercise oversight where the
Congress had not been able to.
Only after a threat to take a matter to court, rarely but occasionally by some part of
Congress, or in the face of a court decision had the stalemate been broken.
It might appear then, that Congress should take all matters to court when there is no
response from the Executive Branch. However, there are reasons why this is so rarely
done.
Once something becomes a lawsuit, it tends to drag out across appeals and
proceedings. If a court decision is the only thing that can enforce oversight and
accountability, then there is a risk that while the matter is being dragged through the
judicial process, people and data of importance might disappear or “expire.”
Furthermore, as time passes and other issues arise, political benefits, public interest
and back-up and time to spend on the matter typically all decrease.
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Additionally, even the highest judicial authority – the Supreme Court – is subjected to
some degree of political influence. As a collection of humans, its decisions are
influenced by the ideological beliefs of its members.
As I pointed out in The Silent Coup, both Supreme Court Justices appointed by this
Administration, were criticized at the time of their nomination precisely for past
actions indicating that they had views of constitutional interpretation favorable or
supportive of the theory of the “Unitary Executive.”
Lastly, neither branch wants a matter to end up before a court if they feel uncertain
about what the outcome – after all appeals – will be.
The final decision will set a precedent and become the standard of judging all similar
cases in the future. It can just as well turn out to be a blow to the litigating party, as a
victory. Since legal matters are rarely far from obvious, even if it might seem very
clear to the public, it is often a matter or great risk to take a conflict before the court.
Just how unclear a legal outcome can be, can be seen in Congressional hearings
exploring the legal standing of a certain case the House or Senate is considering to
bring to court. Typically, all sides defend their position by citing parts of the
Constitution or statutes, knowing that the decision of a court will be based on
interpretation of existing laws. After two hours of doing this and challenging each
other’s selection and interpretation of referenced legislature, most cases which
seemed pretty clear at the start seem much less so afterwards.
National Security
“National security” has been an engine of modernization and
transformation for the presidency, but Congress has not seen a
concomitant (simultaneous) evolution of its power. Accordingly,
concerning national security, Congress remains a 20th Century
institution attempting to check the power of a 21st Century presidency.
Over the last several decades, Congress has acquiesced to, or helped
create new institutional structures in the Executive Branch under the
banner of “national security” without assuring that these changes are
subject to effective oversight.”
Witness testimony at Administration Oversight, Waste, Fraud, and Abuse
Hearing
When Congress has pressed for oversight and involvement, the Administration has
been quick to evoke “executive privilege” or refer to “National Security.”
National Security seems to act on the Congress like garlic on a vampire. Especially
during a perceived or declared war or national threat, it has been the pattern of
Congress to yield to the President’s claims with far too little questioning. This is
understandable, as national threats and war require tighter secrecy and speedy
reactions – which would be hampered by Congressional involvement and
deliberation. It is also seen by Senators and Representatives as political jeopardy to
become the target – as typically happens – of accusations from the President’s
supporters of being “soft” or “endangering the nation.”
However, when there has already been cases of abuse, questionable use of the
power and the extent of secrecy allowed the President and the Executive Branch,
then such a passive and trusting approach becomes in and of itself a national
security risk.
When the war is both formally undeclared and fought mainly against an enemy
defined only by the President without any clear end, then it is more total surrender of
Constitutional and statutory duty, than a genuine attempt to protect the nation.
One case where this has become very clear is the matter of federal whistleblowers.
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Whistleblowers are those who “commit the truth” to their detriment and for the
benefit of society. Their sacrifice for society often costs them their careers, skills,
friends, families, wealth and sometimes their sanity.
Because the lack of oversight and insight into the doings of the Executive Branch,
employees are often the only source of information about mistakes, flaws and abuses
that violates laws, rights and national security.
“National Security whistleblowers are at even greater danger and with
less protection than whistleblowers in other settings. At least in the non-
national security setting the federal whistleblower has access to some
process and may resort to publication, the news media, fully consult
counsel, and access evidence relevant to his or her case. Nevertheless,
National Security employees are ensconced in secrecy. They are
hemmed in by security clearances and access, threats of criminal
prosecution, and non-disclosure and pre-publication review
agreements.”
Witness testimony at Administration Oversight, Waste, Fraud, and Abuse
Hearing
While it might seem reasonable that people with access to information regarding
intelligence, defense, national security etc should not be allowed to leak such
information without restrictions, as it now stands, particularly in the realm of National
Security, the Executive Branch has argued that it has exclusive control over classified
information and that its employees may not provide this information to Congress
without approval.
The President has claimed the right to determine how, when, and under what
circumstances certain classified information should be disclosed to members of
Congress even though Congress members have or can receive appropriate security
clearance.
Someone giving information outside the chain of authority within the Executive
Branch, for example by going to a member of Congress, can be punished severely –
both formally and informally.
One argument often advanced in defense of this, is that the chain of authority is the
instance most capable of correcting problems and thus should be the place to go for
employees with information about them.
Nevertheless, this does not resolve the issue in cases in which an employee fears
reprisals, or has reason to doubt that going up the chain of authority will actually lead
to anything. In many cases, whistleblowers have discussed the problems in the
actions of going to precisely the same people he or she would have been forced to go
to.
In 2007, the House passed an act protecting federal whistleblowers and allow them
to go to the appropriate Congress chairs, without facing the risk of reprisals. The
need to gain insight into a branch which has blocked oversight, has engaged in many
cases of suspected abuse and committed severe mistakes was emphasized as the
main reasons. The Whistleblower Protection Act of 2007 was considered not just a
protection of rights for federal employees, but a protection of Congress’ rights—the
right to know the actions of the Executive Branch, to oversee implementation of law,
and to fulfill its constitutional obligations as a separate and co-equal branch of
government.
According to Sourcewatch President George W. Bush, citing National Security
concerns, promised to veto the bill should Congress enact it into law. The Senate
Committee on Homeland Security and Governmental Affairs approved the Senate’s
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version of the Whistleblower Protection Act (S. 274) on June 13 2007. However, it has
yet to reach a vote by Senate as a hold has been placed on the bill by Senator Tom
Coburn (R-OK).
So Now What?
In the face of all this – what good is there to mention the doings and non-doings of
Congress if it seems to be alternately actively or passively, intentionally or
unintentionally, facilitating the “men with the plan” of a unitary executive?
For precisely the same reason I listed in The Silent Coup as making it so dangerous to
expand the power of the Presidency and the Executive Branch, by decreasing the
checks and balances on it by the Legislative Branch: “The Congress is the branch
most sensitive and receptive to the will of the people. Unlike the Executive Branch,
elections are held continuously rather than every fourth year, putting pressure on
Senators and Representatives not to stray to far away from their constituency and
use their constitutional responsibility to guard against abuses of power.”
While the Presidential elections receive far more attention and “bells and whistles,”
the U.S. people would do better not to buy into this cheap trick of “shock and awe” if
they want to use the political venue to decide how power and other resources are
distributed and used in their society.
Senators and Representatives are far more easily influenced by pressure from and/or
problems put forth by, local and state-based movements and people who lack the
money and connections to make any significant impression in the halls of the
President and his entourage.
I do not say that our representatives in Congress come cheap.
With some exceptions, they seem to be either forced by the “rules of the political
game”, or all too willing to become “luxury prostitutes” not selling their votes and
voices in Congress for anything less than amounts and reciprocal favors on a level no
one can offer and still be representative of the general public (the truth is that the
wealth and power of U.S. is not the wealth and power of the American people. The
majority of Americans are no more powerful and wealthy than most other developed
nations, in some cases, less so).
Nevertheless, they are closer to us – both in terms of where they grew up and live as
well as shared social experiences.
I know that should I ever climb up the power ladder of politics, I would always be
biased – whether I wanted to or not - towards people, places and things that affected
me positively. Moreover, few things affect one so much as the places, faces, features
and values of the place where one grew up and called home.
Only if you are aware of what is going on in the Senate and House of
Representatives, can you take appropriate action along with others in your district or
state to put pressure on incumbent and aspiring Senators and Representatives.
In the face of the horrible statistics of voting turn out in U.S., it is hard not to
conclude that democracy in the U.S. is little more than the name of a particular
process of electing a government.
One of the great works claimed as a testimony to the success of the - at the time –
unique and revolutionary political system of democracy set up in the USA, was the
book Democracy in America by Alexis de Tocqueville.
It has been called the most influential study of the United States ever written.
Tocqueville visited USA 1831-1832 and from what he has experienced he wrote about
how “liberty could be channeled by widespread participation in public life to prevent
a potentially volatile tyranny of the majority from spilling over into anarchy or
despotism”.
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By this he was referring to the system of combining the virtues, and balancing the
vices, of what the Founding Fathers saw as the three ideal forms of government:
The power of the many (i.e democracy, through the House of Representative which
represented the will of the people)
The power of the few and – at least as was intended – for the purpose specially skilled
(i.e aristocracy through the Senate which through education and cultivation would be
less susceptible to the whims of a large and diverse population, expected to be too
focused on their individual needs to take into account the greater context)
The power of the one (i.e monarchy through the President, providing the ability of
fast and decisive action).
Tocqueville speculates on the future of democracy in the United States, discussing
possible threats to democracy and possible dangers of democracy. These include his
belief that democracy has a tendency to degenerate into "soft despotism" as well as
the risk of developing a tyranny of the majority.
By the term Soft despotism Tocqueville was describing the state into which a country
overrun by self-interest might degrade. Soft despotism is different from despotism in
the sense that it is not obvious to the people. People typically have the illusion that
they are in a democracy, when in fact they have no influence in the government.
Self-interest was the key force, and Tocqueville regarded it as a natural human trait,
that could topple the great synergy between freedom and rule USA had achieved.
By taking advantage of the ignorance and arrogance of the needs of others that
emerges as pursuit of self-centered interest becomes the main driving force behind
social and political action, a few people could hijack political decisions for their own
interest. As long as they only saw their own individual needs the main majority would
be easy to keep enough satisfied to prevent counter-action. As they had replaced
commitment to the needs of, and identity with, the greater community for
individualism they would neither be capable of taking collective action.
Since Tocqueville wrote his book many forces have sought to separate individuals
from their social commitments and identities. There is therefore now strange
evolution that in a culture which interpret realization and success as individual
pursuits for individual reasons, people tend to regard others as competitors rather
than co-partners in a joint venture.
Social and political change on any scale except the local and of any duration except
the most immediate, is perhaps the truest form of such a joint venture.
Nevertheless, I still believe that the people in U.S. can begin to make use of the
power they still have – not when acting as individuals, but when acting collectively by
aligning with others sharing the same social and political interests. The rule of the
people granted through democracy necessitates and assumes collective action by
people having the capacity to:
1. Realize that many individual needs and problems are shared by
others
2. Join together for collective political strength and larger gains,
instead of competing and fighting with each other for much smaller
individual advancements.
It is as great a balance and combination of the best in mankind as ever the political
system set up by the Founding Fathers, to act individually as one component of a
collective. But it is more true a reflection of reality than pure individualism. We are all
both individual and social beings, and our actions and thought arise in the dialectic
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relationship between the self and others. Only when we can see the needs and
conditions of the society and the others with which we constitute it as one with our
own needs, can we act individually for the good of a greater whole.
Although that “greater whole” was much smaller for the average American in the
days of Tocqueville – most people in America did not know much or felt much
connected to the world outside their town and perhaps their state – I still believe the
evolution in technology and education can close the distances in space enough to
recreate that delicate and wonderful balance that made America such a unique – and
yes, collective – accomplishment.
However, I also observe that people in U.S. will have a hard time closing the mental
and emotional distance keeping people separated, and break through the walls of
fear and competitiveness that keep them from acting on the needs of the society and
the nation, rather than their own individual needs.

Authors Bio: I am a Political and Behavioral Scientist with Psychology as my main

subject and people as my main interest. As thoughts are the source of all human
accomplishment I hope to be part of the exchange of them Also see:
http://wildwickedwonderfulupfront.blogspot.com/