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November|December 2004

United We Fall

By Lincoln Caplan

THE POWER TO INVESTIGATE IS PART OF CONGRESS'S AUTHORITY TO LEGISLATE and, in the age of C-SPAN, members of the House and the Senate sometimes seem to view holding forth at public hearings as their most pressing job. The 108th Congress that is drawing to a close has held hearings on everything from partial birth abortion to harmful algal blooms, from enhancing America's energy security to teaching and learning Tibetan.

Congress normally holds hearings about an administration's central initiatives, as they did famously during Watergate and Iran-Contra. But what has been striking about this Congress is its avoidance of key events like the Abu Ghraib scandal. You would expect that, as soon as the abuses at the prison were uncovered last spring, Congress would have called witnesses to testify about the United States' duties to prisoners under international agreements and why the agreements were violated, about guarding prisoners while gathering information from them, and how the guarding got undermined by the gathering.

Yet Congress conducted only limited public hearings about this watershed until September. Even then, rather than engaging in a full inquiry of its own, the Senate basically just reviewed the cautious reports of the Army and of an independent commission about Abu Ghraib. The ranking Democrats on six committees in the House asked their Republican chairs to hold bipartisan hearings and were rebuffed. The House's top Democratic leaders made a similar request to the Republican Speaker and were snubbed as well.

Instead of exercising their fundamental authority and striving to ensure that those in the executive branch govern well, the House and the Senate have often acted like extensions of the Bush White House. Whether the subject is as obvious and urgent as the Bush Administration's larger conduct of the war or is as obscure and far-reaching as the Administration's agenda of deregulation, Congress has refrained from inquiring about many such controversial developments.

It has not challenged, for example, the Administration's cutbacks in protections for the environment and for worker safety, even though those executive fiats skirt established laws. And it did not examine the Administration's claims that it had the authority as the executive branch to hold individuals connected with the war on terrorism without any process, let alone the bare bones of due process. As the Supreme Court noted last summer, Congress could have played a significant role in exploring the legal status and rights of the groups most affected, whether American citizens suspected of terrorist activity, citizens captured on the battlefield, or enemy combatants.

During the last generation, the government has been divided most of the time, with one party controlling the White House and the other party controlling one or both houses of Congress. While one- or two-party control is rarely a deciding factor when people vote, and it hasn't been in the 2004 races, election and polling results make clear that Americans generally prefer divided government because it yields or appears to yield moderation. Unified control gives rise to the self-interest that the system was designed to constrain. At a moment when the Administration's wartime single-mindedness would have made oversight highly advisable, the significance of the problem is embodied in what Congress didn't do.

James Madison warned about this form of deference when he called for "Proper Checks and Balances Between the Different Departments." Without them, he wrote, one "Domestic Faction" was likely to dominate. In theory, the division of authority between the political branches provides a key check and balance, but how that actually works depends on the makeup of each branch. In its purest application, the system would be inefficient to the point of stalemate, with one branch hamstringing the other. To get around that predicament, political parties arose as soon as the system was enacted, to encourage deal-making between the branches.

But there is a weakness in the party system. From the 2002 elections until now, the Republicans have controlled both houses of Congress as well as the White House and, with a 25-vote majority in the House and a three-vote advantage in the Senate, the problem of dominance has grown on Capitol Hill. Congress's power to investigate also empowers it to set its own rules about what, when, and how it does so. Under the current ones, the Republicans have almost invariably gotten their way. Whether the government is unified or divided, Congress would do a better job of fulfilling its mandate under the Constitution if members from both parties had a serious say about its investigative agenda.

Lincoln Caplan is the editor and president of Legal Affairs.

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