Re-energizing the Authority of Congress

Right From the Start

Former Secretary of State and current presidential candidate Hillary Clinton is scheduled to appear before the House Select Committee on Benghazi on October 22, 2015. For those of you expecting anything near the truth to be outed during this hearing, guess again.

The whole structure of the congressional committee hearings is to give the members of Congress an opportunity to bloviate, obfuscate and create campaign sound bites. Nothing is geared toward finding the truth. For example, Subcommittee Chairman Jason Chaffetz, on September 20 – nine days following the Benghazi attack, issued a subpoena to the State Department in general and Ms. Clinton in particular for:

“. . . any written, recorded, or graphic matter of any nature whatsoever, regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records, notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, inter-office and intra-office communications, electronic mail (e-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication…”

Now, three years later that subpoena has yet to be responded to fully by either Ms. Clinton or the State Department primarily because the responses did not include any of the emails on Ms. Clinton’s private server. Even in those rare instances when the Congress gathers its courage and finds a member of the Obama administration in contempt, they send the citation off to the Attorney General who declines to prosecute. Game over for the gutless wonders who lead America’s Congress.

Congress was created as a co-equal with the executive branch and the judicial branch. The Constitution gave the Congress at least four significant tools for checking excesses in the executive branch:

1. Approval of executive appointments
2. Approval of treaties
3. Control over the purse strings through the appropriations process
4. Impeachment of all civil officers of the United States.

If the Congress will not use all of these tools, it diminishes its authority and encourages abuse by the President. If the Congress will not use any of these tools – as is the case currently – it cedes virtually all of its authority to the President. We can all be critical of the recurring abuses by the President but it is Congress’ refusal to act that permits those abuses.

If there is to be a serious examination of either the Benghazi attack or Ms. Clinton’s use of a private email server, the Congress is going to have to do the following:

1. Eliminate the Senate rules requiring a sixty percent closure vote on every measure before it can move onto to debate and voting stage. Please note that I did not say, eliminate the filibuster. If Senate Minority Leader Harry Reid and his members want to block an issue let them mount their filibuster. If the Republicans can mount a sixty vote majority to cut off the filibuster fine. If they cannot, they can also wait until the filibuster has exhausted itself and continue on to vote. The filibuster is a cherished institution but it is seldom actually used. Rather, by invoking the closure rule, nobody is put to the burden of actually performing or sustaining a filibuster. Get rid of the closure rule as used currently.
2. Utilize the contempt of Congress citation more frequently – particularly when Administration officials such as Ms. Clinton withhold information. If the Justice Department refuses to prosecute upon referral, impeach the Attorney General. (Internal Revenue Service executive Lois Lerner should have been impeached the moment she refused to answer questions after having waved her Fifth Amendment rights by making a statement denying any wrong doing.)The Republican majority may not be able to muster the two-thirds vote in the Senate for conviction, but after the second or third time the Administration will get the message and things will start moving. In the long run (and not a very long run at that) the contempt authority will not be required frequently because the officers of the administration will get the message fairly quickly. (As an additional incentive, the current pension system for federal employees should be modified to deny benefits to any person impeached and convicted. Ms. Lerner has comfortably retired with her whole federal employee pension intact.)
3. Refuse to approve any further presidential appointments (major or minor) until the requisite files, correspondence and testimony on Benghazi and Ms. Clinton’s use of a private email account and server are resolved.
4. Utilize the appropriation process to exact cooperation from the Administration. (See below for a more thorough discussion on the use of the appropriations process.) Specific elements of the State Department budget should be isolated from the overall State Department appropriation and held until Ms. Clinton, the State Department and the Administration cooperate in the production of documents.

The Republicans continue to shy away from utilizing the appropriations process for fear of being blamed for a government shutdown. It is all part of their extraordinary weakness in negotiating. The negotiating process is fluid but you do not begin it by giving away all of your leverage. There is no difference between the criticism that Republicans have heaped upon President Barack Obama in his negotiations with Iran and their own negotiations with Mr. Obama over the appropriations process.

Two of the most strident critics of Mr. Obama’s negotiating weakness are Sen. John McCain (R-AZ) and his mini-me Sen. Lindsey Graham (R-SC) and yet they are among the first to announce that they will not allow the government to be shutdown over a variety of issues, including the latest uproar of funding the abortion mill known as Planned Parenthood. Mr. Graham went further during the “losers” segment of the CNN debate by saying since Congress already knows that Mr. Obama will veto legislation cutting off funding for Planned Parenthood why even bother to debate it. (Note to the good people of South Carolina – you need a new senator.)

Let me suggest that there is an effective way to use the appropriation process to extract the cooperation necessary to restore “equality” to the legislative branch of government.

First, understand that the appropriation process, including withholding appropriations, is a strategic and tactical weapon that must be integrated into planning from the start of the process. It has little useful value if it is used in a “knee-jerk” reaction favored by the “bomb throwers” on the right in Congress. To use it effectively you have to do the following:

1. Do not announce that you will not let the government shut down. In doing so you have given the Administration virtual total control over the budget process by utilizing the veto when there is not a veto-proof Congress – which there is not today.
2. Do not engage in broad-spectrum appropriations that result in disrupting appropriations to non-targeted programs if vetoed.
3. Begin the appropriations process early so that you do not run up against deadlines (like the end of the previous appropriations period) and thus force you into a “crises” situation. Begin with the non-controversial agencies and programs and get them out of the way early. In doing so you are able to respond to criticism that you are going to shut down government by rightly pointing to the fact that you have already funded the overwhelming majority of agencies and programs.
4. Segregate the controversial programs from an agency and pass the remainder of the agency budget with a provision that appropriated funds can be used only for the programs authorized. Stop giving agencies discretion to move appropriations between programs without prior approval of the Congress.

At this point Congress has generally funded the government for most of its services and has generally immunized itself from criticism that the Republicans have shut down government. Should Mr. Obama veto any of these areas of appropriations, he should be asked why he is shutting down the government since there is nothing controversial in the appropriation matters previously passed. At that point the identical measures should be re-appropriated and sent back to Mr. Obama for approval. That process should be repeated as many times as necessary to get approval.

5. Now you have the controversial issues isolated and it can be dealt with specifically. For instance, with regard to the funding of Planned Parenthood, the Congress has several choices. It could specifically bar any funding to Planned Parenthood; it could bar any funding to any entity which as part of its services offers abortions; or it could authorize funding of other women’s services only to those entities that have adequate financial and structural safeguards (including allocation of joint and/or common costs) to ensure there is no cross-contamination of funds or services. In doing so the argument over cutting off other health services is removed except for those entities refusing to segregate its services – such as Planned Parenthood. That’s their choice and the public will not long be supportive of their whining once that is made clear. Mr. Obama has made clear in the past that he is aggressively supportive of the progressive agenda requiring taxpayer funded abortions on demand and, therefore is likely to veto any such provision. In doing so he is forced to explain why he is cutting off needed health services to women .in order to maintain the barbaric practices of selling body parts by Planned Parenthood. The appropriations should be repeated as many times as it necessary to gain acceptance.

By planning ahead and integrating the use of withholding elements of the appropriations process surgically, the Congress can reassert itself as an equal branch of government instead of the most despised branch of government.

And just as a reminder to the Republican members of Congress. It is more important to accomplish something than it is to be re-elected. There are more important and satisfying things to do than to be a member of the most reviled institution in the country. In the vernacular, “grow a pair.”