Thursday, December 20, 2007

Rhetorical Signing Statements in Action

President Bush has issued a couple of rhetorical signing statements this week that are textbook, from the warm congratulations to all and the "group hug" behind the President, who is seated and signing the bill into law.

First up is the "Energy Independence and Security Act of 2007," or H.R. 6. Visually, you have the (mostly) huddled congressperson flanking the president, who is seated and signing the bill at a desk that has a nice sized placard stating: IMPROVING FUEL ECONOMY, REDUCING OIL DEPENDENCY. You have the warm banter:

"I think that's Senator Domenici there is (sic) disguise--(laughter and applause)--looking pretty handsome, isn't he? (Applause)"

The bipartisan congratulations: " I do welcome members of the Cabinet who've joined us. I particularly want to thank the Speaker and the Leader. I appreciate your leadership on this important issue. (Applause.) Speaker Pelosi is here with Congressman Steny Hoyer, House Majority Leader; welcome, Mr. Leader. (Applause.) Leader Reid has brought members of the Senate with him: Senator Inouye, Senator Bingaman, Senator Stevens -- (Senator Domenici)-- I appreciate Congressman Dingell and Congressman Markey, Congressman Gordon -- these are all leaders on their respective committees that help bring this bill to my desk. I also want to welcome all the other members of Congress who have joined us. (Applause.)"

And finally an explanation of the bill's purpose: more reliance on biofuel, reduction in demand for oil by increasing fuel economy standards, the use of energy efficient light bulbs.

All in all, a 10 minute process. And the intended audience? Lots of interest groups and energy corporations who wish to mostly praise the president--press releases designed to echo the president's comments. For instance, the energy company VeraSun, "a leading producer of ethanol" applauds "the work of our leaders in Washington D.C., for their vision in putting our country on a path toward greater energy diversity and sustainability. Or, a release by a think tank, the "Golisano Institute for Sustainability," who offered up its director, Nabil Nasr, who "calls today's signing of the (Act) 'a tremendous step forward.'"

Second, moments after the first, President Bush gets out in front of another group of important looking people to sign HR 4118, the "Prevent Taxation of Payments to Virginia Tech Victims and Families Act." Here again, President Bush is signing the bill at his desk (and what an impressive desk it is) while the assembled guests look on. Next, he congratulates all who helped get this bill to his desk, including both the President of Virginia Tech, the Mayor of Blacksburg, and the Governor of Virginia. President Bush winds up this three minute ceremony with a bit of empathy: "And so I want to say to the families who still suffer, we think about you. And to the students and faculty and alumni and leadership of Virginia Tech, thank you for helping those who suffer reconcile and recover from the grief they feel. So it's my honor to sign this important piece of legislation." This signing statement had a much more general distribution, getting picked up by major newspapers and wire services, as well as the college newspaper at Virginia Tech.

Third, President Bush's signing ceremony for the bill aimed at the home loan mortgage crisis, HR 3648, the "Mortgage Forgiveness Debt Relief Act of 2007." In this ceremony, President Bush has a mixed assemblage of important guests (Male-Female, Black-White, Congress-Cabinet) crowded behind while he signs the bill on a desk with a new placard on the front, HELPING AMERICANS KEEP THEIR HOMES (I wonder how much money is spent each year making these things?). President Bush follows protocol by singling out the important players for his gratitude:

"I thank my Secretary of the Treasury, Hank Paulson; and the Secretary of Housing and Urban Development, Alphonso Jackson, for taking the lead in helping people stay in their homes. I particularly want to thank the Chairman of the Finance Committee, Max Baucus; Senator Debbie Stabenow of Michigan; and Senator George Voinovich of Ohio, for sponsoring this legislation.

I want to thank Jim McCrery of the House, Stephanie Tubbs Jones and Rob Andrews. Appreciate you all being here.

I want to thank the staff who works hard at the Treasury and HUD to make this deal work. Appreciate your hard work."

After this, a preface to why the legislation is needed and all of the actions that the president has done on his own to combat the crisis:

"My administration has taken strong steps to help homeowners avoid foreclosure by making it easier to refinance loans. We gave the Federal Housing Administration greater flexibility to refinance loans for struggling homeowners. We helped assemble a private sector group of lenders, loan servicers, investors, and mortgage counselors called the HOPE NOW Alliance. This group has agreed on a set of industry-wide standards to help those with subprime loans refinance or modify their mortgages, so more families can stay in their homes. "

Next is a list of what this legislation will do to remedy the problem, followed by a backhanded swipe at the Congress:

"The Congress needs to pass legislation permitting state and local governments to issue tax-exempt bonds for refinancing existing home loans. Congress needs to pass legislation strengthening the independent regulator of government sponsored enterprises like Freddie Mac and Fannie Mae, so we can keep them focused on the mission to expand home ownership. Congress needs, as well, to complete work on responsible legislation modernizing the Federal Housing Administration, so that we can give the FHA the necessary flexibility to help hundreds of thousands of additional families qualify for prime-rate financing."

This signing statement was intended for a mixed audience--first, the general population who are aware that this is a big problem, either because it gets covered by the press (local and national, print and broadcast), or because they or someone they know is caught up in the problem itself. Second, there is the targeted audience such as those in the real estate or lending business itself.

Thus far for 2007, President Bush's rhetorical signing statements are nearly even to the total number of rhetorical statements issued in 2006. In 2006, he issued a total of nine rhetorical signing statements, and to date, for 2007, he has issued a total of eight. Where the big difference so far is in the constitutional challenges. In 2006, President Bush issued a total of 24 constitutional signing statements with a total of 243 distinct challenges. In 2007, he has one constitutional signing statement with a total of 11 challenges. Some may argue that there have been so few signing statements of any variety because Congress has not gotten much to his desk, or what it has gotten to him has been insignificant, such as renaming post offices or roads. But that has not been entirely true. Sure, the Congress has gotten its fair share of trivial legislation to his desk, but it has also gotten some substantive items that have been signed without comment, a true break from his past. And part of this reason has to be the switch in control of the Congress coupled with the intense publicity the constitutional challenges received in 2006 and sporadicly in 2007. And of course we have not seen what he plans to do with the massive omnibus spending bill that just crashed through the roof of the White House--something the president has asked his new OMB director (Jim Nussle) "for ideas for what to do" with it.

Senate Testimony

Last October, the Senate eagerly sent an invitation to former OLC-head Jack Goldsmith to testify before the Judiciary Committee--this after Goldsmith's book, The Terror Presidency had been available to the public. The Democrats on the Judiciary Committee thought they had another Bush loyalist bent on sticking it to their former boss. Nothing could have been further from the truth.

The Senate Democrats had only themselves to blame as Goldsmith's book was clear that he had not lost faith in the Bush administration. Thus when Goldsmith didn't criticize the administration, the Democrats were stuck, unable to blast away at Goldsmith after they invited him to testify.

The Senate Judiciary Committee just released the transcript from that October hearing. I encourage you to skip over the accolades and other self-promotion from many of the senators and get right to the questioning.

(Kudos to the Federation of American Scientists for publicizing this--it is clear the Senate Dems wouldn't).

Update

CQ Reporter David Nather has informed me that the article on presidential power 08 is now partially up on the free CQ site. It is under the link, "New Handshake, Same Grip."

Tuesday, December 18, 2007

A Promising Start

David Nather, a staff reporter for Congressional Quarterly, has an article in the December 17 edition of CQ Weekly, which unfortunately is available to subscribers only. Mr. Nather was kind enough to send me a copy because I helped him as a backgrounder when he was trying to conceptualize how the piece would flow. So what he asked me is to come up with a list of questions that should be asked to the candidates about presidential power, including the use of unilateral devices such as the signing statement, that are not likely to get asked by most reporters who are simply interested in the horserace. It was a request that I was only too happy to fulfill since I have given some thought to this very subject in my role as a professor for a course on the Media and Politics, where I have been heard to say that the American public is ill-served by questions of process.

Nather put together a fine, seven page article that has all sorts of useful nuggets for other reporters who are looking for an angle that is unlike what the pack is reporting. This includes a nice inset list of key terms, such as "unitary executive" to "inherent powers." CQ also sent a list of written questions on specific issues relating to the use of presidential power, from the use of prerogative power to signing statements that qualify or negate provisions of law. Of all the major candidates who received this questionnaire, only John Edwards answered all the questions. Thus in place of those questions that went unanswered, the CQ folks simply dived into the candidate backgrounds--looking at how those who were executives behaved, particularly in relation to the legislative branch. Those with no executive experience, they looked into speeches, background reports or "white papers," or legislation that implicated executive power. Also whether the candidate him or herself has evoked secrecy to protect sensitive political or personal information. What they found, which is self evident, is those who have executive experience are those who have been more protective of and aggressive with executive power.

Nather's article then looks at each one of the candidates under scrutiny, balancing where they support the powers of congress to investigate, fund, and oversight with the powers of the presidency. What is missing from this examination are the internal and external forces that push a president towards unilateralism and centralization of power.

Internal

The Institution of the Presidency


One of the more powerful internal pushes towards the greater centralization of power is the institution of the presidency itself. When the new president takes office in January, 2009, he or she will take hold of an institution with thousands of employees who have been there long before he or she arrived, and many of these employees are dedicated to protecting the powers of the presidency. For instance, inside the Department of Justice is the Office of Legal Counsel, who has built up precedent going back decades of advancing the president and his powers over the opposition from Congress, the courts, the public, and so forth. When the president receives a bill on his desk, it will already contain constitutional objections to various provisions of the bill. And the president is going to be told by his advisers to listen to the OLC because you do not want to open a door that weakens power for your presidency, or those who come after. The OLC will also be there when the president wants clearance to do something that others are telling him he cannot do. For instance, back when the "video news release" was a major issue, and the Government Accountability Office--an agent of Congress--told the president that any executive branch agency sending out these VNR's to local television stations were violating federal law against propaganda, and thus should cease and desist. Did the president listen? Heck no, he simply asked the OLC to give him a ruling on it, which it did, in favor of the president's position.

Or, there is the Office of Management and Budget, waiting to crack heads of any executive branch agent who hints at doing it his or her own way. After eight years of a Republican presidency, if a Democrat wins in '08, the new president will turn to OMB to run roughshod over those with Republican sympathies. This will mean empowering sub-entities like the Office of Information and Regulatory Affairs to lean on any bureaucrat who refuses to play ball--even if Congress is giving this bureaucrat its full weight and support.

Reelection

Our new president will also be thinking heavily about 2012, when he or she has to run again. He or she will be thinking about 2012 because the entire political system has already begun thinking about it. Candidates will have already signaled that they are going to run, and our new president will be concerned that he or she can return to the voters with a winning record. While four years may seem like a long time to you or me, it isn't for those in Washington D.C. Our new president made campaign promises that he or she will be judged by in '012. The problem is that no one outside of the presidency is willing to give the president any chance to succeed. There used to be a thing called the "honeymoon," where the new president was given some breathing room at the beginning of his first term to get settled in and to make mistakes without retribution. That is a thing of the past. President's no longer have the luxury of time and space to get settled. They immediately face opposition from all sorts of forces. Thus a president becomes tempted right off to use the executive order rather than Congress to advance his own policy. Think George W. Bush and "faith based initiatives." He saw right away in 2001 that working with the Congress was a dead letter. Thus he issued an executive order creating the "Office of Faith Based Initiatives." When? January 29, ,2001--a mere nine days after he took the oath of office!

Lame Duck

What about the second term as the system begins to look forward to the next president. This is what we refer to as the "Lame Duck" period of the presidency, where a president's political capital is gone, and there is little incentive for anyone to work with him or her because a new person will come in a rewrite what has already been written. For years we assumed that this is when the president's power to do anything was at its lowest. That was mostly true in the days before unilateral action. Now a president will accomplish a great many things--setting aside millions of acres of land or lowering the permissible levels of arsenic in our drinking water--without the worry of anyone resisting him. Because the president needs a positive legacy, and because Congress has no incentive to give him or her one, the temptation to fly solo becomes irresistible.

External


Externally, there is the poisoned political environment that the president will find him or herself in, where compromise is seen as a weakness. The closely divided Congress means that the two parties will be cautious to anything the president hopes to accomplish, with the Republicans (should they remain in the minority) using the close division to obstruct anything the president hopes to accomplish.

And then there is the press. The rise of critical journalism as a lasting effect from Watergate means that reporters heap more negative than positive news upon the president's back. This negative news effects the publics perception of the president. It means that the public are predisposed to believe the president will do ill rather than good. Thus any presidential missive will be seen as a calculated move for personal gain. Attempts to reach compromises with the Congress break down because the press demands to know who wins or loses.

It becomes easier to simply push your agenda inside, where there is not the prying eyes of Congress or the press, which means that more and more things need to be secret.

These forces immediately take hold once the new president has moved his or her stuff into the White House. His or her perception of what is possible changes dramatically once he or she begins governing. Thus while it is great that CQ is taking the time to address the question of presidential unilateralism and expansive presidential power during the campaign, in the end it really does not matter much what the candidate says in response to questions. Those answers simply get tossed out the window when the great internal and external hydraulics begin working on the president. Dealing with those things should be job #1!