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!
