“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”Publius (James Madison) Federalist Paper 51
Speaker Hastert has always been troubled by the issue of separation of powers.
As a relatively junior member he was involved in an effort that seriously trampled on the rights of the executive. Speaker Gingrich had appointed him to work with other members of Congress to develop new policies regarding illegal narcotics. Before methamphetamine factories were springing up at every crossroads in America, there were many who believed that the nation’s drug problems could be solved by pouring billions of dollars into a “war” against Colombian cocaine and poppy growers. Hastert and his group subscribed to that viewpoint.
The group would recommend to Gingrich how much money should be sent to Colombia each year, and Gingrich would in turn direct that that amount be added to the year-end omnibus spending bill. The process was extraordinary in the manner in which it circumvented normal Congressional procedures to protect against waste and ensure accountability. But it was far more extraordinary in the way the billions in U.S. assistance funds were being dispersed in Bogata.
House Foreign Affairs Committee staff, at the direction of the Hastert group, would fly to Colombia, meet with the nation’s anti-narcotics police and negotiate the levels and terms of assistance, the scope of the program and the kinds of equipment that would be needed. Rarely were the U.S. diplomatic personnel in our embassy in Bogata consulted about the “U.S.” position in these negotiations, and in a number of instances they were excluded from or not even made aware of the meetings.
This was not only a gross violation of the separation of powers and a clear infringement on the president’s constitutional prerogatives to execute the laws and to conduct foreign policy, they also represented a clear violation of the Logan Act, a criminal statute forbidding any U.S. citizen from negotiating any issue with a foreign government without proper authority. [1]
Hastert’s insensitivity to the prerogatives of the executive branch was fully matched only a few years later by his equal lack of sensitivity to the prerogatives and constitutional role of the Congress. Unfortunately, by that time he had become speaker of the House and the person most responsible for protecting that role.
The first indication that Speaker Hastert would not be a protector of the House’s constitutional prerogatives came shortly before the inauguration of President Bush in January 2001. The Constitution is very explicit on how completely the branches of government are to be separated. Members of Congress, for instance, are forbidden by the Constitution from being employed or receiving any benefit from the executive branch. There is only one point at which the two branches are brought together, and that is in the service of the vice president as president of the Senate. By virtue of that position he has traditionally maintained office space on the Senate side of the Capitol building.
There is no such provision with respect to the House of Representatives, which is designed by the Constitution to be a purely democratic, separate and autonomous institution. The U.S. House of Representatives is patterned on the British House of Commons, where kings and their representatives have not shown their faces for 350 years since Charles I entered the chambers of that body attempting to arrest certain members and was ordered to leave by the speaker. Since that day, the convening of each parliament is held in the House of Lords so that a representative for the king can be present.
Breaking with 212 years of American history, Hastert offered Vice President Cheney office space in the House of Representatives, space that was only a few steps from the House floor and which had always been occupied by the House’s oldest committee, the Committee on Ways and Means.
Unfortunately, offering office space to the vice president represented more than a breach in the symbolism concerning the powers and autonomy of the House of Representatives. Hastert’s plan was to convert the House into a compliant and subservient role player inside the White House political organization.
The Congressional work week was slashed, oversight of executive initiatives and activities was abandoned and presidential proposals were brought to the floor under rules that prohibited amendment and severely limited debate. In some instances, measures sought by the White House were brought before the body without even being referred to or reviewed by House committees.
Perhaps the ultimate denigration in the role of the House and the rights and powers of its elected members came when a majority of the body had rejected the president’s prescription drug proposal. The speaker refused to accept the verdict and held the vote open for three hours, and in violation of the rules and traditions of the chamber, brought the president’s secretary of Health and Human Services onto the House floor to pressure members to reverse their votes.
Recently, the speaker has taken another action that has also generated a great deal of controversy. He has objected to the incursion of federal law enforcement agents into the House office buildings to seize files of a member of Congress suspected of criminal wrongdoing. Members of his party have expressed dismay with the speaker’s stance because the Congressman in question is a member of the opposition party and provides the speaker’s political allies with some hope of diverting at least a portion of the massive public displeasure currently directed at them.
But in my view, the speaker has finally got it right. While the public is justifiably upset with the almost constant flow of new reports concerning ethical and criminal misconduct in Washington, and in the House of Representatives in particular, the precedents that we set involve the distribution of raw political power within our system and will likely stay with us for decades and perhaps centuries.
The Justice Department should and certainly appears to be aggressively investigating and prosecuting wrongdoers. But that must be done with full respect for the separation of powers. Capitol Hill is under the control of one of the larger police forces in America. It is also completely under the control of the Congress. Agents of the executive branch come to the Capitol complex only as guests of a coequal branch of government. Exceptions to that rule strike at the very heart of who we are as a people and how we have governed ourselves for the past two centuries.
What is puzzling to me is that it seems the Justice Department could not have picked a weaker case on which to argue the need to intrude into the domain of the legislative branch. The evidence that has been made public about the conduct of Representative Jefferson (D-LA) appears to be so powerful on its face as to make whatever pieces of paper that might have been hauled from his office superfluous. It is difficult to believe that he will not receive a full measure of justice regardless of how this Constitutional confrontation is resolved.
But there is much more at stake here than the future of Representative Jefferson. How “coequal” can the Congress be once we have established a precedent that armed agents of the executive branch can wander about the halls of Congress at will? How confident are we that some future president or some future Justice Department would not use this new power for essentially political reasons to settle scores with a Congress or selected members of Congress – whose principle crime is a disagreement with the White House or Justice Department on matters of policy?
Congress and the speaker have been criticized in recent days for standing up for the rights and protections that are unique to them while failing to even investigate executive branch excesses with regard to domestic wire tapping, torture and a lengthy list of other abuses of individual and civil liberties. That criticism is well-founded, and the Congress has been slow to recognize the emerging threat of an overly powerful and intrusive executive branch to our ability to remain a free people. But the first step in protecting all of our freedoms is to ensure that the Congress has the institutional protection necessary to play the very tough role it is sometimes asked to play in our system of checks and balances, saying no to the most powerful government in the world.
As Baron Montesquieu wrote several decades before the American Revolution, “constant experience shows us that every man invested with power is apt to abuse it … it is necessary from the very nature of things that power should be a check to power.” We will not improve the rights or conditions of any man if we make the Congress more vulnerable to the executive than it has already become.
[1] US CODE: Title 18,953. Private correspondence with foreign governments
Scott Lilly is a Senior Fellow at the Center for American Progress