Monday, October 06, 2014

George Will's Odd Argument for Congressional Term Limits

Although I understand the sentiment behind term limits, dissatisfaction with career legislators, a "throw the bums out" attitude, and the like, I have not been particularly impressed with the reality that they create. Specifically, rather than having perhaps a few too many career legislators we seem to end up with far too many neophytes, many of whom fully intend to have long political careers by transitioning from one office to another as they're term limited out. It also seems that the point at which many legislators are term limited out of office roughly corresponds to the point at which they finally have enough experience and seniority to actually do their jobs effectively.

George Will wrote an editorial in favor of congressional term limits, based principally upon his personal dislike of Democratic Presidents Congress's failure to assume its role in a decision to take the nation to war. Will tells us,
The president should present to Congress the case for war. The House, structurally the government’s most democratic institution (short terms, small constituencies), should express itself. The Senate, whose powers (to approve treaties and confirm ambassadors) give it special pertinence to foreign policy, and whose structure (six-year terms) is supposed to encourage sober deliberation, should speak. Then the president, through relevant civilian and military officials, executes the approved policy.
Okay, fair enough. But despite being in near-constant military conflicts since WWII, we have not had a declared war since that time. So, what gives?
What has actually transpired since Barack Obama’s Sept. 10 address to the nation has been, Corbin and Parks argue, “a parody” of propriety. In his address about the Islamic State (which did not mention Khorasan, the asserted imminent threat that supposedly justified acting without Congress), Obama spoke to the public, not to the public’s institutional embodiment, Congress, whose support he said would be “welcome,” implying that it is unnecessary. Next, the administration argued with itself about what it was that Obama was going to do without congressional approval. (This was before his press secretary identified it as war.) Then the House tacked onto a spending bill its approval of arming certain Syrians (the “vetted” moderates?) and dispersed. The Senate, having added its approval without discernible deliberation, also skedaddled.
So, pretty much what we have seen in every armed conflict since WWII, except the President happens to be a Democrat?

I've commented before on this particular failure of Congress -- and make no mistake, it is a failure of Congress. The fact is, Congress does not want to have any responsibility for the entry into our outcome of armed conflicts, and thus does its best to wash its hands of the issue. The net effect is that they delegate war-making power to the executive. Will is correct in his inference that only one branch of government can correct the imbalance that this delegation creates -- Congress, the very branch that doesn't want that responsibility.

I can't help but think of Jack Kingston's admission, some months back, in relation to Syria and ISIS:
”A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later,’ ” said Representative Jack Kingston, Republican of Georgia, who supports having an authorization vote. ”It’s an election year. A lot of Democrats don’t know how it would play in their party, and Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.”
For the House of Representatives, every other year is an election year -- but truly, they never go out of election mode. Kingston correctly identifies the strategy of the opposition party -- do everything it can to avoid having any responsibility for military action, and criticize the President no matter what happens. A president's own party, though, doesn't want responsibility either, so the biggest difference is that by avoiding authorizing military action they can avoid taking responsibility for the outcome, but with less finger-pointing at the President.

Will cites a professor from a small Catholic college, who argues that Members of Congress are seeking office "for something other than the power, for power is something with which they are not merely willing but often eager to part." I think that's incorrect. I think that Members of Congress want power without responsibility, and that there remains plenty of power within the halls of Congress but that when they are looking at a context in which they may have to face voters over a bad outcome they are happy to let somebody else make the decision and take the heat. Congress as middle management. While Will seems to endorse the professor's theory, "[Congress] has an ever-higher portion of people who are eager to make increasingly strenuous exertions to hold offices that are decreasingly consequential", I have little sense that the power of Congress has in fact lessened.

The professor believes that long-term politicians who should be "more competent [and] confident" aren't standing up to the President, apparently because "something has gone wrong with Federalist 51’s assumption that members of Congress seek office for power and not perquisites", and that the solution would be term limits:
[']Members of Congress who serve for brief periods will have . . . every political reason for taking up the power available to them while they can. . . . Members so situated will be likelier to defend their branch as a branch.”
Except perhaps those new, less confident, less competent legislators will in fact be more likely to defer to the executive. And perhaps those neophyte legislators, looking at a short term of office, will be more interested in perquisites, more interested in moving onto their next jobs, than they are with legislating or standing up to the White House. What is the incentive for a Member of Congress, being term limited out of office, to take a strong stand? Congress is to soar on the wings of lame duck legislators?
erm limits are Madisonian measures, altering the incentives — the “interests” or “personal motives” — for entering and using public office. Term limits can define a conservative agenda of taming executive power by enhancing the power of Congress.
To me it seems more likely that term limits would weaken Congress in favor of the executive, and potentially make Congress even less functional. But even if I presuppose that Will is correct, I can't help but think of how recently the "conservative agenda" involved expanding executive power through the theory of the unitary executive. As Will himself once put it,
Because contemporary conservatism was born partly in reaction to two liberal presidents -- against FDR's New Deal and LBJ's Great Society -- conservatives, who used to fear concentrations of unchecked power, valued Congress as a bridle on strong chief executives. But, disoriented by their reverence for Reagan and sedated by Republican victories in seven of the past 10 presidential elections, many conservatives have not just become comfortable with the idea of a strong president, they have embraced the theory of the "unitary executive."

This theory, refined during the Reagan administration, is that where the Constitution vests power in the executive, especially power over foreign affairs and war, the president, as chief executive, is rightfully immune to legislative abridgements of his autonomy. Judicial abridgements are another matter. When in 1952 Truman, to forestall a strike, cited his "inherent" presidential powers during wartime to seize the steel mills, the Supreme Court rebuked him. In a letter here that he evidently never sent to Justice William Douglas, Truman said, "I don't see how a Court made up of so-called 'liberals' could do what that Court did to me." Attention, conservatives: Truman correctly identified a grandiose presidency with the theory and practice of liberalism.
You'll notice an inherent inconsistency to Will's thinking -- he argues that Truman, who was not a particularly liberal President, was rebuked by the Supreme court when attempting to seize control of steel mills, rendering the expansive view of executive power relatively inert until it was revived by Reagan and kicked into overdrive by George W. Bush -- and thus it's a liberal theory. Will can call it what he chooses, but to the extent that he believes that modern conservatives eschew the unitary executive in favor of a weak President, it would be because he sees in them a reflection of his own thinking -- that it's absolutely horrible that the President continues to have power when he's a Democrat -- and he can expect their concerns about executive power, like his own, to face the moment a Republican takes office.

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