The talk this summer about a do-nothing Congress and a lame-duck president masks one of the enduring truths about power and politics in Washington: Legislating isn't everything. While President Clinton and the GOP majority tangle over a thin list of competing bills in the muggy heat of July, each is using some crafty tactics away from the legislative battlefield to test the other's mettle.
For a second-term president dogged by an independent counsel in a midterm election year, the use of executive orders and other directives to bypass a Republican Congress helps Bill Clinton look engaged when the legislative in-box is all but empty. For the GOP Congress, the power to investigate the Clinton administration's policies allows them to thwart, and sometimes intimidate, an executive branch government pursuing policies and politics seen as inimical to Republican interests and conservative ideology.
Washington's paper wars--presidential orders v. congressional oversight--are nothing new. What's noteworthy, however, is the ever-more-sophisticated use of what one Washington hand dubbed "the inside game." In Clinton's case, he's learned over five years how to favor the administration's friends, motivate or rebuke Congress, bypass his own agencies and respond to emergencies--all through presidential decree he insists is grounded in existing law.
Meanwhile, some Republicans, particularly the more ideologically committed House conservatives, have become increasingly aggressive in their use of oversight powers to jam the gears of Clinton's bureaucracy. Some have taken their complaints about the administration to the courts, and others--targeting environmental and land issues in particular--have used their clout to help corporate interests in their battles with the executive branch.
As the 1998 midterm elections near, politicians from both parties have begun grousing more loudly about the tactics of the opposing side. Republicans accuse Clinton of unconstitutional power grabs and threaten to punish him. And the White House and agency officials bemoan the GOP's relentless and time-consuming demands for every recorded trace of executive deliberation on issues ranging from global climate change to spending on the arts.
One result is a notable degeneration in what is, after all, the fundamental business of government: addressing problems. "In some respects, this kind of governing is really suited to campaigning," said Thomas E. Mann, director of governmental studies at the Brookings Institution. "It's a good way for each side to make some headway with the public, but it's the second- or third-best way of dealing substantively with problems."
But the paper wars are about more than merely scoring points and stalemating the enemy. They represent tactical means toward substantive ends; they are expressions of the duel between political philosophies that has defined the dynamic of governance since the Democrats lost the Congress in 1994.
Past as Prologue
Clinton's reliance on his executive authority builds on the practices of his predecessors. While the Constitution says Congress shall write the laws, there are plenty of examples of presidents who have turned leadership into lawmaking. "Clinton is doing what a lot of presidents do in a second term when the legislature doesn't look too inviting," said Louis Fisher, a Congressional Research Service senior specialist on separation of powers. "Nixon did the same thing. There's nothing new about this pattern."
The only checks on presidential legerdemain are court challenges and subsequent legislative intervention by Congress. In most cases, however, the courts have affirmed presidents, leaving it to Congress to apply the brakes through oversight.
Comparisons of the numbers of executive orders issued by presidents are not particularly illuminating, since the vast majority are routine announcements. And executive orders, which have the force of law, are not a president's only means to govern by edict: There are also directives, memorandums, proclamations, signing statements, policy instructions and creative interpretations of statutes through budgeting. A president's power is theoretically limited to the management of the executive branch, and executive orders and other instructions to the departments are supposed to be based on existing authority under law. But presidents frequently test those boundaries.
Abraham Lincoln used a proclamation to free the slaves in 1863. Franklin D. Roosevelt put Japanese-Americans in detention camps by executive order in 1942. Harry S. Truman, during the Korean War in 1952, ordered federal seizure (which the courts later invalidated) of the country's steel mills to end a labor-management dispute.
In 1971, Richard Nixon used a proclamation to levy a 10 percent surcharge on imports as part of his "new economic policy." In 1975, Gerald R. Ford imposed through proclamation a fee on imported oil, and Jimmy Carter did the same in 1980. The courts upheld Nixon and Ford, but overturned Carter. Ronald Reagan got into trouble with Congress over his secret implementation of the Iran-contra policy through oral national security decision directives between 1983 and 1985. Congress rewrote the law in 1991 to ensure better monitoring of covert policies.
Clinton has built upon the foundation of his predecessors. And like them, he has sometimes overreached, more and more so since Republicans reversed 40 years of Democratic rule in 1994 and assumed the majority. One example occurred in 1995. Certain that Republicans would kill any legislative effort to bar employers from replacing striking workers, the president attempted to impose his labor policy on the executive branch through federal contracting. The U.S. Chamber of Commerce successfully challenged the president's executive order in court a year later.
"There's no question that this administration has really seen the executive order as a way to get done what would be very difficult to do otherwise," said Phillip J. Cooper, a professor at the University of Vermont who is studying Clinton's use of executive authority for an upcoming book.
But if Clinton may be accused of a reach that occasionally exceeds his constitutional grasp, the same certainly can be said of his Republican counterparts in their use of Congress's oversight power to "reform" the federal bureaucracy and rein in a Democratic administration.
The practice and rules governing congressional oversight and investigation evolved from court action, not the Constitution, and while lawmakers have wide latitude, the Supreme Court has said they're limited to investigations "in aid of the legislative function." In other words, the Court has said, legislators are not law enforcement or judicial agents and they are not supposed to expose merely for the sake of exposing. Congress's legitimate purview includes alleged corruption, waste, fraud, abuse and bad management within executive departments. But these are pretty broad areas, and a lot of hostile questioning can be made to fit into them.
Most of the major case law that Congress uses as the legitimating force for its inquiries was written in the 1920s as a result of the Teapot Dome kickbacks of the Harding administration. Since then, oversight procedure has evolved from scandal to scandal, with each party learning from, and building on, the tormenting tactics of the other. Republicans say they have consciously imitated the methods of the most aggressive Democratic investigators who preceded them, such as former Energy and Commerce Committee chairman Rep. John D. Dingell of Michigan and former Judiciary chairman Rep. Jack Brooks of Texas. If anything, GOP Members say, they're not as tough and effective as their role models.
"John was good," said Michigan Republican Rep. Peter Hoekstra, chairman of the House Education and the Workforce Oversight and Investigations Subcommittee. "He was good at driving [the Democrats'] agenda, putting the package together, driving the publicity and information, and at the end of the day, the legislation. I think that's not a bad model for creating change and getting things done."
"We're not providing any seminars," replied Dingell, who denied any responsibility for inspiring GOP investigatory zeal, which he denounced as "entirely partisan." Dingell said his colleagues function "ineptly, unfairly, maladroitly and . . . maliciously." In comparison, his own oversight work "skewered" federal programs, agencies and officials regardless of party affiliation, he boasted. "We were quite impartial in who we went after."
Learning Curve
From the GOP Contract With America in 1994 to the reorganization and renaming of congressional committees and the adoption of new House rules with emphasis on oversight, the new majority broadcast its direction from the outset. House Speaker Newt Gingrich, R-Ga., who made a name for himself by burying former Speaker Jim Wright under a book scandal, was predisposed to shine a bright light on the workings of the Clinton administration.
"Republicans will use the subpoena power to investigate the administration," Gingrich promised before the 1994 elections. A GOP oversight memo made Republicans' agitation clear: "Philosophy--the more time employees of the Administration have to respond to legitimate Congressional requests, the less time they have to carry out their agenda... Remember the Democrats know what it's like to be in the majority. They are playing to win and take no prisoners."
"There was a pent-up demand for investigation," said an administration source. "There was a certain resentment that Democrats had controlled all the investigatory tools for so many years."
The Republicans had a general idea about what they wanted to accomplish with oversight, said Hoekstra spokesman Jon Brandt. "We weren't trying to defend the status quo. We're interested in changing the status quo. We want to transform how the federal government operates."
What the GOP congressional leaders hadn't counted on was how little they knew about handling the levers of power. "It became a process of learning to lay the groundwork for the policy work we wanted to do," said Michele Davis, spokeswoman for House Majority Leader Richard K. Armey of Texas. Some chairmen needed tutoring from the leadership about their newfound powers.
But the days of stumbling and tutoring are over. House Republicans say they have learned, through hard experience, that information they want from the administration detailing how policy decisions are hashed out can be found in e-mail and telephone message logs as well as in decision memos. So now they ask for nearly everything.They've also learned that agencies don't mind tucking requested material within reams of other papers as a distracter, and that a quick turnaround of documents by the departments is almost unheard of.
The Republicans have also learned to punish those who do not, in their view, sufficiently comply with requests for information. "When we don't get respect as authorizers, we go after their money. That's really the only thing they respect," added an aide to Rep. David McIntosh, R-Ind., who is the chairman of a House Government Reform and Oversight subcommittee.
Congress most obviously makes news when it uses its oversight and power over the purse to seek information that is embarrassing or legally threatening to the Clinton administration. But the less noticed, more creative employment of its power uses oversight as an end in itself: a means of impeding, or expressing disapproval of, the administration's policy aims.
A good example of the technique may be found in the congressional approach to the global climate change treaty the Administration signed last year in Kyoto, Japan. McIntosh, who was the brains behind President Bush's anti-regulatory Competitiveness Council, frowns on the treaty. So he has submitted more than 100 multipart questions on the subject to 22 federal agencies, departments, offices and institutions. The Government Reform Committee has issued three subpoenas to the White House. He's also trying to bar funding for any Environmental Protection Agency action tied to the treaty.
Meanwhile, on the Senate side, Republicans are using a confirmation hearing for Frank E. Loy, Clinton's nominee to be undersecretary of State for global affairs, to wage war against the treaty. Sen. Chuck Hagel, R-Neb., the head of the Senate's observer delegation to Japan, in May sent the nominee 60 single-spaced pages of questions about climate change policy, along with requests for related documents. That was in addition to the inquiries the Department of State received from McIntosh, a spokesman said.
The Stroke of a Pen
Down Pennsylvania Avenue, the White House went back to the classroom, too. "In '93 and '94, we were very legislatively minded," recalled National Economic Council director Gene B. Sperling. "After we lost Congress, we were just playing defense and fighting for our lives. But by the end of '95, we were learning how to explore the full range of presidential power."
Use of his executive authority helped Clinton regain his traction after the defeat of health care reform and the Democratic rout at the polls in 1994. Administrative action became a part of the president's rapid response when he found himself facing the GOP opposition. Bypassing Congress--and even circumventing the deliberative pace of the agencies--appealed to Clinton's merger of politics, policy and his ceaseless desire to attract media attention.
"Sometimes we use it in reaction to legislative delay or setbacks. Sometimes we do it to lead by example and force the legislative hand," explained senior Clinton adviser Rahm I. Emanuel. "Obviously, you'd rather pass legislation that can do X, but you're willing to make whatever progress you can on an agenda item."
A classic example of the kind of showy executive order move that Clinton favors occurred in 1996, when the president, with a pen stroke, declared almost two million acres of Utah land off-limits to mining. The move thrilled Clinton's environmental supporters and infuriated both his GOP foes and, it seemed, most people in Utah. And it cost Clinton nothing politically; Utah wasn't going to vote for Clinton anyway. Another, more recent, example was on display in February, when the president used his executive prerogative to apply a patients' bill of rights to all federal health plans. The move gave Democrats an easy political gain on a good voting issue, while increasing the pressure on Republicans to pass legislation this year.
Two more examples from 1997: After the sheep Dolly was cloned, Clinton bypassed the agencies to swiftly ban the use of federal funds for human cloning experiments. And when Congress stalled on passing a juvenile crime bill, he issued a directive mandating the use of child safety locks on guns used by all federal law enforcement officers. What did that small measure do to protect children from accidental gunshot deaths? Not much. But Clinton could say, every little bit helps. What did it do to hurt Republicans? Maybe not much also, but here, too, every little bit helps.
"Emergency" response by presidential fiat has taken numerous forms under Clinton. Last Saturday, the President instructed the government to buy up surplus wheat to bolster flagging prices, and then donate the purchases to poor countries--a nice, clean election-year strike at the GOP's rural vote. A more prominent case was the president's 1995 bailout of the Mexican peso using a Treasury emergency fund intended to protect the dollar.
"We learned you've got to kind of control the ball," said a senior White House official. "It's just become part of what we do."
Republicans are unapologetic about their efforts to probe the Clinton administration's expenditures, interpretations of statutes and management."What I think Congress can be criticized for is not doing oversight enough," said Rep. Thomas J. Bliley Jr. of Virginia, chairman of the Commerce Committee. Bliley's latest project is curbing the Federal Communications Commission's implementation of the 1996 telecommunications act, particularly its phone surcharge to pay for wiring schools and libraries to the Internet, which he and members of both parties have faulted as too costly for consumers.
"These bureaucrats operate willy-nilly, and some of them get carried away. . . . If you don't ask for these documents, you can't find out if there was a problem," Bliley explained.
Clinton's freewheeling use of orders, directives and presidential instructions has some in the Republican ranks upset enough to propose appropriations riders to counter what they see as his attempt to evade checks and balances. And Senate Majority Leader Trent Lott of Mississippi has blessed an effort in the leadership's policy shop to catalog all of Clinton's executive orders, as the first step toward reining him in, either legislatively or through the courts, said spokesman John S. Czwartacki.
Ensuring that at least disgruntlement is bipartisan, current and former Clinton officials aren't shy about expressing their impatience with Republican overseers. Former FCC chairman Reed E. Hundt complained, "These tactics have totally changed for the worse the ability of the agency to function independently, and the ability of the agency to do the hard job of giving real, meaningful application to the laws."
Kathleen McGinty, chairwoman of the White House Council on Environmental Quality, echoed the frustrations. "We spend hundreds of hours and produce tens of thousands of documents and expend tens of thousands of taxpayers' dollars--not in protecting the environment, as we're charged to do--but in responding to the witch-hunt crusades from Capitol Hill," she said. "It's a desperate, flailing effort to prove conspiracies, because there is no ability for that gang to get themselves together and offer anything positive to the American people."
Governmentwide statistics about the cumulative weight of Republican scrutiny since 1995 do not exist, so costs and burdens are hard to measure. Each federal office, agency or department is responsible for sending documents to Capitol Hill, and many make it clear they believe they're being stretched to the limit.
"What McIntosh is trying to do is chill the appropriate work of agencies on a difficult issue, greenhouse gases," said EPA administrator Carol Browner. "It has taken us 500 manhours to comply with [his] request, just on that issue. These are fishing expeditions, and they're designed to end in a game of 'gotcha.' "
The CEQ is particularly incensed about the House Resources Committee's opposition to Clinton's 1997 American Heritage Rivers initiative, which, ironically, the White House at first feared did not have enough heft. But committee chairman Don Young of Alaska worries that the ultimate impact of the voluntary plan to christen 10 waterways could amount to a federal land-grab. He held a six-hour oversight hearing and unsuccessfully joined three other lawmakers in trying to sue the president and McGinty to halt the program. A district court judge said the members had no standing. They are appealing, according to the CEQ.
In an entirely predictable fashion, the friction on both sides only encourages the offending behavior by each of them. Clinton becomes more determined to move his agenda by inches, and the GOP presses harder to shut him down. The less Republicans want to legislate and the more they want to investigate, the more urgent the president's desire to force the boundaries of his powers. Washington's inside game is more partisan, less trustworthy and more removed from the sunshine of public scrutiny. It's not exactly what most voters have in mind on Election Day.
"You'd never survive in the private sector the way we do things around here," Hoekstra said. "It's not very pretty."
Staff correspondents Eliza Newlin Carney, Margaret Kriz, Rochelle L. Stanfield and Peter H. Stone and reporter Mark Murray contributed to this story.
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