Contempt for Congress

David Dye, acting assistant secretary of labor, during Monday's mine safety hearing.
David Dye, acting assistant secretary of labor, during Monday's mine safety hearing. (By J. Scott Applewhite -- Associated Press)
By Ruth Marcus
Wednesday, January 25, 2006

If ever there was a perfect illustration of the Bush administration's attitude toward Congress, it came precisely one hour, six minutes and 20 seconds into Monday's Senate Appropriations subcommittee hearing on mine safety.

The administration's two top mine safety officials had finished testifying, but Chairman Arlen Specter (R-Pa.) asked them to stick around for an extra hour in case other questions came up -- as is the panel's custom. Sorry, said David G. Dye, the acting assistant secretary of labor for mine safety and health. He and Ray McKinney, the federal administrator of coal mine safety, had too much real work to do to sit around listening to a group of pesky senators. A rescue team was still in the Sago Mine, Dye said, and a mine fire was burning in Colorado.

"We were happy to prepare for the hearing but we really need to get back," Dye announced. "We've got some really pressing matters."

Specter, a man who doesn't take well to real or perceived slights and who, more to the point, writes the mine agency's budget, dryly noted that the assembled senators also had some "pressing matters" on their plates. "So we don't think we're imposing too much to keep you here for another hour," he said. At which point the administration officials walked out a back door of the hearing room.

And this, in a nutshell, is the way this executive branch treats its supposedly equal partner: as an annoying impediment to the real work of government. It provides information to Congress grudgingly, if at all. It handles letters from lawmakers like junk mail, routinely tossing them aside without responding.

It unabashedly evades the need for Senate confirmation of officials by resorting to recess appointments, even for key government posts; see, for example, the recent recess appointments of the top immigration official, the number two person at the Defense Department and half of the Federal Election Commission.

It thinks of congressional oversight as if it were a trip to the dentist, to be undertaken reluctantly and gotten over with as quickly as possible. Most astonishingly, it reserves the right simply to ignore congressional dictates that it has decided intrude too much on executive branch power. President Bush's thumb-in-the-congressional-eye statement when he signed the bill banning torture of detainees, in which he announced that he would construe the law "in a manner consistent with the constitutional authority of the President," is one recent, and flagrant, example.

Indeed, even as the mine safety officials were walking out on Specter, the administration's swaggering posture toward executive authority was on display from Bush himself. Defending the National Security Agency's warrantless surveillance, Bush told an audience at Kansas State University, "You know, it's amazing, when people say to me, well, he was just breaking the law. If I wanted to break the law, why was I briefing Congress?"

But those briefings were scanty fig leaves that hardly covered the administration's legal responsibilities. As the Congressional Research Service found in a report released last week, the administration appears to have violated the law by limiting its briefings to congressional leaders.

Congress is no innocent, helpless victim in this matter. I've spent enough time listening to lawmakers pontificate at hearings, more intent on grandstanding than eliciting information, that I can sympathize with administration officials eager to follow the Dyes of the world out the hearing room door.

In fact, Congress has been both overintrusive and underintrusive in its dealings with the Bush administration. At times, as with the original multiple, overlapping committee jurisdictions over the Department of Homeland Security, it has demanded too much in the way of administration attention. A micromanaging Congress can be as much a problem as an imperial president.

More often, though, Congress -- and the Republican leadership in particular -- has acquiesced too eagerly in its own emasculation. Norman Ornstein of the American Enterprise Institute has diagnosed a case of "battered Congress syndrome" in which lawmakers, like abused spouses, become so accustomed to the mistreatment that they cannot imagine escaping it.

Tension between Congress and the executive branch is deliberately baked into the constitutional cake; this is both unavoidable and healthy. In legal scholar Edward S. Corwin's phrase, even when it comes to foreign affairs, the Constitution represents an "invitation to struggle" between the two branches. The Bush administration is not the first White House that has rebuffed congressional assertions of authority.

But it has been among the most brazen, and it has been enabled in that stance by a compliant congressional majority that too often seems willing to play subservient handmaiden to an all-powerful executive. Hard as it may be to remember, one-party government doesn't necessarily guarantee a supine Congress; just ask the Clinton administration officials who felt the legislative lash during their first two years in power.

There have been some welcome stirrings of late from Republican lawmakers who may have tired of being walked out on by the executive branch, figuratively and literally. If so, better late than never. Because the only way this kind of behavior will stop is if members of Congress, Republicans as well as Democrats, choose not to take it anymore.

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