Steady the privilege pendulum
WASHINGTON — President Bush and Vice President Cheney are out to restore what they see as the weakened power of the presidency compared with what it was, say, in the days of Franklin Roosevelt.
Their tactic is to deny Congress information, as well as meaningful participation in the policymaking process. The president goes further. He has arrogated to himself the power to decide which presidential papers not only of his own but also of his predecessors' administrations may be opened to historians regardless of time lapses. One of those predecessors was his father, who made a crucially incorrect decision to stop the Persian Gulf War prematurely, thereby enabling Saddam Hussein to stay in power. As vice president, the elder Bush also denied any knowledge of Iran-Contra shenanigans even while sitting on the National Security Council, which was supposed to be supervising them. His papers might shed light on these matters, but not if his own son can keep the papers secret.
With respect to policymaking, the fundamental problem is a long-standing institutional difference about the respective roles of the two branches, and it manifests itself in semantics. When a president says he consults Congress, he means he informs it. Congress thinks it is entitled to more.
The presidential approach, no matter who holds the office, is to hash out a policy in the privacy of the White House. Only after the president has decided what he wants the policy to be, is it presented to Congress. The process of informing (the president would say consulting) Congress then becomes the process of persuading Congress. Congress wants to be in on the process at a stage before the result is fixed in concrete.
Or at least Congress says that is what it wants. With respect to especially tough issues, Congress is sometimes kidding. The Panama Canal is a good example. The State Department repeatedly tried to get members of the Senate Foreign Relations Committee to discuss the canal treaty while it was being negotiated. Senators avoided this, because they did not want to be identified with the result.
An important presidential weapon is the doctrine of executive privilege, which President Bush has put into full play with respect to energy policy. The General Accounting Office, Congress's investigative arm, is suing the vice president for certain records of a task force on energy that Mr. Cheney headed early in the Bush administration. Cheney, supported by Bush, has claimed that the confidentiality of the records is protected by executive privilege.
The GAO suit could ensure that the issue will be resolved in the courts; but in the meantime, the Energy Department has furnished Congress large numbers of documents on the subject. This could lead to an out-of-court settlement of the GAO suit, a kind of temporizing both parties might secretly prefer.
The White House is also using executive privilege to resist congressional demands for testimony from homeland security adviser Tom Ridge. It has been suggested that Mr. Ridge's job be made subject to Senate confirmation. This would ensure his appearance on Capitol Hill, but not the informative value of his testimony.
No serious participant in, or observer of, the policymaking process denies that executive privilege exists. A president is entitled to confidentiality in conversations with his advisers. So, for that matter, is a member of Congress, a secretary of State, or other cabinet officer. Sometimes a president has tried to expand the doctrine to include materials only remotely relevant to his own actions. With some reason, Congress thinks that much of this is to cover up wrongdoing or embarrassments.
The pendulum of power in the government swings back and forth between Congress and the president. As a consequence of the Vietnam War and Watergate, it swung far toward the Congress. In the past 30 years, it has swung at least part way back. Where it goes from this point is still in play. But the president and vice president would be well advised to remember the basic power of Congress to appropriate, or not appropriate, the money without which the government cannot function. If Congress is fully determined, and presses matters to a showdown, Congress will win.
Historically, most of the information the executive branch tries to withhold becomes known sooner or later in one way or another. Viewed as a practical matter of politics or public relations and quite apart from legal niceties, a president or cabinet officer is better off if the information is disclosed early and graciously rather than late and grudgingly.
Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.