The Hollow Order
Rebuilding an International System That Works
Congress has asserted its authority in foreign policy over the last dozen years. Is this phenomenon temporary or permanent? Good or bad? Workable or not? The thesis here is that active congressional participation is both desirable and unavoidable, and that the executive and Congress share responsibility for making it constructive rather than otherwise. To the degree that this joint effort fails, so does our democracy.
The 1964 Gulf of Tonkin Resolution may have marked the apogee of executive authority in foreign affairs in our time. Adopted in 48 hours almost without a challenge on the basis of inadequate information from the White House, it had the practical effect of a declaration of war. By 1966, however, the Senate Foreign Relations Committee had begun hearings to probe America's role in the Vietnam War. Public reaction to the war, diffuse and chaotic at first, found an institutional expression through the Congress and thereby accelerated Congress' resurgence. Although the Tonkin Gulf Resolution was repealed in 1971, it took until 1973 for Congress to mandate American disengagement in Vietnam. That same year Congress adopted the War Powers Resolution over a Nixon veto. The War Powers Resolution gave formal affirmation to Congress' growing sense of its own responsibilities in foreign affairs. In 1974 Congress embargoed U.S. arms shipments to Turkey in the name of the law. In 1975, Congress vetoed the executive's covert intervention in Angola. In 1975 and 1976 an investigation of U.S. foreign intelligence activities generated continuing efforts to ensure congressional oversight of the CIA.
The pace and intensity of these developments was heightened by concurrent forces - partisanship, with a Democratic Congress increasingly anxious to pin responsibility for the Vietnam debacle on a Republican White House; the Watergate break-in, the Saturday Night Massacre and related events; an era in which U.S. foreign policy seemed frequently to be made in secrecy and executed by surprise.
Anyone who thought a change of Administration and party in the White House in 1976 would restore the status quo ante has been disappointed. The experience of the Carter Administration suggests that partisanship does not bind the majority in Congress to the White House as much as the separation of powers separates them.
The staying power of Congress' reaction is hard to estimate. It will depend partly upon the evolution of post-Watergate public attitudes, which may fundamentally affect the viability and cohesion of American democracy. Within the Congress itself, however, this reaction has prompted important institutional changes that will tend to perpetuate congressional influence even after memories of the Vietnam-Watergate years have faded.
The War Powers Resolution, although it remains untested because Congress has never voted to stop a military action initiated by the President, nonetheless serves as a procedural guide which the executive must take into account in weighing any military option. A range of other procedural innovations has permitted (or perhaps forced) Congress to address foreign policy matters. There are reporting requirements that cause the executive to keep Congress informed on issues ranging from nuclear fuel exports to human rights. Congress has enacted measures such as Section 36(b) of the Foreign Military Sales Act, which permits both houses of Congress to disapprove any military equipment sale over seven million dollars. It is this provision that has made Congress a major participant in decisions to sell Hawk missiles to Jordan, AWACS aircraft to Iran, and F-15s to Saudi Arabia.
The congressional budget process, established in 1974, has given Congress both the analytical tools and the self-discipline to make decisions quite independently of the executive in economic and fiscal policy matters. The budget process itself has already begun to have an important impact on foreign policy to the extent that it affects the success of U.S. economic policy, the size of the defense budget and U.S. foreign assistance.
The committees on intelligence established in 1976 give each house a watchdog assigned to the area of foreign activity heretofore most jealously protected as an executive prerogative. They also give Congress regular access to highly sensitive intelligence information.
Congress has increased the size of members' staffs, devoting more manpower to foreign policy and military matters. Because members can be more confident of the advice and information they receive, they often pursue their own foreign policy concerns rather than acquiesce in congressional or executive branch leadership.
Another legacy of Vietnam-Watergate that tends to keep Congress engaged in foreign policy is government "in the sunshine," a concept the Carter Administration embraces. As the process of policymaking in general becomes more public, members of Congress are forced to address issues which, if treated in traditional diplomatic secrecy, might have been ignored.
An important procedural and institutional item remains on the active agenda in congressional-executive relations. The Carter Administration continues a long-standing executive branch tradition in challenging the constitutionality of legislative vetoes on grounds that they give Congress the right unilaterally to reverse decisions made pursuant to law, and therefore circumvent the President's constitutional role in the legislative process.1 The Administration has said that it means nevertheless to comply with the terms of Section 36(b) and with the War Powers Resolution. The legislative veto question will probably be decided in the courts.
How long will Congress' new engagement in foreign policy last? Reaction fades, budget and intelligence committees may grow stale, staffs move on, and one might expect the sheer messiness of most foreign policy issues to dampen Congress' zeal for addressing them. The pendulum of power, it is said, swings back and forth along Pennsylvania Avenue as events elevate the authority of the presidency or of the Congress. After another dozen years, will foreign policy once again be back in the hands of the diplomats and generals? I think not, for there are forces at work that go beyond the reaction to Vietnam and Watergate, and beyond the procedural and institutional changes Congress has made.
We are in the midst of a fundamental change in the foreign policy agenda which seems certain to keep Congress permanently in foreign affairs. The intricate diplomacy of traditional political relations among nation-states has been something most Americans and their elected representatives could choose to ignore. The same is not true of the contemporary global issues that are rapidly becoming the primary substance of American foreign policy. Issues like economic recovery, nuclear safety, environmental protection, and product safety, once domestic issues exclusively, now have international repercussions and international constituencies. Trade has been such an issue for decades and now has a rapidly increasing impact. When Americans work or not, depending on the condition of the OECD economies, when U.S. farm prices depend on sales to the Soviet Union and China, and when U.S. fuel prices are set in places like Riyadh, no member of Congress can ignore foreign policy decisions and expect to be reelected. He cannot say: "That's up to the President and Congress can't do anything about it."
These "intermestic" issues, as Bayless Manning has called them, are not all ones that Congress would embrace, given any choice. They are complicated, frustrating reminders of America's changed role in the world. As Manning put it:
We are no longer Gulliver in the world of Lilliputian states. As to the items on tomorrow's international agenda, the United States cannot obtain what it will by simply expressing that will. As other nations must, the United States today has to negotiate for what it gets on many issues. In negotiations, one must often make difficult trade-offs, settle for half a loaf, or even make do with damage limitation. The American people have not been conditioned by history to that kind of foreign policy.2
Not only will Congress have to address international issues because of constituent pressure to do so, but Presidents will need the support and participation of Congress for their own political protection and to help cushion the political shock these issues portend. Presidents and Congresses of the future will find themselves thrust together in a tar-baby embrace on the central international issues of their times, each unable to abdicate its responsibilities to the other, each compelled to justify itself to an impatient public, and each constrained to seek the other's support. Each will need all the legitimacy the other can convey. Every excursion into buck passing and one-upmanship will in some measure hurt both, and hurt the country as well.
So it is not only reaction to past events but the pull of present and future needs that will keep Congress in the business of helping to make American foreign policy. This can be good for several reasons. First, a public scrubbing of options is likely to give us better policy. Many of the new global issues are technically and diplomatically complex, which means that they can quickly become the special preserve of experts. Policy subjected to the diversity of insights and political experience Congress represents is more likely to reflect the real interests of the United States, and also more likely to work in the real world.
The second benefit is that congressional attention to international issues offers some hope of developing a public consensus which will support a positive American role in the world. Not only are policies scrutinized by Congress more likely to reflect the public will, but members of Congress, once engaged in the policymaking process, should be better able to teach and lead their constituencies through the intricacies of international issues in a world where the United States is neither chief policeman nor economic czar. This is not to say that we can expect the rebirth of a simple cold war type of consensus. What we can hope and work for is a consensus in which Americans, faced with a fluid and confusing international scene, are sufficiently confident of their governmental institutions and their own personal futures to be able to accept the adjustment being thrust upon them.
Finally, if Congress really does contribute actively to policy formulation and if it really does help educate the public, the result should be greater stability and predictability in American foreign policy - a benefit not only to us but to the world. Our allies should find us more predictable, and our opponents will find us stronger.
Can Congress make a coherent contribution in foreign policy? The skeptics will say Congress is already hopelessly anarchic and getting worse; it is overloaded with its domestic agenda alone; vast political and institutional changes are long overdue. By next January, half of the House of Representatives will have served only since 1975; and Congress has not learned to organize its affairs without the discipline of seniority. Congressional leadership lacks the clout it had when there were goodies in the pork barrel to be parceled out. Faced with an increasing number of decisions, Congress nevertheless seems to be delegating less to its committees and indulging more and more in extended floor fights. Some members of Congress (the skeptic continues) are so parochial and so ill-informed about international issues that people abroad can only be confused or insulted by any foreign policy debate that does occur.
This is a caricature, and one wishes a quick institutional face-lift could erase it overnight. It cannot. Congress will meet its institutional challenges only through a slow evolution, only if the imperatives of politics and national interest force it forward, and only if there are skillful midwives at both ends of Pennsylvania Avenue to help its progress.
The central theme of this effort should be a very simple one - to work toward an orderly decision-making process in which both Congress and the executive contribute according to their distinct capacities.
One obvious requirement for orderly decision-making is good information. On traditional domestic issues Congress has a limitless menu of information sources - constituents, lobbyists, the professional expertise its members bring from private life, and its own support institutions such as the Congressional Budget Office, the Office of Technology Assessment, the Library of Congress and the General Accounting Office. The information on the basis of which Congress must decide international questions, while it increases as the domestic component of these questions increases, still comes largely from the executive branch. Congress cannot have its own embassies or the CIA collecting information abroad. Frequently it must depend on the best estimates of the executive branch about how foreign governments will react to a certain decision. The executive branch, therefore, has a special obligation to provide Congress with the best, most objective information available, and to distinguish clearly between facts and advocacy in what it sends to the Hill.
Next, Congress must be brought into the decision-making process as early as possible. "Consultation" is the sacred principle of congressional relations. Too often it has been something the executive branch does out of politeness to committee chairmen and to avoid startled reactions to important announcements. Members of Congress complain that consultation often occurs too late to do any good. In any case, the value of consultation with a few leaders on Capitol Hill is declining as more members become interested in international issues.
The remedy Congress usually demands (and Assistant Secretaries of State for Congressional Relations earnestly promise) is earlier consultation with more members - a worthwhile objective which the Carter Administration has pursued. But last-minute consultation is often an unavoidable fact of life. It occurs not because the executive branch wants to present Congress with a fait accompli, but simply because executive branch decision-making often has to be done at the last minute under the pressure of events. Sometimes there is a crisis; sometimes important and difficult decisions are simply postponed so that as much information as possible can be accumulated before the United States commits itself to a course of action. Congress has tried to get hold of some types of decisions by insisting on several weeks' notification before decisions are put into effect or by creating the possibility of a legislative veto. In neither case, however, does Congress have effective participation in the decision-making process because the foreign policy cost of derailing a decision so far advanced leaves little choice but acquiescence.
On many specific and important decisions, the option of bringing Congress in significantly earlier probably does not exist. But most major decisions take place in an atmosphere of long-standing prior assumptions about how the world works, about the direction in which America wants to move, and about the political alignments bearing on a given issue. Congress has to cut itself in on the formation of these assumptions in a much more pointed and coherent way. Through its committees, Congress should spend most of its time establishing - and causing the executive branch to address - some basic assumptions, e.g., about U.S. objectives in China, Europe, human rights, international economic recovery, or international economic integration, and spend less time playing catch-up ball on specific decisions it can seldom, in practice, constructively affect. This is not to denigrate the oversight function. In addition to holding the pursestrings, Congress needs a follow-up mechanism to assure itself that the executive is meeting its obligations and executing policy more or less as intended. It does, however, mean difficult, thoughtful, regular, low-publicity scrutiny of this nation's basic foreign policy assumptions - a process which would benefit the executive branch, help educate the public, and substantially enhance the coherence of specific decisions.
This discussion requires an admonition about secrecy. President Carter has taken up the struggle against excessive classification in the executive branch. The Freedom of Information Act gives both Congress and the public a way to free information and to get away from unnecessary secrecy. Nonetheless, in diplomatic and military matters there is a continuing need to protect some kinds of information; and the fact remains that some people in both the executive branch and Congress from time to time find it desirable to exploit sensitive information rather than protect it. The result, invariably, is mistrust on all sides and a tendency to limit the number in the know. Nothing will more surely scuttle a policy of freer information flow, early consultation and thorough public debate than misuse of truly sensitive information at either end of Pennsylvania Avenue.
Orderly decision-making requires a more rational division of labor and clearer definition of responsibilities. Congress cannot manage, it is not designed to manage, and should not try to manage. Every hour it spends micro-managing the execution of some minute foreign policy issue is an hour lost to policymaking. Once policy has been set, through effective executive-congressional interaction at a reasonable level of detail, the Congress should welcome the opportunity to hand day-to-day management over to the executive. President Carter has expressed concern about "legislative constraints," affecting foreign assistance in particular, which impair the executive's ability to function in foreign policy. The most troublesome of these are a patchwork of inconsistent and overlapping country-by-country restrictions on kinds of assistance which can be given. For example, foreign military sales credits are prohibited for Uruguay, Brazil, El Salvador, and Guatemala; Uruguay is inexplicably singled out for an additional prohibition of funds for military training. Angola and Mozambique may receive no direct economic assistance unless the President waives this prohibition. Ethiopia can receive economic assistance but no military assistance, and so forth. The list of such prohibitions is extensive. Some provide for presidential waivers in cases of overriding U.S. interests; others do not. Each is a legal stumbling block which may prevent the United States from responding to changed circumstances in a way consistent with our national interests. Each represents a standing insult to another nation, deserved or otherwise. Worse, each one is the legacy of time wasted debating the tail rather than the dog.
The Administration is now studying the whole array of constraints, and intends to propose changes to the Congress later this year. The proposal will not be to shift power from Congress to the executive, but rather to streamline and simplify an array of provisions so as to permit both Congress and the executive to function efficiently in international matters.
Congress must look to its internal processes if it is to deal effectively with its international agenda. The more "intermestic" issues it faces, the less traditional committee jurisdictions will apply. Congress regularly deals successfully with multi-jurisdictional issues using sequential referral and occasionally ad hoc committees. These mechanisms can continue to work, provided only that committees accustomed to dealing with purely domestic affairs recognize and give full weight to the international implications of their recommendations. It might be desirable for the existing foreign relations committees to move beyond their traditional function as overseers of U.S. political and diplomatic relations, and to begin serving as coordinators to ensure that the international dimensions of issues handled primarily by other committees are fully taken into account.
Lopsided constituent pressures on international issues will present an increasingly difficult political challenge which Congress and the executive must solve jointly. When interests collide over domestic issues, Congress usually produces a compromise result, which a charitable Jeffersonian can accept as being in the national interest. When points of view collide on foreign policy, the results are similar. When the issue is both international and domestic, however, our political ecology may be thrown out of whack by the predominant force of domestic constituencies. If these interests cover a broad enough spectrum - consumers seeking lower prices can balance producers seeking protection - the outcome may be acceptable in foreign policy terms. The burgeoning single-interest organizations in American politics and the likely further development of single-interest "caucuses" like the Steel Caucus on Capitol Hill, make it all the more likely, however, that limited but intensely powerful domestic interests will win out in the battle to define U.S. international interests.3
One responsibility of the executive branch is to ensure that the overall U.S. national interest is forcefully enough expressed to equalize the political equation when international issues are decided. In matters of foreign aid and foreign trade, this has traditionally been the job of Presidents, supported by a few hardy internationalists on Capitol Hill. As the number of international-domestic issues increases, the executive branch will simply have to work harder to explain and dramatize U.S. international interests. Both branches will have to cooperate in creating a public climate for informed debate. The trade negotiations now being concluded will give both Congress and the executive an excellent opportunity to retest the political assumptions and institutional arrangements with which we now handle trade, our oldest "intermestic" issue.
Finally, both Congress and the executive must begin to bring more foresight into their joint decision-making process. In this land of plenty, we have neither developed the political institutions nor yet shown the political will to cope well with future needs. One does not bother to plan for alternative energy sources when cheap fuel is plentiful. One does not worry about pollution until clean air and clean water start to run out. One does not accept the complications of interdependence with other nations until one's own vulnerability leaves no choice. But now the political and institutional challenge of coping with international issues is part and parcel of a broader need for future planning. Our own institutions are not as well suited to this challenge as those of other nations, democratic and otherwise, which have known scarcity much longer and more seriously than we. Unless we can sustain both domestic and foreign policies which anticipate tomorrow's needs, we will not only be outclassed or outmoded by our competitors, but may very well drag them down with us because of the sheer size of our economy.
Active congressional participation in foreign affairs is obviously consistent with the tenets of representative democracy. It is only consistent, however, with a certain kind of foreign policy, and to this extent implies accepting real limitations on the kinds of things the United States tries to do in the world. Congressional participation makes a decision to commit U.S. troops abroad less likely. It inhibits extralegal and covert activities. It makes bold departures less feasible. It implies that the pace at which America adjusts to new global realities will not be much faster than the public consensus can move. But having abandoned the notion that we can manage our foreign affairs successfully through sheer power, and having rejected isolationism, one essential goal of American foreign policy today must be to help the American people adjust to the realities of global citizenship. For this we need Congress to refine, to legitimate and to help sell effective international policies.
There is no question but that the Congress is staggering under the weight of new responsibilities. Improvement will not come automatically through some unforeseen processes of history, and it will not come quickly in any case. It will come only if there are enough people of vision - enough leaders who understand both the limitations and the potential of Congress and who understand the agenda ahead of us - to establish standards of performance to which the rest can repair. This leadership must come equally from the legislative and executive branches and it must be bipartisan, not only because the stakes are so high but because partisanship is as unlikely today as ever before to produce any satisfactory answers to international questions.
I am convinced that Congress can meet the complicated challenge of today's international agenda. If it does not, we will be unable to excuse ourselves by saying the institution failed us, for the truth will be the reverse.
1 A "legislative veto" gives the whole Congress, a single house or sometimes even a single committee, the option of blocking an executive branch action under existing law, usually within 30 or 60 days of announcement. The number of these legislative veto provisions has increased sharply in the last few years. The objection to them is that they infringe on the President's constitutional authority to execute the laws.
2 Bayless Manning, "The Congress, the Executive and Intermestic Affairs: Three Proposals," Foreign Affairs, January 1977, p. 308.
3 One consequence of the fact that Congress' decisions have greater and greater impact on other countries is an increasing number of foreign interests lobbying on Capitol Hill. This is not an entirely attractive development, but probably inevitable. These pressures may help rectify the imbalance between U.S. domestic and international issues; but management of them will represent a further new dimension in congressional politics.