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Foreign Policy and the Democratic Process: Making the Separation of Powers Work

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The United States is faced with a critical problem today. How can Congress and the President work together most effectively to formulate and implement a foreign policy that is attuned to our national interests, consistent in all its facets, well understood at home and respected abroad?

Three decades ago, President Harry Truman could boast that he alone was the overriding force in American foreign affairs. A mere 15 years ago Secretary of State Dean Rusk could express the same categorical point of view in five simple words: The President makes foreign policy. For nearly 20 years, from 1950 to the mid-1960s, there was a national consensus on the main lines of foreign policy associated with the cold war; with strong executive leadership there developed a mystique of the President and State Department being absolutely in control, and of Congress, with rare exceptions, going along.

The national trauma over Vietnam ended this phase, both in terms of the consensus (and overriding emphasis on security issues that went with it) and in terms of congressional or popular willingness to accept executive leadership as had been done in the 1950-68 period. Over the past decade, and especially since 1974, Congress has assumed an ever greater role in security matters, and simultaneously the newly central importance of economic issues - always a congressional major responsibility - has thrust Congress more to the fore. Slowly and painfully at first, but later quickly and with much less effort, Congress has asserted the full range of its authority, and its members have developed both the concern and professional capability to participate in a new range of foreign policy decisions. And initial successes in the drive to reassert neglected powers have prompted Congress to involve itself even more deeply in the actual execution of policy.

So today Congress, beyond question, is playing a greatly enlarged role in foreign policy. When President Carter went to the Bonn economic summit in July 1978, his power to commit his country was in large measure a prediction of how Congress will eventually legislate on energy policy. On key security issues, the Israelis and now the Arabs, the Greeks and now the Turks, the Organization of African Unity and now Bishop Muzorewa, take their cases direct to the Hill, sensing that there is where the action is. And we have seen the unprecedented spectacle of criminal charges of corruption against individual Congressmen, deriving from their involvement not only in policy decisions on aid to South Korea, but in administrative decisions concerning the sale of rice to that country.

Some of this is new only in degree; much of it, we shall argue, has in fact been both inevitable and constructive. But there are serious problems, and they are recognized on the Hill as well as elsewhere. Congressional attempts to attach policy conditions to its authorizations and appropriations, and its attempts, through the so-called legislative veto, to control how policy is carried out in practice, have led to growing concern in some quarters about the steadiness of overall American foreign policy. It is unquestionably more democratic and responsive than it was a decade ago - but it may on occasion be inconsistent and confusing to friend and foe alike.

It is easier to explain the development and nature of executive-legislative conflict in foreign policy than it is to offer solutions or remedial action. Nonetheless, there is broad agreement that executive-congressional relations and conflict can be managed better and that improvements in management are essential for an effective and coherent American foreign policy.

II

The new assertiveness and activism of Congress has stemmed from many factors. But to any member whose service goes back to 1965, there is no question that Vietnam was the single most important event in the transformation. Most members, reacting to their constituents' complaints about the war, became concerned that during the war period the United States had moved too far and too fast in concentrating war-making and other powers in the hands of one man. For Congress, a strong and independent foreign policy role was the best hope to prevent one-man decisions on crucial issues of war and peace. Unrestricted presidential power in foreign policy-making came to be viewed as neither necessary, desirable nor tolerable in a free society.

Although it failed until 1973 to intervene decisively to end American participation in the Indochina War itself, Congress began in the early 1970s to flex its muscles on the antiballistic missile and supersonic transport issues, discovering in both cases that official experts could be convincingly challenged, that even on technical issues the executive was less than omniscient. More directly to the Vietnam point, the War Powers Resolution of 1973, passed over President Nixon's veto, imposed substantial procedural restraints on the unilateral power of the President to commit U.S. armed forces abroad, compelling him to seek affirmative congressional authority within 60 days of any such action.

Yet in 1972-73, the executive was able to undertake several key foreign policy initiatives without paying much attention to the Congress. Rapprochement with China, détente and SALT I with the Soviet Union, and the Paris Accords on Vietnam (their accompanying secret presidential undertakings then concealed from Congress) briefly revived the prestige of the executive; on these central issues, there was a national consensus, but it turned out to be short-lived and inadequate to embrace the new range of foreign policy issues that was even then visibly emerging.

The first Watergate revelations in the spring of 1973 had, of course, a devastating impact on the position of President Nixon personally. But at least as significant, in the 1973-76 period, was a series of cases of real policy disagreement, compounded by a sense that the executive was trying to short-circuit Congress and by revelations of past executive failures and even scandals.

1. In 1973 and 1974, in an atmosphere charged by the Middle East War and the apparent Soviet role in support of the Arabs, the Congress enacted the Jackson-Vanik and Stevenson Amendments, tying central economic features of the Nixon détente agreements of 1972 to issues of freedom of emigration, which the Soviet Union has always regarded as "internal" and not open to public discussion. The result was twofold: Soviet refusal to go through with the trade agreements and a resulting stagnation in trade levels since, and - in practice - less emigration from the Soviet Union than had been achieved in the previous year or two by executive diplomacy. It was a prime example of the power of both general and specific forces of public opinion on Congress, and of the danger that such forces can put foreign policy into a counterproductive straitjacket that then becomes immensely hard to remove.

2. The Nixon-Agnew embrace of the regime of the "colonels" in Greece had never sat well with large elements in Congress. Thus, when the Cyprus crisis of July and August 1974 broke, and Secretary of State Kissinger was unable to stop either the initial Greek coup or the successive Turkish military responses, culminating in the large-scale August invasion and occupation of Cyprus, a clear majority of Congress was hardly in a mood to accept the Administration's refusal, in defiance of long-standing legal provisions, to cut off military aid to Turkey. The result was a flat congressional prohibition, which - however justified for a short period - has undoubtedly operated once again to make American policy inflexible and ineffective.

No doubt historians will long debate these two initial cases, where Congress in effect substituted its policy for that of the executive. It may well be argued that the provocation was great and the moral and legal grounds for the position taken at least tenable. At bottom, a majority of Congress in each case just did not trust the executive to take effective action. But what is clear above all is that when Congress gets itself in this position, it has a tendency to adopt Abraham Lincoln's whimsical maxim: "If you have made a bad bargain, hug it all the tighter!"

3. Revelations in the fall of 1974 concerning American policy in Chile in 1970-73, and the use of the CIA there, contradicted public testimony before Congress and (in the case of the Track II operation of 1970) had never been disclosed to any member of Congress even in the then-operative committee structure entitled to full knowledge of major CIA operations. These, in turn, led rapidly to:

4. Wholesale revelations of CIA conduct, going beyond its legal charter and beyond any recognized norm of American behavior, making it plain that Congress too had fallen short in its oversight function and that only a wholesale examination and housecleaning, by the Congress, could define the proper scope and thus restore the necessary foundation for the CIA's secret operations. Congress had to step in, however clumsily it may have acted in individual instances.

5. Indeed, the case of Angola, in 1975, was one in which the executive - with only limited and too-secret consultation - again resorted to the use of the CIA to handle a crisis that quickly ballooned beyond any conceivable limits of truly covert operation. By December, Congress had concluded that the Administration was playing a losing hand - as it clearly was, and not just because of any apparent resemblance to Vietnam - and blew the whistle by legislative prohibition and then by the sweeping Clark Amendment banning future aid of any sort to rebels within the new Angola. And in this case the Administration - in Secretary Kissinger's speech at Lusaka in the spring of 1976 - changed the whole thrust of its policy in southern Africa, in a more constructive direction.

6. Although Congress for the most part supported Henry Kissinger's diplomacy in the Middle East - the exception being the resolution backed by 76 Senators in the spring of 1975, objecting to any attempt to pressure Israel by cutting back on military supplies - there was an even more significant reaction when the Sinai deal in the fall of 1975 turned out to contain long-term American obligations that were only reluctantly disclosed to the Congress at all. Against this background, as well as general concern over massive military aid and sales commitments made without consultation, Congress moved into this area as well, enacting in late 1975 an amendment to the Arms Export Control Act requiring that any sale of military equipment totaling over seven million dollars be laid before Congress for 30 days before becoming final, with Congress entitled to reject the proposed sale by majority vote of both houses. It was perhaps the most far-reaching use of the so-called legislative veto, and it soon became apparent - in the case of a proposed sale of HAWK missiles to Jordan - that the new power to reject was bound to thrust Congress into the consideration of such sales more importantly than had been true in the past, and that it was having an anticipatory impact on executive actions.

7. The executive also seemed high-handed in its tendency to conduct foreign policy through executive agreements. Resentment on the Hill mounted over the long-standing executive practice of using such agreements rather than (and, at times it seemed, to evade) the treaty provision of the Constitution. From 1946 to the end of 1974, the United States entered into 411 treaties and over 6,300 presidential agreements. Although proposals to subject all executive agreements to possible review by Congress have not been legislated, Congress has started to assert its latent powers of control, through the purse, over executive agreements, especially long-term, base-related agreements.

In sum, there emerged in the 1973-76 period a whole new array of legislative controls in the security area alone of foreign policy - controls by way of strict legislative conditions, by way of forms of new oversight and requirements for information on policy actions, and extending into the area of execution itself. At the same time, even at its peak, the enlarged congressional role never warranted the labels applied by a few correspondents who spoke of "congressional foreign policy" or "congressional dominance in foreign policy." Basically, it was still the President and the executive that conducted foreign policy and took action, the Congress that reacted and played a secondary, though increasingly important, role.

And, in many central areas of policy, a national consensus persisted and was reflected in congressional support for the Administration. Indeed, in the case of defense budgets and American troops in Europe, earlier congressional pressures for reduction have now sharply receded. In the increasingly important policy areas of economic relations with the other major industrialized nations and with the developing nations (the West-West and North-South fronts as they are sometimes called), Congress left the running to the executive, intervening only mildly, for example, even in the prolonged negotiations for a Law of the Sea Treaty, which must in the end come to Congress for approval.

When President Carter was elected in 1976, with apparently clear-cut Democratic majorities in both houses, some observers predicted that the problems of friction between Congress and the executive would be reduced, and that Congress would retreat at least from its attempts to control security-related foreign policy actions. In hindsight, this was never in the cards. As our listing has shown, the basic disagreements and concerns had come from both parties, and from "conservatives" as much as from "liberals" - dubious labels at best on foreign policy issues and certainly ones that cut across party lines today. The large Democratic majority rested, as in the past, predominantly on domestic factors, and as a matter of history, a President with a large party majority has never been thereby in a strong position to bend Congress to his will on foreign policy; on the contrary, the "great" periods of executive leadership and congressional cooperation have come when the majorities (in terms of party labels) were narrow or nonexistent, so that the two branches had to work together.1

Moreover, the new President could not have avoided tackling a pair of problems - the Panama Treaties and a national energy policy - where the role of Congress was inescapably central. Most basically, there were by this time certain ingrained changes in Congress itself, as well as in the pressures of American public opinion that beat upon its members.

First, the membership of Congress has changed. Well over half of the House of Representatives has been elected since 1972 and there are few members around elected before the early 1960s. After Pearl Harbor, a whole generation in Congress tended to defer to the executive branch on foreign affairs. After Vietnam, many new members of Congress felt they could do as well as the executive branch in the conduct of foreign policy. The number of members interested in foreign affairs has expanded significantly beyond the traditional committees, leading to many more foreign policy amendments on the floor. The feeling exists that if Congress does not specifically prohibit action through legislation, then the executive branch will feel it can carry out any policy.

Not only do many of the newer, younger members have specific foreign policy interests because of their travels and experiences, but they can be strong individualists with loose party ties and little personal loyalty to the President. They do not know past decades of executive-legislative cooperation in foreign affairs. They can exhibit strong anti-institutionalism: many of them ran for Congress by running against Congress and against Washington. Recent increases in mid-career retirements have only accelerated these tendencies.

Second, the fivefold increase in congressional staff, both on members' and committee staffs, has had a demonstrable impact on all activities of Congress, including foreign policy. In 1947, there were fewer than 500 committee staffers in Congress. Today, there are more than 3,000. The House International Relations Committee staff has tripled since 1971. With the large pool of professionals at hand, Congress can now compete with the executive branch in matters requiring expertise.

Similarly, a lot more information is available to Congress and helps Congressmen support foreign policy initiatives. The Congressional Budget Office, the Congressional Research Service, the General Accounting Office and the Office of Technology Assessment combine with private research sources to provide Congress with much that it never had before.

Third, as the energy crisis shows most dramatically, the issues in an age of interdependence, and the constant play of these issues in the media, have exploded upon the American people - confronting them at every turn in their daily lives, and making them and their representatives more interested in the world about them. Even if they wanted to, members can no longer escape foreign policy issues.

The new congressional mood has roots in the increased activity of special interest groups. Members encounter such groups in Washington and in their constituencies, pressing for protectionism, support for the interests of a particular country, human rights, and environmental concerns, or whatever. These groups are more sophisticated, better prepared and equipped to heighten members' interest in specific foreign policy issues and to promote specific legislation.

All these forces have operated with special impact on the House of Representatives, once considered a very junior partner in the legislative branch on foreign policy matters and often ignored. The Senate no longer plays the exclusive legislative role in foreign policy, even though it is the Senate that still passes on appointments and on treaties.

Given all of these factors, there is today no sign that congressional assertiveness in foreign policy will abate. On the contrary, the experience of the first two congressional sessions under President Carter seems to make it clear the Congress' enlarged role is here to stay. In this relatively short period we have seen:

- Two "great debates," on the Panama Treaties and on the packaged sales of military aircraft to Israel, Egypt and Saudi Arabia, in the Senate. Disconcerting as the Panama debate must have been to our Latin American friends, it appears in the end to have cleared the air, both reflecting and contributing to a significant change in American public opinion on the wisdom of holding onto outmoded positions abroad. And the debate on the Middle East arms sales, we would submit, was in the end equally inevitable and probably also healthy; arising as it did from one of the "legislative veto" provisions to which many in the executive object, surely it also showed that what is technically a question of execution may on occasion go to the very roots of a vital national policy toward Israel and the Arab states.

- The removal by the Congress, on Administration initiative, of the congressional embargo on new arms supplies to Turkey, the repeal of the Byrd Amendment that had permitted imports of chrome from Rhodesia in breach of the U.N.-sanctioned embargo there - and the rejection by the Senate of a Danforth amendment that would have lifted the same embargo during the period of possible elections under the Smith-Muzorewa interim settlement. It is too much to say that these actions add up to a trend - yet in each case the Congress did respond to Administration arguments on overall policy, despite its own very real continuing concerns (about Turkish intransigence in the one case, and the dangers of letting policy be dictated by militant guerrillas, in the other). In practice, in all five of these "great debate" and "special amendment" cases, the Administration got its way, at the expense of a lot of time and shoe leather, but in the end with only minor congressional reservations of a kind that may - at least in the Turkish case - be actually helpful to sound policy.

- Noteworthy resolutions and other expressions challenging two Administration initiatives in East Asia, the Carter plan to withdraw American ground forces from Korea by 1982, and the initiation of discussions to normalize relations with Vietnam. To date, one of these has been significantly modified, the other (at least for the time being) shelved. However one judges the merits of the congressional objections, both cases reflected far too little prior consultation even with the proper formal committees, let alone with the members outside the committee structure who (predictably) formed the nucleus of the opposition. The Administration played both hands badly even by the old rules; under the new ones, it was courting trouble.

- Closely related, a clear congressional go-slow on normalizing relations with China, at least at the expense of the defense treaty with Taiwan. Legal questions aside, it is surely evident to all that in the present uncertain state of American public opinion it would be extraordinarily unwise for any Administration to move on this issue without another "great debate" in Congress.

- Attempts by a few in the Administration to blame congressional restrictions for the inability of the United States to stem the unquestioned Soviet and Cuban role in helping Ethiopia defeat Somalia in the Ogaden, or the more debatable Cuban role in the Shaba rebels' incursion into Zaïre. Without getting into the details of two complex situations, may one not argue that the War Powers Resolution and the Clark Amendment were in fact healthy factors, restraining any urge the Administration may have felt to act with force or covert means in situations that would hardly have responded to either?

- Continuing disagreement between the executive and Congress on the wisdom of a series of human rights amendments that tie the hands of our own Export-Import Bank and of American representatives in the international lending agencies. Most recently, however, efforts in this field have usually been rejected or modified; Congress is tending to realize the disadvantages of inflexibility and tending to trust an executive dramatically committed to press for human rights improvement.

- The almost complete airing of the Korean scandals. Again without getting into detail, at the heart of this issue has been the excessive involvement of individual members of Congress in decisions of an administrative character that should have been left to the executive. Neither branch is immune to the appeals of corrupt gain, but the checks and balances - including congressional oversight - are more extensive in the executive branch.

- An impressively detailed and continuous program of briefings by the Administration on the progress of the negotiations for a SALT II arms control agreement. Here, with long experience and clearly identified groups with major interests, the process of consultation has been a reality. What now looms as the "great debate" of 1979 will have been prepared much better than Panama - or for that matter SALT I - and in the process the overall American position may have been both stiffened and brought more in tune with growing public concern over Soviet military weapons programs. With the agreements likely to take the form both of a Treaty and a three-year Protocol, and with future strategic arms programs in the military budget directly at issue, SALT II will surely see the House playing a role only less central and evident than that of the Senate - and the Administration has shown itself sensitive to this added dimension.

- And, of course, the "energy bill" - shorthand for what may well be the most complex and multiple legislation ever tackled by Congress - key, in the eyes of most foreigners and many Americans, to the wavering status of the dollar and to the ability of the United States to lead in summit economic discussions.

To attempt an overall evaluation of these diverse examples would be bold indeed. On the good side, Congress is reflecting in most cases not merely the pressure of special interests, ethnic or other, but valid and widely felt concerns that (as in the case of the SALT II negotiations) would surely have come up later if not now, or if left unanswered would have caused support for the Administration's whole policy toward the Soviet Union to erode. Congress has acted to remove or modify some of the more questionable of past legislative conditions on policy. On the other hand, the Jackson-Vanik Amendment remains in force, depriving us of the potential economic benefits of expanded Soviet-American trade, and at the same time limiting the use of trade as leverage when the atmosphere warrants (as it may now). The Turkish arms embargo came close to seriously impairing NATO cohesion on the southern front, and probably delayed progress toward a negotiated Cyprus agreement. And congressional conditions, however well intended, have unduly politicized the multilateral aid agencies, which some members used to urge as the preferred avenue for our foreign aid on the ground of their concentrating on economic essentials.

Apart from one's judgment of special cases, what the record seems to us to show most clearly is that Congress is still far too deeply into policy execution - and that this has come about largely because of the hangover of frustration over not having been adequately consulted on policy formulation, from Vietnam on. This factor, more than any other, lies behind the degree of unhealthy tension that persists.

But in the last analysis the events of these 18 months have reinforced the role of Congress in foreign policy. At both ends of Pennsylvania Avenue, there has been a spirit of cooperation that was far from present in many earlier periods. Both the executive and Congress have embarked, if you will, on a "learning curve" in the handling of an agenda of problems, and a degree of congressional involvement, that must surely exceed in complexity any prior period in the history of American foreign policy. Yet the tide of criticism continues, and there are still respected voices - George Kennan notably, and at times Henry Kissinger - who argue that Congress should adopt its own self-denying ordinance and get out of the way of the professionals from the executive branch. Let us take a moment and consider their arguments, in the light of the Constitution and the experience of history.

III

The role of Congress in the formulation of American foreign policy has been a subject of intense discussion and debate almost from the time the United States declared its independence. But there is neither in this debate nor in the Constitution any answer to the dilemma we face today: neither past history nor the Constitution argue for a basic realignment of foreign policy roles - nor do they suggest the conclusion that Congress is acting in a wrong fashion.

The Constitution is vague in its treatment of foreign policy issues and in providing that foreign policy powers be shared by both the President and the Congress. Powers on war, treaties, appointments, and commerce are all shared powers under the Constitution, requiring the Congress to play an important and continuing role in the formulation of foreign policy. Indeed, the bulk of the foreign policy powers enumerated in the Constitution are with Congress, while the President's role in specific areas is left vague and in many cases implicit.

Periods of congressional assertiveness in foreign policy have been frequent in the nation's history. The Vietnam experience has merely been the latest, and perhaps most potent, catalyst for congressional activism in foreign affairs. Viewed in the long term, the recent activism of Congress in foreign affairs has been both a cause and an effect of stresses in the foreign policy consensus that existed in the postwar period. Constitutional dictates and political considerations have in decades past and in this present period of activism put Congress in the paradoxical position of being both a partner and an adversary in foreign policy-making.

The competition between the two branches, however, need not have a winner and a loser. Debate, creative tension and review of policy can bring about decisions and actions that stand a better chance of serving the interests and values of the American people. Total cooperation between the two branches should not be considered the sine qua non of foreign policy-making. While many benefits can come from a strong executive-legislative consensus on foreign policy and improved and formalized consultative processes, Congress, constitutionally and historically, needs to continue to pursue its crucial role as a critic of executive branch policy. The concern of Congress should be to strike a balance between responsible criticism, based on appropriate and measured oversight and review of executive branch policy, and necessary cooperation with the executive branch, stimulated by strengthened consultation procedures.

In retrospect, Professor Edward S. Corwin's maxim that the U.S. Constitution "is an invitation to struggle for the privilege of directing American foreign policy" best characterizes the state of executive-legislative relations throughout most of American history, except perhaps for that remarkable era of consensus immediately following World War II.2 Yet, the nature of the problem is not that each branch engage in running conflict with the other branch for control over the formulation of our foreign policy; when conflict becomes a goal in itself or enters into policy implementation, it is nearly impossible for a coherent policy to emerge. Rather, each should be working to ensure that the wisest policies, with the broadest support, are implemented.

We should not necessarily expect the process of policy formulation to be tidy. But if Congress is able to participate in that process and there is adequate consultation in that phase, Congress should leave policy execution to the executive branch. It has almost become a self-fulfilling prophecy in the last several years: when Congress or some members perceive they are denied a role in policy formulation, they are determined to play havoc with policy implementation.

Clearly, the Constitution will not answer our present dilemma - nor can past periods of foreign policy consensus be recreated at any given time. The unifying themes that shaped the postwar foreign policy consensus are not on the horizon today unless we are willing to contemplate a war crisis or a re-creation of the cold war which few in their senses want. We have to cope with the proposition that even with the best of cooperation and intentions between Capitol Hill and the other end of Pennsylvania Avenue, and even with creative and responsive institutions, there is still a problem in formulating foreign policy given the complex and unforeseen foreign policy agenda this nation faces. The unpleasant, but predictable conclusion, then, is that we have to try simply to improve the system we have and make it work better.

As former Secretary of State Dean Acheson wrote over 20 years ago:

The central question is not whether the Congress should be stronger than the Presidency, or vice versa; but, how the Congress and the Presidency can both be strengthened to do the pressing work that falls to each to do, and to both to do together.3

Let us, then, look at the strengths and weaknesses of both the Congress and the executive branch, as they are operating today, and then consider what might be done to give the fullest possible play to the strengths of each, while at the same time seeking to control and limit the weaknesses.

IV

National Security Adviser Zbigniew Brzezinski recently said: "The new found influence of Congress is not as disturbing as the lack of discipline one sees on Capitol Hill."

A realistic assessment of Congress' performance in foreign policy has to concur in part with this assessment and admit mixed results. Congress' principal strength in the foreign policy field is its representation of diverse public opinion. Its main weakness is diffusion of power and authority.

One major set of congressional problems in dealing with foreign policy matters stems from the attitudes many Congressmen have developed. Deference to, and disrespect for, the executive branch, periodic disinterest in foreign policy issues, lack of sustained interest in any particular issue, parochial motivations due to constituent interest groups or ethnic pressures, and fear of "meddling" with the national security apparatus or reluctance to take responsibility for actions on a given issue, are all problems members have had on occasion - and which no amount of structural reform can remedy.

A second deficiency is that Congress tends to handle foreign policy as it handles domestic policy. Too often it asks what the politics are, not what the national interest is. When domestic politics control the judgment of members, Congress can make serious mistakes. With few exceptions, members are not held accountable on foreign policy issues by their constituents. One result of this perspective is that Congress has difficulty in developing a coherent foreign policy. Its members tend to focus on one aspect of a problem and to let a judgment on that aspect determine broad policy on a complex issue.

Third, Congress is not good at keeping secrets. The problem is not just intentional leaks: the executive branch is probably as guilty as Congress in this regard. Rather, the problem is that Congressmen have to react constantly in public to headline events. Television and the media generally have accentuated the outside game for Congress and have weakened the old, less glamorous inside game of deliberate discussion and consideration of complex issues. Increased openness in government and less secrecy are often abused before the cameras, and as consultation widens the problem of confidentiality increases. Classified information does present a member of Congress with difficult decisions. What can a member do when confronted with classified information about a policy with which he had nothing to do and of which he may strongly disapprove?

To make matters worse, confidentiality is often viewed by Congress as deception. A member does have a responsibility to express his views on policy. He is often restrained from doing so because the information available to him has been classified as secret, oftentimes for arbitrary reasons. Faced with this dilemma, some members choose not to know secrets.

Fourth, Congress lacks leadership in foreign policy matters. It is hard to determine who speaks for Congress on foreign policy - unlike many domestic issues where it is possible to delineate a clear leadership position. Although there can be valuable checks and balances in a measure of congressional untidiness, an activist Congress which at times appears from an outside perspective to have 535 Secretaries of State does make formulation of a coherent foreign policy difficult. A related difficulty is the lack of party unity in Congress and the increase in influence of the staffs.

Fifth, Congress is beset by several structural weaknesses. Jurisdictional diffusion, particularly in the area of foreign economic policy, is a crucial reason for Congress' lack of effectiveness. Presently, 17 of 22 committees of the House of Representatives deal with aspects of foreign policy, and in the Senate 16 of 19 committees have some jurisdiction over foreign policy. Overlapping committee jurisdictions and vague mandates inhibit efforts by Congress to address many important foreign policy issues.

A final weakness of Congress is that it does not easily differentiate among opinions it hears, or appropriately evaluate information it receives. Congress today does have much more information available to it, but that information is not always rounded or balanced. There are data to support any cause or any position, and members often give foreign governments the wrong signals based on poor or selective information.

But Congress has strengths as well as weaknesses in its foreign policy-making role. The activism and assertiveness of Congress in foreign policy can be viewed positively. The representativeness of Congress and its accessibility remain its major sources of strength, and have ensured a healthy input of the people's opinions into foreign policy-making. They often convey directly to the executive the doubts and the confusions about policy as well as approval or disapproval of policy. Angola and CIA behavior in Chile are among recent examples. Congress is often better able and more willing to obtain a policy input from the outside, from academia and from the private sector. But this can be a double-edged sword: one of the problems is Congress' susceptibility to constituent and special interest pressures.

The representativeness of Congress is important because the executive branch cannot for an extended period effectively pursue any foreign policy objective without a genuine consensus of support. Congressional support is necessary for long-term policy, while congressional opposition to a policy can impede and undermine that policy. When issues of peace, aid and recognition are subject to intense debate and discussion in a collegial body, policy is often strengthened.

In short, because Congress and the executive branch share constitutional responsibilities in foreign policy, Congress can serve several important purposes: it can help formulate policies; it can act to check the growing power of the presidency; it can support the President, when necessary and desirable, in his foreign policy initiatives; it can monitor the attitudes of the American people; it can convey the view of the people to the President; and it can help inform and educate the people on foreign policy.

The burden on Congress is to provide informed consent on foreign policy matters. Many people question the competence of Congress: they see its ethnic orientation, its eclectic approval and its lack of sustained interest. The legislative pace alone does not lend itself to detailed supervision of the day-to-day conduct of foreign policy, and this means that Congress should not try to get too detailed in its legal prescriptions. Again, the greater the trust and early interaction between branches, the broader and more general the approach of Congress in foreign policy issues is likely to be.

The strength of the executive branch in the foreign policy process, on the other hand, lies first in the nature and mandate of the office of the presidency. As Commander in Chief of the armed forces and the principal governmental officer responsible for policy execution, the President is at the center of American foreign policy. People look to him for leadership and consider him their representative before the world. People expect the President to articulate and support the national interest.

The unparalleled access of the executive branch to information and expertise has also been a major source of its strength. In fact, these resources will have to be shared with Congress more often and in greater detail if Congress is to begin to share effectively in the making of foreign policy with the executive.

And third, the very organization of the executive branch of government gives it another advantage in carrying out American foreign policy. With authority centralized in one man and an ability to view the whole picture in a given situation, decision-making can be rapid and execution of policy immediate.

While diffusion of power in Congress, its decentralization and its attitudes are considered by the executive branch to be congressional weaknesses, comparable criticisms can be addressed to the organization of the executive branch.

Perhaps the executive branch's greatest weakness is that its foreign policy bureaucracies are inaccessible to the people. Despite efforts to bring foreign policy issues to the people, officials of the State Department remain quite isolated from the blunt common sense of constituents who probe and test the foreign policy views of elected officials.

Second, the attitude that the executive branch is best suited and equipped to conduct foreign relations has led many in the executive branch to look upon Congress as a nuisance and upon Capitol Hill as enemy territory. Congressional attempts to limit executive action are often considered too blunt and restrictive for career bureaucrats to mesh with the subtleties of U.S. global diplomacy. Distrustful of congressional assertiveness, wary of the congressional power to oversee and investigate, the executive branch has frequently felt torn between its awareness of the congressional role in foreign affairs dictated by the Constitution and its own clear preference for ignoring Congress.

Today, the executive branch is poorly organized for the conduct of aspects of foreign affairs, especially foreign economic policy. As global economic issues share prominence with political and security affairs, not only will there be a need for executive agencies to consult and coordinate more effectively with each other, but the State Department, as the principal focal point in foreign policy, will have to affirm its leadership in many areas of foreign relations, including economic policy, while taking into account the legitimate and sometimes contradictory interests of other executive departments, especially the Treasury.

From the congressional perspective, then, the executive branch needs to allow Congress a defined role in policy formulation and needs to concentrate on four tasks. First, the executive must keep Congress informed of policy, its premises and its purposes as well as the facts upon which its decisions are based. Second, it must actively seek the views of as many members as possible, especially all those concerned with a particular problem. Third, the executive must exercise its authority with restraint. And fourth, the executive needs to understand better the political problems of members.

V

From the viewpoint of the Congress, the crux of the problem between the executive branch and the Congress, which prevents the formulation and execution of a more coherent foreign policy, is the inadequate system of consultation between the two branches. While effective prior consultation should not be viewed as a panacea for executive-legislative conflict in foreign affairs, the process can be vastly improved. If the executive branch and Congress are able to agree on what consultation should involve, which members of Congress are to be consulted, and at what point in the decision-making process consultation ought to occur, the potential for conflict and confrontation between the two branches can be reduced and a better working relationship facilitated.

In an attempt to ensure such consultation, Congress from time to time has enacted legislation that requires "consultation" for certain types of executive action (security assistance, energy policy and trade policy are examples), as the War Powers Resolution does for the commitment of American troops to hostilities abroad. Congress has also tried to encourage consultation by requiring that certain actions be expressly authorized by Congress or by providing for a legislative veto of certain actions.

Ensuring that consultation does in fact occur, however, is only part of the problem. No matter how routine and accepted consultation might become, members of Congress have often not focused on the particular issue and are not prepared for consultation meetings: They may be put up to it by eager staff, their arduous schedules may preclude effective discussions, or they may want to avoid consultation on certain subjects.

Some members, prizing highly their independence, are also reluctant to be consulted too much for fear of being co-opted by the executive branch. Consultation should not seek to preempt the congressional role as critic and overseer of the executive branch. The goal must be a proper balance between the confrontation generated by the constitutional nature of the relationship and the co-optation risked by a too cozy relationship with the executive branch.

The major defect in executive branch consultation with Congress has not been that it does not occur but that the approach is wrong - or that it is too little and too late. Consultation has all too often meant a post facto or simultaneous notification of action taken, rather than a genuine presentation of options involving their full discussion and consideration and seeking advice and counsel. At best, Congress is in a position to affect only nuances of policy, not its substance.

If the need for prior consultation is crucial, so also is a mutual understanding of the objectives of consultation. Is it to gain support? Is it to inform members in advance of something that will occur? Is it to obtain approval? Is it to try to affect joint action? Or is it to survey policy options?

In his later years, Dean Acheson used to tell the story of his visit to General de Gaulle in October 1962, just prior to President Kennedy's dramatic public announcement that touched off the public phase of the Cuban missile crisis. After Acheson had described the American view of the evidence of the introduction of Soviet missiles into Cuba and the actions that the President proposed to take in response, the General led off with one incisive question: "Am I being informed or consulted?" Acheson's equally incisive response was that he was being informed, and in that instance the General accepted (and then lent his full support to) the actions taken.

There may be cases today when Congress would accept a similar reply - though they are far more rare than in the postwar period. But it is fundamental that the President and members of the executive branch, in any contacts with Congress about a pending action or decision, make clear exactly what the ground rules are. Nothing is more frustrating, or more destructive of trust, than for a member of Congress to get the impression that he is being asked for serious advice, only to find that he is in fact being presented with a fait accompli, that the executive has already committed itself and feels it cannot now change what is planned. Far too often, the cry is heard: "We had no other choice" than the course chosen.

As a general rule, any proposed executive action that goes beyond a clearly logical step in pursuance of an already accepted policy must involve a genuine exchange of views and the possibility of modification (or even reversal) of what the executive initially proposes. In short, "consultation" in the generally intended meaning of the word must mean more than "touching base" with key congressional leaders. The procedures by which consultation is carried out must give Congress a legitimate opportunity to participate in the making of policy.

VI

There is no single or neat answer to improving the patterns of consultation and interaction between the branches to ensure a healthy debate over policy formulation and later a coherent strategy for policy execution. Among the most practical suggestions to improve the consultative process are the following:

1. In foreign policy crises or when confronted with special foreign policy problems, bipartisan ad hoc groups should be formed in Congress to serve as focal points for consultation with the White House and State Department.

The ad hoc groups would include not only chairmen and ranking minority members of the four or five standing committees having international concerns, but also other members, particularly middle- and junior-ranking members, who are known to have special interest or expertise in the crisis area or problem at hand.

The members of these ad hoc groups could be chosen by the leadership of each house. Because the membership of these ad hoc groups might be appointed by the congressional leadership rather than by the White House, as current "leadership groups" are, Congress could control who would be consulted and would have greater leverage in consulting with the executive branch. Consultation through ad hoc groups would come to be regarded as a congressional prerogative and any White House failure to consult would look less like the White House refraining from exercising a privilege of consultation and more like a failure to comply with a congressional mandate.

Such groups would not and could not speak for Congress as a whole on foreign policy issues, nor would they have permanent charters as standing committees have. Rather, these groups would function as long as the issue that prompted their formation was viable. Discussions and consultation might, in a crisis situation, be concentrated in them, but it should never be confined solely to them. They could be empowered to call witnesses to testify, but the thrust of their activities should be in the form of direct, constant, and informal contact and consultation with the relevant executive agencies.

To some this proposal may seem modest. When confronted with discussions on improving consultative procedures, executive branch officials tend to focus on the need for correcting structural deficiencies in Congress, and this has led to considerably more far-reaching suggestions. Two in particular have been the establishment of a Joint Committee on National Security, and a basic realignment and reform of the committee structure. Such a joint committee, which might be comparable to the one recommended by the Murphy Commission on the Organization of the Government for the Conduct of Foreign Policy, is seen by many observers as the best method for improving Congress' coordination of foreign policy matters. Committee reform also has many proponents.

In our judgment, neither proposal would be useful at present. A joint committee, composed of the leadership of Congress and the senior members of the several committees concerned generally with foreign policy, would likely be unwieldy in size, too demanding on those senior members who would compose its membership and not necessarily inclusive of the very members with the greatest interest in the pending issue. Such a committee would provide only a fraction of the consultation needed on many crucial issues.

Because it involves the realignment of power, committee reform has proved difficult for the Congress. In the last decade, there have been major efforts in both houses of Congress to reform and streamline committee structures and jurisdictions. The results are meager. Further major reform efforts in the near future appear unlikely, but it is possible that initiatives could occur to improve intercommittee coordination on foreign policy issues and strengthen the overall responsibility of the foreign affairs committees in coordinating foreign policy activities in the Congress.

2. To enhance further the consultative process, the State Department needs to improve the briefing system by providing (a) regularly scheduled formal briefings; (b) special briefings before committees on sudden and developing crises (without exception and as soon as the crises occur); and (c) frequent informal briefings of members by senior and junior foreign policy officials (at the request of individual members and committees or at the initiative of the officials) on other foreign policy concerns that may arise.

The executive branch needs to recognize the need of members of Congress for prompt and up-to-the-minute information and counsel on world events and developing crises. By the nature of their jobs, members are crisis-oriented. They are invariably called upon to comment on pressing and immediate foreign policy issues. Existing briefing systems need expansion and a mosaic of briefing patterns should be developed to deal with different types of situations (headline crises, upcoming meetings, conferences or trips, long-range issues, legislative votes, updates on specific problems, etc.).

Informal conversations can supplement more formal meetings. Informal discussions permit a freer exchange of information and ideas between members of Congress and Administration officials because they can break down the adversary relationship that is usually prevalent in the hearing room. Such increased informal contacts can have a more immediate and stronger impact on attitudes than other suggested proposals for better contacts between branches, including extensive staff-swapping.

3. A "question hour" period should be instituted during which the President and Secretaries of State and Defense would answer questions from members of Congress in as informal a setting as possible.

Like the "question hour" or interpellation period used in the parliamentary system of government, the use of such a procedure by Congress could provide direct and regular access to the senior foreign policy officials. Such sessions could be of two types. First, senior officials of the executive branch could appear frequently before each house of Congress separately while Congress is in session. Second, more informal sessions for a broad spectrum of members could be held on or off the Hill. The sessions could be limited to foreign policy matters and would be open or closed depending on the sensitivity of the issues and on the will of the parties. They would supplement appearances by these officials before the standing committees of Congress.

Although these two types of meetings have been tried in 1978, regularity will be needed if significant results are to be achieved. Secretary Vance has made himself available once to all members to answer, in a private meeting, their foreign policy concerns. Questions ranged widely and many members benefited from the exchange. In addition, President Carter has, on at least two occasions, invited groups of well over 50 members to lengthy briefings by the President and his Cabinet officers dealing with their strategy, priorities and goals in foreign affairs.

4. Congress needs to legislate a statutory basis for information classification and develop new security procedures for handling classified information and dealing with sensitive intelligence reports.

Such a statute should ensure a congressional role in classification procedures now exclusively controlled by the executive branch and should guarantee Congress' access to classified documents of all agencies within the executive branch. It should also provide for restraints and sanctions for misuse of information by members of Congress and their staffs. Congress has been slow in producing such legislation.

5. The legislative veto should continue to be used as a device for ensuring effective prior consultation by the executive branch despite the debate over its constitutionality.

Even if the climate of confidence between Congress and the executive branch can be reestablished, the legislative veto will be essential as a device of last resort. When denied a role in the early stages of policy formulation, Congress, through the use, or threat of use, of the legislative veto, would be able to involve itself in policymaking. Of course, Congress would tend to use its veto less frequently if it were consulted in a timely and regular fashion by the executive branch.

In the final analysis, attitudinal change in both branches and improvement of present procedures are more important and promising avenues than structural change for achieving better dialogue and prior consultation - even though the basic attitudes toward each other will continue to exhibit a degree of tension, though hopefully less distrust. The nature of executive-legislative interaction will be more instrumental in shaping a coherent foreign policy than the forum in which the executive and the legislature meet. History supports the proposition that structural changes in both the legislative and executive branches only tend to slice the bureaucracy differently: they do not change attitudes or modify behavior.

VII

It is not easy for either Congress or the executive branch to balance conflicting pressures and responsibilities and ensure that we are able to formulate and project a coherent foreign policy which serves our national interests. Congress has constantly to balance its representation of the people and its own judgment of what is in our best interest. The two are sometimes not the same. Congress has to balance its role as adversary and as partner in the foreign policy process, its role as critic and supporter, its inside, private game and its outside, public game, its appropriate role in confronting the executive branch in policy formulation and its uneasiness in standing back and watching policy implementation when it does not agree with how the policy is being executed.

Effective prior consultation, better information flow and education on the issues are the best available vehicles to lubricate the foreign policy process, reduce frictions and ensure that out of any foreign policy debate over what policy to pursue there emerges a coherent strategy that has been significantly strengthened by congressional participation. Members of both branches must be willing to listen, as well as advocate, and show a sensitive understanding of their respective constitutional roles.

The separation of powers produces a healthy and potentially creative tension between the legislative and executive branches. The foreign policy-making process will never be tidy and clear-cut so that each step in the process can be delineated. The diversity and complexity of foreign policy issues is such as to guarantee a series of running battles between Congress and the President. Our expectations should not be too high, given the nature of the process. But the alternative to trying to make the system work better can be chaos and an ineffective foreign policy for a complex world.

Footnotes

1 For example, Franklin Roosevelt in 1937 was powerless to block a Neutrality Act that tied his hands in the looming war in Europe. In 1953, Dwight Eisenhower's greatest problems came from the Brickers and Knowlands of his own party. Even Lyndon Johnson, in 1964, drew primarily on the bipartisan tradition and consensus dating from 1950; the earliest opponents of the Vietnam War were, almost without exception, liberal Democrats. We would venture that it is almost a law of contemporary American politics that a Republican President with a majority is under great pressure from the extreme Right, while a Democratic President is under similar pressure from his liberal constituency. If a President finds - as both Gerald Ford and Jimmy Carter have recently found - that foreign problems rarely yield to extreme approaches, he needs the opposing party to neutralize his own zealots. Although the tradition of bipartisanship grew up in the time of cold war national consensus - and can itself be carried to extremes that stifle needed debate - the pragmatic reasons for cultivating support in foreign policy from both parties are extremely powerful.

2 For a more complete treatment of this issue, see Congress and Foreign Policy, Hearings before the Special Subcommittee on Investigations of the House Committee on International Relations, 94th Cong., 2nd sess., June-September 1976, Washington: GPO, 1976.

3 Dean Acheson. A Citizen Looks at Congress. New York: Harper. 1957. p. 56.

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