The Genius of America (22 page)

The Carter administration had experienced great frustration over the refusal of a democratic Congress to submit to the president's views on how to resolve the energy crisis and economic stagnation. No matter the efforts he exerted, Carter could not persuade his fellow Democrats of the wisdom of his proposals. In truth he was not a good politician. As he observed, Congress was “twisted and pulled in every direction by hundreds of well-financed and powerful special interests.” But it was his job to forge a consensus from these competing interests.

Cutler saw Carter's inability to build a consensus for his programs as a failure of the system, not a failure of his president. A president elected by all the people should have the support of Congress, Cutler reasoned. So in 1980 he wrote in the influential magazine
Foreign Affairs
: “The separation of powers between the legislative and executive branches, whatever its merits in 1793, has become a structure that almost guarantees stalemates today. As we wonder why we are having such a difficult time making decisions we all know must be made, and projecting our power and leadership we should reflect on whether this is one big reason.”

And for this reason Cutler went on to call for a form of government in which the president would have far more control over Congress.

Lloyd Cutler's profound criticism of the American form of government seems startling at first. If a man so steeped in the American constitutional tradition and so advantaged by it was now so willing to overthrow it, there must have been something truly wrong with the system. But here was a man committed to the vision of his leader and clear in his own mind of that vision's public virtue. Hence its rejection by Congress had to be wrong, the work of “special interests.” Just the kind of narrow motivation the framers built the system to guard against.

One analyst of the Reagan era, John Ehrman, identifies Cutler's proposal as an example of a frustration among liberal intellectuals, who for forty years had been at the heart of the American consensus. With the end of that consensus, they felt isolated. So “they began by deciding that America's ruling institutions needed a complete overhaul, one borrowing from foreign models.” Cutler proposed an English-style Parliament. Ezra Vogel, a Harvard sociologist, urged the country to adopt a Japanese approach to solving problems “through study and consensus rather than American Style competition.”

These proposals ignored the intrinsically homegrown nature of American democracy, as if something else could be grafted on our roots. But there was more: “a desire to avoid politics, either by placing authority in the hands of technocrats or by reducing the power of the president's opponents.” This spared the liberals “from having to explain how their ideas would work, gain popular support, and be put into action.” Ehrman's critique of the liberals is a mirror image of the critique others offered of the conservatives who were pushing the initiative movement at the same time.

Thus on the right, through initiatives and referendum, and on the left, through proposals for institutional overhaul, efforts were under way to escape the complicated demands and constraints of the democratic process the framers had developed. When Ronald Reagan said government was the problem, many Americans agreed, although they came to different solutions. One of them, a marine colonel, decided that if Congress rejected his view of what was good for the country, he would just take matters into his own hands.

Unlike Lloyd Cutler, marine colonel Oliver North did not want to discuss what was wrong with American government. He wanted to act. And, with others, he determined that, for the good of America, its Constitution and laws needed to be ignored. North, a graduate of the Navel Academy and a decorated officer in the Vietnam War, was in 1984 on assignment to the White House and the National Security Council, the executive branch agency charged with managing national security policy.

His National Security Council assignment was to aid the Nicaraguan Contras in their insurgency against the left-wing, oppressive, anti-American Sandinista government of Nicaragua, which several years earlier had toppled the right-wing, oppressive, pro-American Somoza government. But North had a problem. After the CIA had carried out some acts of sabotage in support of the Contras' efforts, Congress, under its constitutionally granted authority to control the expenditures of federal money, with the reluctant approval of President Ronald Reagan, had enacted a statute that prohibited any funds from being expended to support “directly or indirectly . . . any military or paramilitary operations in Nicaragua.”

In short, Congress was now blocking his mission. North and his supervisor, John M. Poindexter, the national security adviser, decided that it was in America's best interest for them to disobey this law. North's job, in his view, was to help the “freedom fighters,” as he was to call them, and no act of Congress would stop him.

Like the best of American entrepreneurs, he had a big view of things. In the White House basement, he established “the Enterprise.” Through it, he brought substantial resources to the Contras. “The Enterprise, functioning largely at North's direction, had its own airplanes, pilots, airfield, operatives, ship, secure communications devices and secret Swiss bank accounts. For sixteen months, it served as the secret arm of the NSC staff, carrying out with private and nonappropriated money, and without the accountability or restrictions imposed by law on the CIA, a covert Contra aid program that Congress thought it had prohibited.”

Then the Enterprise, literally, came crashing down. In 1986, Nicaraguan soldiers shot down one of the Enterprise's cargo planes and with it the Enterprise itself. Within a year congressional investigations began, as did one by a White House–appointed special prosecutor. North was fired. And finally in 1988, he was indicted and resigned from the marines. He was convicted on a number of counts, but ultimately his conviction was overturned on a technicality.

North's determination to fulfill his mission was in one sense quintessentially American. He had a job to do, and he wanted to get it done. He thought what he wanted was right for everyone. This is the American spirit that settled and populated the country and drove many of America's great successes. It is also the part of the American character about which the framers were most worried. Self-interest and self-regard (thinking that one's interest is the public interest) would lead to conflict and to tyranny. For this reason, the Constitution separates governmental power and protects individual rights against arbitrary governmental action.

In this sense, North was unremarkable. His overzealous exercise of his power was the kind of problem the framers anticipated. Certainly, the president's, his commander in chief's, proclamation that “government is the problem” gave North no incentive to obey the law. But what is remarkable in this tale, and what connects it directly to today, was the response of some members of Congress. The investigatory committees found wrongdoing on the part of North and others in the White House. But several members of the committee filed a dissenting report that provided a radical justification for North's behavior, one that set the table for a larger struggle in our time over America's constitutional design. “The Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws.”

The guiding hand of that minority report was Congressman, now Vice President, Dick Cheney.

The effort by President George W. Bush and Vice President Dick Cheney to strengthen the presidency is sometimes characterized as Hamiltonian. Philosophically, that is pretty accurate. But historically, it leaves out something crucial. The convention in Philadelphia embraced Hamilton's view of human nature. But the delegates rejected his ideas for a monarchical presidency.

Howard Jarvis, Lloyd Cutler and Oliver North are representative of a long history of struggles for power in America. We have retold their stories because each is an illustration of, and provides an insight into, a loss of faith in government institutions that became widespread in the late 1970s and 1980s. At the heart of this disaffection was an attitude common to all three: a disregard for the Constitutional Conscience. To Jarvis, Cutler and North, the outcome was more important than the process (which was not giving them what they wanted). Opposing views were obstacles to be defeated, not ideas to be incorporated. Conciliation was weakness, rather than flexibility.

We linger on this period in the 1970s and 1980s because we believe these attitudes have only gained strength in the years since then. In his insightful book on the Reagan era, John Ehrman describes two virtually simultaneous political actions that illustrate the importance of constitutional principles and what happens when they weaken. You can't conduct controlled scientific experiments in politics of course. But these two moments were about as close as you can come. One was the effort, known as Gramm-Rudman, to create an automatic way to control the federal deficit. The other was the tax reform legislation of 1986.

In the mid-1980s, politicians were worried about the federal deficit and about the danger that voters would punish them for it. But there was no consensus on the steps to take to curb it: raise taxes, cut defense spending, cut social spending. So they adopted Gramm-Rudman, what Ehrman called “one of the most disgraceful and irresponsible laws ever passed.” The law gave to a non-elected official the power to simply cut the budget if the deficits didn't shrink. This was enacted without any legislative process. No hearings. No committee debate or vote. “Congress and the White House abandoned their political responsibilities for making fiscal decisions, and rushed instead to hand power to automatic, technical mechanisms,” wrote Ehrman. “This is hardly how republican institutions are intended to function.”

But during virtually the same period, Congress also enacted a tax reform measure that made substantial strides toward a simpler and fairer tax code. The measure demonstrated that “when politicians acted seriously, the political system was able to deal with complex issues quite well.” But this accomplishment was not the product of public virtue. “None of those involved in the process rose above party or personal interests.” The parties advocated their positions as hard as they could and then, recognizing that a winner-take-all attitude would fail, compromised. Tax reform was the system working just as the framers had designed it to. “In contrast, Gramm-Rudman was the product of panic and a desire to circumvent politics.”

We wish we could report that the spirit of the tax reform bill of 1986 had triumphed over the cynicism of Gramm-Rudman. But sadly the opposite seems to be true. Respect for the constitutional process and contempt for it seemed to pass each other like ships in the night that year on Capitol Hill. Disrespect became increasingly the norm in our time.

Look, for one example, at what is happening now to the initiative movement that Howard Jarvis launched in California thirty years ago. Jarvis was focused on the state level. But as the initiative movement gathered strength in other states after passage of Proposition 13, David Broder observed: “I do not think it will be long before the converging forces of technology and public opinion coalesce in a political movement for a national initiative—to allow the public to substitute the simplicity of majority rule by referendum for what must seem to many frustrated Americans the arcane, ineffective, out-of-date model of the Constitution.”

There is a reason why other political reporters admire Broder so much. He is nothing if not prescient. The technological capacity now exists through the Internet to hold referendums across the whole country. In 2006, former U.S. senator Mike Gravel announced his candidacy for president on a platform primarily dedicated to creating national direct democracy that would go around the Congress. The National Initiative, he called it.

Mike Gravel is the embodiment of how far we have drifted from our constitutional moorings. Ornstein and Mann point out how much attitudes have changed in the Congress since Senator John F. Kennedy was elected president: “Senators were intensely loyal to the Senate as an institution; they identified first as senators rather than as partisans or through their ideology, and they were fiercely protective of their prerogatives vis-a-vis the President or the House of Representatives.” That was in 1960. Now a former senator is campaigning to give voters a tool to go around the Senate and the House. If this were an isolated case, it might not matter. The nation has always had, and benefited from, gadflies.

But there are many connections between the antigovernment attitudes that flowered in the 1970s and 1980s and the governmental problems we are having now—problems we believe are directly the result of our drift away from the principles that the Constitution was built on.

Many current and recent members of Congress share former senator Gravel's lack of institutional commitment. Presumably they have brought this “lack of institutional identity” with them from the larger society. They do not understand or they choose to ignore their constitutional obligations. Wrote Mann and Ornstein about the Republicans who controlled Congress from 1993 to 2006: “Members of the majority party, including the leaders of Congress, see themselves as field lieutenants in the president's army far more than they do as members of a separate and independent branch of government.” The result, according to them, has been a series of governmental failures—from the management of Hurricane Katrina to the prosecution of the war in Iraq—that might have been prevented or mitigated if the Congress had exercised greater oversight and forced more debate.

Two foreign policy experts, Stefan Halper and Jonathan Clarke, cite the run-up to the Iraq war as a quintessential breakdown of the roles of Congress and the media. “Those institutions that could have challenged the scare scenarios governing the nation's perception of the terror challenge and Saddam Hussein failed to do so,” they wrote. In an almost plaintive appeal to revive our Constitutional Conscience, they titled their new book
The Silence of the Rational Center
.