The Problem is Congress, Not the Presidency

| Walter Pincus
Walter Pincus
Columnist, The Cipher Brief

The Congress is the main cause of our broken government, not the Presidency.

Yet public anger with Washington’s failure to act on key federal government problems has seen angry new voters turning out in both the Republican and Democratic presidential primaries to support Donald Trump and Bernie Sanders, both of whom promised to shake up the system.

No such anger turned up country wide to shake up congressional primaries.

Some 90 percent of 435 House members ran successfully in their primaries and only 42 percent actually faced opponents. Of 30 senate seats up for votes next month only 23 are considered competitive; 411 of 435 House seats are thought to be safe for one or the other party’s candidate.

The public, however, has contempt for Congress as a whole. Its disapproval rating is 76.4 percent, with only 14.6 of those polled approving its performance, according to Real Clear Politics.

So voters want change, know Congress isn’t working, but they don’t want to change their Congressmen or Senators, who are the ones really causing the problem.

Proof of Congress serving as a non-functioning body was fully illustrated last week.  Let’s just look at the actions, inactions, and negative impacts of votes that took place.

Late Wednesday evening, one day before the federal fiscal year ended and the government would run out of money, the House by a 342-to-85 vote passed a continuing appropriations resolution, approved by the Senate earlier in the day, that will keep federal operations going through December 9.

It was the tenth time in eleven years that Congress had failed to pass separate appropriations bills for each government department and had to resort to temporary extensions of fiscal 2016’s budget levels for the first months of fiscal 2017.  The resolution did add a 0.496 percent across the board reduction in spending, but it only runs for the 70 days until a new resolution must be approved.

Continuing resolutions hurt all federal agencies but do particular harm to defense and national security activities. More important than the slight budget reduction, the resolution specifically “prohibits DoD [the Defense Department] from starting new programs, entering into multi-year contracts, or increasing production rates.”

Seven days before last week’s vote, Defense Secretary Ash Carter told the Senate Armed Services Committee that failure to pass a defense appropriation bill for the past eight years and using continuing resolutions was “a deplorable state of affairs.” He called it “managerially and strategically unsound, and it’s unfairly dispiriting to our troops, to their families and our workforce…and it’s inefficient for our defense industry partners.”

Why wasn’t a fiscal 2017 defense appropriations bill passed? The same reason the annual defense authorization bill is tied up. Republican members of Congress use a gimmick to increase defense spending over budget caps adopted in 2011.  They will not agree to Democrats’ demand to provide an equal increase to non-defense discretionary government spending. That, Democrats say, was part of the 2011 budget agreement.

One more factor, on the eve of November’s congressional elections, many House and Senate members, particularly Republicans but also some Democrats, are afraid to vote for any increased spending.

Perhaps congressional cowardice and resultant dysfunction of the legislative process was best illustrated last week in the overwhelming vote Wednesday in both the Senate and House to override President Barack Obama’s veto of the bill that will permit families of the 9/11 victims to sue foreign governments, in U.S. courts, for any role they may have played in terrorist attacks in the U.S.

The bill’s particular target was Saudi Arabia for the attacks on the World Trade Center, the Pentagon, and possibly the Congress itself, which was believed to be the objective of the plane that went down in Pennsylvania.

The measure, entitled, Justice Against Terrorism Act and introduced last January by Senators Chuck Schumer (D-N.Y.) and John Cornyn (R-Texas), gives U.S. federal courts jurisdiction over a civil claim against a foreign state for physical injury to a person, property, or death that occurs within the U.S. as a result of an act of international terrorism.

It passed the Senate in June after a delay forced by Sen. Lindsay Graham (R-S.C.), who warned it would open the way for foreign governments to retaliate by going after Americans serving abroad. That reflected one administration concern, which Secretary of State John Kerry had articulated in February to a Senate panel, when he said the measure would “expose the United States of America to lawsuits and take away our sovereign immunity and create a terrible precedent.”

None of this stopped the House from also approving the measure, requiring Obama to veto it on September 23. His veto message to Congress repeated arguments made against the measure since February, but at length.

He pointed out that responding to an alleged foreign government’s role in a terrorist attack within the U.S. would be taken “out of the hands of national security and foreign policy professionals…[by] placing them in the hands of private litigants and courts.”

In addition, the President pointed out that if other countries did the same, it “could have serious implications for U.S. national interest” since we have “a larger international presence by far than any other country, and sovereign immunity principles protect our Nation and its armed forces, officials and assistance professional from foreign court proceedings.”

On the day of their vote, 28 senators signed a letter to Schumer and Cornyn showing their nervousness about what they were doing. They said the measure, as the White House had repeatedly said, had “potential unintended consequences” for U.S. national security and foreign policy.  They wished to work with the two sponsors “to appropriately mitigate those unintended consequences.”

Normally, that would result in an amendment to the bill before passage. But it’s clear those 28 did not want to raise the issue before the election, so any mitigation would have to come later.

Obama understood what was going on. After his veto was overturned, he said, “Sometimes you have to do what’s hard, and frankly I wish Congress here had done what’s hard.” But he added he understood, “if you’re perceived as voting against 9/11 families right before an election, not surprisingly that’s a hard vote for people to take, but it would have been the right thing to do.”

Senate Majority Leader Mitch McConnell (R-Ky.) reflected the hypocrisy that’s rampant in Congress these days when he complained to reporters last Thursday about the White House and presidential “failure to communicate early about the potential consequences of a piece of legislation [that] was obviously very popular.”

He followed up saying, “This was an example of an issue that we should have talked about much earlier. It appears as if there may be some unintended ramifications of that – thank you – and I do think that it is worth further discussing. But, it is certainly not something that was going to be fixed this week.”

Where was the majority leader back in June when a veto was threatened and the same White House arguments were made and repeated in the months since?

McConnell was just illustrating the make believe world in which Congress today lives – a world that prevents the legislature from functioning and blocks the government from working. No president can change this, only members of Congress compromising with each other and the White House can get this democracy on track.

I worked twice in the Senate in the 1960s for Sen. J.W. Fulbright (D-Ark.), chairman of the Senate Foreign Relations Committee, when there were sharp political differences over the Vietnam War and nuclear weapons. But measures that led to the end of that war passed Congress as did an atmospheric test ban treaty, thanks to compromises.

This year’s primary voters and many in the current presidential election looking for change are aiming at the wrong target. They should be seeking to support potential profiles in courage for Capitol Hill and working against members whose first concern is with their own electoral futures and then that of their party.

The Author is Walter Pincus

Walter Pincus is a Columnist and the Senior National Security Reporter at The Cipher Brief. He spent forty years at The Washington Post, writing on topics from nuclear weapons to politics.  In 2002, he and a team of Post reporters won the Pulitzer Prize for national reporting. He also won an Emmy in 1981 and the 2010 Arthur Ross Award from the American Academy for Diplomacy.  He can be reached at [email protected]

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