The Crack in the Constitution

THE U.S. is facing a constitutional crisis. That branch of Government that most closely represents the people is not yet broken, but it is bent and in danger of snapping. A Congress intended by the framers of the Constitution to be the nation's supreme policy setter, lawmaker and reflector of the collective will has been forfeiting its powers for years. Now a President in the aftermath of a landslide seems intent upon further subordinating it and establishing the White House ever more firmly as the center of federal power.

Whatever the merits of Richard Nixon's intentions in trying to hold down federal spending or seeking peace in Viet Nam in his own way, his actions represent, among other things, a serious challenge to Congress as an institution. In Viet Nam, he has mined harbors and turned the massive bombing on and off like a spigot with no advance consultation with Congress and with explanation, if at all, only after the fact. He has vetoed congressional appropriations, which is his right. But he has also ignored Congress when it over rode his veto, refusing to spend the money appropriated--which is not his clear right. He has used a brief recess of Congress to "pocket veto" bills, extending a power intended only as an end-of-session action. Even as he centralizes more powers of the Executive Branch within his White House staff, he has drawn a cloak of Executive privilege around his men, refusing to allow key decision makers to be questioned by congressional committees. The trend could be ominous for the future of representative government.

As the 93rd Congress convened last week, there were signs that the lawmakers are finally aroused, determined to meet the White House challenge. While Nixon had his landslide, 96% of incumbent Congressmen seeking re-election and 80% of such Senators also won. Pre dominantly Democratic, they feel they have a mandate of their own.

Although the institutional integrity of Congress is more than a partisan concern, the Democratic leaders of both chambers--often criticized for their meekness in letting their powers erode --sounded especially angry. "If there is one mandate to us above all others," Senate Majority Leader Mike Mansfield told the Senate Democratic caucus, "it is to exercise our separate and distinct constitutional role in the operation of the Federal Government. The people have called for the reinforcement of the checks and balances." House Speaker Carl Albert similarly vowed to "work harder than I have ever worked in my life . . . to safeguard the constitutional role of the House as a strong and influential branch of our national Government."

More concretely, members of both houses expressed stronger sentiment than ever to cut off funds for the Viet Nam War unless Nixon quickly negotiates peace (see story, page 11). Indignant at Nixon's bombing tactics while Congress was in adjournment, Mansfield proposed that it never again adjourn sine die, retaining instead the right to call itself back into special session--a brusque indication that Mansfield does not trust Nixon. Rather than waiting for the President to present his legislative requests, Mansfield and Albert both listed priorities of their own--mainly bills that Nixon had vetoed last year.

Turning to the Judicial Branch for help, more than 20 Senators, including such fiscal conservatives as Mississippi's James Eastland and John Stennis, signed a brief asking a federal court to force Nixon to spend impounded high way trust funds, as demanded by the state of Missouri. North Carolina Senator Sam Ervin, the Senate's leading constitutional expert, declared that the Constitution gives "the power of the purse exclusively to Congress," and that presidential impounding of funds is "contemptuous" of both the Congress and the Constitution.

These new demands that Congress reassert itself only dramatize how far the national legislature has fallen; those lost powers were once taken for granted as congressional prerogatives. Nor can the protests be considered merely the customary complaint of the out party over the fact that the other party controls the White House. The decline of Congress began years ago.

Yet a further challenge to congressional rights was posed by Nixon last week as he shifted the powers of key Cabinet members in order to present as almost a fait accompli a reorganization of the Executive Branch that Congress has so far declined to approve. He elevated three of his Cabinet appointees to the title of White House Counsellor, and gave them broader authority. Caspar W. Weinberger will not only be HEW Secretary but will also supervise all of the "human resources" functions now scattered in various departments. James T. Lynn, the HUD Secretary, will administer all community-development programs, and Earl Butz, Secretary of Agriculture, has a new mandate over all "natural resources" activities. Democratic Senator Abraham Ribicoff has warned that any attempt by the President to reorganize the Executive Branch by decree poses a constitutional issue.

Stable. In comparison with other national assemblies, Congress still stands out as relatively stable and more representative than most. Tennessee's Republican Senator William Brock may be right in calling it "one of the most remarkable institutions known to man," and Ervin may not be off base in terming it "the most powerful political legislative body on the face of the earth." Indeed, the individual quality of Senators and Congressmen has never been higher. Yet in relation to the presidency and within the unique American system of balanced arms of Government, Congress has been failing. It no longer effectively checks the President, as required by the Constitution.

TIME is devoting much of the observance of its 50th anniversary to a study of Congress and its decline. Already TIME has held four regional meetings at which scholars, members of Congress and civic leaders discussed the problem and possible remedies. What is really at stake, explained Editor-in-Chief Hedley Donovan, is "whether a democratic society puts some value on collective wisdom as opposed to centralized individual wisdom, and whether the Congress can make a more constructive contribution to public policy."

One Way. While not all participants in the meetings agreed, the current state of the Congress was often described in dire terms. Oregon's Republican Senator Bob Packwood saw Congress as being in danger of slipping into the role of a mere "vetoing agency," with ability only to object to presidential initiatives. That would give the U.S. a Government described by Packwood as "very close to an Executive monarchy." The University of Pittsburgh's Charles Jones suggested that "Congress may be on a slide down that 100-ft. razor blade, with no way. to pull itself back." Ribicoff, who has served both on Capitol Hill and as a Cabinet member, said that "Pennsylvania Avenue has become a one-way street," with all the power flowing from a White House that "invariably lies to the Congress, massages it and seduces it to get its will."

TIME Congressional Correspondent Neil MacNeil points out Gallup polls indicating that 57% of Americans cannot name their Congressman, and only 19% can cite a single thing he has done.

Congress has slipped so badly, says MacNeil, that it may soon be necessary "to stuff a Congressman and stick him in the Smithsonian among other extinct species, so that future generations will know what a Congressman looked like."

In its earliest days, Congress had less cause to quarrel with the White House; elected indirectly by what was then a truly independent electoral college, the President existed almost solely to carry out the congressional will. He was regarded as a national administrator, and did not even dare veto a bill he personally opposed unless he believed that signing it would violate his oath to uphold the Constitution. The early fights came instead between the Congressmen, elected by popular vote in their home districts, and the Senators, selected by state legislatures.

The House may have been, as De Tocqueville said, "remarkable for its vulgarity and its poverty of talent." But it was dominant, having the sole power to initiate revenue legislation and impeach federal officials, including the President. The Senate's role, as Alexander Hamilton described it, was to "correct the prejudices, check the intemperate passions and regulate the fluctuations" of the more democratic House. Actually, the Senate was generally too cowed by the popular clout of the House--and too conceited--to object. It was largely the House, through its influential Speaker Henry Clay, that led the U.S. into the War of 1812--despite the reluctance of President James Madison. Clay was the kind of autocrat who, upon leaving a party at sunrise and being asked how he could preside over the House that day, replied:

"Come up, and you shall see how I will throw the reins over their necks."

The erosion of House dominance began with the grass-roots movement that elected Andrew Jackson in 1828.

Jackson conceived the argument that he was the only representative of all the people. He also introduced patronage, thereby enhancing the role of the Senate, which alone had the right to approve or reject presidential appointees.

The great debates over slavery that preceded the Civil War were staged in the Senate rather than the House, which was fragmented over the issue. Yet even Abraham Lincoln, who emancipated slaves by fiat, sometimes deferred to Capitol Hill. Said he: "Congress should originate, as well as perfect, its measures without external bias."

The Civil War's divisions helped create a strong two-party system in which a succession of powerful House Speakers used positions of party leadership to restore the supremacy of that chamber. These men--first James G.

Blaine, then Samuel J. Randall, John G. Carlisle and finally Tom Reed--appointed committee chairmen, dictated legislative priorities, and then determined the fate of their bills by the simple power of whom to recognize on the floor. By 1890, Reed was so contemptuous of the White House that he spurned presidential invitations to discuss his congressional plans. It was Reed who told a colleague in 1892: "I have been 15 years in Congress and I never saw a Speaker's decision overruled, and you will never live to see it either." The apex of House rule was reached under TIME'S first cover subject, Speaker Joe Cannon (see box, page 13).

The first serious 20th century assault on congressional power was made by Theodore Roosevelt, who took the novel step of outlining his own Square Deal program, although he had no great success in getting it enacted. Without asking Congress, he intervened to protect the Panama Canal Zone from Colombian forces, boasting later: "I took the Canal Zone and let Congress debate, and while the debate goes on, the Canal Zone does too." Yet when his successor, President Taft, had the temerity to have a bill drafted and presented to Congress, House Democrats haughtily objected to the notion that they should consider any legislation "drawn at the instance and aid of the President and declared to be the President's bill."

Woodrow Wilson was the first President to enjoy much success with a domestic legislative program of his own creation. But in foreign affairs, the field now so completely a presidential province, he was humiliated by the Senate's post-World War I rejection of his proposed League of Nations. Complained Wilson bitterly: "Senators have no use for their brains, except as knots to keep their bodies from unraveling." No President thereafter was able to mount a serious challenge to Congress until Franklin Roosevelt, who was aided immensely by the crisis urgencies of the Depression and World War II. Roosevelt appealed directly to the people in his fireside chats; radio, and later television, did much to focus the nation's attention on the presidency.

Acolyte. The notion of the Congress as the originator of legislation was reversed by Roosevelt, who began summoning Democratic leaders of both chambers to his office for weekly instructions. This made them political lieutenants of the President. Yet Congress could rebel, as when he tried to pack the Supreme Court. Strong congressional leaders still carried heavy weight after F.D.R., notably Lyndon Johnson in the Senate and Sam Rayburn in the House, but they held a more cooperative attitude toward the White House. Declared Rayburn at one point:

"I haven't served under anybody. I have served with eight Presidents."

With the outbreak of World War II, the President became a dominant international figure, and Congress assumed more and more the status of acolyte. The cataclysmic cloud of the atomic bomb immeasurably enhanced the life-and-death powers of the President in world affairs. Although there had been some legislative protests when various Presidents had ignored the constitutional war-making powers of Congress by sending troops briefly into Latin American republics in the 1920s, there was little complaint when Harry Truman committed U.S. forces to Korea and Dwight Eisenhower ordered Marines to Lebanon. John Kennedy kept Congress ignorant of his plans to invade Cuba, and Lyndon Johnson merely informed Congress that he was sending troops in huge numbers into Viet Nam. The Gulf of Tonkin resolution, giving Johnson a free hand and later repealed under President Nixon--but without any practical effect in either case--only illustrated the congressional impotence in matters of war. For practical purposes, Presidents have moved away from the treaty-making processes, using Executive agreements and grants-in-aid, thus undercutting the Senate's old dominion in this field.

It is, of course, the long frustration of the Viet Nam War more than any other factor that has fed the growing reaction against presidential power. Indeed, there has been an ironic turnabout by academics and liberals who once excoriated members of Congress as moss-backed obstructionists retarding the social legislation of F.D.R., Truman and Kennedy. Now such critics attack Congressmen for acquiescing in the war policies of Johnson and Nixon, and for not obstructing more. The rationale of legislators has long been that the President "knows better" than they about a complex problem like Viet Nam through the Executive's intelligence and military bureaucracy. But as the Pentagon pa pers suggested, all of the expertise does not necessarily yield sound policy; the decision-making apparatus can achieve a blind momentum of its own. Worse, the White House may deceive Congress about its true intentions. Congressional intervention might well have averted, or shortened, some of the travail--and the need to make a case for Congress might have improved the quality of Executive decision making.

Despite its doubts, Congress has continued to support the war through its military appropriations, partly because it has completely lost its grip on the nation's budget-making machinery.

This, even more than the loss of war powers, may be the most debilitating congressional deference to the Executive Branch. Congress once determined, item by item, what the Government should spend for what purpose, then dutifully raised the revenue to do so. It has attempted to deal with the growing complexity of spending and taxing by creating a multiplicity of committees and subcommittees. As a result, Congress has no overall view of either function, and thus no means of rationally setting priorities. The Bureau of the Budget, created in 1921 to aid both Congress and the President, has been captured by the Executive, reducing Congress to the role of making minor alterations in a hand-me-down budget produced by each Administration.

TIME'S regional meetings produced some intriguing insights into the general causes of the dwindling influence of Congress. Maryland Senator Charles Mathias claims that Congress is so narrowly concerned with each single piece of legislation that it ignores a broader perspective and fails to notice when it is "at a Rubicon, facing a great constitutional watershed." Correspondent MacNeil agrees that the legislators "live, like many people, on the razor edge of right now. They are parochial in time; they lack a sense of the past or a care for the future."

One reason for this, as Ohio's Republican Senator William Saxbe sees it, is that "Congress has declined into a battle for individual survival" in which few members think about the welfare of Congress as a whole. Each reasons that "if you don't stick your neck out, you won't get it chopped off." Thus when a decision is tough, argues Oregon's Packwood, Congress may be more than willing to pass the buck to the President.

"We can delegate powers to the President, then sit back and carp or applaud, depending on whether what he does is popular or unpopular. If it's unpopular, we can say, 'What a terrible thing. We wouldn't have done that.' " Berkeley Political Scientist Nelson Polsby; author of Congressional Behavior, finds legislators hampered simply by their need to get reelected. While the public expects Congressmen to be generalists, competence in a complex age requires specialization--a dilemma Polsby would resolve by urging constituents to expect less "omnicompetence" in their representatives so they can concentrate on their specialized committee work. Polsby considers committee competence the key to a strong Congress.

Another dilemma working to the disadvantage of Congress is described by University of Rochester Political Scientist Richard Fenno, who wrote The Power of the Purse: Appropriations Politics in Congress. Fenno claims that most people "love their Congressmen, but not Congress." It is easy to like a legislator for his personal style and policy views, Fenno notes, but difficult to admire a Congress because it is expected to solve national problems--and it rarely can. Moreover, many Congressmen "portray themselves as the gallant fighters against the manifest evils of Congress; they run for Congress by running against Congress." As Congress thus loses prestige, its effectiveness can decline in a self-perpetuating spiral of criticism.

Among the specific areas of congressional decline:

BUDGET. Despite political charges that Congress has been spending the Government into heavy debt, it has actually altered the Administration's budget in recent years by less than 5%. Saxbe illustrated congressional inadequacy in analyzing just one part of the budget: that of the Defense Department, which spends more money on the staff to prepare its budget alone than the whole Congress spends for all of its operations. Against the Pentagon, the Senate Armed Services Committee has only 15 staff members, who, says Saxbe, also "spend a lot of their time campaigning for the committee members, running their offices and hauling their wives around."

Ribicoff, among others, makes a persuasive proposal: Congress should have its own budget bureau to keep up with the overall spending totals, as well as to analyze specific funding needs and set up general priorities. Tennessee's Brock, a conservative who helped organize the Nixon re-election campaign among youth, has introduced a bill to set up a joint House-Senate committee that would propose a legislative budget, apart from the Administration's request, and create its own priorities. The joint committee, moreover, would periodically review the programs it has funded to see if they are working as intended. But Scholar Ralph Huitt worries that such a centralized committee would be easier for a President to control, and that "these people elected by no national group would have no responsibility to anybody."

IMPOUNDING. There is no more direct challenge to congressional power than Nixon's refusal to spend money Congress has appropriated. This issue apparently is headed for a momentous collision in the courts. Presidents have refused to spend funds in the past as far back as Thomas Jefferson, who withheld some $50,000 that had been authorized for gunboats to patrol the Mississippi River. But this was generally done then because the need had passed or a project cost less than had been expected. Nixon has used this device as an expanded veto power, impounding some $6 billion in water-pollution control money and $5 billion in highway funds. Moreover, he asked Congress for the right to select which appropriations he could reject, in an effort to keep spending within $250 billion this fiscal year and the House meekly agreed. Mathias claims the House did so because it saw the matter "as a mere housekeeping item," while Ribicoff termed the Senate's rejection of this request "its most significant action in modern times." Approval would have given the President unprecedented authority to thwart congressional will.

PRIORITIES. Congress has fallen into the habit of mainly reacting to the President's legislative requests, rather than setting its own agenda. Huitt argues that Congress simply does not have the machinery to do so now. Ervin distrusts any effort to change that, contending that Congress is too disparate a body, and each member would have his own priority preferences. "I would set a priority on moonshine liquor," he quips, "because a lot of my constituents still make it up in the hills." As Mansfield and Albert indicated last week, current attempts to set legislative priorities are taking place within the caucuses of the controlling Democratic Party.

STAFFS. Congressional committees, as well as most legislators, have inadequate staffs to compete with the Administration and what some consider a fourth branch of Government: the huge bureaucracy that nei ther the President nor Congress can control. Despite a 1946 law requiring all committees to hire only professional staff experts, many still use political pals or unskilled generalists. Minnesota's Democratic Senator Walter Mondale noted that when he held a hearing to argue against more aircraft carriers, it was a case of "myself and one college kid versus the U.S. Navy and everybody who wanted to build a carrier, or who had a friend who was an ensign or above. We foolishly handicap ourselves by failing to properly staff ourselves."

General William Westmoreland, on the other hand, assailed Congressmen for not even using Administration-supplied information at committee hearings. He charged that they do not do their homework and are more interested in "stagemanship, self-aggrandizement and demagogucry" than in analyzing "extremely complex" issues. TIME'S MacNeil contends that legislators are afraid to hire more help because of adverse public reaction, but that if they forthrightly stated their need, the expense would be accepted.

INFORMATION. Congress needs more help from computers in order to retrieve information and analyze complex statistics. Brock noted that twelve state legislatures have such equipment, while the University of Pittsburgh's Charles Jones (Minority Party Leadership in Congress) estimated that Congress has "the computer capability, roughly, of the First National Bank of Kadoka,

S. Dak." Declared Mondale: "Whenever I am on the side of the Administration, I am surfeited with computer printouts that come within seconds to prove how right I am. But if I am opposed to the Administration, they always come late, prove the opposite point, or are on some other topic. He who controls the computers controls the Congress." Congress should be provided with a modern computer capability.

LEADERS. Despite the new spirit shown by Mansfield and Albert, the leadership in both chambers was widely criticized as too conciliatory or gentlemanly to be effective. What is required, argued Correspondent MacNeil, is some of "the arrogance" of past taskmasters who ran Congress with heavy hands. Jones suggested that there is perhaps no greater congressional need than to strengthen the leaders of each party within Congress and thus pin down responsibility. He cited Woodrow Wilson's dictum that "somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished."

SENIORITY. The academic experts generally argued that the seniority system of selecting committee chairmen has been attacked much too broadly as a central evil when in fact it is a minor matter. Henry Hall Wilson, president of the Chicago Board of Trade, even contended that if the seniority system were abolished, the same men would be chosen as leaders. "Why? Because they are abler." Senator Ervin conceded that the system is bad in some respects, "but the only thing that is worse is every alternative that has ever been proposed for it." Such views were challenged by Massachusetts Congressman Robert Drinan, who charged that seniority and some other House rules produce "tyranny and tyrants." Arizona Congressman Morris Udall said wryly: "My God, this is the only institution on earth where you can lead a 'youth rebellion,' as I was accused of doing, at age 47."

Udall attacked the system as giving "national power to people who are responsible to a limited constituency; Wilbur Mills, one of the most able men in Congress, is not chairman for Little Rock, but for Los Angeles and Long Beach and Prescott, Ariz." Udall has proposed a plan for the majority-party caucus to elect committee chairmen from among the three senior members on each committee, and by secret ballot. In sum, it may well be necessary to drop or at least modify the seniority system in order to encourage more legislators to develop expertise, with the expectation of gaining influence sooner.

RE-ELECTION PRESSURES. The need for Congressmen to be constantly seeking re-election was deplored, although some scholars argued that it actually keeps them better informed on the desires of their constituents than any other federal officials. Also assailed was the dependence of many legislators on campaign contributions from donors with potential special interests. Mondale termed this "the dark side of the political moon, tragic and dangerous." Saxbe said a donor almost always expects a return favor. "It is like the boy who buys a girl a beer and then expects the right to squeeze it out of her." There is a strong need for public funding of campaigns.

SECRECY. While deploring the spreading use of Executive privilege by recent Administrations, the panelists could suggest little that Congress can do to check it.

Another problem, of course, is the excessive secrecy of Congress itself. The House Appropriations Committee opened only 33 of its 399 meetings last year, the House Ways and Means Committee closed 48 of its 76 sessions, the Senate Finance Committee held 85 of its 110 meetings behind closed doors and the Senate Armed Services Committee went into secret session in 109 of its 152 meetings. It is at committee meetings that most of the key decisions of Congress are made. Declares John Gardner, head of Common Cause: "These matters are secret only to the public. The Public Works Committee holds no mysteries for the highway lobby, nor the Agriculture Committee for agribusiness. The deliberations of the Ways and Means or Finance Committee are accessible to a whole swarm of loophole lizards." More of the crucial committee deliberations should be opened to the press in order to improve public understanding of congressional action and problems.

THE PRESS. Panelists criticized the press for its overconcentration on the White House, its relatively superficial coverage of Congress and its oversimplification of the reforms necessary to make Congress more effective. "If Hen ry Kissinger is the best national journalists can do for a sex symbol in national politics," noted Jones, "then they have not completed the search." Mon dale claimed that reporters follow a "star system," and fail to spot talented and courageous newcomers, many of whom quit politics when they see no one supporting their efforts.

Other possible reforms would involve improving the public image of legislators by tightening conflict-of-inter est rules, including the banning of outside work (the $42,500 annual salary, plus expense allowance, should be adequate to make the job worthy of a member's full time). The overseer functions of committees should be emphasized, to determine whether the congressional intent of programs is being carried out by the Executive Branch.

Some argue that the problems on the Hill are psychological, having to do with the sheer will of Congress to make itself felt. Perhaps more than any specific set of reforms, the Congress needs only to use more fully the tools and potential it has long possessed. "Reforms are not going to make any difference unless there is the will in Congress to want to govern," contends Packwood. "We can set policy, we can take back the powers if we want. But we have said 'can't, can't, can't' so long it has become an excuse for 'won't.' " Sums up MacNeil: "I have never seen Capitol Hill so alive to its problems, so anxious to begin the restoration. Yet whether that will can be sustained for an extended time--time enough to accomplish the ends--is debatable. Carrying the hard commitment for the necessary months and years is not easily done."

In an age of growing complexity--and in an era when momentous glob al decisions might have to be made in an instant--a strong presidency is necessary. But not a presidency made strong with the usurped powers of an other branch. As a former Senator and Congressman, it seems strange that Nixon does not fully appreciate this. The shape in which Congress emerges from its crisis, whether regaining its lost luster or continuing to recede, to function as a kind of windy Washington side show, may be determined by what the public demands of it. Ultimately, the nation gets the kind of Congress it deserves. As Charles Jones observes:

"Whatever is wrong with Congress may also reflect ills in the society. And if the legislature fails, democracy fails."

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