Monday, October 14, 2013

Don’t Negotiate, Mister President

My neighbor (we both live in the Richmond Metropolitan Area) and majority leader in the House of Representatives, Eric Cantor, appeared as a guest columnist this week in the Richmond Times-Dispatch and lambasted the President of the United States for his unwillingness to negotiate with the Congress on issues relating to the federal budget and the national debt. 1 That’s what Mr. Cantor says, but if you read his opinion carefully you will see that his real complaint is that the president has not negotiated on its terms with one political party in one chamber of the Congress. But, let us not quibble. There have been a goodly number of people out there who have adequately criticized Mr. Cantor’s guest column. That is not what this maven wants to talk about.

In his column, Mr. Cantor asserts that many of this republic’s presidents have been faced with a Congress controlled by an opposition party and that all of them have been successful leaders because they have negotiated with that opposition. Only President Obama refuses to negotiate and is therefore a bad leader. I could do an exhaustive study to check on Mr. Cantor’s accuracy. After all, this country has been blessed with lots of mediocre and bad presidents and many of them did not lead successfully at all. But it is not for this maven to challenge this historical conclusion uttered by the product of one of Richmond’s finest private schools. And again that is not what I want to talk about. 

What I do want to talk about is this sentence from Mr. Cantor’s guest column: “The president not only has refused to negotiate on issues of debt and spending but also has mocked the very idea of engaging with Congress.” Again, I will agree with Mr. Cantor’s assessment, although as a life-long and loyal Democrat I could argue. What concerns me is Mr. Cantor’s belief that this president, or any other president, has a constitutional or any other responsibility to negotiate with congressional leaders of the opposition party. I certainly cannot find such a responsibility in the Constitution.

What I find surprising is that the drafters of the Constitution said so little about the legislative process. Although there is lots of space in the Constitution dedicated to setting forth the extent of the powers of the Congress, this is all the Constitution says about how legislation is to be enacted:  

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”

Article I, section 7.

Nowhere is there mention of the actual legislative process—that one chamber enacts a bill and sends it to the other chamber; that the other chamber can agree with the bill, can reject the bill, can substitute its own bill; that if the chambers are not in agreement they will meet in conference, and that only when each chamber passes the bill in identical language is it sent to the president for his approval or veto. (I suppose the drafters assumed that the process was implicit in the language they used and didn’t need to be specified.)

But, Mr. Cantor, nowhere in this description of the legislative process does the Constitution state that a president has any roll other than approving or rejecting a bill sent to him by the Congress. There is no mention of him or her being required to negotiate with leaders of the opposition party. However, maybe we have to look elsewhere in the Constitution to support Mr. Cantor’s belief. Let’s look at the article dealing with the powers of the executive branch.

The Constitution says:

“He [the president] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper…”

Article II, Section 3.

So, the president shall report to the Congress on the “State of the Union”, may recommend legislation to them, may “on extraordinary Occasions” call them into special session, and if they cannot agree he can adjourn them. But, again, there is no mention of negotiation.

I am unable to tell when the practice of the president negotiating with members of the Congress began. Mr. Cantor says that as recently as 1995 President Clinton and Speaker of the House Gingrich worked overtime to reach a bipartisan agreement that ended a debt/government shut down crisis at that time. But he does not say “as early as”, so we don’t know who was the first president to do so.

The idea that a president should participate in legislative negotiations as the head of his party is not in the system that the drafters of the Constitution designed for our republic. In fact, it is more like the British system in which the Prime Minister is both head of government and head of his or her party. The drafters, instead, based our system on separation of the legislative, executive and judicial functions. Article I, section 1 of the Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Article II, section 1 says “The executive Power shall be vested in a President of the United States of America.” Article III, section 1 states “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The Constitution provides for three separate branches of government that interact only in the few instances that the Constitution specifies. Therefore, for a president to negotiate over legislation with congressional leaders changes the delegate balance of power that the drafters so carefully structured. 

But, Maven. Why mess with something that is working. What is the downside with the president and the Congress getting together to work out the terms of legislation? 

First, looking at recent history, especially the last several weeks, demonstrates that the negotiation process is not working.  

Second, allowing the president to participate in the legislative process gives him or her greater power than the Constitution envisioned. Making the president a kind of super legislator contradicts the Article I language quoted above that all legislative powers should reside in the Congress. The careful structure of separation of powers allows the president to propose legislation at the beginning of the process and to approve of or veto legislation passed by the Congress at the end, but not to participate in the deliberations involved in its enactment.

Third, there is only one President of the United States. She or he is elected by voters in all of the states. Each member of the House of Representatives is elected by only one four hundred thirty fifth of the American electorate. Each Senator is elected by the voters in only one of fifty states. The party leaders in each chamber, including the Speaker of the House, are chosen only by the members of their own party, usually for having survived longer than the other party members. Negotiations between a president and congressional leaders therefore are necessarily between people of unequal power.

Fourth, in the present historical context, we have a president who is personally detested by a significant minority of the population. That minority has managed to elect members of the Congress both in the House and the Senate. These members seem to be more concerned with weakening this president and in depriving him of any historical legacy than in governing. In this context, having the president participate in negotiations makes it less likely that they will succeed, because the motivation of some of the negotiators will be to embarrass the president rather than to reach a reasonable compromise. 

So, this maven recommends that the president return to the constitutionally described process and refrain from negotiating with members of Congress on the content or language of legislation. On the other side, the Congress should move back to the constitutional process and stop pulling the president into the legislative process. In each chamber, if there is disagreement on legislation, the leaders of each party should negotiate with each other to try to reach agreement. If the two chambers disagree on legislation, their differences should be ironed out in a conference. This process has worked for centuries and can work again if implemented.



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