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Bush's Plebiscitary Presidency | The Nation

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Bush's Plebiscitary Presidency

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I meet with people in my district and elsewhere in the country, and I have for a couple of years now been engaged in some debate with some of my liberal friends on the nature of our disagreements with this Administration. And up until a few months ago, my argument was that we should focus on policy issues where we disagreed: the war in Iraq, and policies that undercut working people, promote inequality, weaken the environment and undercut the rights of minorities.

This is the edited version of a speech Massachusetts Democratic
Representive Barney Frank delivered to the House of Representatives
on July 13, part of The Nation's Moral Compass series that focuses on
the spoken word.

About the Author

Barney Frank
Barney Frank represents the 4th District of Massachusetts in Congress and is chairman of the House Financial Services...

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In a 2009 Nation editorial the Congressman passionately called for money for healthcare, not warfare. 

Others have said, Go beyond that. We have to indict this Administration for the philosophy of governing, and people have questioned its commitment to democracy. I continue to disagree that we should question this Administration's commitment to democracy.

Some of the words that get thrown around--authoritarianism and worse--should not be used lightly. This remains today, in the sixth year of the Bush presidency, a very free country. People are free to speak out, to dissent and to be critical. So while I agree that this Administration believes in democracy in the broadest sense, I am now convinced that it is a very different kind of democracy than that which has prevailed for most of our history.

Yes, the President agrees that the source morally or the power of the government is an election, and he believes that the President ought to be elected. I agree that the President honors the concept that you gain power in a democratic society by winning the election. But here is the difference.

We have historically talked about checks, about balances, about our three branches of government. We have contrasted that to the more unitary governments in other parts of the world, even democratic ones. We have separate legislative, judiciary and executive branches.

This is an Administration which considers checks and balances to be a hindrance. They believe that democracy consists essentially of electing a President every four years and entrusting to that President almost all of the important decisions.

I believe we have seen a seizing of power that should not have been seized by the executive branch. But thanks to the acquiescence of a Republican majority in this Congress, driven in part by ideological sympathy, the President has been allowed to be the decider. So we have had a very different kind of American government. It is democracy, but it is closer to plebiscitary democracy than it is to the traditional democracy of America.

Plebiscitary democracy: Political scientists use this to describe those systems wherein a leader is elected but once elected has almost all of the power. Indeed, I believe, it certainly would seem to me the aspirations of the Vice President.

Elect the President. Let him win and then get out of his way. We had a debate here a month ago on the floor of this House on the right of the President to ignore legislation passed thirty years ago, the Foreign Intelligence Surveillance Act, by which the President and Congress together set forward a method for wiretapping and eavesdropping in cases where we thought there were foreign threats to the US.

This is a case where the President and Congress together, in the Carter Administration, explicitly adopted a scheme to listen in on people who meant us ill. It was followed by Presidents Carter, Reagan, Bush I and Clinton. And then this President said, I don't like that, it's too confining, so I will ignore it. I will instead use my power to do what I want to do and forget the requirements of the law.

But where the law has been set out in a prescribed constitutional manner as to how to do something, and the President says, I am not going to do it that way, I will do it my way, then you are into plebiscitary democracy. Then you are into the democracy that says no checks and balances. No, Congress, I will do what I think necessary.

Some have argued that this power is contained in the "vesting clause" of the Constitution. So I relooked it up--it says: "The executive power shall be vested in a President of the United States of America."

That is it. That's the vesting clause. From those words the President and his defenders draw the conclusion that the President can ignore a duly enacted law of Congress if he thinks it should be done a different way.

So what they have done is take a simple sentence that says the President is the boss of the executive and use that to justify the assertion of executive power in areas which should have been legislative or judicial. And that has been the pattern in this Administration.

We voted to authorize a war in Afghanistan to get Osama bin Laden. We later found the President citing that as authority to order the arrest of American citizens on American soil who would then be held indefinitely in prison with no formal charges brought against them and no opportunity to defend themselves and no way to get out of prison.

That was one of the cases in Chicago where they arrested an American citizen they said was up to no good. He may well have been up to no good, although ultimately they did not even prosecute him. But they arrested him and said they had the right to just lock him up forever--an American citizen--with no recourse of any kind because the President ordered it.

Well, there is a statute that says you cannot in America lock up an American without statutory justification. And people said, Where is the statutory justification? And the Administration maintained, until the Supreme Court majority in the Hamdan case finally repudiated it----they said that in 2001, Congress authorized the President to do whatever he had to do to deal with the situation of the attack in America. And that outrageously, illogically was cited as support for this.

We had the Patriot Act situation, where the Judiciary Committee unanimously adopted a very reasonable, balanced bill, which gave law enforcement expanded powers to fight terrorism but had some safeguards against abuse.

But the Attorney General said, No, we do not like that bill. Here is a new one. And a new bill was written overnight and "debated" on the floor of the House with no ability to amend it.

These examples demonstrate that Congress was now ready to do whatever the Administration wanted. They don't want Congress to agree on their ability to detain people at Guantánamo or track terrorist financing because accepting the right of Congress to agree with them implies that at some future date Congress might disagree. And plebiscitary democracy has no room for Congressional disagreement once the President has made his decision. So we have a situation of unilateralism and a refusal even to take Congress in when Congress wants to be a willing partner.

I believe that law enforcement people are the good guys and women. I believe that we need to give them new powers when we are dealing with murderous fanatics who are ready to kill themselves. Our basic law enforcement theory of deterrence doesn't work against people who are ready to commit suicide.

I believe that the law enforcement people are the good guys, but I don't think they are the perfect guys. I think there were mistakes made by the FBI in Boston, Mayfield in Oregon, Captain James Yee at Guantánamo, Wen Ho Lee under the Clinton Administration and a number of cases in Guantánamo of innocent people captured on the battlefield in Afghanistan in the fog of war.

People make mistakes. What we should be doing is giving law enforcement full power, but also having some checks so that people who are unfairly accused can defend themselves. Our problem is that when the Administration does these things unilaterally, we have no way to know whether or not those safeguards are there. When the Administration asserted the right to arrest an American citizen on American soil, and lock that man up forever, fortunately the Supreme Court said, You can't do this, this is America. The problem is not that they are being tough on terrorists, it is that they are being tough on individuals accused of terrorism who have no conceivable way to defend themselves to say that there might have been a mistake.

But the problem of shutting Congress out is that you don't get that input that allows you to exercise powers in a reasonable way, but helps you with safeguards. You have things which are not, in themselves, controversial, like tracking terrorist financing. Of course we should be doing that, or surveilling foreign terrorists or wiretapping--of course, with the right reasons, you should do that.

But when the Administration does them unilaterally and refuses to allow Congress in and refuses to follow some of the rules that Congress has set down, they take noncontroversial things or less controversial things and make them controversial. That is, they become politicized. The debate over the terrorist financing tracking is not over the substance of that program but over the secretive, unilateral and arrogant way in which the Administration decided to do it and shut out any chance for Congress to participate.

So that is the problem with the plebiscitary approach. Yes, you elect a President, but we don't elect perfect Presidents. And then we also have a Congress and a court that are supposed to be involved as well; and this Administration has time and again refused to do that.

One of the things this Administration has used more than every other Administration in history is the right, when signing a bill, to say that we are really signing these parts and not the other parts, because we consider some of it unconstitutional, so we will ignore it.

The President has a right to say, This is unconstitutional, I don't like it. His job then is to veto the bill. But what he now does is, he picks and chooses; he thinks the legislation is a supermarket.

The signing statements are an assertion of plebiscitary power, the right of the President to do whatever he wants, to take laws that Congress passed and pay attention to parts of them and not other parts.

I have to reiterate that this could not have happened without the collaboration of a supine Congress. Never in American history has Congress been so willing to give away its constitutional function. I know people have said, Well, what do you expect, it is a Republican President and a Republican Congress? No, the history of the United States is that even when the same party controlled the presidency and the Congress, Congress did oversight.

Harry Truman became a national figure when he chaired a Senate committee in a Senate in which the Democrats were a majority, supervising closely the conduct of World War II by the Departments of War and Navy under Franklin Roosevelt. Can you imagine what a Halliburton would have been subjected to in World War II given that Harry Truman was there?

Let's take a recent example. When Bill Clinton was President for the first two years and the Democrats were in the majority, we had a very tough, emotionally searing hearing doing oversight on Waco. We had a hearing in the Banking Committee on Whitewater. Republicans thought it wasn't sufficiently condemnatory, but they got a chance to present witnesses; we had the hearing.

So we have seen no oversight. That has played into the hands of the plebiscitary presidency, into the hands of a President who is allowed more power than is healthy for a society.

I am not charging authoritarianism. It still is a free country, and I encourage people to use that freedom and to be critical and to organize. But we are still talking about a very, very different mode of governance, the mode of governance in which, instead of the checks and balances and the collaboration and the input of a lot of people, you get one man making the decisions.

Now we face a terrorist enemy. And if in fact these things detracted from our ability to defend ourselves, we would have a real dilemma, but they don't. The argument that democracy, that collaboration with Congress, that judicial review, that an independent media, somehow detract from our ability to defend ourselves is not only morally flawed, it is factually wrong. This Congress would be very willing to participate with the President. And I think if a process in which thoughtful and well-informed members of Congress were able to meet in a collaborative way with members of the Administration, the result would be to strengthen what we do. Instead, what we have is controversy after controversy because this Administration does not learn, and they continue to follow the pattern of We will do it unilaterally, we do it without anybody else, we will do whatever we want. And it fails.

Presidents can get away with this assertion of extra-constitutional authority. Congress doesn't have to give them the authority; all it has to do is not stop them. That is what we have not done. And I want to repeat, with regard to national security, the problem is in many cases not what the Administration has done but the way in which they have done it.

Yes, this is a Congress overwhelmingly ready to give them the power to combat terrorism. We understood after September 11 that we needed a new law enforcement mode in which we got more aggressive, that simply deterring people by the threat of punishment doesn't work in an era of suicidal fanatics.

So whether it is signing statements or misuse of the authorization of use of force in Afghanistan, or refusal to talk to members of Congress, or exploiting the fact that it is very hard to get judicial decisions, all of these things come together in a pattern. I acknowledge now that when we just go policy issue by policy issue and not talk about the overall framework of governance, I was wrong.

It is now clear to me there is a pattern to this Administration's actions, and it is one that rejects not democracy but the democracy of checks and balances and participation and cooperation and collaboration; and it substitutes the democracy of the plebiscite, the democracy of the strong man who gets elected and is then allowed to go forward without interference.

I think the insistence of this Administration to doing it by them and by rejecting efforts to draw in other sectors of this society weaken America, which makes things look more controversial than they need to be.

Now, there have recently been some stirrings here. I was struck when we had a Financial Services oversight hearing and the strong and articulate voice of the Republican chair of that subcommittee, Mrs. Kelly, objected to the unilateralism of it. Some senators have said, No, you can't just ignore what the Supreme Court did and you can't just put a lipstick on this and forget about it.

I wish the Administration would understand that what we are talking about is strengthening America, not weakening it; that the democracy we have had, the checks and balances, they weren't suspended during World War II. People made mistakes during World War II, some terrible mistakes, but you had the Truman Committee and you had a very active Congress.

We believe that a process in which we work together will yield a better result; that a process which assumes that law enforcement is perfect and therefore can operate in secrecy, without any kind of input--that that will do more harm than good.

I believe there is a very strong majority in this Congress prepared to work with this Administration in ways that preserve the need for discretion and in which the expertise collectively in this body on a number of issues can help us go forward with the measures we need to protect ourselves and, at the same time, preserve our liberties. And if this Administration continues the pattern of these past years, it will damage our ability to come together and make this effort, and I think, over the long term, diminish the nature of our democracy, because the democracy of the plebiscite meets minimal democratic standards, but it does not represent the full richness of a democracy in which all can participate.

What we have is an Administration that is radically trying to change the nature of our democracy. They want to simplify it, they want to neaten it. Democracy is not good when it is neat, certainly not in a country as vast as this one. No single individual, no matter how popular, can embody all of the wisdom and all of the values of the country.

The democracy we have evolved of full participation isn't always convenient for those of us in power. It isn't always as quick as people would like, but it has proven over time to be effective, and it could be not only effective today but even more effective in our collective self-defense than the current model, which produces controversy where none is called for and division where we could have unity.

I am not optimistic that we will change the approach of this Administration. But I do hope that Congress will continue what I think are stirrings of change and reassert our historic role and restore the kind of messy and inconvenient and much better and more inclusive democracy that has been our country's legacy.

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