Article: Congressional Oversight of the “Marketplace of Ideas”: Defectors as Sources of War Rhetoric
Congressional oversight is “one of the most important responsibilities of the United States Congress,” particularly when oversight can enhance the likelihood that executive policies will reflect the public interest, augment the efficiency and efficacy of government operations, and deter “capricious behavior, abuse, waste, dishonesty, and fraud.” Legislative scrutiny of the executive has arguably been weak, but was markedly deficient during the Bush administration. In 2006, when only 20% of Americans approved of Congress’s performance, Ralph Nader, Norman Ornstein and Thomas Mann published a book which referred to Congress as the “broken branch.”
Long-term trends of growth in the administrative state, the president’s role as head of state during periods of proliferating international relations, and the Commander in Chief authority during war and crises have the prospect of augmenting presidential power relative to congressional assertions of prerogative. However, the existing composition of Congress in particular can aggravate the separation of powers balance and impede effective legislative oversight. The majority party in Congress may be polarized, exploit the centralization of power within party leadership, obstruct the minority party, initiate a preferred legislative agenda, and avert or omit contentious issues from the congressional agenda, particularly when those issues could frustrate the president. The majority party in Congress has the foremost opportunity to challenge the president, which means that scrutiny is apt to dwindle under unified government. During the mid-1990s, Republicans, particularly House Speakers Gingrich and Hastert and Senate Majority Leaders Dole and Lott, endeavored to drive an ideological agenda, but they were unable to overcome President Clinton’s veto. After Bush was inaugurated, Republicans controlled the presidency and Congress from 2001 to 2006.
The White House can also lead the congressional agenda. The President has a privileged institutional capability to communicate with audiences to champion chosen issues and dominate public discourse. While controversial, the President could intensify command over political agendas with advocacy programs that Congress unwittingly funds. This is particularly unsettling if government expends taxpayer funds to disseminate/propagandize a preferred message anonymously. The Constitution and legislation provide that no public funds may be dispensed without congressional approval. As for the substantive message, the marketplace model generally posits that government does not regulate information or prohibit speech, and the First Amendment “does not affirmatively entitle anyone to subsidies for their speech.” If government funds one position and excludes others, the latter may be disadvantaged.
This Article examines how the congressional spending power and wanting oversight can abet operations that market war policies. These considerations forged a vital issue preceding the Iraq War. In its five-year investigation of the pre-war intelligence estimates, the Senate Select Committee on Intelligence (“SSCI”) devoted a 208-page report to the Iraqi National Congress (“INC”), a group of defectors who sourced the media and U.S. intelligence services with allegations that Iraq possessed weapons of mass destruction (“WMDs”) and collaborated with al-Qaeda. INC publicity activities were funded by the U.S. government.
Robert Bejesky: M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law (Georgetown). The author has taught international law courses for Cooley Law School and the Department of Political Science at the University of Michigan, American Government and Constitutional Law courses for Alma College, and business law courses at Central Michigan University and the University of Miami.
. Louise M. Slaughter, H.R. Comm. on Rules Majority Office: The Gen. Principles of Cong. Oversight (1999), available at http://democrats.rules.house.gov/archives/comm_gp_cong_oversight.htm.
. Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89 B.U.L. Rev. 765, 773 (2009). Senator Alan Simpson remarked that “when people say, ‘Where is Congress?’ They are there. It’s just that you don’t see them there.” Sherman J. Bellwood Lecture: National Security and the Constitution: A Dialogue with Senators Gary Hart and Alan Simpson, 43 Idaho L. Rev. 7, 21 (2006).
. Thomas Mann & Norman Ornstein, The Broken Branch: How Congress is Failing America and How to Get it Back on Track 156-57 (2006).
. Kriner, supra note 2, at 765-66 (citing Mann & Ornstein, supra note 3); Presidential Powers: Articles and Poetry: A Forum on Presidential Authority, 6 Seattle J. Soc. Just. 23, 43 (2007) (20% of Americans had confidence in Congress at the same time the President had approval ratings of about 30%).
. Kriner, supra note 2, at 769 (Congressional delegation of responsibilities to the executive during periods of administrative state expansion). Executive power has been encroaching on Congressional authority for several decades. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2315 (2006); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 508 (1989). The administrative agency facilitates the legislative mission and promotes efficiency. Cynthia R. Farina, False Comfort and Impossible Promises: Uncertainty, Information Overload, and the Unitary Executive, 12 U. Pa. J. Const. L. 357, 361-62, 399-403 (2010) (expansive and complex rule-making procedures in the executive branch to address changing society). The agency’s prerogative grows in that new jurisdictional arena. Legislative vetoes can restrict later congressional action. See generally Immigration Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).
. Kriner, supra note 2, at 766; Mark Tushnet, The New Constitutional Order 18-19 (2003). Michael Doran, The Closed Rule, 59 Emory L.J. 1363, 1367-71, 1384, 1389 (2010) (“Although they too had used the closed rule regularly throughout their twelve years in the majority, the Republicans renewed their own attacks on the closed rule – calling it ‘offensive to the spirit of representative democracy’ – once the Democrats regained control of the House in 2007.”). Id. at 1370-71, 1429-30 (discussing the significant power of hierarchical party leadership).
. See generally Gerald B.H. Solomon & Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 Harv. J. on Legis. 321 (1994).
. See generally Gregory J. Wawro & Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (2006).
. Levinson & Pildes, supra note 5, at 2312, 2333-37 (the president can exercise party discipline to ensure loyalty).
. Sudha Setty, The President’s Question Time: Power, Information, and the Executive Credibility Gap, 17 Cornell J.L. & Pub. Pol’y 247, 259-60 (2008).
. Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 2001-2006 and the Future of One-Party Rule, 23 J. L. & Pol. 233, 240 (2007).
. Id. at 234 (“in 2001-2006, a ‘Republican Revolution’ transformed the law of Congressional rules and procedures to allow that party to implement an ideological agenda”); Doran, supra note 6, at 1367-68.
. The only clear recourse is at the polls every four years. Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000) (“When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.”). In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson wrote about the President’s political power:
[n]o other personality in public life can begin to compete with him in access to the public mind through modern methods of communication. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.
343 U.S. 579, 653-54 (1952) (Jackson, J., concurring); Branzburg v. Hayes, 408 U.S. 665, 729 (1972) (Stewart, J., dissenting) (the media should challenge government and not be a “captive mouthpiece of ‘newsmakers”).
. While discussed in greater detail elsewhere, there were other executive branch operations, other than the one discussed in this Article, that sought to craft public opinion, including the Pentagon’s embedded reporter program and military analysts, the Bush administration’s Video News Releases, and Pentagon operations that controlled Iraqi media. See generally Robert Bejesky, Public Diplomacy or Propaganda? Targeted Messages and Tardy Corrections to Unverified Reporting, 40 Cap. U. L. Rev. 967 (2012) [hereinafter “Bejesky, Public Diplomacy”]. Government investigations and Congress people criticized each of these programs post facto, but the common denominator with these and the Iraqi National Congress was that taxpayer funding was allocated to concerted efforts to promote a pro-war agenda. Id.
. Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 Hastings L.J. 983, 1023-24 (2005).
. U.S. Const. art. I, § 9, cl. 7. The President must submit certain information to Congress, particularly for budget appropriations. Setty, supra note 10, at 291-92. The Antideficiency Act states that “an officer or employee of the United States Government . . . may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation.” 31 U.S.C. § 1341(a)(1)(A) (1982).
. Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. Colo. L. Rev. 649, 653 (2006); David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. Rev. 675, 680-81 (1992) (if the government “seeks to prohibit speech directly, the first amendment demands that it maintain neutrality toward content, viewpoint, and speaker identity” in order to “curb government action that threatens to skew the market-place of ideas or to indoctrinate the citizenry”); Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 67 (1976) (Stevens. J., plurality opinion); Bd. of Regents of Univ. of Wis. Sys., 529 U.S. at 220-21 (1976); R.A.V. v. City of St. Paul, Minn, 505 U.S. 377, 382 (1992); see, e.g., United States v. Eichman, 496 U.S. 310, 317-18 (1990); Laurence H. Tribe, American Constitutional Law § 12-36 (2d ed. 1988) (also when the government delays publication of important stories, it deprives the stories of their timely news value).
. Cole, supra note 17, at 676-78, 681 (the Court has permitted government to have some degree of influence on the content of the private speech that it is funding).
. See generally S. Select Comm. on Intelligence, The Use by the Intelligence Cmty. of Info. Provided by the Iraqi Nat’l Cong., Sept. 8, 2006, available at http://intelligence.senate.gov/phaseiiinc.pdf [hereinafter “SSCI/INC”].
. See infra Part I.C.