[Congressional Record Volume 152, Number 91 (Thursday, July 13, 2006)]
[House]
[Pages H5212-H5216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     BUSH'S PLEBISCITARY PRESIDENCY

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 4, 2005, the gentleman from Massachusetts (Mr. Frank) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. FRANK of Massachusetts. Mr. Speaker, to begin, I want to express 
my appreciation for the remarks of the gentleman from North Carolina 
who just spoke with regard to his call for oversight. It has been 
sorely lacking, and it is relevant to the point I want to make today.
  Mr. Speaker, I meet, as we all do, with people in my district and 
people 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 those policy 
issues where we disagreed, and there were many: the war in Iraq; an 
economic policy that undercuts working people, that promotes 
inequality; policies that weaken the environment; policies that 
undercut the rights of minorities.

                              {time}  1815

  Others have said, no, we have to go beyond that. We have to indict 
this administration for his whole 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. People are free 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, and which I think is the 
preferable form.
  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 will turn a little later to questions that have been 
raised about the integrity of the election process. And I think enough 
doubt has been raised so that we need to do more to reassure people 
that we are committed to protecting that integrity.
  But let me take the President at his word now. After the election, he 
said, okay I have been 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 our 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 a separate legislative and a separate independent judiciary and 
the executive branch.
  We have talked, from the beginning of this country, in the debates 
over ratification of the Constitution, about the benefits of checks and 
balances. This is an administration which considers checks and balances 
to be a hindrance to effective governance. This is an administration 
that believes that democracy consists essentially of electing a 
President every 4 years and subsequently entrusting to that President 
almost all of the important decisions.
  Now, given the role of Congress, the administration, which I believe 
deeply holds this view, articulated most consistently and forcefully by 
the Vice President, they could not have succeeded in imposing it on 
this country and its Constitution as much as they have without the 
acquiescence of this Congress.
  And that is why I appreciated what the previous speaker, the 
gentleman from North Carolina, talked about, the need for oversight. I 
believe we have seen an overreaching by the President. I believe we 
have seen a seizing of power that should not have been seized by the 
executive branch. But executive overreaching could not have succeeded 
as much as it has without congressional dereliction of duty.
  I hope that some of the signs I am now seeing of resistance finally 
in Congress to that will take seed. But I do not see that yet. What we 
have is a President who won the election in 2004, was declared the 
winner of the election in 2000, much more dubiously. You know, in some 
ways President Bush was lucky that there was this flap over the votes 
in Florida. Because that obscured the fact that George Bush became 
President of the United States, after the election of 2000, trailing 
his major opponent by a larger popular vote than anybody in American 
history.
  If you assume that Florida was counted 100 percent accurately, a very 
hard assumption to make, George Bush still fell half a million votes 
behind Al Gore, the fact that he was a minority President, that is with 
Ralph Nader drawing off 3 million, while Pat Buchanan only drew off a 
half a million.
  But despite that, George Bush took over because of all of the 
attention had been on Florida. But from then on, he took the position 
that as President, he was, as he later articulated it, the ``decider.'' 
That is not a word that you find often in American history. Yeah, the 
President is a very influential and very powerful person. But he is not 
the single decider. He is the most important in a system of multiple 
sources of power.
  But thanks to the acquiescence of a Republican majority in this 
Congress, driven in part by ideological sympathy, he has been allowed 
to be the decider. So we have had a very different kind of American 
Government. We have had an American Government in which the President 
gets elected and exercises an extraordinary amount of power. It is 
democracy, but it is closer to plebiscitary democracy than it is to the 
traditional democracy of America.
  Plebiscitary democracy, political scientists use 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, that in some ways the approach of 
this administration to governance interestingly has more in common with 
that of Hugo Chavez in Venezuela than almost anybody else.
  Elect the President. Let him win and then get out of his way. Now, 
this has become clear to me in recent months. We had a debate here a 
month ago on the floor of this House on the right of the President to 
ignore legislation passed 30 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 U.S.
  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 from Jimmy 
Carter through Ronald Reagan and George Bush and Bill Clinton. And then 
this President said, no, I do not like that. That is too confining, so 
I will ignore it. And I will instead use my power to do what I want to 
do and forget the requirements of the law, that is, he was doing here 
exactly what the law talked about doing in terms of goal, but ignored 
the method that the law set forward.
  What Congress had decided with Presidential approval became 
irrelevant. Now, we debated that on the floor. And this really began to 
crystallize for me. And defenders of the President, opponents of our 
rule that said you cannot spend money to do this wiretapping in 
violation of the law, for the same thing the law calls for.

[[Page H5213]]

  You know, it is one thing if the President says, well, there is no 
law here, I have got to do what I need to do. That is dubious and we 
can get to it. But where the law has been set out in a prescribed 
constitutional manner as to how you 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.
  Now, I wondered about the constitutional authority. And it was cited 
on the floor, what is called the ``vesting clause'' of the 
Constitution. And I thought, gee, that is a pretty important clause 
apparently; it gives him all that power. How come I do not remember it 
better?
  So I went and relooked it up. Here is what it says ``The executive 
power shall be vested in a President of the United States of America.'' 
That is it. That is 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.

  Well, this is of course totally circular. It is a perfect totality. 
It says: ``The executive power should be vested in the President of the 
United States.'' It does not say what the executive powers are. It does 
say, yeah, the President is the boss of the Secretary of the Treasury 
or the Secretary of State, but it does not define executive power.
  So what they have done is take a simple sentence that says the 
President is the boss of the executive and use that then to justify the 
insertion or the assertion of executive power in areas which should 
have been legislative or judicial. And that has been the pattern in 
this administration.
  In 2001, I voted for a resolution, the authorization of use of force 
in Afghanistan. You know, when my Republican friends, and some of the 
other Republicans talk about how Democrats will not stand up to 
terrorism, I am struck by how they forget the war in Afghanistan. I 
voted to go to war in Afghanistan because that was the place from which 
Osama bin Laden attacked us.
  Almost everybody, only one dissenter out of hundreds of Democrats, 
voted to go to war in Afghanistan. In fact, I wish we were doing a 
better job in Afghanistan. I wish the misguided and mistaken war in 
Iraq was not driving attention, taking attention away from the war in 
Afghanistan.
  But I voted for the war in Afghanistan. I voted for the authorization 
to use force. It said in there, and it was unfortunately the model here 
where the Republicans draft up a resolution and put it through in a way 
that cannot be amended and only has 20 or 30 minutes to discuss on each 
side, it said the President may take all necessary actions in this 
regard.
  Well, all of us who voted for it thought we were voting to authorize 
a war against Afghanistan if necessary to get Osama bin Laden. The 
Taliban was given the option of giving him up; they would not do it. 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 a man in 
Chicago, he is an American citizen, they said he 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 said, and was 
maintaining it until the Supreme Court majority in the Hamdi case 
finally repudiated it, well, it said right there 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.
  But it was in defense of this notion that the President could do 
whatever he wants whenever he wants to. Now some have argued, well, the 
President can do anything unless he is explicitly told he cannot. Not 
in this administration. They believe the President can do anything he 
wants, even if he is told he can't. That has certainly been the case in 
national security.
  It struck me when we recently dealt with the tracking of terrorist 
financing that the administration had done this with virtually no 
congressional cooperation. Now, the statute calls for them to be 
briefing Members of Congress. We all have seen the record of briefing.
  This program started late in 2001. They briefed two people early in 
2002, when the program was just starting. They briefed one person in 
2003. They briefed nobody in 2004. And they briefed two people in 2005, 
and nobody for the first 4 months of 2006. Then they learned that the 
newspapers were going to print it, so after they knew it was going to 
become public, then they briefed 23 other people.
  I was one of those offered a briefing. I turned it down because of 
the circumstances. They told me that they were going to tell me 
something that was a secret, when they told me, but was pretty soon not 
going to be a secret, but if they told it to me, I had to keep it a 
secret even if it was no longer a secret. So I said, never mind.
  But I asked the Treasury Department, why are you briefing me after 
the fact that it was going to become public? They said, as a courtesy. 
Well, that sums it up. You know, the process of briefing Members of 
Congress is supposed to be part of the constitutional mandate for 
collaboration. It does not come from Miss Manners; it comes from the 
Constitution. It is not a courtesy; it is a requirement of 
collaborative government.
  It is a chance to get back and forth about things. And it struck me, 
Congress would have clearly ratified their right to do the terrorist 
financing. Congress would almost certainly have given them a lot of the 
power they wanted with regard to the detainees in Guantanamo, perhaps 
more than I wanted to.
  You know, we had the PATRIOT Act situation where the Judiciary 
Committee on which I then sat unanimously adopted a very reasonable, 
balanced bill which gave law enforcement full powers, expanded powers 
in the nature of what you needed to fight terrorism, but had some 
safeguards against abuse.
  And that bill, having unanimously passed the Committee on the 
Judiciary, was reported by the Rules Committee. And the Attorney 
General, acting for the President, 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.

                              {time}  1830

  So I didn't like that and voted against it. It showed that Congress 
was ready to do what the administration wanted. But even knowing that 
it could probably get from this rather supine Congress whatever they 
wanted, they haven't wanted Congress to do it.
  It strikes me as to why: They don't want Congress to agree on their 
ability to detain people at Guantanamo or track terrorist financing or 
do a lot of other things, because accepting the right of Congress to 
agree with them implies that at some future date Congress might 
disagree. And the theory of 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.
  Now, there are a couple of problems with that. First of all, I voted 
for the balanced PATRIOT Act. I believe that the 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, although that 
didn't stop us from authorizing the death penalty for suicide bombers a 
few years ago.
  But 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 
that were made by the FBI in Boston, outrageous mistakes. I think of 
Mayfield in Oregon, Captain Yee at Guantanamo,

[[Page H5214]]

Wen Ho Lee under the Clinton administration, a number of cases in 
Guantanamo of innocent people captured on the battlefield in 
Afghanistan because of 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 and prove their innocence. 
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 asserts the right to arrest American 
citizens on American soil, which happened, this is not a hypothetical, 
and lock that man up forever, fortunately the Supreme Court said, 
``no,'' you can't do this, this is America. But when they assert that, 
the problem is not that they are being tough on terrorists, it is that 
they are being tough on an individual who chooses terrorism who has no 
conceivable way to defend themselves to say that there might have been 
a mistake.
  Shutting out the Congress means that you think you are perfect, that 
you think you can do these things, that you can exercise these 
extraordinary powers and you don't need anybody to say, wait a minute, 
maybe you should do it this way or that way.
  And, by the way, I do not think the argument is, well, we can't trust 
the Congress. I am not familiar with any pattern of Members of Congress 
divulging information or leaking. Frankly, the great majority of leaks 
I have seen in the 26 years I have been here have come from the 
executive branch, not from the Congress. They were leaks because of 
some policy dispute and somebody wants to leverage somebody else, and 
that includes leaks from the Bush administration when they thought it 
would help them make the case with Iraq, like Douglas Feith and others.
  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.
  In fact, what happens is this. 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 wire 
tapping, 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 when things become 
politicized. The debate over the terrorist financing tracking is not 
over the substance of that program, but over the secretive and 
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 and he is supposed to take the lead, but we don't elect 
perfect Presidents. You elect people who are important. 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.
  Now, it has been especially the case in areas of national security 
where, with ignoring the Foreign Intelligence Surveillance Act, or not 
briefing anybody seriously over terrorist financing, or taking the 
authorization of the use of force in Afghanistan and bending it way out 
of shape to make it a universal mandate to do things that no one 
thought it was supposed to be used for. Or arresting American citizens 
and holding them forever, arguing that you could do that without any 
court ever being involved. Having no process by which people innocently 
caught up in the fog of war in Afghanistan could say, wait a minute, I 
am not a terrorist, I am just some poor guy wandering around here. But 
they have also done it domestically.
  One of the things this administration has used more than every other 
administration in history is the right, when signing a bill, a right 
that they claim to sign a bill, the Constitution says Congress passes a 
bill, the President can either veto it or sign it. And they say, okay, 
here is the deal, we will sign it, but when we sign it, we will 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. That is 
a wholly unconstitutional approach.
  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 does is he picks 
and chooses; he thinks the legislation is a supermarket. He walks in, 
he takes some from here, some from there, he discards what he doesn't 
like. That is not appropriate.
  That is in the domestic area. The signing statements are an assertion 
of the plebiscitary power in the domestic area that we have seen in the 
international area, 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.
  There are other examples of this. The Constitution does give the 
President the right to make recess appointments, but this President has 
abused that. They are to be used, it seems to me, in unusual 
circumstances. This President has regularly appointed people to office 
and to high court seats who couldn't have won confirmation in Senates 
controlled by his own party. The pattern of recess appointments is a 
very, very serious one.
  You also see it with regard to the people he appoints, because what 
they have argued is not just that Congress shouldn't be that powerful, 
but it is the unitary theory of the President. I was frankly surprised 
when I first came across the unitary theory of the President. I had not 
been aware of the schizophrenic theory of the Presidency or the notion 
of the twin Presidencies. But what we have seen in this administration, 
frankly, is a downgrading of public officials other than the President.
  You know, one of the great positions in American history has been 
Secretary of the Treasury. Very distinguished, important people have 
been Secretary of the Treasury. It has been a very important part of a 
system in which various segments in this society participate in 
discussions. James Baker and Robin Rubin recently, George Schultz, a 
large body of very impressive Secretaries of the Treasury. Under this 
Presidency, we have a new one coming in, we can't judge him, but two 
very distinguished men, John Snow and Paul O'Neill were appointed 
Secretary of the Treasury, and ignored, belittled by the President's 
staff.
  What we have again is the assertion that a President gets elected and 
essentially is the decider in ways that really go contrary to the 
notion of participation by other segments.
  Yes, it is true you win an election and you gain some power. This is 
a very big, very complex country. It really is not a good idea for one 
individual, even one who was legitimately elected in an election in 
which there was no contest, and we certainly didn't have that in 2000, 
to be the decider, to diminish input from others.
  Now, again, 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. That is what happens. 
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, and people said, well, it is a war, what do you expect? 
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?
  And efforts by this Congress, by my colleague from Massachusetts, Mr. 
Tierney, to institute such a committee, the efforts of our colleague 
from California, Mr. Waxman, to do oversight, they have been rejected 
by this Congress. So this Congress has not done oversight.
  Let's take a more recent example. When Bill Clinton was President for 
the first 2 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

[[Page H5215]]

Whitewater. Republicans thought it wasn't sufficiently condemnatory, 
but they got a chance to present witnesses; we had the hearing. It is 
only with the exception of President Bush and this Republican Congress 
that we have seen a collapse of the oversight function because members 
of the Republican Party belonging essentially to the same very 
conservative ideological faction that now controls the Republican Party 
as the President, has decided that partisan solidarity, and ideological 
solidarity even more, trump constitutional obligations.

  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.
  And I reiterate, 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, I understand that democracy can be messy and it is not always 
neat, but we have not before this had an executive branch that 
considered it to be more of a nuisance than anything else. I believe 
that that is the attitude of the Vice President, and he has a major 
influence on the President, and they really regard things like checks 
and balances and judicial review and the role of the media as 
interference with their ability to govern.
  Now, we do 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 the Congress, that judicial review, that an 
independent media, that these 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 collaborative process in which thoughtful and well-
informed Members of Congress who have gotten expertise in this and that 
area 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 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.
  I talked before, and I just want to elaborate the constitutional 
point about the President ignoring the Foreign Intelligence 
Surveillance Act. My colleagues, when they defend the President, cite 
certain Supreme Court decisions. They never cite Youngstown Sheet and 
Tube against Sawyer, the steel case. In that case, the Court made a 
very important point, which is that there are sort of three situations 
in which you can talk about Presidential power. You can talk about 
cases where the President and Congress act together, and there the 
court said, you know what, that is when America is at its strongest.
  That is the point I want to make. Constitutionally, our ability as a 
government to assert our power, to protect ourselves, to mobilize our 
resources is strongest when the President and Congress work together. 
It is strongest constitutionally and it is strongest politically and in 
every other way.
  Then, the Court said there is the area where Congress hasn't said 
anything. Well, maybe the President can do it, maybe he can't. But the 
Court also said, but you know, and when Congress has said, do it this 
way, the President has no right to ignore it. Well, that is of course 
what they did in FISA.
  Now, people have legitimately said to me, well, if that is the case, 
if they are violating some constitutional principles, why aren't they 
stopped? Because of the nature of our judicial system, it is very hard 
to bring a case before the U.S. Supreme Court. You have to have what is 
called standing; there has to be a specific controversy that affects 
you in a very particular way. This administration has exploited that. 
They abuse power in ways that they know cannot be brought before the 
courts. When they are brought before the courts from time to time, they 
lose, and they have lost most of the decisions before the U.S. Supreme 
Court about their exertion of extraordinary power. The problem is that 
they are able to exert that power and get away with it in some cases.
  There is only one way for sure that an administration can be 
restrained from ignoring constitutional limitations and have that 
brought to court. That is if this Congress passes an appropriations 
amendment which says none of the money being voted here can be used for 
this or that or the other. That is the only way Congress can restrain a 
President from sending troops into battle, which was done in Nicaragua, 
although somewhat ignored by Reagan, but essentially it was obeyed. 
And, Angola and Vietnam. Only if this Congress says none of the funds 
appropriated herein shall be used for X will the Court enforce that. 
And we came close a little while ago where a majority on our side and a 
few on the other side said, no, let's tell them they can't ignore the 
FISA. But a majority of the House, overwhelmingly Republican, wouldn't 
go along. That is where the congressional dereliction of duty comes in.

                              {time}  1845

  Presidents can get away with this assertion of extraconstitutional 
authority. Congress doesn't have to give them the authority, all it has 
to do is not stop them. That is what we have done. And that is a 
terrible mistake, whether it is domestic or international.
  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, almost all of us, understood after September 
11 of 2001 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. But this 
administration saw this as a chance to vindicate this theory, I think, 
of plebiscitary democracy that says that democracy means, you elect me 
and then you get out of my way; and checks and balances and 
congressional oversight and media scrutiny, these are all 
interferences. And, again, there is no basis for arguing that these 
will stop us from going forward.
  One of the arguments we got was, we can't use the court system. We 
have bad people here, and if we go to the court system, it won't work. 
Well, it has worked. John Walker Lynn was convicted, Richard Reid, the 
shoe bomber, was convicted. Moussawi was convicted.
  The courts have been unfairly maligned by this administration. We 
have been able to convict people. Given the record of the courts, there 
is no justification to asserting your right to lock up an American 
citizen whenever you want to on your say-so and have no judicial 
process available to that individual whatsoever. Again, thanks to an 8-
1 Supreme Court decision, that is no longer the case, but that was part 
of the assertion. That is part of the power that they are asserting.
  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 
on things, or exploiting the fact that it is very hard to get judicial 
decisions, all of these things come together in a pattern. That is why 
I say, I acknowledge now that when I told friends over these past 
couple of years that we should 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 
that we have long known; 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. And I think that is 
wrong both from a philosophical standpoint and also from a practical 
standpoint.
  I think the insistence of this administration to doing it by 
themselves and by rejecting efforts to draw in other sectors of this 
society weakens America and doesn't strengthen it, that it

[[Page H5216]]

makes things look more controversial than they need to be.
  Now, there have recently been some stirrings here. I was very struck 
when we had a hearing of the Financial Services Committee, the 
Subcommittee on Oversight, of the strong and articulate voice of the 
chair of that subcommittee, the gentlewoman from New York (Mrs. Kelly), 
who objected to the unilateralism of it. There were some other showings 
in the Senate. Some Senators have said, no, you can't just ignore what 
the Supreme Court did and you can't just put a little 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, the relocation of the 
Japanese and others. Yes, those were terrible mistakes, but you had the 
Truman Committee and you had a very active Congress.
  We have not in any previous emergency felt the need to go from the 
America of our Constitution to a model of a strong man elected and all 
power ceded to him. And I hope, though I doubt very much this 
administration plans to change its approach to this, but I hope that 
what we are seeing now is a willingness on the part of the Congress to 
assert the constitutional role of the Congress; not to be 
obstructionist, certainly not for partisanship because the Republicans 
control both Houses, but in recognition that an America which functions 
as it was intended to function, in a way in which the branches 
cooperate and correct each other and improve each other and work 
together, we are of a common goal, certainly in the area of national 
security.
  We believe, many of us, 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 compared to 
what the alternative would be. Not more harm than good overall, but 
less good than you could otherwise do.
  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.
  Now, my last point is this. Especially for this administration, with 
its focus on the election of the strong man, there needs to be better 
recognition of the widespread unhappiness about the electoral process. 
The election of 2000 clearly was a shambles.
  Go back to the mob in Florida. You know, we have the man who has been 
declared to be ahead in Mexico, Calderon, predicting that Obrador, who 
is challenging the result, will muster a mob and they will march. Well, 
he might have been describing the Republicans in Florida in 2000, when 
a mob intimidated people against counting the votes.
  And we had a Supreme Court opinion which did not meet the minimum 
standards, it seems to me, of legitimacy when they said, okay, the 
Republicans win this one, but please don't pay any attention to this in 
future races.
  Given this administration's view that elections are all you need, it 
is all the more important for them to understand that we need to 
reassure the country that elections are fully, fairly conducted. I do 
not understand why people confident of their mandate, confident of 
their ability to win would object to some of the things that have been 
put forward to reassure people that the votes are counted as they are 
cast.
  The worst you could say about that is that it would be a little 
unnecessary. An administration that spends money the way this one does 
can't really think that is a financial problem. And we have had 
examples of votes miscounted. We understand the vulnerability of 
machines to tinkering. There is no justification for continuing to fail 
to adopt safeguards for the counting of votes that will reassure 
people.

  Mr. Speaker, the democracy we have had, the checks and balances, the 
back and forth, Congress being an interference from the standpoint of 
the executive, in some cases, strong-minded executives, clashing with 
the President, maybe being fired trying to get support in Congress, a 
very assertive media, we have had those for a long time, and we are the 
strongest country in the world. It is very hard to argue from history 
that these factors weaken us.
  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, Mr. Speaker, that our colleagues in this 
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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