The Inert Senate
BOOKS and MEN In his new, provocative book, CONGRESS: THE SAPLESS BRANCH,Senator Joseph S. Clark accuses the legislative branch of our government of pallid inertia. For an appraisal of Senator Clark’s position we have turned to GERALD W. JOHNSON,historian, biographer, and journalist whose salty, courageous criticism has won him a host of admiring readers over the years.
HE SPEAKS in no uncertain terms. So much the most ruthless critic must allow to the Honorable Joseph S. Clark, senior senator from Pennsylvania and author of an analytical study of the legislative branch of the government, Congress: The Sapless Branch (Harper & Row, $3.95). There is no ambiguity in this passage from his second chapter:
Whether we look at city councils, the state legislatures or the Congress of the United States, we react to what we see with scarcely concealed contempt. This is the area where democratic government is breaking down. This is where the vested-interest lobbies tend to run riot, where conflict of interest is concealed from the public, where demagoguery, sophisticated or primitive, knows few bounds, where political lag keeps needed action often a generation behind the times, where the nineteenth century sometimes reigns supreme in committees, where ignorance can be at a premium and wisdom at a discount, where the evil influence of arrogant and corrupt political machines, at the local and state level, ignores most successfully the general welfare, where the lust for patronage and favor for the faithful do the greatest damage to the public interest. . . .
I have no hesitation in stating my deep conviction that the legislatures of America, local, state and national, are presently the greatest menaces in our country to the successful operation of the democratic process.
“ ‘Our armies swore terribly in Flanders,’ cried my Uncle Toby, ‘but nothing to this! ‘ ”
Oh, well, it isn’t really on a level with the Curse of Ernulphus, as recited by Mr. Shandy, but a longtime fancier of jeremiads freely grants that this one is in the upper brackets — fairly comparable with the less intensive efforts of Senator John Randolph of Roanoke, that most capable of American denouncers. This commination is the more striking as Senator Clark has not hitherto borne the reputation of a notable fulminator; the logical inference is that it must have been a powerful emotional charge that set him off.
The inference is justified, as the text of the book amply demonstrates. Senator Clark is an activist. He is also a liberal, but that is incidental; he would have encountered the same frustrations had he been a conservative with an equally restless and vigorous mind. Eight years ago, after a term as mayor of Philadelphia—significantly, an officer of the executive branch —he came to the Senate under the impression that the business of a legislator is to legislate; but he learned by harsh experience that the prevailing view among senators is that their business is to avoid legislating as long as is humanly possible.
To support this thesis he offers evidence that is abundant, germane, documented, and for the most part convincing. He accuses the Senate — the House of Representatives, too, but he prefers to cultivate his own garden — not of lurid sin, but of pallid inertia. He charges the Senate with rigid adherence to principle according to Cornford’s famous definition: “A principle is a rule of inaction, offering valid general reasons for not doing in a specified instance what to unprincipled instinct would seem to be right.” The legislative seldom does wrong because it seldom does anything of its own volition. It has expended immense ingenuity in devising and establishing conditions under which it cannot do anything except hamper and delay the activity of the other branches of government. It has become the sapless branch.
Up to this point it is difficult to detect any serious flaw in the senator’s argument. Unquestionably, the initiative in government has passed to the executive or, especially in the past ten years, to the judiciary. Except in the matter of filing objections, the legislative is conspicuously inert; “sapless” is a vivid description of its state.
One may, indeed must, follow Senator Clark in his criticism of the structural organization of the Senate. The rule of unlimited verbosity, euphemistically termed unlimited debate, is a guarantee of inefficiency; and the tradition of seniority, assuring undue influence to mediocrity, reinforces the guarantee. Oratory not germane to the question before the House should be suppressed, and talent should replace length of service as the qualification for chairmanships of important committees.
Thus far the senator is on solid ground, but he does not stop there. He proceeds to challenge the structural organization not only of the Senate but of the entire government. He asserts that the doctrine of the separation of powers was already obsolete when Montesquieu propounded it two hundred years ago and is grotesquely antiquated today. He advocates its abandonment, not necessarily as the basis of next week’s or next year’s program of action, but as the basis of our political philosophy; and this will cause a lifting of numerous eyebrows, even among the senator’s admirers.
For among those who agree that the doctrine of the separation of powers is defective, there are many who believe that its defect is numerical, not logical. Montesquieu couldn’t count. He assumed that the basic powers of government are three, whereas they are actually four; for in addition to the legislative, executive, and judicial, there is the power of the initiative. It remained invisible to the French philosopher and to the Founding Fathers simply because up to their times the powers had never been sorted out in actual practice, and the initiative was presumed to be inherent in king or parliament or any substitutes therefor.
The branch with a single head is, by reason of its superior mobility, obviously in a better position than the others to absorb any powers that may be lying around loose; which explains why the executive has been taking more and more of the initiative ever since President Washington, despairing of obtaining the advice and consent of the Senate during the bargaining, negotiated the first treaty himself and submitted it to the Senate afterward.
If this is a dangerous trend, the fact supports rather than refutes Montesquieu, who contended that concentration of governmental powers is perilous to liberty. Perhaps we ought to separate the initiative from the executive, but it does not follow that we should donate it either to the legislative or to the judiciary. And what else could we do with it? Nobody has as yet offered a persuasive answer; and until someone does, there is a strong reason for leaving this very great power where it is. The President is the sole official elected by the whole people and therefore can be defeated by the whole people for misuse or, as in the case of Hoover, for nonuse of the power of the initiative. The President is, indeed, in possession of vastly wider authority than the Constitution makers expected him to have; but he holds it with the sword of Damocles suspended over his head.
As a matter of fact, Senator Clark himself offers impressive evidence that can be construed as favorable to the lethargy of the legislative. Delving into history, he comes up with fourteen instances in which Congress did seize the initiative, and the results in every case he regards as calamitous. They are:
The War of 1812
The Bank fight under Andrew Jackson
The Missouri Compromise
The Compromise of 1850
Reconstruction and the impeachment of Johnson
Civil War pensions and World War bonuses
The Spanish War of 1898
The neutrality acts
Farm legislation
The Buy American act
The McCarran-Walter Immigration Act
The Taft-Hartley Act
The Landrum-Griffin Act.
However, Senator Clark will find no unanimity of opinion, even among liberals, upon at least five of these. The compromises of 1820 and 1850, for example, probably saved the Union. The South grew steadily weaker, in relation to the rest of the nation, from about 1815 on; yet when the fight did break, in 1861, the North barely won after four years of the bitterest and bloodiest fighting in which American armies ever engaged. The pension and bonus laws and the farm legislation unquestionably were clumsily drawn, affording loopholes through which appalling corruption seeped, but all were efforts to work substantial justice, and all did allay an unrest that was growing dangerous. The modifications of the original Wagner Act were as badly botched, but they, too, quieted a discontent, this time on the political right, that might have had lamentable results.
It is nevertheless noteworthy that even in these cases the possibly favorable results of legislative initiative were negative. They did no positive good; all that can be said in their favor is that they may have headed off worse evils than those we suffered.
Is it not the fact, however, that this is precisely the function that the legislative was designed to discharge? The ultimate power of the legislative is the power of the purse, and no reader of the Federalist — or of English constitutional history for that matter — can doubt that the power of the purse has always been regarded as the brake, not the motor, in the governmental machinery. It can be argued plausibly that the function of the Senate, historically, has always been not to impel but to restrain the executive, and at times — as in the income tax amendment invalidating a Supreme Court decision of 1893 — the judiciary also. It is the old theory of checks and balances.
This criticism, however, applies only to Senator Clark’s theory of government; it does not touch his exposure of the deficiencies of its practical operation. That is, in fact, close to invulnerable. Granted that the Senate is the brake, not the motor, the fact remains that a brake is supposed to check the speed, not to lock the wheels. If the system of checks and balances operates to stall the government, obviously the system should be overhauled.
That Senator Clark has made a good case for such an overhauling is beyond doubt. It is the judgment of this reader that his case is more than good; it is overwhelming. There are indications, too, that Senator Clark is not alone. Such Democrats as Fulbright and Morse, such Republicans as Javits and Case, have lately been voicing criticisms that if softer in tone are identical in substance with those in this book. Clark is merely somewhat more forceful, somewhat wittier, somewhat more luminous than the others. Could it be that we are witnessing the first stirring of a genuine movement in the direction of reform of the Senate from within? One dare not predict it, for in these latter days to predict a miracle is unconstitutional; but assuredly one may wish, if hardly hope.
At any rate, Senator Clark’s book is a first-class jeremiad — sparkling, lucid, illuminating, and stimulating. And who is pessimistic enough to deny that it may be effective? Certainly it is ear-piercing. And it may be a blast from Joshua’s trump that shook down the walls of Jericho.