I was talking to my dear friend Sovay tonight, and as always, talking with her helped to shake things loose that I haven't been able to put into words before. We were talking about the Foley situation, and I heard myself saying something I realize I believe: I have lost all confidence in the Federal institutions governing our country, with the sole exception of the military. The institutions, which have served us well for so long, are breaking or are broken along key fault lines.
It should not be necessary to add, but might be given the state of partisan discourse, that this is in no way an endorsement of a military coup, or the rejection of civilian control over the military. The military takes an oath to uphold the Constitutional form of government. If it were the kind of an organization that would consider a coup, it would not be working as designed. It would be broken too. By saying that I do not believe it is, I mean that I believe it holds faithfully to its oath.
I have also sworn that oath, so the other thing that I need to say in preamble is that I am not here advocating anything incompatible with it. To say that the institutions have failed is not to say that they should be swept away or replaced. It is to say that they are in serious need of repair, and to turn to the task of fixing them. Surely the same oath demands it.
Nor should it be unthinkable that we have reached a crisis point. This is not the first such point in our history. Before the Civil War, they were common, because of two forces that created clashes: slavery, and the question of whether the Federal government could be used as a hammer by one part of the nation to force another part into compliance. From the first nullification and secession crisis (in which it was the Northeast that wanted to seceed) to the Civil War, those two issues drove us into one crisis after another. The war itself was the worst of them.
Afterwards, the two issues were resolved: we abolished slavery, and made clear with the 14th Amendment that the Federal government was indeed the hammer that would force compliance. Yet there have still been crisis: in the 1930s, FDR's numerous extra-Constitutional programs that pushed the Supreme Court to the breaking point; and the Civil Rights movement, in which the Civil Rights Act and the courts used the Federal government as a hammer against states and cities from Alabama to Boston.
I believe we have a crisis now. The institutions are failing. Once again they are cracking under stress. Once again -- as Jefferson and Lincoln and Americans since have done -- we have to turn our minds to saving them before they shatter.
Now, what do I mean?
Elections for a third of the Senate and the whole of the House are weeks away. Iraq is a problem: we're deploying the same Marines for the fourth time. The strain on the families of these blessed volunteers is unacceptable, given that less than one percent of Americans are serving in the military at all (the figures are for the Gulf War, after which the military was seriously reduced in size). We ought to waive the taxes of these men and women for the rest of their lives, given what they've done for us, time and again.
Yet when the Democrats invited former Generals to the Hill to talk about how much more the military needs in resources -- well, they thanked them, shook hands, and said 'See, that proves Bush is screwing up.' Where is the Democrat who proposed a bill to do what the Generals said was needed?
You don't have to control the Congress to introduce a bill. You could introduce the bill tomorrow, saying whatever you thought it needed to say, and dare the Republicans to shoot it down. Nothing was done. It was all for show.
I know there is a serious debate among military men as to whether the generals were right to ask for what they asked. The point here isn't to assert that they are right -- it is to assert that it is the opposition party's job, having invited them to make their case, to back that case. To invite them to show up, make a big deal of their recommendations, and yet have no intention of following through on any recommendation is a total failure of the opposition party as a part of the system.
What will the Democrats do about Iraq if they win control of Congress? I've heard that it's time for a change, and indeed it is -- but "change" in and of itself is not a plan. It is better to do the wrong thing, consistently, than to be unable to make any decision at all. Murtha says one thing and Kerry another, Pelosi a third and a fourth.
This isn't a problem with their leadership. It's structural. The coalition they depend upon to almost-win national elections can't take a stand on Iraq. If they win, what will they do? They don't know themselves. The only thing that we can be sure they will do is hold endless hearings on what we should have done in 2002 and 2003 and 2004 -- which will take up time that needs to be devoted to doing what we need to do in 2007 and 2008.
This coalition is written in stone. More correctly, it is encoded into the gerrymandered lines of drawn, "safe" districts. The House, intended by the Framers to be subject to the pressures of electoral change, has become a fortress. With 435 seats up for election, we're looking at how many seats that are likely to change -- in this, most competitive of years? Fifteen?
The rest of those seats are locked in by demographics. But, in turn, those demographics mean that neither party can walk away from its existing coalition. 'Outreach' efforts can't endanger existing alliances, because those existing alliances are why the districts were drawn as they were.
And the Senate? Meant to be the voice of the states in the Federal government, the 17th Amendment made it instead an office filled by popular statewide elections. The House was meant to be responsive to the people, and has become a fortress of cemented partisanship.
The Senate, meant to speak for the states, was also meant to speak to long interests. Senators were meant to be less responsive to popular will, being insulated both by their longer terms and by the fact that state legislators would appoint them instead of direct elections. Instead, the Senate -- entrusted with powers that the Founders expected to be used by officials thus insulated from the momentary passions of the public -- has become the chamber most likely to change hands.
All that has consequences. A Democratic Party that can't make up its mind isn't going to do so all of a sudden. The reason they can't is that they have to keep to the coalitions encoded in those gerrymandered districts. They must balance the votes of their anti-war voters with their pro-military voters in the unions. Neither war nor retreat is feasible for them as a party, though individuals may hold one view or another. What they can agree on is holding hearings into Republicans. And so, that is what they will do.
This isn't an indictment of the Democrats, though, but of all the institutions. I mentioned Iraq. What of Iran? What of North Korea? What, even, of al Qaeda -- in that corner in Pakistan where our allies have been forced by their own instability to a separate peace?
These are all important issues. So why are we talking about Foley?
Partially, it's because of Foley. Having made such a spectacle of himself as a self-righteous warrior for moral virtue, he really deserves the humiliation. What a jackass. Duke Cunningham at least had the decency to claim to be ashamed when he got caught, to own up to it when there was no escape, and to go off to prison like he deserved. Sovay rightly said, "Isn't it a shame that we wish these congressmen could be more like Duke Cunningham?" It is! Of course, Duke was a good man once, and hopefully may yet be again.
There's no evidence Foley ever was a good man. He seems to have grandstanded to give himself cover to engage in his gratifications, and written laws touching on those very gratifications just so he could know exactly what he could get away with.
He had an obligation to mentor those pages. He had an obligation to try and write wise, just laws. He betrayed both obligations, both duties, as completely as it is easy to imagine. Enjoying the special trust and confidence of the American system, he betrayed us. I was not kidding when I said he should be hanged. It strikes me as a flaw in the system that we don't have the option.
Yet it isn't all about Foley. Partially it is about what the parties themselves are choosing to do. Democrats are running ads about Foley, preferring to make hay on him rather than address the serious issues. Republicans have begun a series of counterattacks, which are brilliant in their fashion, because they turn the debate onto terms that serve Republican interests: they make the debate about suspicion of gays and sexual sins, and because they suggest that the problem isn't one of Republican corruption but one of the evils of government. On both the restriction of gays and the restriction of government, Republicans have a key rhetorical advantage: everyone knows they are the party of these things, because both things produce key turnout when initiatives of those types are on the ballot.
The debate in these key weeks is about Foley because that's what the parties -- both parties! -- would prefer to talk about. They are choosing to further this debate, because it is a debate they prefer to the one their duty requires of them. They know their lines. They know their constitutents. It's not hard. The consequences are predictable.
Who will stand up to the challenges of the day? Who will give the military what they need? Not the Congress, mired in corruption and partisanship, tied to coalitions that prevent the Democrats from forming answers, and prevent the Republicans from changing their minds even when they should. They bring in the generals, but it's just for show. It is not that they have no heart for more than show. It is that they have lost the strength. The legislature has failed.
The executive is made up of two types: those who are part of the administration itself, either by election or political appointment; and those who are career civil servants.
The administration, however bad this or that one may be, can be replaced at points. There is plenty of criticism of the Bush administration on the internet, and I won't rehash the points, if only for reasons of space. The only one that interests me here is the accusation that the Bush administration rejects critics and opposing views. Uncle Jimbo, with respects, has suggested it's time for Donald Rumsfeld to go. To put it mildly, he is not the first person to make the suggestion.
How can we evaluate the charge that the administration rejects critics? Certainly, the administration has had a lot of critics from within -- we shall treat the problem of leaked secrets later in this piece. But there are also honorable dissenters from within. We can look for those people in the civil service who were close administration allies, who have gotten out ahead of the administration in demanding change. People like General Schoomaker, brought out of retirement by Rumsfeld to take a job that he, Rumsfeld, would trust to no serving general. His criticism must bear a lot of weight. When he says he needs those resources, I believe him.
I said at the beginning that the military was the last branch of the government that seemed to be working properly. Yet it is far from the only branch that relies on career servicemen.
Our nation's security depends on several of them to a greater or lesser degree. I will dispense with examining the Department of Homeland Security, largely because I don't think it has any defenders who aren't paid for the purpose. I shall also do so because it is still new -- the foolish demand that it should integrate all the different services thrown together by its creation is not a project that could quickly be accomplished.
Still, it is unfair to point out that it is failing in key areas -- after all, it could not have been expected to succeed. What of FEMA? What of Immigration and Customs Enforcement, or the other agencies wrapped up in DHS? The blame for the debacle falls on the administration part of the Executive. Which one? Both of the recent ones: the idea originated in the Clinton administration, but the Bush administration followed through with it. Just as with the failure to dismantle al Qaeda, there's blame to go around regardless of which administration is in office.
What about the military's closest peer -- the Department of State? Its deeply-felt ties to the UN are reason enough to say it needs top-down reform. More, though, it doesn't seem to be very good at doing what it is supposed to do. Diplomacy itself has fallen to the military to a large degree because the DOS is failing at its task. In a recent email, I wrote:
Consider ADM Fallon's work at PACOM as an example of what I mean. PACOM's doing an excellent job, in my opinion:Karen Hughes' visit to Indonesia was not inspiring to me. Hughes went to befriend Indonesians, but ended up responding to hostile audiences with lectures. Dr. Rice's later visit went better, but again, she was a flashpoint for hostility. PACOM, on the other hand, manages to achieve real diplomatic results quietly and efficiently.
* It's addressing GWOT concerns in Thailand with a very light hand, so as to assist the Thais without creating an obvious US footprint that would be a flashpoint;
* It has managed to do more to win Islamic hearts and minds in Indonesia than the whole rest of the US government put together (indeed, compare the Indonesia tsunami aid with State's visit by Karen Hughes, which was probably of negative utility);
* It has managed to coordinate with Singapore and Australia as regional partners, so that our interests are protected and advanced without an obvious US hand to cause objection:
* The Sings are handling our interests in the Malacca Strait region, allowing Malaysia and Indonesia to take an apparent leadership role -- thus bolstering the standing of two relatively moderate Islamic countries with the worldwide Islamic community, reducing the demands on the US Navy, and creating a functioning subregional partnership for counterterrorism.
* The Australians are looking out for us in Asian regional forums in which the US is only an observer, or not even an observer, and taking on flashpoints like East Timor that could otherwise derail the US/Indonesian partnership, which is important for GWOT reasons.
And all that while handling the larger mission of containing China and North Korea!
If the military is increasingly doing our real diplomacy, State seems to be functioning mostly as what the legislature has failed to be -- a check on the executive. Yet this is not a legitimate role for a part of the executive. They are meant to obey orders, not check the President.
The complaint is also justly fielded against our flagship intelligence service, the CIA. How many secrets of continuing importance have been outed by 'anonymous' sources at CIA and State? It happens with military sources too, to be sure, but the State and CIA leaks -- by careerists opposing an administration that, right or wrong on the merits of a decision, is their authority by Constitutional law -- have been so constant that it is a wonder if we have any secrets left.
I have regularly opposed excessive secrecy, and support a robust declassification program -- in agreement with the principles of the Federation of American Scientists. Secrets that are not needed should not be kept, not in America.
Yet there are secrets that are needed. They must be kept.
Furthermore, the men and women who leak these secrets have in every case taken an oath to do otherwise. They have made a promise, and signed documents to that effect. Tolerating their continuance in public office is enabling oathbreakers, whose corruption rots their agencies from within. It rots trust, it rots accountability, it rots the sinews that hold the Executive together. It fires interdepartmental rivalry, political gamesmanship and jockeying for position.
Every one of these leakers should be hunted down and outed from their position as well as prosecuted, even if we have to turn an entire Federal police agency to doing nothing else for a year or ten years. As with Congressmen, officials of the Executive enjoy special power and trust. Those who abuse that trust are worse than criminals. Those who break their oaths betray us all.
Without such a watchdog, the Executive's civil service has become infested with oathbreakers of this sort. The disruption has severely hampered its ability to conduct operations critical to national security. Executive oversight is a legislative function, as well as an internal duty of the Executive. Both have failed in the role, and with that failure, damaged our nation's ability to do anything to confront the problems facing us.
The executive is embroiled in a culture of oathbreaking, right in the departments and agencies where secrets most need to be kept. This reinforces administrative suppression of dissent -- itself a problem -- and damages the trust that allow for interagency cooperation. The problems of stovepiping and political jockeying, always present, are severely worsened by the culture of oathbreakers. If the executive is to retain its proper function, it must be restrained by effective legislative oversight, and disinterested internal oversight. The culture of oathbreaking must be rooted out.
Unlike the other branches, the Judiciary does not appear to be corrupt. The stresses it is placing on the electorate are not less severe -- but they are not the fault of the judiciary, which is functioning as the law requires. It is that the law's current requirements are unwise and destructive to the stability of the nation.
The core problem rises out of the adjustments we made to the original Constitutional order to address the problems of slavery and civil rights. The 14th Amendment transfered final authority on all such matters from the states to the federal courts. There was a good reason for this -- there were serious abuses that many states were simply not addressing. The creation of a way to appeal to a higher authority gave people a way to address these serious abuses.
The problem this creates, however, is that it undoes one of the core points of the Founders' design. The states were meant to be able to come to different settlements on social questions. From the earliest days of the Republic, we have been composed of many different kinds of people. The system achieved stability in part by allowing Puritan descendants in Boston to live one way, and the folks on Rhode Island (or "Rogue's Island," as the folks in Boston called it) to do things a different way.
If the Federal government is the arbiter of these social questions, it must mandate a single path as the "right" one. This exacerbates social tensions. Consider abortion: currently, pretty much any restriction of any kind on abortion is banned by the courts' reading of Federal law. Every place in America has to adhere to this single standard.
That has led to a massive anti-abortion movement, frustrated at every turn, increasingly angry and active. That movement, in turn, has led to an increasingly large pro-choice movement, paranoid that the least little restriction will undermine the whole structure.
In the older form of Federalism, states could pass laws about this -- Vermont could do one thing, and Alabama another. People were free to move. Tensions were lower on these contentious issues -- indeed, many of them weren't contentious.
The appointment of Federal judges has therefore become almost impossibly problematic. In addition to worsening the social tensions in America, this has created strains on the Federal justice system. It is hard to raise up new Federal judges, because the stakes are so high that every creation has the potential to become a partisan fight.
Consider gay marriage. Same deal -- it could probably be resolved legislatively at the state level if states were free to do it, but it is plain that the Federal courts consider themselves at liberty to resolve it for the whole nation at once when they are ready. That has raised the stakes, so that I get regular letters from groups who are utterly up in arms about the possibility of gay marriage being legalized by judicial fiat. Having one or two gay friends, I know that the other side is also deeply alarmed by the whole process.
Just as the legislature's failure worsens problems with the executive, so too have they worsened these problems. The one thing the Federal legislature can agree on is that the Federal government needs more authority. Congressional legislation has expanded the Commerce clause, and the "necessary and proper" clause, so that Federal jurisdiction is maximized. Since any objection to Federal authority has to be raised in Federal court, so far progress at turning that back has been limited -- the SCOTUS has issued divided rulings on the subject, while the rest of the Federal courts seem to be in favor of maximal Federal authority.
So what happens when the SCOTUS passes a ruling that (say) strikes down abortion rights as a Constitutional guarantee, or (say) requires states to recognize gay marriages? It would be a different deal if we could have one law for Georgia and another for Connecticut; but that's not where the politics are taking us.
The judiciary is meant to pursue justice in society, precisely because justice relieves social tensions. The judiciary seems sincerely interested in pursuing justice, even if different members of the judiciary have different ideas about what justice entails. That's fine -- so do the American people. Furthermore, we had good reasons to endow the judiciary, for a time, with these powers. Slavery and civil rights were both worthy causes, and the progress we have made on those points are due in part the work of the courts.
The problem is that the "one-size fits all" system we've created means that the judiciary's pursuit of justice exacerbates rather than relieves social tensions. It is not working as it is meant to work.
An amount of authority that was just for resolving the problems of slavery and civil rights is too much for other social questions. Applying that level of force to those questions is damaging the nation. We need to stabilize the balance between the Federal government and the states, so that different communities can have different laws.
The analysis suggests a government structure in crisis. It also suggests several places in which adjustment would be useful.
Constitutional changes:
The 17th Amendment should be repealed. The Senate should be returned to the function intended for it by the Founders. It was never intended to be so sharply partisan, which it is because it has become the house of Congress most subject to electoral pressures.
The 14th Amendment should be modified to restrain its terms. The judiciary's efforts on civil rights and slavery are, finally, praiseworthy. Yet the tools designed for those challenges are too powerful for the day-to-day issues facing the Republic. Even the most contentious of these is not of the same kind as the challenges arising from slavery.
Contentious social issues should be resolved at the state level, so that different communities can enjoy different laws. America belongs to all of us. It should be a place where all of us can feel at home. That cannot be achieved by a single law. It can be achived by Federalism -- by returning to the states the power to address their own settlement of these issues.
Gerrymandering needs to be banned. This is hard to do conceptually, but it is necessary. The creation of these demographic districts locks parties into a script, one that now blocks the Democrats from being an effective opposition party because they cannot achieve electoral success except according to their existing script; and which keeps the Republicans from altering key policies for the same reason. The ability to come to a wrong decision is preferable to the inability to come to any decision, but neither is as good as being able to pursue the right.
I suggest the elimination of Congressional districts, so that all representatives are elected in a single statewide election. If a state were to have ten representatives, then, a hundred people could run -- the top ten vote-getters would take office. That would restore the force of electoral pressure to the House, where it is designed to be. It would increase turnover of Representatives, and cut down on the corruption in the government.
Structural changes:
A police agency needs to be established with the duty of cracking down on Executive leaks. By the same token, a robust system of declassification is needed -- to make sure that the Executive does not keep secrets from us that are not absolutely necessary to keep.
In addition to this enhanced oversight internally, the legislature needs to pursue its duty to oversight with more vigor. It is hampered now by its own structural problems. As we can repair those, it will become possible for it to do a better job.
The United States should either require of the United Nations a serious reform so that it is capable of pursuing its duties, rather than serving as a defense for tyrants. If the UN cannot be reformed in that way, the US should withdraw from the organization.
The law should be rewritten to include harsh penalties for anyone occupying an office of special trust and authority, who betrays that trust. Failure to keep your oath or do your duty should be a crime in and of itself -- a serious one. A list of duties for each office should be compiled, so that we can say clearly if someone occupying the office has or has not done his duty.
In this way, I think we can repair the institutions of our government. The strains are evident, and they are severe. Several crises looming on the horizon or already here -- Iraq, Iran, North Korea, terrorism, the budget crisis of retiring Boomers and the attending pension crisis of retiring Federal workers -- cannot be solved by the institutions in their current state.
Comments are welcome, according to the usual rules. Eric Blair recently wanted to know if I had any suggestions. Now that you've read them, let's hear what you think.
