Partisanship, Separation of Powers and the Government’s Lack of Self-Control


No Daylight

I don’t pretend to know everything that is wrong with the way our leaders and our representatives in Washington, D.C., deal with their jobs, or by what measure they weigh the relative value and importance of their duties and responsibilities to us, the Constitution and their parties. Too often, it seems, they are driven more by maintaining their party’s power than their patriotism.

That there is partisanship surprises no one. That the partisanship erodes the separation of powers and the checks and balances mandated by the Constitution, however, takes us a down a foggy road that the Founders would likely find distressing because it appears to be a consolidation of power that subverts a constitutional process.

James Madison, in explaining the need for separation of powers, wrote in Federalist Papers 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.” Madison was addressing the need for the branches of government to remain independent checks on one another, but it is unlikely his emphasis would be different, that he would find it any less tyrannical, to use partisanship to pave a bypass around the checks and balances he found so central to the way our government works.

Watching Thursday’s House Judiciary Committee mark-up of the articles of impeachment of Donald John Trump revealed much about our government processes that I found both enlightening and disturbing. It was what I imagine it must be like if one were a biologist looking at a Petri dish teaming with the kind of bacteria that positively indicate the presence of a quickly mutating malevolent disease.

There was anger and laughter, gentle barbs and righteous indignation, feigned concern over tribalism and principled salutes to loyalty. Every carefully presented fact was confronted with an alternative fact. Of course, it is what we have come to expect from our politics. It’s a breeding ground for that sort of discordant behavior.

What caught my attention happened early on, around twenty-five minutes into the meeting. Ranking Member Rep. Doug Collins (R-GA) was whining about “the death of minority rights in this committee,” and how the process “is just a travesty and a sham from day one. I could talk ‘til I’m blue in the face,” he said, “but no one on the majority cares.” He was specifically complaining about the Republicans on the committee not getting to call more witnesses.

“When I asked for a second witness, I was told I couldn’t,” Collins lamented, “even though there had been staff conversations well before, I was told I was asking too late. One witness out of two panels, that’s all we had of fact witnesses.” (Later on, other Republicans on the committee would complain that they never heard from any fact witnesses, but that’s an argument for another time.)

Rep. Ted Deutch (D-FL) followed Collins and addressed the ranking member’s complaints. “It’s worth pointing out to my colleagues on the other side,” he said, “that we invited the President of the United States to the December 4th hearing to advocate for his views, to submit requested witnesses, but he chose not to attend and he chose not to suggest any witnesses.”

Collins reacted in disbelief, breaking off a conversation with a staff member behind him to interrupt Deutch. “Did the gentleman just say that I didn’t request witnesses? That is wrong.”

“What I said is, the president was given the opportunity, on December 4th, to present himself. He was also given the opportunity to present witnesses and he did not,” Deutch explained, again.

You can see the issue here. Collins asked about his side calling witnesses and Deutch responded by reminding him that the other side in the proceeding was actually Donald J. Trump, the President of the United States. Collins indignation revealed that Republicans are not only standing with Trump; they are standing in for Trump.

There was a similar incident Thursday night, when Senate Majority Leader Mitch McConnell (R-KY) told Fox News viewers, “There will be no difference between the president’s position and our position,”  meaning no daylight between Senate Republicans – who will all take an oath to act as impartial jurors – and the White House’s defense at the expected Senate impeachment trial. “I’m coordinating with the White House counsel,” he assured Sean Hannity, adding, “We all know how it’s going to end. There is no chance the president is going to be removed from office.”

All this wink-wink-nudge-nudge among Republicans is reminiscent of when, in 2017, Rep. Devin Nunes (R-CA), then chair of the House Intelligence committee, ran to the White House late at night to reveal to Trump and his advisers intelligence secrets about FBI surveillance that captured communications from members of Trump’s campaign.

Obviously, intra-party fealty between legislators and the president is not unique to these times nor to Republicans. Congressional Democrats stand up for presidents who are Democrats, too, while the body engages in its oversight role. Still, even Democrats voted to impeach Bill Clinton.

What can we do about it? A law would be useless without severe consequences. As noted above, political parties already violate the spirit – if not the letter – of the law, even those laid out in our Constitution. After his shenanigans, Nunes was forced to recuse from the Russian interference investigation the Republicans held when they ran the House, but it was symbolic. He was still on the House Intelligence Committee, still heard testimony, still was (and remains) a conduit to Trump.

The most appropriate solution would be in creating something with teeth in House rules, but those can change depending on the majority.

What is left, I’m afraid, is to amend the Constitution to require the office of president, because of its “supreme” power, to be occupied by a person who is an independent, with no party affiliation. Enacting such an amendment would reinforce the separation of powers and could restore the need for bipartisan support to get anything done. Still, as we all know, there will likely be little appetite to pass such an amendment on Capitol Hill because it will compromise the guarantees of power on which both parties have come to depend to pass their agendas.

Madison recognized this in Federalist 51, when he wrote, “[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” In other words, governing with partisanship as a primary principle weakens the governing body’s ability “to resist encroachments of others.” Furthermore, the power that partisan behavior bestows on those who practice it like a dark art is the most personal of motives.

“It may be a reflection on human nature,” Madison continued, “that such devices should be necessary to control the abuses of government.”

Madison goes on to remind us that people are not angels and so need rules and guidance. Because of “human nature,” a respective party’s power is ambrosia to our elected representatives, preventing them from heeding their better angels. So, Madison rightly concludes, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

-PBG

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