I … call on my colleagues … to refrain from piecemeal legislation and oversight during the crisis and to support the President fully in addressing the challenges ahead…. This Congress must rise to the occasion and act responsibly and wisely. History will judge us favorably for our prudence.—Rep. James Sensenbrenner (R-WI), September 14, 20011
House Committee on the Judiciary, 107th Cong., 1st sess., September 14, 2001, news release, www.house.gov/judiciary/news091401.htm (accessed September 1, 2003).
I voted for it. I have come to wish I had not.—Senator Robert Byrd (D-WV) (2005, 46).
In the first year after the attacks of September 11, 2001, Congress agreed with President George W. Bush and his administration that the key to national security at home and abroad was enhancing executive branch power. To this end, leaders smoothed the legislative process and members largely consented to the new policies and rapid review pace. By December 2002, Congress passed two major domestic laws related to the new War on Terrorism and two war resolutions. But beginning in 2003, many members, largely but not all Democrats, renewed their interest in legislative powers and prerogatives by mounting small rebellions against these once-popular policies, especially the Iraq War and the Patriot Act. Committees and the chamber floors re-emerged as arenas for heated debate on policy oversight, funding, and implementation and management. While members critical of the war have had a hard time gaining traction to alter the nation's course in Iraq, there was a golden opportunity to recalibrate power and policy on the Patriot Act as 16 of its most controversial provisions were scheduled to sunset in 2005. Although the Patriot Act's second legislative round was far more complex than the first, the result gave even more power to the executive branch. Congress's ambition subsided, again.
Under a political light, this story appears simple. The Bush White House and Republican congressional leadership have shown a remarkable ability to extract favorable votes on a wide variety of policies. This renewed era of highly disciplined parties (at least from the Republican side), combined with the ubiquitous shadow of 9/11, may allow a little room for members to grumble and grandstand, but without real policy consequences (Hacker and Pierson 2005). Without refuting this compelling near-term interpretation, this paper argues that the Patriot Act's legislative background and aftermath also fall into a larger, if underappreciated, pattern that pre-dates 9/11 and illuminates Congress's problematic place in the contemporary separation of powers system. It is the cycle of institutional ambivalence. Congress yields power, pulls some back, and then yields more. Members today are vulnerable to pressure on many fronts, but Congress's foundation has long been shaky even under other policy and political circumstances.
For example, under conditions of divided government in the 1980s and 1990s, members turned the pro-Congress 1974 Congressional Budget and Impoundment Control Act on its head by passing restrictive new budgeting rules that attempted to curb member, committee, and majority spending powers. By 2001, as the deficit disappeared and almost all the reforms expired or were overturned, the majority appeared uninterested in fiscal fetters. Today, the item veto is back on the table and its premise suggests, as it always has in its long life as a legislative proposal, that presidents are inherently better than Congress at seeing fiscal waste even though both branches share responsibility for all budgets. House Speaker Newt Gingrich (R-GA) showed a condensed version of this ambivalence in the 104th Congress by utilizing his budgetary arsenal against President Clinton's fiscal priorities while also pushing hard to lose power for his institution through the balanced budget amendment and item veto (see Fisher 2000; Farrier 2004). Congress says it is both the source of and the solution to serious national problems.
Along similar lines, the House and Senate have supported five rounds of bipartisan Base Realignment and Closure (BRAC) commissions to help decide domestic military policy while attempting to insulate Congress from the painful decision to shut down local installations. Yet many members in both parties have shown ambivalence about this method of policymaking. On the one hand, members have voted overwhelmingly five times for the creation of BRAC panels beginning in 1988 as well as approved the commissions' final recommendations in the required up-or-down vote. However, between these bookends of support, members work hard to influence, delay, and/or thwart the commissions' work. For base-closings, short-term pressures are always in play, but like the budget, members also give up power to help balance larger political and institutional tensions between good local representation and good national policymaking (see Mayer 1995; Goren 2003).
More subtle cycles of institutional ambivalence also surround the traditional legislative process, as seen through three decades of “fast-track” rules for presidential trade promotion. Fast-track procedures expedite congressional consideration of trade agreement implementation legislation by reducing or eliminating certain debate and amendment prerogatives. Congress had supported these rules for 20 years, but there was an eight-year pause between 1994 and 2002 when Democrats allowed them to expire in the aftermath of controversial trade agreements forged by President Clinton (see Conley 1999). In the 9/11 shadow, Congress reluctantly reinstated fast-track rules for President George W. Bush (Shapiro and Brainard 2003), but the ambivalence cycle continued afterward with battles in Congress on new trade agreements for Chile and Central America in which members took issue with the executive's “national” eye.
The Patriot Act is not exactly the same as these other cases as it does not entail a power shift of constitutional authority from Congress nor a new de jure legislative process for certain policies, but there are still similarities. First, the popular premise of all these cases is that there are negative national consequences to members' maintaining and utilizing their full legislative powers in the policy area. Second, after Congress cedes legislative power and process prerogatives, members appear to “flip flop” by using these very institutional tools, albeit in more incremental and subtle ways, to change the policy course through oversight, renewed public debate, and/or new bills to shift power back. Third, when pressed on the same problems later, even under different political circumstances, members will again cede their legislative resources.
Beginning in 2001, Congress was the gatekeeper for a dramatic increase in executive power. The month-long first round of the Patriot Act skirted much of the traditional legislative process through 11th-hour political deals that replaced committee-based compromises and avoided extensive floor deliberation. While this legislative bypass was not built into the law, as seen in these other cases, it was based on a similar premise that normal deliberation and debate can obstruct the national interest, which the executive branch sees more clearly. Post-passage ambivalence is visible in rhetoric and action as members re-discovered committee and floor powers to regain a toe hold on the issue. For the five years since 9/11, members publicly grappled with the difficult problem of balancing national security and protecting civil liberties in a heated policy moment. This equation translated into a separation of powers dilemma between the administration's duty to root out domestic terrorism and the Congress's right to know about, oversee, and fund such actions. Although only Senator Russ Feingold (D-WI) and 66 House members (almost all Democrats) opposed the original Patriot Act, many others from both parties went on record after it passed to voice their concern for the new policies related to the War on Terrorism and the legislative processes that created them.
Some of these newly ambivalent members started to emphasize Congress's after-the-fact oversight power, which can be a potent, if inconsistent, institutional weapon depending upon the policy area (see Aberbach 1990). However, between the first and second passage of the Patriot Act, committee leaders vented frustration with the difficulties of engaging the Justice Department, especially under Attorney General John Ashcroft. As Patriot oversight became problematic and national public opinion shifted against it, members had a chance to revisit their initial deference. The legislative process differed in 2001 and 2005, but the results did not.
Congress Steps Aside: 2001
The tone of the legislative process for the original Patriot Act was set by Attorney General Ashcroft two weeks after the attacks when he said: “the American people do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts.”2
House Committee on the Judiciary, Administration's Draft Anti-Terrorism Act of 2001, 107th Cong., 1st sess., 2.
Ibid., 7.
Members appeared to agree in their rhetoric and votes. The Senate's “USA” bill (Uniting and Strengthening American Act, S. 1510) was introduced on October 4 and floor action began a week later. Judiciary Chairman Patrick Leahy (D-VT) defended his committee's rapid pace as being part of the uniqueness of the moment. “Despite my misgivings, I have acquiesced in some of the administration's proposals because it is important to preserve national unity in this time of national crisis and to move the legislative process forward.”4
USA Act of 2001, S 1510, 107th Cong., 1st sess., Congressional Record 147 (October 11, 2001): S 10548.
Patriot Act of 2001, HR 2975, 107th Cong., 1st sess., Congressional Record 131 (October 12, 2001): H 6711.
http://clerk.house.gov/evs/2001/roll398.xml (accessed May 11, 2005).
Congress Reemerges: 2003–2005
In the Senate, prominent Democrats and an occasional Republican joined the original Patriot Act foe, Senator Feingold, to sponsor legislation curtailing Patriot provisions they had supported two years before, including Senators Barbara Boxer (D-CA), Richard Durbin (D-IL), Leahy, Harry Reid (D-NV), Ron Wyden (D-OR), and Larry Craig (R-ID). Regarding his “Patriot Oversight Restoration Act of 2003,” Senator Craig explained: “I am one of those who voted in favor of the USA Patriot Act to respond to the unprecedented, tragic attacks of September 11, 2001. However, even at the time of the vote, I raised my reservations about the new authorities being granted under the act, and pledged that there would be aggressive oversight by the legislative branch to make sure [the Patriot Act's] implementation did not compromise civil liberties.”8
Patriot Oversight Restoration Act of 2003, S 1695, 108th Cong., 1st sess., Congressional Record 150 (October 1, 2003): S 12285.
Security and Freedom Ensured Act of 2004, S 1709, 108th Cong., 2nd sess, Congressional Record 150 (April 7, 2004): S 3898.
Anti-Patriot legislation in the House used a different legislative strategy to progress further in the legislative process as conservative and liberal opponents of the law proposed floor amendments to appropriations bills to block funding for the Department of Justice to engage in library, bookstore, and “sneak and peek”-type searches. While ultimately unsuccessful too, three of these amendments gained considerable momentum in the House in 2003, 2004, and 2005. Longtime critics of the Patriot Act in the House, such as Reps. Paul, Butch Otter (R-ID), and Bernard Sanders (I-VT) were joined by a large fraction of the House, mostly Democrats who had voted for the original act but sometimes dozens of Republicans as well. In August 2003, with the Republicans split and the Democrats unified in favor, the House voted 309-118 for an Otter-sponsored amendment along these lines to curtail section 213 searches with the “ayes” including over 120 Democrats and 80 Republicans who voted for the original Patriot Act.10
http://clerk.house.gov/evs/2003/roll408.xml (accessed May 11, 2005).
In July 2004, a proposal to deny funding for certain section 215 searches came in the form of an amendment to an appropriations measure that included the Department of Justice and received a tie 210-210 vote on the House floor in a surprise near-loss for the Republican leadership and President Bush. As the vote time drew to a close with nine votes more in favor of passage, the original 15-minute voting time was extended to 38 minutes in a dramatic floor fight between the House leadership and Democrats, many of whom shouted “shame, shame!” at the appearance of Republican arm-twisting.11
Dan Morgan and Charles Babington, “House GOP Defends Patriot Act Powers,” Washington Post, July 9, 2004.
http://clerk.house.gov/evs/2004/roll339.xml (accessed May 13, 2005).
See http://clerk.house.gov/evs/2005/roll258.xml (accessed June 17, 2005).
Although many of these votes fell along party lines, post-Patriot ambivalence took a more bipartisan and passive-aggressive form in Congress as committee leaders dragged their feet on new bills to renew the parts of the act sunsetting in 2005. Even Rep. Sensenbrenner, chairman of the House Judiciary Committee who shepherded the original legislation through his chamber in 2001, told a reporter in 2003 that in light of his clashes with Attorney General Ashcroft, the Patriot Act would be made permanent “over my dead body.”14
Craig Gilbert, “Sensenbrenner Says He'll Enforce Sunset of Police Powers,” Milwaukee Journal Sentinel, April 17, 2003, www.jsonline.com/news/gen/apr03/134419.asp (accessed July 22, 2005).
Eric Lichtblau, “Lawmakers not Rushing to Take Up Terrorism Act,” New York Times, January 23, 2004.
New rhetoric in favor of increased post-Patriot oversight showed members' changed views of their own powers from 2001. For example, in 2003, Senator Leahy excoriated Attorney General Ashcroft for failing to attend a Judiciary Committee hearing (which he had also done in the House in 2002) and said: “undue secrecy undermines the system's built-in checks and balances.”16
Senate Committee on the Judiciary, Protecting Our National Security from Terrorist Attacks: A Review of Criminal Terrorism Investigations and Prosecutions, 108th Cong., 1st sess., 2003, see opening statement by Senator Leahy at http://judiciary.senate.gov/member_statement.cfm?id=965&wit_id=2629 (accessed July 27, 2005).
USA Patriot and Terrorism Prevention Reauthorization Act of 2005, HR 3199, 109th Cong., 1st sess., Congressional Record 151 (July 21, 2005): H 6247.
Congress Steps Aside, Again: 2004 and 2006
At the same time members showed renewed interest in their chambers' powers, Congress again expanded the administration's intelligence-gathering powers through new intelligence-related legislation, such as the truly landmark intelligence overhaul in 2004, among other lesser measures.18
Eric Lichtblau, “Lawmakers Approve Expansion of F.B.I's Antiterrorism Powers,” New York Times, November 20, 2003; Dan Eggen, “Measure Expands Police Powers; Intelligence Bill Includes Disputed Anti-Terror Moves,” Washington Post, December 10, 2004.
Intelligence Reform and Terrorism Prevention Act of 2004, Conference Report to Accompany 2845, 108th Cong., 2nd sess., Congressional Record 150 (December 8, 2004): S 11961.
Ibid., S 11965.
But when it came to the renewal of the Patriot Act, the House actually favored less oversight power than it granted itself in the original. In July 2005, the House passed a bill on the floor that would make permanent almost all the provisions set to expire, with 10-year sunsets on only two of the 16 expiring provisions related to business and library records as well as roving wiretaps. Representative Jerrold Nadler (D-NY), who voted against both the original Patriot Act and its extension, argued that sunsets were necessary for oversight: “We have had four years since the Patriot Act was enacted. We did not do any oversight in this House until six months ago. Why? Because of the sunsets.”21
USA Patriot and Terrorism Prevention Reauthorization Act of 2005, HR 3199, 109th Cong., 1st sess., Congressional Record 151 (July 21, 2005): H 6224.
The difference between the House and Senate bills to renew the Patriot Act surrounded civil liberties safeguards as well as differences in sunsets for three of the search provisions and one for tracking alleged “lone wolf terrorists.” The conference wrangling went on from July 2005, through the fall after Senate Democrats refused to sign on to the conference report in protest of the fact that the conference had only had one full meeting. By mid-December, the House voted to affirm the conference report in a party-line vote of 251-174, with only 44 Democrats voting for it and 18 Republicans against (a mix of ultra-conservatives and moderates). A comparison of this House vote approving the renewed Patriot Act compared with the final vote in 2001 shows almost 100 members in the “nay” column had voted “aye” four years earlier.22
http://clerk.house.gov/evs/2005/roll627.xml (accessed May 22, 2006).
Some opponents of the Patriot Act renewal did not mention their prior support for it in 2001 when they took to the House floor (such as Democrats Lloyd Doggett of Texas and Anna Eshoo of California). Others, such as Dana Rohrabacher (D-CA) explained why a vote that looked like a “flip-flop” really was not: “My central theme has always been based on the need for periodic review by Congress of all those dramatic expansions of police power that we are giving our government now in order to win this war on terrorism. This is best achieved by sunsets. We should not live in peacetime under the extraordinary laws passed during times of war and crisis. Emergency powers of investigation should not become the standard.”23
USA Patriot and Terrorism Prevention Reauthorization Act of 2005, HR 3199, 109th Cong., 1st sess., Congressional Record 151 (December 14, 2005): H 11520.
Ibid., H 11523.
A bipartisan handful of holdouts in the Senate pushed this debate beyond the December 31 deadline, but by February 2006, amidst new media revelations of a domestic spying program by the National Security Agency, the White House convinced most of them to relent. Those compromises surrounded the rights of subpoena recipients and the source of information about library use by terror suspects.25
Sheryl Gay Stolberg, “Key Democratic and G.O.P. Senators Are in Accord on Extending Patriot Act,” New York Times, February 10, 2006.
Still emphasizing the oversight angle, Senator John Kerry (D-MA), who had become a vocal critic of the Patriot Act during his presidential run in 2004, explained his support for the renewal package with the exact argument Rep. DeFazio disparaged: it can still be improved later. “I believe the compromise was the product of good faith negotiations. It is not a perfect bill, but it is a step in the right direction. And I will continue to work with my colleagues so that we can create a more even balanced [sic] Patriot Act.26
Debate on the Conference Report (H.R. 3199), USA Patriot Improvement and Reauthorization Act of 2005, Congressional Record 152 (March 2, 2006): S 1610.
Ibid., S 1611.
Statement on Signing the USA PATRIOT Improvement and Reauthorization Act of 2005, March 9, 2006, Weekly Compilation of Presidential Documents, week ending March 10, 2006, 425–6, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2006_presidential_documents&docid=pd13mr06_txt-21 (accessed May 22, 2006).
Conclusions
Revisiting the Patriot Act gave many members, mostly Democrats, an opportunity to go on the record against a law that had become increasingly unpopular across the country. Upon closer examination, these actions show more subtlety than mere partisan “flip flopping.” Many argued that they were not against the Patriot Act in a blanket sense as much as in favor of preserving or increasing congressional oversight. Yet over the years, members on both sides of the aisle complained about lags and snubs from the Bush administration on committee appearance and information requests. Members simultaneously showed frustration with the oversight process while seeing it as a central component of institutional power. While oversight is certainly one key to checks and balances, it can also be characterized as a “too little, too late” approach to institutional ambition. In the beginning of the legislative process, members and leaders hold the cards, but effective oversight depends on cooperation from the executive branch.
There are many short-term reasons for members to sacrifice institutional power and then jump on the criticism bandwagon once the new policies become controversial. But the cycle of ambivalence is a risky institutional strategy for policymaking. Members continue to chip away at their institutional power yet still depend on it to satisfy local and national demands. Congress can still balance these tensions if “principals” ceding power can control the “agents” who receive it (Kiewiet and McCubbins 1991). In the Patriot Act, similar to the budget, base-closing, and trade cases, Congress sacrificed power in the near term but gave itself the option to exercise it down the road. But members did not seize those future power moments to their full potential either. On another front, by obstructing President Bush's Social Security reform initiative in 2005, members and leaders exerted maximum control over the issue. In this case, which may be the exception that proves the rule, members did not wait until the oversight stage to claim an institutional right to shape public policy.
Author Bio
Jasmine Farrier is assistant professor of political science at the University of Louisville. She is the author of Passing the Buck: Congress, the Budget, and Deficits (University Press of Kentucky, 2004). This paper is part of a book project on congressional ambivalence surrounding fast-track trade provisions, base-closing commissions, and post-9/11 legislation.
