Legislative-Executive Relations

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The argument may be briefly outlined. In practice “the literary theory” of the Constitution had broken down. “While we have been shielding it from criticism it has slipped away from us.” This was a theory of checks and balances—of which John Adams found eight in writing to John Tyler. Chiefly they were the balance of the state governments and the people against the federal government; and, within the latter, the separation and mutual checks of the legislative, executive, and judicial powers. But out of a century of developing a continent and out of a civil war, the federal had emerged, visible to every citizen, as “the greater and more sovereign power.” The doctrine of implied powers under the Constitution was the legal instrument of this achievement. Within the federal government the judicial power ceased to be a real check and balance to the legislature once it had “declared itself without authority to question the legislature’s privilege of determining the nature and extent of its own powers in the choice of means for giving effect to its constitutional prerogatives.” And that other theoretical check, the executive, had proved ineffective because the power of the Presidency had waned, “fallen from its first estate of dignity” in the early days of the Republic, as the power of Congress in the test of action became predominant.

The bulk of the book, and its abiding value, is an analysis and description of Congress and its operation. Here the weakness discerned was in leadership and responsibility, because in practice both had been diffused through the committee system. The young author found the path of progress in the direction of the parliamentary system where authority, party leadership, and responsibility for governmental action might be joined. As the years went by, he was to come to a different conclusion.

It is, I know, fashionable to state that in the seventy years since Wilson wrote there has been so great and steady a growth of presidential power that the constitutional problem of today is the checking of executive aggrandizement. I do not share this view. True, the power, prestige, and—most certainly—the responsibilities of the Presidency have grown greatly. But the growth of power has not been steady or maintained. Presidential power is great in times of war, national emergency (such as the depression), or when the sense of danger from abroad is acute. But when a consciousness of security, normalcy, and prosperity (whether well-founded or not) dominates, the power of the office, as a means of positive accomplishment, diminishes in competition with the multitudinous and often inconsistent appeals of congressional leaders. Furthermore, any idea that the contestants put into the arena by the Constitution are ill-matched in power and resources is far from the fact. The question, in my judgment, is whether the checking and balancing prescribed by the Constitution is so conducted as to permit a continuity of policy, involving over a period of years the maintenance of distasteful measures. For this is essential if we and our friends are to maintain our position and safety in competition with powers of unmistakable capacity for consistent and sustained effort. I believe that it is possible to do this only if the presidential office is made and maintained strong and resolute.

The central question is not whether the Congress should be stronger than the Presidency, or vice versa; but, how the Congress and the Presidency can both be strengthened to do the pressing work that falls to each to do, and to both to do together.

When one speaks of the executive working with the Congress, one is using shorthand. The center and focus of legislative-executive relations lie in the congressional committees and in the method of their operation. Much as the President and his associates may influence the Congress through direct appeal to the people, the route from planning to action leads through the committees to legislation. For today nearly all programs require funds, authority, and men, which Congress may grant, skimp, or withhold. Legislation is more than the “oil of government”; it is the essential prerequisite of government. And it is in the committees, where Congress is least susceptible to party discipline, that it gives its legislative answer to the policies of the administration.

There is another fact, also, which must not escape us. While each one of these committees and subcommittees is a channel along which influence may How from the Congress to the executive, it is quite possible for influence to flow in the other direction along the same channels. If it were not so, our government would be almost impossible to operate. To be sure, Congress has its defences. Unless an executive officer or employee wishes to risk a year of penitential reverie, he had best not use any appropriated funds to “pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction of any bill or resolution…”

And, as Wilson pointed out, consultation with the Senate has a tendency to be all one way. “The President really has no voice at all in the conclusions of the Senate with reference to his diplomatic transactions . . . and yet without a voice in the conclusion there is no consultation . . .” “The Senate,” he adds, “when it closes its doors, upon going into ‘executive session,’ closes them upon the President as much as upon the rest of the world.” There is truth in this—bitter truth, as President Wilson, lying on his sick bed while the Senate formulated reservations to the League of Nations Covenant, was to experience. But Wilson overstates the isolation of the Hill and the White House from one another, just as he does when he writes, “His [the President’s] only power of compelling compliance on the part of the Senate lies in his initiative in negotiation, which affords him a chance to get the country into such scrapes, so pledged in the view of the world to certain courses of action, that the Senate hesitates to bring about the appearance of dishonor which would follow its refusal to ratify the rash promises or to support the indiscreet threats of the Department of State.” If, for instance, one studies the interplay of influence between the Department and the committees on the Formosa Treaty and legislation of 1955, one can see the bearing of this last observation. Nonetheless, one must conclude, I think, that in the evolution of policy comprised in these measures, the Department and the committees each deeply influenced the other.

In the process of communication and mutual effort to influence between the committees and the executive a simple, prosaic, but deeply important fact stands out. The process takes a great deal of time and effort. It is obvious, too, that while there are many committees and subcommittees, there is only one Secretary in each department; and the committees, quite naturally, want to discuss important matters with the Secretary. On his part, the Secretary knows that he must do this, and do it effectively, if the policies of the administration are to be carried out. So the time spent in congressional meetings is spent—and, for the most part, well spent—in the performance of one of his most important duties. It is possible, I think, to arrive at a quantitative estimate of the time this duty requires.

On November 29, 1955, Secretary Dulles told us that he had met during his tenure of office “more than 100 times with bipartisan Congressional groups.” This seems to me quite normal practice. As nearly as I can reconstruct it from my appointment books, I met during four years as Secretary on 214 occasions with these groups. One hundred and twenty-five of these were formal committee meetings, usually stenographically reported. The remainder were informal meetings. Many committee meetings occupied half a day, measured from the Secretary’s portal-to-portal (if more, each half-day is counted 28 a meeting). Informal meetings were usually shorter, running from an hour to two or three. In my experience preparation for meetings required at least as much time as the meetings themselves, usually more, since the ground which would be covered was never precisely predictable. I will not be far wrong, then, in estimating that each formal meeting took half a day and preparation half a day, or a total of 125 days; that each informal meeting took about one-quarter of a day. This is in the neighborhood of one sixth of my working days in Washington. Periods of absence on international conferences are excluded. There were, of course, additional and more relaxed opportunities for exchange of views on social occasions after working hours.

General figures cannot reflect the peaks of pressure which the work with Congress involves. There are occasions when, not a sixth of the Secretary’s time, but all of it is occupied on the Hill. For instance, from June 1, 1951, to June 9, inclusive, I testified every day except Sunday and nearly all day before the joint Senate committees investigating the relief of General MacArthur. Preparation began on May 8, with work, at the outset, chiefly at night, and continued every day until it filled pretty much the whole day. With these hearings concluded, I began preparation on June 22 for hearings before the House Committee on Foreign Affairs on the $8.5 billion foreign aid bill. The actual hearings occupied June 26, 27, and 28. So for this seven-week period, from May 11 to the end of June, fully half of the Secretary’s time and energy was spent on work with congressional committees.

July and August, 1949, present an example of diversity of matters crowded, indeed jumbled, together in a short time. July was the month of the publication of the China White Paper. It began with discussion with a number of individual Senators and Congressmen interested in Chinese questions. These went on through the month. On the 2oth and again on the 27th were lengthy meetings with the Joint Atomic Energy Committee in an attempt to clear the way for an improvement in our working relations in this field with Great Britain and Canada. Due to leaks and distorted publicity the effort failed. The 28th was taken up with hearings on the military assistance program before the House Foreign Affairs Committee; and the 29th with preliminary discussion of the subject with the Chairman of the Senate Foreign Relations and Armed Services Committees. On August 2 I appeared before a joint meeting of these committees in the morning, returning to the House Committee in the afternoon. After a conference with Chairmen Connally and Kee on August 4, the discussion with the joint Senate committee was resumed on the morning of the 5th, and that with the House committee in the afternoon. Public hearings before the joint Senate committees took the morning of the 8th. I met President Quirino of the Philippines, who arrived in the afternoon, and talked with him on the 9th. The morning of the 10th was given over to an appearance before the House Foreign Affairs Committee on the White Paper, and the morning of the 11th to another meeting on military assistance. After two meetings on the 12th with Senator Vandenberg, I was able to turn to other than congressional matters until the end of the month, when the President and I met with Senators George and Lucas to discuss problems raised by the Reciprocal Trade Agreements Bill.

January, 1950, was another active month with fifteen meetings, seven committee appearances, and eight informal meetings. The subjects covered included Formosa, complete surveys of our foreign relations, the departmental budget for 1951, aid to China, the Selective Service Bill, the All-American canal in the Southwest, Korea, and an appointment in which a member of Congress was interested.

In all these hours and days of meetings and consultations, as in all work, the moments of positive accomplishment, of forward movement, are disappointingly few. Much of the time is spent in what Secretary Stimson used to call “stopping rat holes.” But that, too, is important work—as one finds out when it is neglected—even though it leaves the big tasks untouched. For instance, when Mr. Attlee came here in December, 1950, apprehension was expressed in the Senate that he and the President might enter into secret arrangements. Indeed, Senator Kem, for himself and twenty-three Republican Senators, introduced a resolution giving it as the sense of the Senate that the President at the close of the meetings should make a full and complete report on them to the Senate and that he should not enter into any understandings or agreements which might bind the United States. This plainly was an infringement of the constitutional prerogative of the President to conduct negotiations with foreign nations. In this case the issue was an unreal one, since it has become customary for the Secretary of State to meet with the Foreign Committee of each House after important international meetings and review developments with them. So on December 9 I attended a joint meeting of the two committees and discussed with them most amicably all that had taken place. Interest in the resolution was short-lived. On December 18, 1950, it was defeated by a vote of 45 to 30.

These congressional meetings before and after an international conference, useful as they are, have a disadvantage which is part of the great glare of publicity thrown on all preparation for these conferences as well as upon the conferences themselves. Flexibility even in minor matters is much more difficult when, before a meeting, all possibilities are analyzed in public and positions publicly taken. Agreement requires that some, perhaps all, modify their attitudes to meet changes by others. A position publicly proclaimed is more rigid by reason of its public nature. Furthermore, to announce all one’s positions in advance of the negotiation is apt to make it merely a forum for reiterating final positions and not a true negotiation. But there are so many contributors to this situation that it would be unfair to attribute much of it to the liaison with Congress.

The occasions when the executive and the Congress are brought together in the origination or the development of policy are not found in these executive, and certainly not in the public, sessions of congressional committees. The latter have an important and useful place in the democratic govern mental process. But it is in the public examination and criticism of proposed action. This both tests what is proposed, and, through press, radio, and television coverage, informs the electorate in regard to it. The creative process is both more individual and more elusive because more private. And being individual, it cannot be stated in a formula. It is secreted in the qualities of men. During his illness I had the rare opportunity of many talks with Senator Vandenberg on this subject wholly divorced from any specific task. For many years I had observed him and worked with him. But these talks were contemplative. We reviewed our experience and tried to draw conclusions from it.

What then are the qualities in men and the posture of circumstances which make for this creative process when policy is moved forward to a new phase? On the committee’s side what is needed is a chairman or senior minority member who is widely respected and trusted in his own party. Such a man usually stands well with the opposition also. He must be able to think vigorously about new problems, though he need not have an original cast of mind. His great function is to bring suggestions within the realm of the possible, to use method as a means of moulding a proposal to make it politically feasible. He will, of course, be a politician. He will protect the interests of his party, and perhaps of himself, so that what he becomes convinced is in the national interest is not done so as to injure his party or aggrandize its opponent. But he will not be tricky. What he requires as a condition of support will be frankly stated. He will keep in touch with his colleagues, particularly his own party colleagues, and have a pretty sound idea that what he agrees to back will have the needed support when the time for voting comes.

On the executive side what is needed is a man who can speak for the administration because he knows it and is trusted by it. He, too, must keep in touch, be frank and not tricky, and must pursue the main objective without being deflected by the nonessential. These two men must have confidence in one another.

An example of this sort of collaboration occurred in 1948 between Senator Vandenberg, then Chairman of the Foreign Relations Committee, and Mr. Robert Lovett, Under Secretary of State, which resulted in the Vandenberg Resolution, the precursor of the North Atlantic Treaty. Senator Vandenberg’s position was unique. He was Chairman of the Committee; by understanding with Senator Taft he was given the lead on the Republican side in foreign affairs while Senator Taft had it in domestic affairs. His influence in both parties was immense. He was a master of maneuver and a superb advocate. He and Mr. Lovett trusted and liked one another. Mr. Lovett could and did efface himself from the public eye. His ability matched the Senator’s. He had at his finger tips the facts and needs of the situation, the desired policy. Their work together produced what neither could have accomplished separately.

Examples of similar work on a much broader base were the meetings which Mr. Hull held in 1944 with three separate groups from Congress in which were discussed drafts of the United Nations Charter prior to the Dumbarton Oaks Conference. Mr. Hull has described these fully in his “Memoirs.”

The Secretary met first on four occasions with eight members of the Senate Foreign Relations Committee. That Committee was then organized with a view to having on it leaders of Senatorial opinion. That it had is seen by the composition of the group—Senators Connally, Barkley, George, Gillette, Vandenberg, La Follette, White, and Austin. But other Senators were interested in the Charter, too, and to draw them in without questioning the prerogative of the committee, the Secretary held a separate consultation with what was then known as the 2B2H group—Senators Ball, Burton, Hatch, and Hill. Since the House Committee on Foreign Affairs did not then or normally include the party leaders in the House, the group invited to meet with the Secretary consisted of the Speaker and Majority Leader, Mr. Rayburn and Mr. McCormack, the Minority Leader, Mr. Martin, the Chairman and ranking minority member of the Committee, Messrs. Bloom and Eaton, and Representatives Ramspeck and Arends. The Secretary also used his great influence, in the quiet way of which he was a master, to induce the national conventions of both parties to adopt planks favoring an international organization to keep the peace. This whole effort was outstandingly successful—classic example of persuasion through participation by a man who thoroughly understood congressional processes.

If these occasions of real accomplishment in coöperation are rare, they would be even more rare were it not for the far larger number of meetings—which are also the “oil of government,” preventing grievances from going unaired, preserving amour propre, giving a sense of participation, and an opportunity to exercise authority over detail.

It is often said that the executive must “get along” with Congress and particularly with the Senate. If this means that concessions of policy must be made in the interest of outward affability, I do not agree. Personal relations will for the most part be courteous and friendly as one would expect between gentlemen. But no one knows better than politicians and lawyers that men can battle most bitterly in the arena over important differences and yet maintain amicable personal relations and cooperate on other matters. The Eightieth Congress, with which President Truman had his fiercest battles, worked admirably in foreign affairs; and many of those who demanded the dismissal of the Secretary of State in 1950–52 joined in passing all the major legislation he laid before the Congress, including the Japanese and German treaties on the very eve of the campaign of 1952. Mutual respect is more important than affability.

We return always, I think, to a central truth. The relations between the executive and legislative branches of our government were not designed to be restful. We must not be disturbed and think that things have gone amiss when power striking against power, and being restrained, produces sparks. Congress has, for instance, always wished to inquire into the internal processes by which a particular executive decision was reached; what employees had to do with it; what advice each gave. The desire is natural, but to indulge it would destroy the administrative process and organization. If an employee is to do his unintimidated best, he must be shielded from the unequal struggle with a congressional investigation. The responsibility must be borne by those political officers upon whom it properly rests—the Secretary and his chief assistants, appointed by and with the advice and consent of the Senate. I think the Congress understands the justice and necessity for a firm attitude here to preserve the integrity of the executive branch, and though a refusal of such requests often produces momentary irritation, the issue is rarely pressed.

Secretary Stimson believed strongly in the desirability of a question period in the House and Senate on the British model, during which cabinet officers would appear on the floor and respond to questions submitted in advance. He was not alone in this. At the beginning of this government the practice was common. In July, 1789, the Secretary of Foreign Affairs, Mr. Jefferson, “attended, agreeably to order, and made the necessary explanations.” The Secretary of War, General Knox, appeared in August of the same year, twice before the House, and with President Washington, twice before the Senate. The President was displeased with his reception and did not return. The Act of September 2, 1789, creating the Treasury Department provided (as the law still does) that the Secretary was “to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.” The House discussed in 1790 whether Secretary Hamilton should make his report on the public credit in person or in writing and decided on the latter only because of the mass of detail involved. Mr. Justice Story was a strong advocate of the right and duty of cabinet officers to appear on the floor both to answer questions and to participate in debate. In 1864 a select committee of the House (vigorously supported by James A. Garfield) and in 1881 a select committee of the Senate (on which James G. Blaine served) recommended the right to the floor of both Houses for cabinet officers both to answer questions and to participate in debate. In 1912 President Taft in a message to Congress of December 19 made the same recommendation.

The Pendleton Committee of 1881 concisely sums up the argument for its view:

This system will require the selection of the strongest men to be heads of departments, and will require them to be well equipped with the knowledge of their offices. It will also require the strongest men to be the leaders of Congress and participate in debate. It will bring these strong men in contact, perhaps into conflict, to advance the public weal, and thus simulate their abilities and their efforts, and will thus assuredly result to the good of the country.

At one time I thought this proposal had more merit than I do now. It seems to me an ill-suited graft upon the committee system, on the one hand, and the presidential system, on the other. A Secretary who developed a capacity for congressional debate might well be in trouble on two sides. On one side he would be rivaling and diminishing the position of the chairman of the committee concerned. Out of this much trouble could grow. The other hazard, as Mr. Laski pointed out in “The American Presidency,” would be the development by cabinet officers of a status and interests independent of the President, reminiscent of Stanton’s with President Johnson, another impediment in the way of unified administrative policy. I doubt, too, the assumption in the Pendleton report and in Mr. Justice Story’s argument that the “strongest” men, “statesmen of high public character” best qualified for the administration of policy, are necessarily those best qualified for debate in Congress. Sometimes men are gifted in both endeavors; but, as I have observed government for a good many years, it is as often, perhaps more often, not the case. It is interesting that the Confederate Constitution had a provision permitting cabinet officers to sit in the Congress upon invitation. But the invitation was never issued, for fear that to do so might give the President too much power.

More important, perhaps, than considerations which must remain theoretical, is the fact that our chambers do not have the tradition of discipline in relevance which permits Mr. Speaker in the House of Commons to maintain strict control over the question period. In May, 1950, after a European conference, I had an experience of an informal congressional question period in an appearance before the members of both Houses in the auditorium of the Library of Congress. The questioning in this meeting seemed to bear out the misgivings I have expressed.

The architecture of our government is, I think, too set, practice has adapted it too well to our continental scope, to have it improved by additions or embellishments in the parliamentary style. The larger truth is that the two systems operate as systems—each with its general strength; each paying some price in weakness for the strength it has. To graft some special trait of the one onto the other, without regard either to the whole of the society it serves or to the whole legal and extra-legal framework into which it fits, will not produce better performance, but only a fracture, in the exercise of responsible power.

We have in this country been developing methods of our own by which, for instance, some members of the Congress can gain personal experience in foreign relations and in meeting and understanding the attitudes of foreign peoples and governments. The practice has grown up—and it is a good one of having alternately two Senators and two Congressmen on the United States Delegation to the General Assembly of the United Nations. Subcommittees of the Senate and House Foreign Committees for geographical areas are kept closely in touch with developments in these areas. They often travel in these parts of the world when Congress is not in session. Indeed congressional travel is widespread and, for the most part, to the good. If sometimes a particular country seems to be subject to mass invasion, and if the inevitable press conference by the visitors rarely produces beneficial results, the price is not too heavy for the increase in understanding which comes with personal experience.

Today it is of new and pressing importance that the House have understanding of foreign affairs. The time has passed when the Senate monopolized the congressional function in this field, since it is the execution of policy, calling for legal authority, funds, and men, which is the ultimate test of success or failure. The importance of the House has grown and is growing, presenting new problems of giving information and a sense of participation to so large a membership. I venture lo say that if it were possible to assess the factors which led to the erroneous Soviet judgment of our probable reaction to the invasion of South Korea, the defeat in the House of the Korean Aid Bill (H.R. 5330) on January 20, 1950, would bulk large. Would it seem likely in Moscow that a nation would come to the military assistance of another which its popular assembly had been unwilling to aid with funds?

In the years in which I was associated with it the House Committee on Foreign Affairs was a hard-working and understanding committee. Its security and its staff were excellent. The Committee did not carry the same weight in the House as did its counterpart in the Senate, so that unanimity became of special importance. A vociferous minority could make any result unpredictable. One of the masters of producing a unanimous committee without injury to the policy put forward was the late Congressman Bloom of New York, its Chairman for many years.

All that I have said about legislative-executive relations in the field of my experience can be summed up in a few sentences. It is not easy to conduct our foreign relations in the national interest with the limitations imposed by democratic political practices. A good deal of wear and tear will occur on the executive side, and it had best be liberally supplied with spare parts. Of all my principal assistants at the beginning of four years only one remained at the end. I found a rest not unwelcome myself.

On the legislative side, a great danger, as in military operations, is to underestimate the problem. Legislators would do well to repeat to themselves: it is not as simple as we think. But the job can be done; and, if one would look for the “oil of government” which is of most help in the common task, it might be found in two quiet qualities, not much touted in politics, humility and disinterestedness.