Beware of the Collapse of the ‘Open Presidency’

A presidency engaged in excessive secrecy. The list of grievances includes: threatening to withhold testimony from Congress, preventing judicial review of executive actions in combating terrorism, denying access to White House visitor logs, making policy without legislative involvement and then attacking the media critics who question the president’s actions.

We are not rehashing the superheated Bush-era fights over presidential powers but referring instead to recent misdeeds of the Obama administration. The latest conflict over White House policy “czars— has ignited a debate over President Barack Obama’s pledges of change and openness.

The president’s White House counsel, Greg Craig, recently informed protesting Senators that various White House policy czars will not be permitted to testify on Capitol Hill. If allowed to stand — and it should not — this presidential decision would undermine the foundation of the constitutionally based system of separated powers. That is, presidents could unilaterally develop policies without meaningful legislative involvement, a clear violation of the principles of representative government and accountability.

The loudest voices of criticism on the Hill are coming from Republicans. This fact, combined with the White House’s attacks on conservative talk-radio host Rush Limbaugh, right-wing talkie Glenn Beck, and now the Fox News channel, has allowed the president’s supporters to position this controversy within a partisan framework. Unfortunately, it is easy to draw attention to a controversial network or overheated pundits when the president’s own party members remain largely silent on a constitutional issue that should unite legislators.

And therein lays the danger. In remaining quiet in the face of this assault on Congress’ legislative and oversight powers, the Democrats are allowing a dangerous precedent to be established that they will later regret when a Republican is in the White House. They must choose to either fight a president of their own political party or remain passive as many GOP lawmakers did under President George W. Bush. To be certain, what is at stake in this battle is the institutional integrity of Congress. Regrettably, only a few Democrats — particularly the stalwart Sen. Robert Byrd (W.Va.) and Sen. Russ Feingold (Wis.) — seem to understand what is at stake here.

Democrats on the Hill need to act now. There is substantial precedent for members of a president’s party in Congress to set aside short-term partisan goals in order to protect institutional prerogatives. One need only recall the vigorous challenges against Bush-era secrecy practices that were posed by a GOP-led House Oversight and Government Reform Committee early in the former president’s first term.

The same committee began an investigation of President Bill Clinton in the Travelgate scandal when the Democrats controlled Congress. Likewise, during Jimmy Carter’s presidency, Democrats launched legislative inquires that resulted in subpoenas of executive branch documents against Health, Education and Welfare Secretary Joseph Califano.

If Obama continues to refuse to permit his White House aides to testify, then Congress can cut funding or revoke the president’s power to create additional czars. In an interbranch standoff, the legislative and oversight powers of Congress should easily trump the president’s claim to direct policy or control access to information, unless some vital national interest justifies secrecy. The outcome, however, comes down to the willingness of lawmakers to force the president’s hand.

The decision to deny Congressional access to White House czars, so reminiscent of Bush-era secrecy practices, is especially indefensible given how Obama campaigned on the promise of a new era of openness. Early in his presidency, by taking action to disclose certain presidential records, Obama gave many advocates of government transparency much hope that he would institute a new regime of openness.

History is filled with presidents who failed to live up to the lofty standards set during their campaigns. What is remarkable in this latest controversy is not that Obama has been unsuccessful in reversing the most offensive Bush-era secrecy policies but that he has actually been so willing to embrace many of them.

If this latest decision holds because most Democrats in Congress do nothing to challenge their president, it will be a serious blow against open government and balanced constitutional powers. Congress would yet again be complicit in the balance of power in Washington continuing to tilt toward the White House.

Mark J. Rozell is a professor of public policy at George Mason University. Mitchel A. Sollenberger is an assistant professor of political science at the University of Michigan-Dearborn.

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