A Government Of The Average People
Mainstream theories of governance rely on a few basic assumptions. Among them is a special trust that political leaders transcend human foibles, confronting complex judgments and problems with cool, clear intellect. Hayek notes in The Intellectuals and Socialism that experts assume other experts to be uniquely competent. The progressive mentality presumes that technocrats hold the answers to society’s problems, simply requiring sufficient discretion to act. Congress is a progressive institution that seeks out problems to address, through legislation and regulation. On March twentieth I witnessed this firsthand in a Judiciary Committee hearing centered on how, not whether, drone aircraft in American skies should be comprehensively regulated. Even support for the unfathomably vast Troubled Asset Relief Program came down to a visceral sense of the need to do something.
Public Choice theory revolutionized the institutional analysis of politics with a single insight: Individuals within public institutions are governed by the same self-interest as private market actors. Bureaucrats and politicians respond to incentives. Mainstream political science, including the realism that dominates international relations, takes for granted that public officials are public-minded, their ends indistinguishable from those of the nation-state. “Obama administration” and “United States of America,” for example, are interchangeable. This is a methodological assumption, but it reflects a basic faith that political leaders are exceptional individuals. At a minimum, they are assumed to be nominally competent.
Senators in particular enjoy an august reputation, certainly within a conventional political science framework. Their election by state legislatures, abolished in 1913 by the Seventeenth Amendment, was intended to insulate them from the whims of popular democracy. Surely, senators know what they are talking about.
Covering high-stakes committee hearings on Capitol Hill has given me the opposite impression. Whether or not their staff and policy advisors are brilliant, well-informed experts, senators themselves are not. Members of ‘the world’s greatest deliberative body’ are all too human—unnervingly so, given their prescribed role in the American system of government. 100 ordinarily flawed people hold extraordinary power.
Sen. Dianne Feinstein, D-Calif., supplied this moment of clarity. She is exceptionally powerful, chairing the secretive Select Committee on Intelligence. Most of its hearings are closed to the public and press because they involve classified information. By virtue of seniority, she also ranks highly in the Committees on Appropriations, Judiciary, and Rules and Administration. She authored the 1994 assault weapons ban and is proposed a more stringent one in the wake of Newtown. She was also a leading voice in the discussion about the United States government’s targeted killing of its own citizens with drone strikes. That is a lot of responsibility.
Two key documents lay at the heart of the drone strike debate. One is a Department of Justice white paper leaked to MSNBC in early February, which MSNBC watermarked before releasing. The other is a classified Office of Legal Counsel memo first reported in early October 2011, which lays out legal arguments to justify the targeted killing of American citizens without trial.
The New York Times has spearheaded coverage of the latter and the targeted killing campaign in which it places a crucial role. This policy has also been scrutinized by Washington Post investigations and features in the Wall Street Journal. On February 6, the evening before John Brennan was scheduled to appear before a rare unclassified Intelligence Committee hearing on his nomination to direct the CIA, President Obama ordered the Office of Legal Counsel to release the memo to select Congressional members, including the Intelligence Committee chaired by Senator Feinstein. During the confirmation hearing, which touched on Mr. Brennan’s role as architect of Mr. Obama’s drone policy, Sen. Ron Wyden, D-Ore., accused the Justice Department of not cooperating in good faith. On March 20, Sen. Patrick Leahy, D-Vt., reiterated his own call for the document to be released. (At a hearing on April 23, Sen. Dick Durbin, D-Ill., and Sen. Ted Cruz, R-Tex., confirmed that it had been.)
Yet Feinstein display ignorance about the basic facts of this debate at a Judiciary Committee oversight hearing for DOJ. This was during the imbroglio over whether the White House asserted the authority to kill American citizens without trial on American soil, as it does overseas. One of the key figures in that controversy, Attorney General Eric Holder, was the witness that morning.
He ignored drone strikes in his opening statement, vaguely referring to national security in only one paragraph, but senators from both parties did not let him off the hook. Senator Cruz barely extracted a straight “No” from Mr. Holder about whether the Attorney General thought a domestic drone strike on a U.S. citizen without trial would be constitutional. Ms. Feinstein also queried Mr. Holder about domestic drone strikes. In fact, her first point was an expression of concern over inadequate transparency, only intensified by the OLC memo controversy. Yet she appeared to conflate this notorious document with the leaked Department of Justice (DOJ) white paper. The white paper was sixteen pages long, as was the document she referred to as the memo. The fact that she held it in her hand was telling—classified documents are only accessible under special circumstances. Even the Chair of the Senate Intelligence Committee could not wave a secret memo around in a hearing open to the public.
Her confusion extended beyond that basic distinction: “I am getting a note now [that “the memo,” actually the white paper] was released now because it was leaked first,” she said, eliciting laughter throughout the chamber.
Feinstein is a human being. She has the same foibles as anyone else. I can easily imagine her losing her keys or blanking in the middle of a conversation about the yesterday’s weather. It is not my intention to single her out. Had I covered different beats, my epiphany would have been supplied by someone else. I would be much less alarmed if the episode were unusual. The laughter at her confusion was casual, not nervous. Senators routinely misspeak and so forth, but when they do, it is about billions of dollars or thousands of troops or the legality of execution without trial.
Politicians are people, too, and this fallibility undermines the argument for a powerful central government. Even if they had the best of intentions, unimpeachable integrity, and preternatural intellects, I would not trust 100 people or 535 people or 9 judges or a President and legions of advisors and experts to dictate the course of my life.
The founders anticipated this fallibility when they wrote the Constitution.
“This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public,” James Madison, in order to calm fears of government power under the new system, wrote with typical brilliance in Federalist #51. “We see it particularly displayed in all the subordinate distributions of power; where the constant aim is, to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.”
What is true of power appears no less true of folly. Incompetence waxes and wanes, in legislative bodies as any other organization. Yet on any given day the American citizen may find comfort in the hope that for every Senator who left the stove on last night, there is one who maintains a firm grasp of the day’s events. Good intentions and capable fidelity to the Constitution are, regrettably, separate matters entirely.
Luca Gattoni-Celli is a writer based in the Washington D.C. area. Image courtesy of Big Stock Photo.