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The President's Question Time: Power, Information, and the Executive

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The President's Question Time: Power, Information, and the Executive \\server05\productn\C\CJP\17-2\CJP205.txt unknown Seq: 1 26-MAR-08 11:09 THE PRESIDENT’S QUESTION TIME: POWER, INFORMATION, AND THE EXECUTIVE CREDIBILITY GAP Sudha Setty * ABSTRACT The rule of law depends on a working separation of powers and transparency and accountability in government. If information is power, the ability of one branch of government to control information represents the ability to control federal legislation, policy, and decision-making. The Framers of the United States Constitution developed the Madisonian model of separated powers and functions, and a system of checks and balances to maintain those separations, with this in mind. History has shown a progressive shift of the power to control information toward the executive branch and away from the Legislature. Particularly when uni- fied, one-party government precludes effective Congressional investiga- tions and oversight, little recourse exists for accessing information. This article addresses an institutional design element that would increase transparency and accountability: periodic question-and-answer sessions between Congress and the President modeled on the United Kingdom’s Prime Minister’s Question Time. This article makes the case for such a measure in the U.S. by examining the comparative political history and legal norms of the U.K. and the United States, and the need for a Ques- tion Time to increase government transparency and efficiency. ABSTRACT .................................................. 247 R INTRODUCTION ............................................. 248 R I. NO EFFICIENT CHECK ON AN INCREASINGLY POWERFUL EXECUTIVE BRANCH .................. 250 R A. CONSOLIDATION OF POWER IN THE EXECUTIVE BRANCH ........................................... 252 R * Assistant Professor of Law, Western New England College School of Law. J.D. Co- lumbia Law School, A.B. Stanford University. Sudha Setty 2007. I owe great thanks to those who discussed with me the ideas in this article, or who reviewed and commented on drafts, including: Robert Chesney, Allison Christians, Robert Ferguson, Richard Kay, Kim Lane Scheppele, Miguel Schor, Erin Buzuvis, Lauren Carasik, Jamison Colburn, James Gordon, Jennifer Levi, Bruce Miller and Matthew Charity. I also appreciate the comments and suggestions offered by workshop participants at the Northeastern Junior Faculty Exchange, where I presented a draft of this paper. Finally, I thank the editors and staff of the Cornell Journal of Law & Public Policy. 247 \\server05\productn\C\CJP\17-2\CJP205.txt unknown Seq: 2 26-MAR-08 11:09 248 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:247 B. THE LACK OF TRANSPARENCY AND ACCOUNTABILITY IN THE EXECUTIVE BRANCH ......................... 256 R C. ONE-PARTY RULE AND THE LIMITS OF THE CONGRESSIONAL INVESTIGATIVE FUNCTION ........... 260 R II. A PRESIDENT’S QUESTION TIME? COMPARATIVE HISTORICAL AND NORMATIVE CONSIDERATIONS ................................... 262 R A. THE PRIME MINISTER’S QUESTION TIME ............. 264 R 1. Role of the Prime Minister ..................... 264 R 2. History of Parliamentary Questions ............. 266 R 3. Development of the Prime Minister’s Question Time .......................................... 267 R B. A PRESIDENT’S QUESTION TIME ..................... 270 R 1. Accountability and Transparency to Improve the Function of Government ........................ 270 R 2. The Role of the House of Representatives ....... 277 R III. INFORMATION-SHARING: THE STRUCTURE OF THE CONSTITUTION AND EARLY PRACTICES ..... 278 R A. THE LANGUAGE OF THE CONSTITUTION .............. 278 R B. CHECKS AND BALANCES AS ENVISIONED BY THE FRAMERS .......................................... 280 R 1. The Desire to Strengthen the Executive Branch . 281 R 2. Legislative Tyranny Is Feared but Unrealized ... 285 R C. EARLY EXPERIMENTS WITH INTER-BRANCH COMMUNICATIONS .................................. 287 R IV. INFORMATION-SHARING IN THE MODERN ERA . 291 R CONCLUSION................................................ 294 R “You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but expe- rience has taught mankind the necessity of auxiliary precautions.”1 INTRODUCTION The framers of the Constitution premised the separation of powers and functions on the idea that one branch of government should not be trusted with too much power.2 In the first years of government under the Constitution, the President, Congress and the courts experimented with ways to communicate and operate government efficiently while also re- specting the constitutional separation of powers.3 Historically, when one 1 THE FEDERALIST NO. 51, at 319 (James Madison) (Clinton Rossiter ed., 2003). 2 THE FEDERALIST NO. 51 (James Madison). 3 See infra Part III.C. \\server05\productn\C\CJP\17-2\CJP205.txt unknown Seq: 3 26-MAR-08 11:09 2008] THE EXECUTIVE CREDIBILITY GAP 249 branch of government shifts its mode of operation and the information it controls, the other branches must adjust to maintain the systemic balance of government. The current administration has asserted increased authority over the flow of information from the executive branch than was previously the case, has failed to respond to formal and informal queries by members of Congress, and has attempted to manipulate press coverage favorably while diminishing the information it actually discloses to the media.4 Similar criticisms—of a lack of public information, accountability, and transparency5 in government—have been directed toward most, if not all, recent U.S. presidents.6 This article considers one institutional element used by the United Kingdom and other democracies to hold their executives accountable and increase governmental transparency: a periodic opportunity for elected representatives to pose questions to the leader of the executive branch. This article asks whether a President’s Question Time, in which mem- bers of Congress would periodically question the President in person re- garding his policies, actions and plans, would be constitutional, or even desirable. In analyzing these questions, this article considers the historical and comparative bases for adopting a measure commonly used in parliamen- tary government. It also seeks to determine how a President’s Question Time would fit within the range of options that Congress typically uses to request information from the executive branch. 4 See discussion infra Part I; see also Daryl J. Levinson & Richard H. Pildes, Separa- tion of Parties, Not Powers, 119 HARV. L. REV. 2311, 2351–53 (2006); Adam M. Samaha, Government Secrets, Constitutional Law and Platforms for Judicial Intervention, 53 U.C.L.A. L. REV. 909, 910, 919 (2006). 5 Governmental accountability and transparency are two of the hallmarks of democratic nations operating under the rule of law. See generally Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. CAL. L. REV. 1307 (2001). The manner in which such objectives are achieved varies significantly, depending on the nature of the system (e.g., Westminster-style parliamentary system, French system of dual-executive power, U.S. system of unitary executive). See id. at 1330–37. 6 See MARK J. ROZELL, EXECUTIVE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMO- CRATIC ACCOUNTABILITY 42–48 (1994) (outlining twentieth-century legislative-executive ten- sions over the invocation of executive privilege against legislative inquiries). For discussions of a perceived concentration of power in the executive branch in various administrations over the last thirty years, see generally Stephen L. Carter, Comment: The Independent Counsel Mess, 102 HARV. L. REV. 105 (1988); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989); Saikrishna B. Prakash, Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers, 12 CORNELL J.L. & PUB. POL’Y 543 (2003); Peter W. Shane, When Inter-Branch Norms Break Down: Of Arms-for-Hostages, “Orderly Shutdowns,” Presidential Impeachments, and Judicial “Coups,” 12 CORNELL J.L. & PUB. POL’Y 503 (2003) [hereinafter Shane, Inter-Branch Norms]. \\server05\productn\C\CJP\17-2\CJP205.txt unknown Seq: 4 26-MAR-08 11:09 250 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:247 Part I looks at the shift in the balance of power among the branches of the U.S. government over the last 200-plus years and suggests that increased consolidation of power within the control of the executive branch has redefined the careful structural separations and balances es- tablished by framers of the U.S. Constitution who believed in divided governmental power. Part I also analyzes the current lack of trans- parency and accountability of the executive branch and addresses how these issues are amplified when one political party controls both the ex- ecutive and legislative branches of government. Part II considers as a comparative model the political history of the United Kingdom, including the increase in executive power of the Prime Minister, that led to the establishment of a Prime Minister’s Question Time in that country. Part III examines the U.S. framers’ deliberate institutionalization of a low level of presidential responsiveness to Congress and the public and discusses the framers’ expectation that the Legislature was likely to dom- inate and coerce both the executive and the judicial branches of govern- ment.
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