Congressional Response to September 11, 2001:
Symbolism, Substance, and Organization
Ronald M. Peters, Jr.
The al Qaeda attacks on September 11, 2001 succeeded where the American political system had often failed: it brought Republicans and Democrats together in shared outrage and a renewed sense of determination to provide better for the nation's domestic security. A new spirit of bipartisan cooperation was indicated by weekly luncheons hosted by President Bush for the joint congressional leadership, by the recitation of the Pledge of Allegiance and the singing of God Bless America on the Capitol steps by legislators of both political parties, and by the expressed desire of all representatives to respond to the exigent need to reassure Americans that their government would respond to the crisis.
But has 9/11 really changed things on Capitol Hill? Does Congress's response offer some new and different prospect for bipartisan cooperation? Did that response reflect familiar patterns of legislative behavior, or something new? Did 9/11 push new issues onto the congressional agenda? If so, did these issues elicit new legislative coalitions, or reprise old ones? And what have been the political dynamics that surround Congress's response?
In this issue of Extensions, four articles address various aspects of congressional response to 9/11. The first article, by Margaret F. Klemm and Albert C. Ringelstein, offers an aggregate analysis of proposed legislation seeking to address the crisis. Their careful examination reveals the scope and nature of Congress's legislative reaction to the crisis. From September 2001 through June 2002, almost 400 discrete bills, resolutions, or amendments were introduced in Congress. These covered a wide variety of topics as disparate as transportation security, intelligence gathering, and victim compensation. Many bills bore only a tangential relationship to the "war on terrorism," and did not receive floor consideration in either the House or the Senate. Many others were largely symbolic in character and commanded large, bipartisan majorities in both houses of Congress. A few bills involved major innovations in public policy, including airport security, intelligence gathering, and homeland defense. Unsurprisingly, those bills providing for victim relief and airline security, and intelligence gathering were put on the front burner. These bills had bipartisan sponsorship, commanded bipartisan majorities, and moved quickly to enactment. As time passed, the volume and scope of 9/11-related legislation diminished, and Congress took up other legislation.
One of the first laws passed by Congress was also the most controversial, the "USA PATRIOT Act," signed into law seven weeks after the September attacks. As described by Harry F. Tepker in our second article, the Patriot Act reversed the direction of policies that had been in place for a quarter century in seeking to separate domestic and foreign intelligence-gathering capabilities. In the wake of Watergate, the Congress had, in the mid-1970s, sought to ensure that the FBI and CIA would not be in a position to collaborate so that the two agencies would not be able to abuse the privacy rights of American citizens. The Patriot Act swept that notion out the door, sacrificed to the fear posed by a new and different kind of threat - al Qaeda. As Tepker notes, Congress did exercise a restraining hand on the demand of the Bush administration for sweeping new powers. Even though the act has elicited a great deal of criticism from civil libertarians (including many librarians), it is less sweeping than the Bush administration originally envisioned. Indeed, Tepker suggests that the administration's use of military courts (a power lying outside the framework of the Patriot Act) is in part due to the constraints that the Patriot Act still leaves in place. The Patriot Act passed the Congress by large, bipartisan majorities at the peak of public reaction to 9/11. While Democrats and Republicans differed at the margins, it is clear that substantial majorities in both parties, and both party leaderships, favored the bill. This demonstrates a truth about democracy that has often been revealed in moments of national crisis: when forced to choose between national security and the protection of individual rights, voters and their elected representatives will usually prefer the former.
The Patriot Act sought to bring about better cooperation between the various law-enforcement and intelligence-gathering agencies. In this respect, it illustrated what Harold Seidman has called the bureaucratic search for the "philosopher's stone," a means of coordinating the activities of the disparate units of our federal, state, and local governments. The act's swift enactment reflected a widespread perception that our governmental institutions were not rationally aligned to meet the new threat. Indeed, even as the Congress debated the Patriot Act some, such as Senator Joseph Lieberman (D - Conn.), were calling for the creation of a new department of homeland security. In the immediate aftermath of the attacks, President Bush created a White House Office of Homeland Security, headed by Pennsylvania Governor Tom Ridge. Ridge's office was to advise the president and to help facilitate the coordination of national security and law enforcement agencies. The office bore much in common with National Office for Drug Control, another coordinating agency. By late spring 2002, President Bush had concluded that a more sweeping organizational revision of the government was necessary in order to ensure that the executive branch could fulfill its constitutional duty to "preserve, protect, and defend."
In our third article, Charles R. Wise examines congressional consideration of the proposed Department of Homeland Security. Unsurprisingly, he finds that its major omission is found precisely in the fact that it excludes the critically important intelligence and national law enforcement agencies from the new bureaucracy. When it came to these agencies, Congress and the administration preferred to search for the philosopher's stone; when it came to the rest of the agencies and programs, the Congress and the administration sought to impose reorganization. This difference is not too surprising. It is by now well established in the literature on governmental reorganization and on the federal bureaucracy, that presidents seek control over administration; it is their natural bias. One way to obtain control over administration is through reorganizations that make hitherto independent agencies and programs more directly accountable to the administration through the cabinet structure. The president already has direct control over the intelligence agencies and the FBI through the departments of Defense and Justice and the National Security Council apparatus. To move them into the new Department of Homeland Security would have not necessarily enhanced the president's hand and might, on the contrary, have invited more congressional interventions.
Unlike those measures receiving quick congressional consideration and approval, the proposal to create a new cabinet level department has received slow and rough going in the Congress. This is, again, unsurprising. While the Patriot Act impinged upon questions of the civil liberties of citizens, the Department of Homeland Security impinged upon the jurisdictions of congressional committees and the vested interests of powerful and well-organized constituencies. When it comes to policy, even policies affecting civil liberties, Congress can often reach compromise, as it did in enacting the Patriot Act. But when it comes to turf, Congress often is unable to reach compromise because the pull of vested interests (within the Congress and externally) is too strong. Wise notes that the House moved more expeditiously than the Senate in its consideration of the bill, and attributes this in part to the special procedures put in place by the Republican leadership to expedite the process. The House relied on a special committee positioned to reconcile (and in some cases ignore) competing amendments; the Senate referred the bill to its standing committee structure where jurisdictional conflicts were bound to emerge.
The Homeland Security Bill remained stuck in the Senate until Congress adjourned for the 2002 election. The Senate impasse was due to disagreement between President Bush and Senate Republicans, on the one hand, and Senate Democrats and their public employee union constituency, on the other hand, over the extent to which civil service protection would be afforded to employees of the new department. The election outcome broke the impasse and on November 19, 2002 the Senate passed the bill by a 90-9 vote.
The creation of a new Department of Homeland Security will be the most far-reaching reorganization of the federal government in decades. It is not, however, the most important problem brought again to light by the events of 9/11. As John Fortier reports in our fourth article, the evident threat to the Congress posed by one of the hijacked jetliners raised, for the first time since the Cold War was at its height, the basic structure of our constitutional order. It seems odd, in a way, that having survived a Cold War in which the Congress was an assumed ground zero for Soviet nuclear warheads, the government would now reconsider the constitutional crisis that might occur if the Congress became constitutionally incapacitated due to the death and/or disability of a majority of its members. But sober-minded observers recognize that, in an age in which weapons of mass destruction might proliferate into the hands of irresponsible parties, the threat to our domestic security remains a fact of life. Fortier lays out the constitutional foundations of the problem, scenarios under which it might actually arise, and proposed remedies.
This problem is hardly new, as he notes. Since the end of World War II members of Congress have occasionally sought to address it legislatively or by proposed constitutional amendments. If the House of Representatives cannot function, then the government cannot govern. What to do in case of a catastrophe affecting the House's ability to generate the needed quorum to do business? The "Continuity in Government Project" appears to be the most serious attempt to address this issue to date. It has secured private funding to hold a series of symposia on the subject, has elicited the leadership of prominent former public officials, and has sponsorship within the Congress. Readers are encouraged to visit the Project's web site for further information www.continuityofgovernment.org.
What, then, can we say about 9/11's effect on the United States Congress? Several observations seem pertinent. First, the Congress quite naturally comes together during times of national crisis as partisanship is at least temporarily put aside. This appears to extend to some extent, at least, to improved interpersonal understanding and relationships. Second, Congress responds to crisis in a knee-jerk way. This does not mean that everything that it does is ill-conceived or frivolous, but only that it reacts quickly and without the kind of extensive consideration characteristic of policy making under normal conditions. The advantage is that policy gets made expeditiously; the disadvantage is that policy gets made expeditiously. Third, Congress responds more rapidly in shaping policy than in shaping organizations. Policy tells people what they can and cannot do, and issues marching orders to bureaucrats. Organizational realignment tells people who they are and where they are situated. Organizational battles will always brook more conflict than policy battles. Fourth, times of crisis suppress the regime's underlying tendency to separate and diffuse power. That tendency is endemic to the regime, and will always reemerge. When Senator Byrd resists President Bush's request for reprogramming authority for the new Department of Homeland Security, he is acting like a senator and Bush is acting like a president. Finally, moments of crisis call upon us to re-examine the foundations of our regime, even when the regime resists change. I recall one day twenty years ago when I was sitting in the office of the late Kirk O'Donnell, then counsel to House Speaker Tip O'Neill. Kirk was talking to a Democratic political operative on the phone about a vacant House seat and in the course of the conversation said emphatically, "This is the House of Representatives, not the Senate. You've got to get elected to serve in this place." I would guess that sentiment will have a lot to do with how the Continuity in Government Project remedies the problem that it seeks to address.