Gaming out the confrontation

The arrest power is an appetizer. The power of the purse is the main course.

As we move toward a Constitutional confrontation over the claim that the White House can nullify a contempt-of-Congress citation by refusing to enforce it in court, here’s what I think the Democrats should start saying, in chorus:

1. During the past six years, partisanship has led Congressional Republicans to abdicate their Constitutional responsibilities, especially in the area of oversight.

2. The Bush Administration got used to that, and thought it could get away with anything.

3. There’s a new sheriff in town. We’re going to look under the rocks.

4. No man is above the law.

5. We would prefer accommodation. But if the President insists on having a Constitutional crisis, we will not be intimidated.

The Congressional arrest power, or rather the threat of arrest on Congressional authority, can be used to good dramatic effect, and as a way of forcing the issue into court. If the House votes an arrest warrant for Karl Rove, Bush has to go to court to quash it. Or the Congress could go to court for an order to make the Justice Department obey the law and file the case. (The advantage of going the arrest-power route is that if the courts say “non-justiciable political question” it’s the Congress that wins; possession is nine parts of the law. But either way it won’t be hard for Bush to simply run out the clock.

The more I think about it, the more convinced I am that the real action is on the appropriations side. By de-funding a bunch of units the average voter never heard of and doesn’t care about, Congress can bring the Bush Administration to its knees. And unlike the Iraq pullout measures, this doesn’t require 60 votes in the Senate.

In fact, it doesn’t even require 50 votes in the Senate: just a majority in the House and a Senate Majority Leader willing to play rough.

Assume the House passes a General Government appropriation bill zeroing out the White House press office, political office, personnel office, and counsel’s office. And assume that Lieberman defects and that all the Senate Republicans stand with Bush, so the Senate votes to restore those cuts. (That seems unlikely, but assume it for the sake of argument.) The House stands firm and asks for a conference. Reid and Pelosi make sure that all the Democratic conferees support the cuts. So the bill comes out of conference with no funding for those offices.

A conference report can’t be amended. So Bush’s supporters in the Senate couldn’t put the money back. Their choices would be to (1) vote for the bill, thus de-funding those offices or (2) vote against the bill, thus de-funding the entire White House, Treasury Department, and several other agencies. The same goes for Bush: he can veto the bill, but that doesn’t keep the money coming. As long as the House majority stands firm, the Democrats hold all the cards.

They also have a very solid argument: that the Congress will not fund operations it can’t oversee. Unlike the Clinton-Gingrich confrontation, in this case it would be Bush who was threatening to shut down things the public cares about. Looks to me like a winner.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: