Extensions Winter 2019

A Journal of the Carl Albert Congressional Research and Studies Center

Winter 2019

Interbranch Relations and the

STRUGGLE FOR POWER

Inside

Bureaucratic Rulemaking Supreme Court Errors Congressional Oversight

Established in 1979 by the Oklahoma Regents for Higher Education and the Board of Regents of the University of Oklahoma, the Carl Albert Congressional Research and Studies Center is a nonpartisan institution devoted to instruction and scholarship related to the United States Congress. The mission of the Center is defined broadly in terms of academic inquiry into the history, structure, process, personnel, and policies of the Congress, and the relationship between the Congress and other agencies and actors in the American political system. In the most general sense, the Center is concerned with the problems of modern representative democracy, as exemplified by the Congress.

In pursuit of this goal, the Carl Albert Center performs four principal functions. The first is the development of academic programs in congressional studies at both the graduate and undergraduate levels, which are sponsored in cooperation with the University of Oklahoma’s Department of Political Science. At the graduate level the Center offers a specialized fellowship program leading toward the doctoral degree. Each fellow receives a fully financed program of study. At the undergraduate level the Center sponsors a research fellowship program designed to foster collaborative research between faculty and undergraduates.

Second, believing that professional research is the foundation upon which its academic programs rest, the Center promotes original research by faculty members and students into various aspects of politics and the Congress.

The Center encourages publication and provides its faculty and students with institutional and financial support to travel for research purposes and to present research findings at professional conferences.

The third function of the Center is the development of resource materials related to the Congress. The Center’s congressional archives, which are among the largest in the country, include the papers of more than 60 former members of Congress. Such prominent Oklahomans as Speaker Carl Albert, Dewey F. Bartlett, Page Belcher, Mickey Edwards, Glenn English, Robert S. Kerr, Sr., Fred Harris, Steve Largent, Dave McCurdy, Mike Monroney, Tom Steed, Mike Synar, and J. C. Watts have donated their papers to the Center along with such distinguished non-Oklahomans as Dick Armey, Helen Gahagan Douglas, and Carl Hatch.

Fourth, the Center actively strives to promote a wider understanding and appreciation of the Congress through various civic education programs. The Center sponsors conferences, speakers, television appearances, and the biennial Julian J. Rothbaum Distinguished Lecture in Representative Government. The Center also publishes Extensions, a journal which focuses on issues related to the Congress. Taken together, these diverse aspects of the Carl Albert Center constitute a unique resource for scholarship and research related to the United States Congress.

The Carl Albert Congressional Research and Studies Center Director and Curator Michael H. Crespin Associate Director Charles J. Finocchiaro Senior Archivist J. A. Pryse Archivist Rachel Henson Director of Administration Katherine McRae Director of N.E.W. Leadership and Civic Engagement Lauren Schueler National Advisory Board David E. Albert Richard A. Baker David L. Boren Richard F. Fenno, Jr. Joseph S. Foote Joel Jankowsky Thomas J. Kenan Dave McCurdy Frank H. Mackaman Thomas E. Mann Chuck Neal Ronald M. Peters, Jr. Michael L. Reed Cindy Simon Rosenthal Catherine E. Rudder U.S. Rep. Tom Cole 4th District, Oklahoma ex officio Graphic Designer, Extensions Haley Fulco University of Oklahoma Printing, Mailing and Document Services

A Journal of the Carl Albert Congressional Research and Studies Center

TABLE OF CONTENTS

Winter 2019

Editor’s Introduction

2

Interbranch Relations and the Struggle for Power Charles J. Finocchiaro

Special Orders

4

ending the Rules: How Procedures Matter B in the Bureaucracy

1 0

ow Supreme Court Errors H Expand Presidential Power

16

artisan Trends in Congressional P Oversight, 1987-2016

Rachel Augustine Potter

Louis Fisher

Jason MacDonald

For the Record

22

News from the Dick T. Morgan Collection

24

News from the Center

J.A. Pryse

Katherine McRae

Images courtesy of Food and Drug Administration, Pew Research Center, National Archives, U.S. House of Representatives, U.S. Supreme Court, White House, and Wikimedia Commons

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Cover image: The White House, Public Domain.

Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center.

It is distributed free of charge. To receive copies of Extensions, or to obtain permission to reprint, please contact Katherine McRae at (405) 325-6372 or e-mail to mcrae@ou.edu. Extensions also may be viewed on the Center’s website at www.ou.edu/carlalbertcenter.

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Editor’s Introduction

INTERBRANCH RELATIONS AND THE STRUGGLE FOR POWER Charles J. Finocchiaro | Editor But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.

– James Madison1

I

n the wake of the 2018 midterm elections, American national government returned to divided party control — a scenario that has been more common than not since the late 1960s. While scholarship has shown that unified party control of Congress and the presidency is often associated with less gridlock, it is no guarantee of smooth sailing. In fact, the first two years of the Trump administration were characterized by a great deal of conflict and unmet expectations for some despite Republican ascendancy in Washington.

In this issue, we consider in greater detail some of the aspects of the American federal system that lead to tensions between the branches and examine three ways in which those tensions can arise and, in some cases, be addressed.

The U.S. Constitution’s design sows conflict between the branches.

By creating a system that endows independent branches of government with the shared powers of governance, the framers built into the system an inherent basis for conflict. Edward S. Corwin famously observed that the Constitution represents “an invitation to struggle for the privilege of directing American foreign policy.”2 That invitation is even more pronounced in the realm of domestic politics.

In our Summer 2017 issue, we looked at the early challenges facing President Trump in dealing with the 115th Congress. Some of those remain 2

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— from the difficulty in securing legislative priorities like repeal of the Affordable Care Act to the aftermath of the special counsel and related investigations. Other challenges have grown more significant, most notably Democratic congressional opposition, now amplified under a new majority in the House. The 115th Congress can claim one major legislative enactment: the Tax Cuts and Jobs Act of 2017, which narrowly passed in December 2017. Otherwise, by at least some metrics, the 115th represented a rather unremarkable session in terms of productivity.3 Many of the administration’s achievements have taken the form of non-legislative actions. In the realm of judicial appointments, in particular, the president has moved expeditiously in tandem with Senate Majority Leader Mitch McConnell to fill the large number of vacancies that

had accumulated during the waning years of the Obama administration.

Observers rightly directed a great deal of attention to the Supreme Court confirmations of Neil Gorsuch and Brett Kavanaugh. However, another aspect of great significance — and representing an even starker contrast to earlier administrations — is the pace at which Trump has been able to fill appointments to the U.S. Court of Appeals.4 The administration’s laser focus on what amounts to effectively the court of last resort for much of the federal caseload should not be overlooked. Also noteworthy is the extent to which the administration has employed the rulemaking process to scale back government regulations — particularly those dealing with the environment, a policy area that has seen about 80 rules targeted for rollback.5 Of course, not all is well. Executive

Majorities say both Trump and Democratic leaders will be unsuccessful in getting their programs enacted over the next two years % who say ____ will be successful or unsuccessful in getting their programs passed into law over the next two years Donald Trump

Democratic leaders in Congress

Unsuccessful Successful Total

63 43

Rep/Lean Rep Dem/Lean Dem

35

79

55 19

Note: No answer not shown.

Source: Survey of U.S. adults conducted Nov. 7-13, 2018

Unsuccessful Successful Total Rep/Lean Rep Dem/Lean Dem

61 78 49

36 20 49

PEW RESEARCH CENTER

More Americans expect partisan relations to get worse than did so after three prior midterms % who say relations between Republicans and Democrats in Washington will ____ in the coming year Get better Nov 2018

9

Nov 2014

11

Nov 2010 Nov 2006

Stay about the same

Get worse 44

46 55 22 29

48 47

Note: 2018 and 2014 surveys conducted online on the American Trends Panel; 2010 and 2006 polls conducted via telephone. No answer not shown.

Source: Survey of U.S. adults conducted Nov. 7-13, 2018

reliance on rulemaking can be a symptom of dysfunction in, or a breakdown in relations with, the legislative branch. In a similar vein, President Trump has faced a number of rebukes at the hands of Congress, particularly in areas like foreign and national security policy that typically represent favorable ground for a president. Congressional displeasure has focused on both his use of emergency powers, as in the case of the border wall, and his conduct of foreign and military policy, with Congress opposing the withdrawal of troops from Syria and Afghanistan and expressing reservations about some of the administration’s trade and tariff policies. In other cases, Congress has attempted to counter the president by voicing support for NATO and withdrawing support for Saudi Arabia’s war in Yemen after the killing of journalist Jamal Khashoggi. Additionally, for all of his successes in judicial appointments, the president has had much more difficulty nominating and retaining executive branch officials. In some departments, the vacancy rate in key positions still exceeds 50 percent and hundreds of nominations remain to be made or confirmed by the Senate.6 While the president’s success rate on higher-level judicial nominations has outpaced that of his predecessors, it falls well below their pace in terms of executive branch appointments.7 And congressional oversight — while quiet with a friendly party controlling both chambers of Congress for the past two years — is sure to ramp up now.

34 28 20

PEW RESEARCH CENTER

As Douglas Kriner and Eric Schickler discuss in their excellent recent book on congressional investigations of the president over time, the key predictor of oversight activity is divided government, and oversight gives Congress a tool with which to both bring about policy goals and rein in a president even when legislative action may be difficult to accomplish.8 Some of these same tensions are reflected in the public’s outlook toward government after the recent midterm elections. Expectations that either side will be able to enact their policy priorities are low, as reflected in the figure to the left. More than 60 percent of respondents to a recent Pew Research Center poll believe that both Donald Trump and Democratic leaders in Congress will fail in this regard. Similarly, nearly equal numbers expect the relationship between Republicans and Democrats to deteriorate or hold steady over the next year, with just nine percent optimistic that things will improve, as shown in the figure above.9 In this issue of Extensions, three noted scholars of interbranch politics take up issues involving the interplay between the institutions of American federal government. First, Rachel Augustine Potter examines how bureaucrats take advantage of the procedural politics of agency rulemaking in order to influence the nature of regulatory outcomes. In the second article, Louis Fisher describes how “errors” on the part of the Supreme Court can have the effect of expanding presidential power and

advocates a model whereby the Court would come to acknowledge decisions that it later finds to be defective.

Finally, Jason MacDonald presents new data on 30 years of congressional oversight, demonstrating in the process the increasingly partisan tenor of a key House subcommittee over time and discussing its implications for contemporary politics. These authors together shed a great deal of light on the political moment in which we find ourselves, and offer insights that help to illuminate some of the paths forward that we are likely to observe.

Notes 1 James Madison, Federalist No. 51, http:// avalon.law.yale.edu/18th_century/fed51.asp.

2 Edward S. Corwin, The President: Office and Powers, 1787-1984, 5th edition (New York: NYU Press, 1984), 201.

3 “A productivity scorecard for the 115th Congress: More laws than before, but not more substance,” Pew Research Center, January 25, 2019, http://www.pewresearch.org/facttank/2019/01/25/a-productivity-scorecard-for115th-congress/.

4 “How Trump is shifting the most important courts in the country,” Washington Post, September 4, 2018, https://www. washingtonpost.com/graphics/2018/politics/ trump-federal-judges/?noredirect=on&utm_ term=.483d9644bf3c.

5 Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, “78 Environmental Rules on the Way Out Under Trump,” New York Times, December 28, 2018, https://www.nytimes. com/interactive/2017/10/05/climate/trumpenvironment-rules-reversed.html. See Brookings for a detailed tracker of deregulation across the executive branch at: https://www.brookings. edu/interactives/tracking-deregulation-in-thetrump-era/.

6 “Tracking how many key positions Trump has filled so far,” Washington Post, March 4, 2019, https://www.washingtonpost.com/graphics/ politics/trump-administration-appointee-tracker/ database/.

7 “Appointments,” White House Transition Project, accessed March 4, 2019, http://www. whitehousetransitionproject.org/appointments/.

8 Douglas L. Kriner and Eric Schickler, Investigating the President: Congressional Checks on Presidential Power, (Princeton, NJ :Princeton University Press, 2016).

9 “Public Expects Gridlock, Deeper Divisions With Changed Political Landscape,” Pew Research Center, November 15, 2018, http://www. people-press.org/2018/11/15/public-expectsgridlock-deeper-divisions-with-changed-politicallandscape/.

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Special Orders

BENDING THE RULES: HOW PROCEDURES MATTER IN THE BUREAUCRACY Rachel Augustine Potter | University of Virginia

Rachel Augustine Potter is an assistant professor in the Department of Politics at the University of Virginia. Her research focuses on American political institutions, bureaucratic politics and regulation. Her book Bending the Rules: Procedural Politicking in the Bureaucracy will be available from the University of Chicago Press in April.

R

ep. John Dingell (D-MI) served in the U.S. House of Representatives for nearly 60 years and currently holds the record as the longest-serving member of Congress in history. He survived so long because he knew how to get legislation through the chamber, once quipping, “If you let me write the procedures and I let you write the substance, I’ll [beat] you every time.”1 Within Congress, procedures have long been recognized as a crucial tool (some might even say weapon). For example, budget reconciliation procedures that allows members to sidestep the critical 60-vote filibuster threshold (another procedure) have been used to pass major policy reforms, including welfare reform in 1996, the 2001 and 2003 Bush tax cuts, and the Affordable Care Act in 2010.

The federal bureaucracy is rife with procedures, but somehow, the idea that they can be marshaled to achieve strategic ends — as they are in Congress — is usually overlooked. Instead, they are viewed as “checking the box” under the assumption that bureaucrats execute them neutrally and by rote. In my forthcoming book Bending the Rules: Procedural Politicking in the Bureaucracy (University of Chicago Press, April 2019), I show how bureaucrats can be just as strategic as members of Congress when it comes to managing procedures for political ends.

In the book, I focus on the procedures that federal agencies follow when creating new regulations. These procedures, called notice-and-comment, involve many steps, but when agencies have completed them the ensuing policy carries the same force and effect as a law passed by Congress. These rules create important policies, ranging from regulations on greenhouse gas emissions by the Environmental Protection Agency to rules from 4

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the Department of Education governing which for-profit colleges are eligible to participate in the federal student aid program.

When creating these new regulations, bureaucrats are not neutral — they have preferences over the policies their agencies create. This does not necessarily mean they are policy zealots though. Rather, they prefer policies that create good public policy, meaning that they are technically feasible, fit well with other programs that the agency implements, and adhere to the professional norms to which agency personnel subscribe. Sometimes, it can also mean that the policy dovetails with the ideological tendencies of key agency personnel. Bureaucrats can thus use procedures to steer the rulemaking process in ways that ensure their preferred policies go on to become binding law; this is what I call “procedural politicking.”

The Value of Procedures in Rulemaking Procedures are the established way that an agency does something, usually in a certain order. While procedures imply routine and predictability, they do not mean that rulemaking will be carried out in exactly the same way every time. There is some flexibility built in, and this is what

DISCRETIONARY PROCEDURAL DECISIONS PERMEATE

EVERY STAGE

OF THE RULEMAKING PROCESS.

CONTROL OVER TIMING IS makes procedural politicking possible.

Such discretionary procedural decisions permeate ANOTHER WAY THAT AGENCIES every stage of the rulemaking process. They include CAN USE PROCEDURES considerations like: How should the initial proposed rule be drafted and who should do it? Should the process begin with a proposed rule, or is the policy action urgent enough to warrant the agency invoking “good cause,” HOW A RULE IS PERCEIVED. which skips the proposal stage and begins the process with an emergency rule (thereby bypassing the public Control over timing is another way that agencies can comment period)? Here I consider how bureaucrats can use procedures to influence how a rule is perceived. leverage two distinct two types of rulemaking procedures: Rules come onto the public’s radar at particular points consultation procedures and control over timing. in their lifecycle, such as when a proposal is published in With regard to consultation on rulemaking, there are very the Federal Register when a final rule is published in the few ironclad legal requirements. Under the Administrative Federal Register or when the rule takes effect. Agencies Procedure Act, the primary law governing the process, generally manage this timing, which is useful because what agencies are generally required to offer a period for written might be perceived as a rash or ill-conceived policy in one public comment after a proposed rule is published. However, political environment may be regarded entirely differently the law does not say how long the period need be, leaving in another. Thus, an agency might speed up the timeline of agencies with considerable discretion. Sometimes, agencies a particular rulemaking in order to capitalize on a favorable take this to an extreme. For example, on a recent proposed political rulemaking or, conversely, slow it down in order to rule written by Trump’s EPA the agency allotted just 15 days wait out a disadvantageous situation. for public comment — an amount of time that falls well These procedural politicking tools give agencies a short of the EPA’s own guidelines (which call for a minimum way to shape how outsiders — particularly those most of 30 days) and the federal recommendation (which calls important to the agency in Congress, the White House and 2 for 60 days). On the other end of the spectrum, for a in the courts — respond to a rule and perceive its potential consequences. If bureaucrats build a rulemaking process proposal that an agency was interested in soliciting lots of around procedures that are not carefully selected and feedback on there might be a long public comment period managed, opposition can foment. In contrast, a process (e.g., 180 days), several hearings, meetings, focus groups that is skillfully orchestrated can help to suppress potential and webinars. opposition and open a path to success where none Positive feedback that an agency receives on a previously existed. An example from particular rule — be it a statement of the Food and Drug Administration support from individuals at a hearing illustrates just how consultation and or endorsements from interest group timing can be managed strategically officials in a letter — can help shore up to achieve policy ends. that rule’s prospects. Agency officials frequently tout support for agency rules in congressional hearings and in public statements. However, negative Menu Labeling at the FDA feedback can have the opposite effect; if interest groups and other When a relatively obscure provision stakeholders voice opposition to an of the ACA directed the FDA to issue agency’s rule and those complaints a regulation to establish a national find sympathetic ears in Congress or menu-labeling policy for chain the White House, the prospect that restaurants, it should have been easy. particular rule goes on to become After all, as Figure 1 shows, numerous binding law substantially diminishes. It states and localities had already follows then that agencies should take adopted or were considering adopting pains to forecast and manage the type a similar policy to direct restaurants of feedback a particular rulemaking to display nutrition information on proposal is likely to receive from the menus. These so-called “laboratories affected public and adjust the level of federalism” should have provided The Federal Register is the daily of consultation accordingly: more ample guidance for the agency to journal of the federal government, consultation when positive feedback follow. However, writing a national containing agency regulations, is anticipated, and less feedback when menu-labeling regulation was far from proposed rules, executive orders and other materials. negative feedback is anticipated. easy for the FDA; not only did it take U.S Federal Government [Public domain], via Wikimedia Commons

TO INFLUENCE

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5

from the outset and there was a general feeling that putting into place a strong menu labeling policy was highly desirable.6 From a policy perspective, menu labeling is supported by many in the public health community and key personnel who worked on the rule had backgrounds in public health, holding advanced degrees in science or public health. When bureaucratic agents share a common professional background, professional norms can come to guide their thinking and their policy preferences; in this case bureaucrats’ shared public health orientation may have encouraged the agency’s team to pursue an aggressive public health vision.

How exactly did procedures come into play in the menu labeling rule? To investigate this question, I examined news reports, blogs and agency documents. I also conducted interviews with agency officials and interest group participants. Taken together, the evidence suggests that the FDA used procedural politicking tools — and consultation and timing in particular — in ways that promoted the rule and helped insulate the agency from potential attacks.

The way that the agency consulted with key stakeholders and the broader public showed a savvy understanding of how the process can be managed.

Critically, this hinged on the distinction between information that is publicly observable and part of the agency’s rulemaking docket (which is reviewable by courts), and information that is collected “off the record” and is largely shielded from public view. In the early stages of the drafting of the menu labeling rule, much of the agency’s consultation for this rule was conducted in private. The agency held numerous ex parte (“off the record”) meetings with individual stakeholders — one former FDA official that I spoke with estimated that the agency hosted 50 of these meetings.7 The meetings engaged a diverse group of stakeholders including representatives of chain restaurants, convenience stores, pizza delivery, grocery stores, cafeterias, coffee shops, as well as some state and local entities that had already implemented menu labeling.

As part of this private consultation, the agency learned that certain interest groups, like the pizza lobby and grocery stores, were vehemently opposed to menu labeling.

Given this expectation about negative feedback from the regulated community, it made sense for the FDA to limit the amount of consultation that it conducted on the rule moving FIG. 1: MAP OF STATE AND LOCAL MENU LABELING POLICIES AS OF APRIL 2011 forward, especially consultation Source: Adapted from the Center for Science in the Public Interest. Squares that occurred in public and on-theindicate counties and cities that had, respectively, introduced (light shading) or adopted (dark shading) menu labeling policies as of April 2011. record ways. And this is exactly what

the agency more than eight years to put in place a binding final regulation,3 but Commissioner Margaret Hamburg described the process of creating the rule as one of the “thorniest” the agency had ever faced.4 Why was issuing the menu labeling regulation so difficult? While the agency certainly encountered tough implementation challenges, the real obstacles were political. The White House was decidedly lukewarm about the rule. On the one hand, menu labeling was just the sort of policy nudge that the Obama administration tended to favor. Additionally, menu labeling was aimed at obesity reduction, first lady Michelle Obama’s chief policy priority. On the other hand, the administration — and the Department of Health and Human Services (the FDA’s parent agency) in particular — was overwhelmed with the implementation of the ACA, and menu labeling was not a top priority. Moreover, some aides, including Nancy-Ann DeParle, Obama’s healthcare czar, worried that too strong a menu labeling policy could wind up being lampooned on cable news;5 this was, after all, the era of Fox News and the heyday of Glenn Beck. Meanwhile, Republicans had gained 60 House seats in the 2010 midterm elections and had taken aim at many ACA-related regulations, including menu labeling. This meant that by the time the agency began drafting a rule, some in Congress favored a weak rule — or no rule at all. In other words, key players were divided on how the agency should proceed.

Within the agency, however, there was support for a comprehensive menu labeling policy. Indeed, one former FDA official commented that, while opinion about how to proceed on the menu labeling policy was not unanimous, leadership at the top of the agency was “very supportive”

6

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U.S. Food and Drug Administration [Public domain]

you couldn’t make the meeting it was webcast. Everybody had a chance to talk. There were breakout groups. All of that was on the record, very transparent. They met with industry groups in the public domain… Compare that to menu labeling. With this proposed rule they only talked to a certain group of folks… They said they wouldn’t talk with us — submit a comment and then we’ll talk to you. We did.

But they still wouldn’t meet with us.

Three and a half years later white smoke comes out and they put out a final rule.11

While this quote represents only one participant’s experience, it is consistent with a broader pattern whereby the FDA conducted less public outreach and less opportunity for stakeholder participation on the menu labeling rule than it often does for other rulemakings.

The timing of the rule also served to bypass potential issues with the White House. The rule came out after the midterm elections in November, meaning that it did not provide “job-killing regulation” fodder for the campaign cycle. More important, from the FDA’s perspective, by the time the agency sent the final rule to the White House for review in 2014, Nancy-Ann DeParle, the rule’s primary adversary within the White House, had left her post for the private sector. According to one former agency official, DeParle’s departure freed the agency to pursue a more aggressive final rule without this opposition within the executive branch.12 There is also a curious bit of procedural politicking with respect to the precise timing of the publication of the final rule. While the final rule was published in the Federal Register Dec. 1, 2014, the agency actually released it to media outlets before then, on Nov. 24. This was the Monday before Thanksgiving, and some in industry viewed this timing with suspicion. One interviewee indicated that Thanksgiving was the busiest time of year for the grocery industry — one of the industries most opposed to the rule — and suggested that the release of the rule during this week was an intentional move by the agency to bury the news story and to stifle opposition.

On balance, the record supports an interpretation that the strategic use of procedures helped the FDA to create an insulated and ambitious menu labeling rule. In fact, using these tactics helped the FDA write a final rule that was much stronger than many political observers expected.13 The political pressure the agency was under suggested that it should have issued a weak or watered-

FDA Commissioner Margaret Hamburg gives remarks regarding proposed updates to the Nutrition Facts label on food packages, February 27, 2014. happened. When setting the public comment period for the proposed rule the FDA gave stakeholders just 60 days to submit written comments.8 This was substantially shorter than the comment period the agency typically provides (especially for such an important rule); the average public comment period on an FDA rule is 84 days and the median is 90 days.

After the proposed rule was published, industry leaders clamored to meet with the FDA in person so as to make their case for the final rule. If such meetings were to take place, they would be part of the public record, and the agency would need to document the meeting and include it in the rulemaking docket. The FDA took the position that if it had one such meeting, it would have to meet with anyone who asked, and because the agency was hoping to get the final rule out quickly, it therefore declined all meeting requests at this stage. Additionally, as one former agency official put it, “We felt that we had already heard from all of the relevant players.”9 The agency’s refusal to meet led to consternation within the industry; as one supermarket executive lamented in a House hearing on the rule, “We meet with FDA on a regular basis on a wide variety of topics and this has been one particular topic in which they have been absolutely unwilling to meet or communicate ... it has been a very frustrating process.”10 This sentiment was echoed by other industry representatives at the hearing and also in the interviews that I conducted. One interviewee compared his organization’s experience on the menu labeling rule to another rule relating to the Food Safety Modernization Act of 2011 that his organization had also worked with the FDA on: When FDA started writing proposed rules on FSMA they held listening sessions and public meetings. If

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7

WE SHOULD BE GIVING MUCH CLOSER SCRUTINY TO THE TYPES OF PEOPLE THAT MAKE UP THE BUREAUCRACY down version of the policy; instead, the agency issued a strong final rule — it covered numerous types of food establishments (e.g., grocery stores, movie theaters, amusement parks) and had stringent requirements for covered entities, requiring them to disclose nutrition information for alcoholic beverages in addition to food and requiring the information to be on the physical in-store menu (rather than, say, on an online website). All of this was well beyond the statutory requirements included in the language of the ACA.

Beyond Menu Labeling The menu labeling rule is just one instance of how an agency navigated the procedures associated with rulemaking. Naturally, there are limits to what we can — and should — generalize from one case. That is why in my book I use a variety of approaches, including text analysis and statistical modeling, to explore how procedures are deployed across a wide swath of the administrative state.

The data I use cover more than 10,000 rules issued by 150 executive branch agencies over a 20-year period (19952014). In addition to consultation and timing, I also consider other procedural tools like the choices that an agency makes when writing a new regulatory proposal, such as how to frame the proposed policy or which assumptions to apply in the economic analyses. The overall portrait that emerges from this study is one of bureaucrats carefully applying procedures in ways that insulate controversial rules from political attacks and help ensure that these policies go on to become binding law.

Of course, procedures are not optional; some choice has to be made at each step of the process 8

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or rulemaking cannot proceed.

This gives bureaucrats license to dismiss criticisms about a particular procedural choice as fulfilling a mundane administrative requirement; as a result, procedural politicking often flies under the radar. Yet, procedures are an important way that unelected bureaucrats exercise influence over policy in the rulemaking process. Importantly, in studying procedural politicking, it is important to understand that bureaucrats are not doing anything that anyone else in their shoes would not do — the point is that political incentives can lead individuals to make choices that further their own interests, whether conscious or not. It follows then that we should be giving much closer scrutiny to the types of people that make up the bureaucracy, both at the level of career bureaucrats and those that serve as political appointees (i.e., leaders selected by the current administration), since these individuals have the potential to leave a lasting mark on the direction of public policy in the United States.

Notes 1 Quoted in Walter J. Oleszek, Congressional Procedures and the Policy Process, 4th ed.

(Washington, DC: CQ Press, 1996), 12.

2 U.S. Environmental Protection Agency, “Modification of a Significant Use of a Certain Chemical Substance.” Proposed rule, February 8, 2018, https://www.regulations.gov/ document?D=EPA-HQ-OPPT-2011-0941-0183.

3 The FDA began working on menu labeling when the ACA was passed in 2010; the compliance date for the rule was May 7, 2018.

4 Associated Press, “FDA Head Says Menu Labeling ‘Thorny’ Issue.” Richmond (VA) Times-Dispatch, March 13, 2013, http:// www.timesdispatch.com/entertainment-life/ food-dining/fda-head-says-menu-labelingthorny-issue/article_6337c9cb-4268-5463-b510401d0fa022ff.html.

5 Gardiner Harris, “White House and the FDA. Often at Odds,” New York Times, April 2, 2012, http://www.nytimes.com/2012/04/03/ health/policy/white-house-and-fda-at-odds-onregulatory-issues.html; Marion Nestle, “Rumor: The White House Is Holding Out for Weak Calorie Labeling.” Food Politics, February 13, 2013, http://

www.foodpolitics.com/2013/02/rumor-the-whitehouse-is-holding-out-for-weak-calorie-labeling/.

6 Interview with former agency official, January 2017.

7 Ibid.

8 However, at the request of commenters, the agency eventually extended the public comment period an additional 30 days (to 90 days total).

9 Interview with former agency official, January 2017.

10 Israel O’Quinn, “Testimony, Hearing on Restaurant and Fast Food Nutrition Labeling,” House Energy and Commerce Subcommittee on Health. Food City, Strategic Initiatives Director, June 4, 2015, https://www.c-span. org/video/?3263891/hearing-menu-labelingrequirements.

11 Interview with grocery store officials, December 2016.

12 Interview with former agency official, January 2017.

13 Marion Nestle, “The FDA’s New Calorie Count Requirements.” Interview with Evan Kleiman, KCRW (Los Angeles), December 14, 2014, https://kcrw.co/2L96zf6.

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Special Orders

HOW SUPREME COURT ERRORS EXPAND

PRESIDENTIAL POWER Louis Fisher | The Constitution Project at POGO

Louis Fisher is Scholar in Residence at The Constitution Project at the Project on Government Oversight. From 1970 to 2010 he served as Senior Specialist in Separation of Powers at the Congressional Research Service and Specialist in Constitutional Law at the Law Library of Congress. He testified before congressional committees more than 50 times on a range of constitutional issues. His most recent books are Supreme Court Expansion of Presidential Power: Unconstitutional Leanings (2017), President Obama: Constitutional Aspirations and Executive Actions (2018), and his forthcoming Judicial Finality: Examining the Record, all with the University Press of Kansas.

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n 1953, Justice Robert Jackson offered this judgment about the Supreme Court: “we are not final because we are infallible, but we are infallible only because we are final.”1 Perhaps cleverly written, but the Court has never been infallible or final. It makes errors, as Jackson knew.

Chief Justice William Rehnquist put the matter bluntly in 1993: “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”2 Consider three Supreme Court opinions that greatly expanded presidential power in external affairs. On two occasions, after more than seven decades, the Court admitted it had erred. A third decision also needed to be overturned.

Sole-Organ Doctrine In United States v. Curtiss-Wright (1936), Justice George Sutherland departed from the core issue before the Supreme Court: could Congress delegate to the president certain powers in the field of external affairs?

Congress had authorized the president 10

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to prohibit the sale of arms to a region in South America whenever he found “it may contribute to the reestablishment of peace” between belligerents. The issue was legislative, not executive, power. When President Franklin D. Roosevelt imposed the embargo he relied exclusively on statutory authority, acting “by virtue of the authority conferred in me by the said joint resolution of Congress.”3 Sutherland upheld the delegation of legislative power but proceeded to add a number of errors and misconceptions. Scholars immediately charged him with twisting historical and constitutional precedents.4 Among the errors was Sutherland’s plain distortion of a speech that John Marshall gave in 1800 when he served in the House of Representatives.

The year marked an election battle between President John Adams and Thomas Jefferson. In the House, Jefferson’s supporters urged that Adams be either impeached or censured for turning over to England an individual charged with murder.

In defending Adams, Marshall stated that the president “is the sole

organ of the nation in its external relations.”5 What did he mean by “sole organ”? That the president possesses plenary and exclusive power over external affairs? Such a claim would contradict the plain text of Articles I and II of the Constitution, assigning power over external affairs to both the president and Congress. Instead, Marshall defended Adams by pointing out that he carried out a provision of the Jay Treaty with England, including extradition authority to deliver up to each other “all persons” charged with murder or forgery.6 President Adams did not make foreign policy unilaterally. He carried out a treaty, which is the president’s constitutional duty.

In the years following CurtissWright, various levels of the executive branch relied on the erroneous soleorgan dicta to expand presidential power at great cost to constitutional government. Executive branch attorneys cited the decision with great frequency. To Harold Koh, Justice Sutherland’s “lavish description of the president’s powers is so often quoted that it has come to be known

THE EXECUTIVE BRANCH RELIED ON THE ERRONEOUS SOLE-ORGAN DICTA TO EXPAND PRESIDENTIAL POWER AT GREAT COST TO CONSTITUTIONAL GOVERNMENT. birth as Israel.”8 In signing the bill, President Bush objected that several provisions “impermissibly interfere with the constitutional functions of the presidency in foreign affairs.” He expressed particular constitutional concern with Section 214. By referring

Alonzo Chappel [Public domain]

as the ‘Curtiss-Wright, so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.”7 Litigation in the George W. Bush administration prompted the Supreme Court to review the soleorgan dicta. Legislation in 2002 stated that in issuing a passport for a U.S. citizen born in the city of Jerusalem, the Secretary of State “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of

Chief Justice John Marshall, who as a House member in 1800 delivered a speech defending President John Adams.

to the president’s constitutional authority to “speak for the Nation in international affairs” he implicitly, if not explicitly, relied on CurtissWright dicta.9 After extensive litigation in the lower courts, the U.S. Court of Appeals for the D.C. Circuit issued a decision July 23, 2013, concluding that Section 214(d) “impermissibly intrudes on the President’s recognition power and is therefore unconstitutional.”10 Five times it relied on the soleorgan doctrine, demonstrating no understanding that the doctrine was not merely dicta but erroneous dicta.

In response to this decision, I filed an amicus brief with the Supreme Court July 17, 2014, pointing to numerous errors in Curtiss-Wright, including the sole-organ doctrine.11 While the Supreme Court is in session, the National Law Journal runs a column called “Brief of the Week,” selecting a particular brief out of the thousands filed each year. On Nov. 3, 2014, it selected my brief. The column carried a provocative title: “Can the Supreme Court Correct Erroneous Dicta?”12 On June 8, 2015, the Supreme Court rejected the sole-organ doctrine that had magnified presidential power in external affairs for 79 years.13 However, the Court proceeded to create a substitute model that promotes independent presidential power in external affairs. It claimed that between the two elected branches “only the Executive has the characteristic of unity at all times.”14 Far from displaying unity on all occasions, administrations regularly exhibit inconsistency, conflict, disorder and confusion.

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Dorothea Lange, National Archives, NAID 536018

sit in review of administration. the wisdom” of The Court what President attributed to the Roosevelt and president four Congress decided other qualities: and “substitute decision, activity, its judgment for secrecy and theirs.”20 That dispatch.15 Why would the Court sounds like a assume that these political question five qualities unsuitable for are inherently the courts. If positive? One so, why add the need only review Court’s blessing? presidential Stone claimed initiatives from that the decision 1950 to the

by General John present time to L. DeWitt, who understand that ordered the those qualities curfew, “involved regularly produce the exercise of On a brick wall in San Francisco beside air raid shelter poster, exclusion orders negative and his informed were posted directing removal of persons of Japanese ancestry. damaging judgment.”21 The consequences: judgment was not Truman taking American case, Korematsu v. United informed. DeWitt the country to war in Korea without States, was in error. As with the believed that all Japanese-Americans, first obtaining congressional authority; sole-organ doctrine in Curtissby race alone, are disloyal.22 Judicial Johnson’s decision to escalate the Wright, it took the Court more deference to military judgments might war in Vietnam; Reagan’s involvement than seven decades to repudiate a be justified. Deferring to racism is not. in Iran-Contra; Bush in 2003 using prior ruling. However, long before In Korematsu, a 6-3 Court upheld military force against Iraq on the 2018 lower federal courts, scholars, detention camps in various parts of basis of six claims that Saddam a congressional commission and the country. In one of the dissents, Hussein possessed weapons of mass legislation passed by Congress in 1988 Justice Murphy objected that the destruction, with all six claims found were aware of the deficiencies of the exclusion order resulted from an to be entirely empty; and Obama Japanese-American cases. “erroneous assumption of racial guilt” ordering military action against Libya With Korematsu, the Supreme found in General DeWitt’s report, in 2011, leaving behind a country Court upheld the placement of which referred to all individuals of broken legally, economically and Japanese-Americans (two-thirds Japanese descent as “subversives” politically, providing a breedingof them U.S. citizens) in detention belonging to “an enemy race” whose ground for terrorism.16 camps.17 They were imprisoned solely “racial strains are undiluted.”23 18 on account of race. A year earlier, Murphy chose to dissent from “this legalization of racism.”24 In the two in Hirabayashi, the Court upheld a curfew placed on Japanese-Americans Japanese-American cases, the Court Japanese-American Cases on the West Coast.19 Writing for the failed to exercise an independent check on presidential power. It chose Court in 1943, Chief Justice Stone said On June 18, 2018, the Supreme not to challenge and analyze various that because of conditions present Court in Trump v. Hawaii announced executive claims and assertions, in the case, it “is not for any court to that its decision in a 1944 Japanese-

THE COURT IN THE JAPANESE-AMERICAN CASES ANNOUNCED THAT

THE GOVERNMENT’S ACTION WAS CONSTITUTIONAL WHEN IT WAS NOT. 12

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the treatment of Japanese-Americans during World War II. He said that President Roosevelt’s order resulted in “the uprooting of loyal Americans.”27 Evacuation and detention were wrong because Japanese-Americans “were and are loyal Americans.”28 In 1980, Congress established a commission to gather facts and determine the wrong done by Roosevelt’s order.

The commission’s report, released in December 1982, stated that the order “was not justified by military necessity, and the decisions which followed from it — detention, ending detention and ending exclusion — were not driven by analysis of military conditions.”

The principal factors that shaped those decisions “were race prejudice, war hysteria and a failure of political leadership.” To the commission, the Court’s decision in Korematsu “lies overruled in the court of history.”29 In 1988, Congress passed legislation to implement the commission’s report. The statute acknowledged

“the fundamental injustice of the evacuation, relocation and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II.”30 It provided for a public education fund to finance efforts to inform the public about the internment of such individuals to help prevent the recurrence of any similar policy.

In the 1980s, Gordon Hirabayashi and Fred Korematsu returned to court after newly discovered documents revealed the extent to which executive officials had deceived federal courts.

They filed a writ of coram nobis, charging the government with fraud against the court. Because the executive branch had knowingly concealed key evidence from the courts, their convictions were overturned in decisions handed down by lower federal courts from 1984 to 1987.31 At that point, the Supreme Court had adequate evidence on the basis of the congressional commission

Franz Jantzen, Collection of the Supreme Court of the United States [Public domain]

many of which were later found to be erroneous.

In an article published in 1962, Chief Justice Warren reflected on the Japanese-American cases. To him, the decisions “demonstrate dramatically that there are some circumstances in which the Court will, in effect, conclude that it is simply not in a position to reject descriptions by the Executive of the degree of military necessity.”25 He underscored his point: “To put it another way, the fact that the Court rules in a case like Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.”26 In so many words, the Court in the Japanese-American cases announced that the government’s action was constitutional when it was not.

Repudiation of the JapaneseAmerican cases would come from the elected branches. On Feb. 20, 1976, President Gerald Ford apologized for

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THE JUDICIARY SIGNALED TO THE EXECUTIVE BRANCH THAT IT IS

AT LIBERTY TO PRESENT FALSE CLAIMS IN COURT AT NO COST TO ITSELF. report and the coram nobis lawsuits to announce that its decisions in Hirabayashi and Korematsu were wrongly decided, but chose not to do so.

On May 20, 2011, Acting Solicitor General Neal Katyal publicly acknowledged that Solicitor General Fahy in the Japanese-American cases failed to inform the Supreme Court of evidence that undermined the rationale for internment. Katyal underscored the requirement that Solicitors General have a “duty of absolute candor in our representations to the Court.”32 Again the Supreme Court declined to repudiate Hirabayashi and Korematsu.

In Trump v. Hawaii, issued June 26, 2018, the Supreme Court split 5-4 in upholding a travel ban ordered by President Trump in September 2017.

Writing for the Court, Chief Justice Roberts noted that a dissent by Justice Sotomayor, joined by Justice Ginsburg, was strongly critical of Korematsu. To Roberts, whatever “rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” But he proceeded to say: The dissent “affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided…” 33 If it was wrong the day it was decided, why did it take the Supreme Court 74 years to admit error? Does the Court have to await litigation to correct its rulings? Nothing prevented the Court from announcing that its earlier opinions in the JapaneseAmerican cases were so utterly lacking in constitutional merit, as pointed out by the congressional commission and the coram nobis 14

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lawsuits, to have any legal value.

Moreover, if Korematsu was in error, what about Hirabayashi? Is it still “good law”?

State Secrets Privilege Curtiss-Wright and the JapaneseAmerican cases highlight how the Supreme Court commits errors of constitutional law and leaves them uncorrected for more than seven decades. That pattern applies also to United States v. Reynolds (1953), involving a midair explosion of a B-29 bomber, killing five of eight crew members and four of the five civilian engineers on board. Three widows of the civilian engineers filed a tort claims action to determine if the Air Force had been negligent in allowing the B-29 to fly. They asked for the accident report and other documents.

On June 30, 1950, District Judge William H. Kirkpatrick decided that the accident report and findings of the Air Force’s investigation “are not privileged.”34 When the government claimed that the accident report contained sensitive information that could not be seen by the widows and their attorneys, he directed the government to produce for his examination the report and other documents. He would read them in his chambers (in camera review).

After the government withheld those documents from him, he ruled in favor of the three widows.35 The 3rd U.S. Circuit Court of Appeals affirmed.36 On March 9, 1953, Chief Justice Vinson wrote for a 6-3 Court in favor of the government without ever looking at the accident report or insisting that it be reviewed by

the district court. He offered this view of judicial authority: “The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”37 But if the government can withhold a document from a judge, even for in camera review, a judge following Vinson’s procedure would not know whether an executive official had acted capriciously, arbitrarily or with deceit.

The accident report was declassified in 1995. It contains no state secrets but abundant evidence that the Air Force was negligent in allowing the B-29 to fly.38 After gaining access to the report, the three families sued under a writ of coram nobis, charging that the government had misled the Supreme Court and committed fraud against it. They wanted to take the case directly to the Supreme Court. Without explanation, the Court on June 12, 2003, issued this statement: “Motion for leave to file a petition for writ of error coram nobis denied.”39 The Supreme Court had an opportunity to confront misleading governmental claims about the contents of the accident report but chose not to.

The three families returned to lower courts but lost in district court and the 3rd Circuit.40 On May 1, 2006, the Supreme Court denied cert.41 At every level of this coram nobis effort, the judiciary signaled to the executive branch that it is at liberty to present false claims in court at no cost to itself. Violated by this process is the need to protect the integrity, independence and reputation of the federal judiciary and the right of private citizens to pursue their interests in court.

Following the 9/11 terrorist attacks, the Bush administration invoked the state secrets privilege to prevent litigants from challenging a number of executive branch actions, including transferring individuals to other countries for interrogation and torture.

Consider the case of Khaled El-Masri, who traveled to Macedonia at the end of 2003 for vacation. He was detained by border guards because they thought he was Khalid al-Masri, an al-Qaida suspect. There was also concern that his passport might be a forgery. CIA agents flew him to a prison in Afghanistan where he was subjected to abuse and violence.

Eventually the CIA concluded that his passport was genuine and they had imprisoned the wrong person. On May 28, 2004, he was flown to Albania and allowed to return home to Germany.

El-Masri sued the CIA but the Bush administration invoked the state secrets privilege to prevent access to government documents. A U.S. District Court, deferring to “the Executive Branch’s preeminent authority over military and diplomatic matters,” held that the state secrets privilege had been validly asserted.42 The 4th U.S. Circuit Court of Appeals affirmed.43 The United States did not admit error but on Dec. 13, 2012, the European Court of Human Rights unanimously ruled that El-Masri was an innocent victim of torture and abuse. It held Macedonia responsible and ordered it to pay $78,000 in damages to El-Masri.44 Justice came from a foreign court, not the United States.

The executive branch inflicted great harm on Maher Arar, a Canadian citizen. Upon returning home to Ottawa in September 2002, he was pulled aside for questioning by New York police and FBI agents. The Bush administration sent him to Syria where for nearly a year he was subjected to physical abuse until finally released.

Arar filed a civil suit seeking money damages and declaratory relief from a number of U.S. officials. After the administration invoked the state secrets privilege, a U.S. District Court ruled that Arar lacked standing.45 Fortunately, Canada conducted an independent investigation and concluded that its intelligence officials had shared with the United States false warnings and unreliable information about Arar. On Jan. 16,

2007, Prime Minister Stephen Harper released a public apology. Arar and his family received $10.5 million in compensation.46 The United States, responsible for Arar’s suffering, offered no apology.

On April 29, 2011, the Obama administration issued a report to Congress regarding the state secrets privilege. It concluded that no change was warranted with respect to the assertions of privilege by the Bush administration, including actions taken against Khaled El-Masri and Maher Arar. The Obama administration invoked the privilege to place individuals on the no-fly list without explaining why.47 The pattern of federal judges deferring to executive claims about state secrets largely continued.48 Justice would be served if the Supreme Court announced that its decision in Reynolds was defective because it deferred to executive claims instead of protecting the rights of private litigants. By taking that step, federal courts and the executive branch could no longer rely on Reynolds when handling lawsuits from private parties.

Notes Brown v. Allen, 344 U.S. 443, 540 (1953).

Herrera v. Collins, 506 U.S. 390, 415 (1993).

3 48 Stat. 1745 (1934).

4 Louis Fisher, “The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,” Constitutional Commentary 31: 149219 (2016).

5 10 Annals of Cong. 613 (1800).

6 8 Stat. 129 (1794).

7 Harold Hongju Koh, The National Security Constitution (New Haven: Yale University Press, 1990), 94.

8 116 Stat. 1366, sec. 214(d) (2002).

9 Public Papers of the Presidents, 2002, II, 1697-99 10 Zivotofsky v. Secretary of State, 725 F.3d 197, 220 (D.C. Cir. 2013).

11 Brief Amicus Curiae of Louis Fisher in Support of Petitioner, Zivotofsky v. Kerry, No. 13-628, U.S. Supreme Court, July 17, 2014, 2, available at fhttp://www.loufisher.org/docs/pip/ Zivotofsky.pdf.

12 Jamie Schuman, “Brief of the Week: Can the Supreme Court Correct Erroneous Dicta?,” National Law Journal, November 3, 2014; http:// loufisher.org/docs/pip/fisherbrief.pdf.

13 Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2089 (2015).

14 Ibid., 2086.

15 Ibid.

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2

16 Louis Fisher, Presidential War Power (3d ed., Lawrence: University Press of Kansas, 2013), 95-103, 127-44, 282-88, 209-32, 238-47.

17 Korematsu v. United States, 323 U.S. 214 (1944).

18 Ibid., 218-19.

19 Hirabayashi v. United States, 320 U.S. 81 (1943).

20 Ibid., 93.

21 Ibid., 103.

22 Hirabayashi v. United States, 627 F. Supp.

1445, 1452 (W.D. Wash. 1986).

23 Korematsu v. United States, 323 U.S. 214, 235-36 (1944).

24 Ibid., 242.

25 Earl Warren, “The Bill of Rights and the Military,” 37 New York University Law Review 181, 192 (1962).

26 Ibid., 192-93.

27 Proclamation 4417, 41 Fed. Reg. 7741 (1976).

28 Ibid.

29 Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied 18, 238 (1982).

30 Public Law 100-383, 102 Stat. 903 (1988).

31 Korematsu v. United States, 584 F. Supp.

1406 (D. Cal. 1984); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D. Wash. 1986); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).

32 Neal Katyal, “Confession of Error: The Solicitor General’s Mistakes during the JapaneseAmerican Internment Cases,” U.S. Department of Justice, May 20, 2011; https://www.justice. gov/opa/blog/confession-error-solicitorgenerals-mistakes-during-japanese-americaninternment-cases.

33 Trump v. Hawaii, 585 U.S. 38 (2018).

34 Brauner v. United States, 10 F.R.D. 468,472 (D. Pa. 1950).

35 Sur Pleadings and Proof, Brauner and Payla v. United States, Civil Action No. 9793, and Reynolds v. United States, Civil Action No. 10142 (E.D. Pa. February 20, 1951).

36 Reynolds v. United States, 192 F.2d 987 (3d Cir. 1951).

37 United States v. Reynolds, 345 U.S. 1, 8 (1953).

38 For access to the accident report, see pages 10a-68a of http://www.fas.org/sgp/ othergov/Reynoldspetapp.pdf.

39 In re Herring, 539 U.S. 940 (2003).

40 Memorandum and Order, Herring v. United States, Civil Action No. 03-CV-500-LDD (E.D. Pa. Sept. 10, 2004); Herring v. United States, 424 F.3d 384 (3d Cir. 2005).

41 Herring v. United States, 547 U.S. 1123 (2006).

42 El-Masri v. Tenet, 437 F. Supp. 2d 530, 536-37. 539 (E.D. Va. 2006).

43 El-Masri v. United States, 479 F.3d 304 (4th Cir. 2007).

44 Nicholas Kulish, “Court Finds Rights Violation in C.I.A. Rendition Case,” New York Times, December 14, 2012, https://www.nytimes. com/2012/12/14/world/europe/european-courtbacks-cia-rendition-victim-khaled-el-masri.html.

45 Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D. N.Y. 2006).

46 “Harper’s Apology ‘Means the World’: Arar,” CBS News, January 26, 2007, http://www. cbc.ca/news.canada/harper-s-apology-meansthe-world-arar-1.646481.

47 Louis Fisher, President Obama: Constitutional Aspirations and Executive Actions (Lawrence: University Press of Kansas, 2018), 183-85.

48 Ibid., 180-85, 187-201.

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Special Orders

PARTISAN TRENDS

IN CONGRESSIONAL OVERSIGHT, 1987-2016 Jason MacDonald | West Virginia University Jason MacDonald is an associate professor in the Department of Political Science at the University of West Virginia.

His research focuses on American politics, particularly the U.S. Congress and bureaucracy, and has appeared in numerous scholarly outlets including the American Political Science Review and Legislative Studies Quarterly.

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he results of the 2018 midterm elections have focused the attention of journalists, scholars, lawmakers and even President Trump on congressional oversight. By oversight, I mean the use of congressional investigations and hearings to examine decisions made in the executive branch. The new Democratic majority is expected to use its control of congressional committees to conduct such oversight in a manner that holds the Trump administration’s feet to the fire. Oversight will be in large part driven by partisan considerations.

This is not new. Douglas Kriner and Eric Schickler established in their 2016 book on congressional investigations that such investigations throughout American history have contributed to undermining presidents, furthering the partisan goals of the party seeking to displace the president’s party in the White House.1 Yet, much oversight is conducted on a bipartisan basis. In studying oversight over the last several years, I have observed that it has been conducted regularly — during both divided and unified government.

Oversight can produce outcomes that are, beyond debate, good for American democracy. From saving taxpayers money through 16

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reducing fraud, to improving the implementation of policy, to uncovering actions of career bureaucrats, political appointees, and regulated entities that are demonstrably illegal, congressional oversight can and does improve the efficiency, effectiveness and integrity of government.

For example, in a series of hearings that were the product of substantial oversight during the 1980s, the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations probed the problem of counterfeit and substandard fasteners. Such fasteners were falsely represented as being of the highest strength and, as such, capable of securing beams in nuclear energy plants and mining facilities, fastening parts in military aircraft and other weapons systems, and holding together materials in many other commercial and governmental applications. In a thorough

investigation, OAI documented fatal accidents due to counterfeit fasteners, the disturbingly high volume of such fasteners in use, and the threat of such fasteners to public health, economic growth and national security. OAI coordinated a plan to guide the federal government and states in addressing the problem.2 These efforts were the basis for the enactment of the Fasteners Quality Act of 1990.

This is the type of oversight that is worth knowing about. In one sliver of my research, I have read and categorized opening statements of the chair and the ranking member of the OAI in the 449 hearings held by this subcommittee between 1987 and 2016.

I began this research out of a sense that, when studying oversight, some political scientists (especially me!) did not talk much about the substance of oversight. Rather, scholars of oversight tended to assess the volume of oversight hearings and/or examine the different policy areas on

MUCH OVERSIGHT IS CONDUCTED ON A BIPARTISAN BASIS … AND CAN PRODUCE OUTCOMES THAT ARE GOOD FOR AMERICAN DEMOCRACY

as experienced 100 lawmakers Reps Supporting Dems Dems Supporting Reps emphasize Dem Control of Chair's Gavel that it is, the trend toward partisanship is not a positive 50 development.3 Of course, OAI hearings may not be representative 0 of congressional 100 102 104 106 108 110 112 114 hearings Congressional Session more broadly.

OAI chairs FIG. 1: SUPPORTIVE BIPARTISAN STATEMENTS IN OAI HEARINGS Shaded regions correspond to periods of Democratic and ranking control of the House. Data spans the 100th-114th members refer Congresses (1987-2016). to the bipartisan tradition of this subcommittee of bipartisan statements throughout in their statements. It may be that the period. Figure 1 reveals trends in other (sub)committees’ hearings were statements during which OAI chairs more partisan than OAI’s during the and ranking members highlighted the period that I examine. However, if I constructive contributions made by observe partisanship creeping into the one another, explicitly “commended” exercise of oversight on OAI, this may one another, or used the words suggest that partisanship has seeped “bipartisan” or “bipartisanship” to into every corner of congressional describe the oversight embodied policymaking. in hearings. The figure presents the percentage of statements that acknowledge such bipartisanship throughout the period. Shaded regions Partisanship in of the figure denote periods with Opening Statements of Subcommittee on Oversight Democratic chairs and Republican and Investigations Hearings ranking members; unshaded regions denote role reversals.

Most bipartisan statements As noted, I have read the opening come from ranking members. In statements of chairs and ranking these statements, after the chair members in the 449 hearings that has provided a statement, the OAI held from 1987 to 2016, spanning ranking member endorses the the 100th to the 114th Congresses. hearing as being productive and/ These statements are found in the or bipartisan. The highest levels of printed hearings of the Energy and such endorsements are presented in Commerce Committee. Typically, the solid line depicting Republican chair and ranking member statements statements supporting Democrats span from one-and-a-half to three between the 100th Congress (1987pages each. The trends displayed and 1988) and the 103rd Congress (1993discussed below are the product of 1994) when the Republican Ranking coding decisions that I made about Member Thomas Bliley (R-VA) the content of statements in these regularly “commended” Chairman 449 hearings.4 John Dingell (D-MI). Bliley did so in Before discussing trends in over half of OAI hearings in the 102nd partisanship in opening statements, and 103rd sessions. it is useful to examine the frequency Percentage of Hearings

which committee oversight focused.

Although scholars have learned a lot from these studies, I hoped to learn more by reading (at least some of) the text of hearings.

Below, I present and discuss one aspect of the information I obtained from reading these opening statements: the degree to which committee chairs and ranking members engage in partisanship. By partisanship, I refer to language that faults a party for supporting policies deemed to be problematic (e.g., ineffective). Partisan language also includes statements that question the motives of the other party and/ or its members (e.g., such motives are driven by partisanship or are misguided). Such language in principle could include language celebrating one’s own party or endorsing its policy positions. In practice, perhaps because oversight involves the criticism of policies, partisan language in these statements overwhelmingly involved criticism of the other party.

To be clear, most statements were not partisan, as the data presented below reveal. In reading the statements, I was struck by the degree to which Democrats and Republicans worked together on many issues for much of this period — and continued to work together in recent years on some oversight endeavors while opposing one another on other oversight matters.

At the same time, oversight has trended in a partisan direction in recent years. I hope that examination of this trend is informative to people who care about, and are interested, in Congress. Readers may be interested in this trend as the 116th Congress (2019-2020) convenes because of one implication of higher levels of partisan oversight. Specifically, the higher proportion of hearings that are partisan, the less frequently OAI uses its scarce resources to address problems in a bipartisan fashion, as occurred with respect to substandard fasteners. If bipartisan oversight is more effective in addressing problems,

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hearings during this session.

In very few instances did the new Republican chair, Joe Barton (R-TX), criticize Democrats. Instead, Barton and Republicans investigated laws and programs, criticizing agencies and the implementation of laws.

Although Barton did not direct partisan invective at Democrats, OAI’s oversight was less bipartisan than in the past — at least according to Democrats. This view is reflected in the precipitous drop in bipartisan language from the 103rd to the 104th Congress displayed in Figure 1.

Chairman Barton’s statements did 100 Reps Criticizing Dems not contain Dems Criticizing Reps partisan Dem Control of Chair's Gavel language, then. But the presence 50 of partisan criticism in the (three) ranking members’ statements during the 0 100 102 104 106 108 110 112 114 104th Congress Congressional Session suggests that the majority’s FIG. 2: PARTISAN CRITICISM IN OAI HEARINGS oversight Shaded regions correspond to periods of Democratic agenda was control of the House. Data spans the 100th-114th driven in Congresses (1987-2016). large party by partisan concerns. Along these lines, many ranking members, while nonshaded of the hearings during this period regions indicate Republican chairs involved Republican oversight of with Democratic ranking members. environmental programs. Democratic One observes that partisanship was ranking members expressed the virtually absent in the subcommittee’s view that Republicans, in fact, hearings until the 104th Congress. were not concerned with effective This changes abruptly after the implementation of these programs.

Republicans’ historic victory in the Instead, Democrats asserted, 1994 midterm elections. Democratic Republicans were using oversight as a ranking members leveled partisan tool to undermine the programs. criticism in response to oversight Subsequent to the 104th Congress, that was conducted under the one observes a decline in criticism, Republicans’ purview during the 104th though the Democratic ranking Congress, asserting in many cases member during the 105th Congress, that Republicans were not conducting Rep. Ron Klink (D-PA), criticized oversight on a bipartisan basis.

Republicans in about one-fourth of Democrats engaged in some form of the hearings. In one hearing on “Food partisan criticism in over half of the

he criticized Republicans during a hearing on “deadbeat dads” and welfare reform. Stupak noted that the “majority…very frankly” informed Democrats that they did not plan to have staff investigate the relevant program prior to the hearing. Instead, the hearing was to be a “‘feel good’ hearing.” Stupak insisted that such oversight did not live up to the quality of oversight done by OAI in the past. 6 The shaded regions of the figure identify years during which Democratic lawmakers controlled the chair’s gavel and Republicans were

Percentage of Hearings

In these statements, the chair usually does not weigh in on whether the hearing is bipartisan. And, as one will see, until the 112th Congress (2011-2012) the chair does not usually initiate partisanship. Rather, the chair describes issues to be covered in the hearing. And the hearing may promote partisan goals even if that does not show up in the chair’s opening statement. After the chair speaks, the ranking member serves as a kind of (not entirely unbiased) umpire who can declare that the hearing is bipartisan. The ranking member can also “call” the hearing partisan by responding to the chair’s statement with partisan criticism. And in many cases, no judgment is rendered, as the ranking member simply engages the issues covered in the hearing.

During the period of Republican control of the House between the 104th (1995-1996) and 109th (20052006) Congresses, Democratic ranking members provided rulings of bipartisanship, as seen in the dashed line. However, such assessments were offered less frequently than they were

by Bliley. Such acknowledgments became rarer still during the 110th (2009-2010) and 111th (2011-2012) sessions (solid line) and Democratic ranking members in the final three sessions of the series (dashed line).

Overall, the data suggest a decline in bipartisan oversight in OAI hearings in recent years.

The absence of bipartisan endorsements does not necessarily imply the presence of partisanship.

In Figure 2, I chart the percentage of opening statements containing partisan language. Such statements sometimes included direct references to a party, as Ranking Member Ron Wyden’s (D-OR) statement did in the 104th Congress (1995-1996) when he denounced the Republican approach to reforming Medicare as a “recipe for still more fraud.”5 In other cases, members would refer to the “majority” or “minority,” as Rep. Bart Stupak (D-MI) did as ranking member in the 106th Congress (1999-2000) when

numerous hearings by throwing down the partisan gauntlet. For example, in one oversight hearing during this session on the Affordable Care Act, the controversial law enacted during the 111th Congress by President Obama and congressional Democrats with no Republican support, Stearns addressed the issue of high-risk purchasing pools in insurance markets.

Stearns noted that Democrats had been unsuccessful in encouraging individuals to sign up for insurance under the law and predicted that an advertising campaign by the Centers for Medicare and Medicaid Services toward this end was unlikely to be effective.8 In another hearing on White House visitor logs, Stearns excoriated Democrats, noting, “I understand that my Democrat colleagues may want to relitigate the past,” by arguing that the Obama administration compares favorably to the Bush admiration.9 Stearns criticized Democrats along these lines in almost 25 percent of the subcommittee’s hearings during the 112th Congress.

This level of criticism was a significant departure from past practice. Chairs, no doubt, conducted oversight in a manner that was consistent with their parties’ agendas, especially beginning in the 104th

U.S. House of Representatives, Energy and Commerce Committee

and Drug Administration Management Concerns,” Klink lambasted Republicans for being unfocused and quipped that “I’m not sure if the clumsiness of the witness selection process has to do with the fact that this is April Fool’s Day or not.”7 Upon transition to a Democratic majority during the 110th (20072008) and 111th (2009-2010) sessions, Republican ranking members engaged in some partisan criticism in the subcommittee’s hearings, criticizing Democrats in just under 10 percent of the subcommittee’s hearings during the 110th Congress and just over 15 percent of the subcommittee’s hearings during the 111th Congress.

(Majority) Democratic criticism of (minority) Republicans was nonexistent in these sessions.

Starting in the 112th Congress (2011-2012), though, both the Republican majority and Democratic minority increasingly invoked partisan criticism. The new chair of the subcommittee, Rep. Cliff Stearns (R-FL), provided the highest level of criticism of the minority party of any chair during the thirty-year period.

As is evident from Figure 2, until the 112th Congress, nearly all partisan criticism came from the ranking member. Stearns, however, initiated

House Oversight and Investigations Subcommittee Chairman Tim Murphy (D-PA) questions panel on U.S. health response to Ebola outbreak.

Congress. This is one factor that led ranking members to engage in partisan criticism. Yet, chairs refrained almost entirely from initiating partisan criticism of the minority until Stearns’s chairmanship. Rep. Diana DeGette (D-CO), ranking member during the session, responded in kind to Stearns’s broadsides, defending Democratic positions and the Obama administration. One of DeGette’s main tactics involved praising the benefits of the ACA (that it had already expanded access to health care) while attributing partisan motivations to Republican attacks on the program.

For example, in the hearing about high-risk pools referenced above, DeGette emphasized that it was “impossible” for her to understand how her “friends across the aisle” would seek to repeal the law given its demonstrable benefits for millions of Americans.10 The basis for criticism of the ACA, then, was partisan politics on the part of Republicans, according to DeGette.

After the 112th Congress, explicit partisan criticism of Democrats by the new chair of the subcommittee, Tim Murphy (R-PA), disappeared almost completely. Indeed, it was nonexistent in the 114th Congress (2015-2016) and there was only a single hearing (on the ACA) in which Murphy criticized “the minority” in the 113th Congress (2013-2014). Rather than pillorying Democrats, Murphy focused on criticizing the ACA (and, as one will see, President Obama). DeGette responded to Murphy’s critiques both by noting the ACA’s accomplishments, as described above, and also by criticizing Republicans for being unwilling to try to fix problems with the law. In particular, she repeatedly compared problems implementing the ACA to problems with the Republicanbacked law, Medicare Part D, which was enacted in 2003. She noted that she had voted against Medicare Part D, which established a prescription drug benefit for senior citizens, as did most Democrats. However, when Medicare Part D experienced extensions | Winter 2019

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ONE OBSERVES A SEA-CHANGE IN THE LEVEL OF CRITICISM ISSUED BY THE SUBCOMMITTEE’S CHAIRS STARTING IN THE 112TH CONGRESS.

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the party conducting it. Criticism of the president, then, can be viewed as partisan criticism.

With this reality in mind, one can examine Figure 3 which charts the percentage of hearings in which the rival party (chair or ranking member) to the president’s party lodges critiques of the president, the Office of Management and Budget, or the “administration.” The shaded region indicates the presence of divided government — during which criticism of the president came from the subcommittee’s chair. The unshaded regions identify periods of unified government during which criticism came from the ranking member.

(There was one instance in which a president was criticized by a member of his own party. This data point is not reflected in Figure 3).

One sees that, until the 112th Congress, there was very little criticism along these lines. Almost half of the hearings during this session, though, included explicit criticism of the Obama administration 100

by Chairman Divided House/ Pres Control Stearns. Much of this criticism occurred during hearings 50 on the ACA. In addition, Stearns also held a number of hearings on the Obama 0 administration’s 100 102 104 106 108 110 112 114 Congressional Session role in helping the Solyndra FIG. 3: CRITICISM OF THE PRESIDENT/ADMIN./OMB BY THE RIVAL PARTY IN Corporation OAI HEARINGS secure loans Shaded regions correspond to periods of divided party from the control of the House-presidency. Data spans the 100th114th Congresses (1987-2016).

Department of Percentage of Hearings

problems, Democrats did not seek to repeal it. Rather, she asserted, Democrats worked with Republicans to fix the problems. Republicans, however, were not reciprocating with respect to the ACA and instead wanted to “chill their constituents from signing up” for coverage under the law.11 DeGette’s criticism is apparent in the last three sessions (the dashed line) of Figure 2.

In summary, one witnesses next to no partisan criticism until the 104th Congress. At that point, the minority party (ranking member) responds to the majority’s (chair’s) agenda with varying levels of criticism and one chair initiates criticism of the minority party. On the whole, one observes an increase in partisan criticism at the end of the time series even though Chairman Murphy did not denounce Democrats frequently during the 113th and 114th sessions.

How could the chair criticize the ACA without engaging in criticism of Democrats? One tactic he employed was to focus on what he argued were negative consequences of the law.

If Murphy had merely done this, he would have simply been conducting oversight to promote Republican priorities — and Democrats would have responded to these efforts, as DeGette did. Murphy also engaged in explicit criticism of President Obama and his administration. I do not include criticism of the sitting president in Figure 2, which focuses on language critical of political parties. However, the mere act of criticizing the president can be viewed as a partisan tactic. Kriner and Schickler’s research discussed above explains why. Since investigations undercut public support for the president, such oversight may improve the electoral prospects of

Energy. Needless to say, the Obama administration was not treated with kid gloves by the chair in these hearings, contributing to the spike in the series one observes in the 112th Congress. This criticism continued under Chairman Murphy in the 113th and 114th sessions during which he criticized the Obama administration in roughly 31 and 17 percent of the hearings, respectively.

Taking trends in partisan criticism (displayed in Figure 2) and criticism of presidents (Figure 3) together, one observes a sea-change in the level of criticism issued by the subcommittee’s chairs starting in the 112th Congress.

Before the 112th Congress, partisan criticism came mainly from the ranking member who was responding to the majority party’s oversight agenda. There were very few, and usually no, instances in which chairs opened with statements criticizing the other party explicitly (the dashed line for Democrats in years when they held the gavel; solid lines for Republicans in years when they held the gavel). This changed in the 112th when Chairman Stearns used opening statements to critique both Democrats and President Obama and in the 113th and 114th when Chairman Murphy criticized the president in a noticeable percentage of his opening statements.

Discussion Reading opening statements of congressional hearings is fun. The chairs and ranking members serving during this period evinced intelligence, deep knowledge of policy issues and, at times, wisdom. Reading these statements is also frustrating.

Notwithstanding these attributes, one observes that some hearings — ones that could have addressed problems constructively — were used to promote partisan goals.

Reading such hearings is sobering after reading others in which the OAI exercised the best practices of oversight, as discussed above with respect to the substandard fasteners issue. In reading hearings in which partisanship is prevalent, one witnesses the subcommittee squandering something precious: the attention of smart, well-meaning and capable elected representatives and their staffs. Rather than coordinating policy responses to problems, members diverted their attention to partisan bickering.

And to what end? Obviously, partisan messaging in subcommittee hearings is a product of party strategy.

In the wake of the ACA’s enactment, Republicans wanted to impugn its effectiveness upon winning the gavel in the 2010 midterm elections, criticize President Obama and criticize Democrat’s defense of the act. This is exactly what Republicans did under Chairman Stearns during the 112th Congress. Such messaging added to a political narrative that was intended to engender Republican electoral gains. Although Republicans failed to defeat President Obama in 2012, their opposition to the ACA — which was reflected in OAI hearings — probably contributed in part to their gains in the 2014 midterms. This answers my question above about the desired ends of focusing on partisan messaging rather than conducting constructive oversight: some members of Congress might respond to my use of the word “sobering” above

by arguing that using oversight as a means to pursue partisan goals is a perfectly reasonable thing to do.

After all, if doing so can help promote a narrative that ensures majority status, then their party’s obviously correct views will be more likely to be reflected in agencies’ policy decisions.

Some Democrats may take exactly this position at the beginning of the 116th Congress — and anyone who has read Kriner and Schickler’s work should not be surprised.

At the same time, there is a cost to partisanship in oversight.

Stearns, an experienced member with substantial expertise, could have paid much more attention to improving government and policymaking during his last session in Congress.

Republicans could have still pursued their efforts to repeal the ACA and built a political narrative helpful for electoral purposes, while reserving the oversight agenda for constructive endeavors. In the end, though, hoping for such an outcome — oversight not tainted by partisan warfare during a polarized era during which such conflict is the mode of operation — is naive at best and Panglossian at worst. It is the case that Democrats and Republicans continue to conduct bipartisan oversight on the OAI. However, its hearings are increasingly characterized by partisan criticism, and this partisanship reduces the volume of constructive oversight that occurs. When it comes to contemporary oversight, we probably do not live in the best of all possible worlds.

Notes 1 Douglas Kriner and Eric Schickler, Investigating the President: Congressional Checks on Presidential Power (Princeton, NJ: Princeton University Press, 2016).

2 Committee on Energy and Commerce.

U.S. House of Representatives. “The Threat from Substandard Fasteners: Is America Losing Its Grip.” Washington, DC: U.S. Government Printing Office. Committee Print 100-Y, 1988.

3 Carl Levin and Richard Lugar, “Democrats Can’t Check the White House Alone. Neither Can Republicans,” Roll Call, November 12, 2018, https://www.rollcall.com/news/opinion/

democrats-republicans-congress-oversight.

4 Given the brief nature of articles in Extensions, I cannot provide a full description of the coding criteria that I employed. Please contact me if you wish to read, or discuss, how I classified these statements.

5 Committee on Commerce. U.S. House of Representatives. “Waste, Fraud and Abuse in the Medicare Program.”104th Congress, First Session.

Washington, DC: U.S. Government Printing Office.

Serial No. 104-21, May 16, 1995.

6 Committee on Commerce. U.S. House of Representatives. “Supporting Welfare Reform: Cracking Down On Deadbeat Dads.” 106th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 106-9, February 24, 1999.

7 Committee on Commerce. U.S. House of Representatives. “Food and Drug Administration Management Concerns.” 105th Congress, Second Session. Washington, DC: U.S. Government Printing Office. Serial No. 105-75, April 1, 1998, pg. 3.

8 Committee on Energy and Commerce. U.S. House of Representatives. “The PPACA’s High Risk Pool Regime: High Cost, Low Participation.”

112th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 112-29, April 1, 2011, pg. 2.

9 Committee on Energy and Commerce.

U.S. House of Representatives. “White House Transparency, Visitor Logs, and Lobbyists.” 112th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 112-42, May 3, 2011, pg. 2.

10 Committee on Energy and Commerce, “The PPACA’s High Risk Pool Regime,” pg. 5.

11 Committee on Energy and Commerce.

U.S. House of Representatives. “2014: Seeking PPACA Answers.” 113th Congress, Second Session.

Washington, DC: U.S. Government Printing Office.

Serial No. 113-113, January 16, 2014, pg. 4-6.

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For the Record

NEWS FROM THE

DICK T. MORGAN COLLECTION J.A. Pryse | Senior Archivist

D

ick T. Morgan was born Dec. 6, 1853, in Vigo County, Indiana. He received a B.S. in 1876 from Union Christian College (Meron, Indiana) and an LL.B. in 1880 from Central Law School (Indianapolis). From 1880 to 1881, he served in the Indiana state legislature.

In 1889 he moved to Guthrie, Oklahoma, where he practiced law, dealt in real estate, and became active in politics, the Republican Party and religious affairs. He ran for territorial delegate to Congress in 1900 and 1902, and in 1904 President Theodore Roosevelt appointed him Registrar of the U. S. Land Office at Woodward. In addition, he wrote several legal manuals, including Morgan’s Digest of Oklahoma Statutes and Supreme Court Decisions (1897), Land Credits (1915), and numerous other books on land law and the farm mortgage system.

Morgan represented Oklahoma’s 2nd District in the U. S. Congress from 1909 to 1915 and the 8th District from 1915 to 1920. During his congressional career, Morgan served on the following U.S. House committees: Expenditures in the Treasury Department, Public Lands, and Judiciary. Land law and farm 6 mortgages held Morgan’s interest while in Congress, and he sponsored the Rural Credits Bill that was enacted in 1916.

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Kenyon Morgan (L) and David Morgan (R), great-grandsons of former Rep. Dick T. Morgan, review documents from the Morgan Collection with Director Michael Crespin.

The Morgan Collection illustrates a significant era in Oklahoma history from the Land Run of 1889 to the creation of the Oklahoma Constitution, and the legislation establishing Oklahoma as the 46th state to enter the union Nov. 16, 1907. Morgan was not only a pioneer but a facilitator of change — change of thought, change of rule, and change that would benefit his fellow Oklahomans. The collection spans Morgan’s career and all that represents the state of Oklahoma from 1889-1920.

Morgan’s great-grandsons, David Morgan and Kenyon Morgan, made a generous donation to the center in order to ensure that all of the materials represented in the Dick T. Morgan Collection are available through the center’s online collections, as well as through a virtual exhibit platform released in 2019. (https:// dicktmorgan.omeka.net/)

Additionally, a pilot project featuring the Morgan Collection was developed and implemented in the fall of 2018. The project focuses on the nontraditional student and those who wish to assist the Carl Albert Center remotely.

The program is designed to reach students and volunteers with limited access to the University of Oklahoma campus who desire to utilize their skillsets to promote and extend the Carl Albert Center holdings, and makes the collections accessible to the

public. The Dick T. Morgan Collection represents the first collection in what the center hopes is a long-standing platform of discovery.

The Morgan Collection catalog is available at https://arc.ou.edu.

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For the Record

NEWS FROM THE CENTER Katherine McRae | Director of Administration

Alison W. Craig won the 2018 Carl Albert Dissertation Award for Best Dissertation in Legislative Studies for “Policy Collaboration in the United States Congress.” Craig’s research explored Dear Colleague letters in Congress to identify members’ patterns of collaboration on policy.

Craig received her doctorate in political science from The Ohio State University in 2017 and is currently an assistant professor in the Department Government at the University of Texas at Austin. Craig visited the Norman campus in February and met with faculty, students and community members.

The annual award is presented by the American Political Science Association’s Legislative Studies Section and is sponsored by the Carl Albert Center. Director Michael Crespin and associate director Charles Finocchiaro were on hand to congratulate Professor Craig at the APSA annual meeting in Boston, Massachusetts.

OU Army ROTC’s 100-year history.

The first phases of the project include training ROTC cadets in the skills of archiving; discovering, preserving and conserving historic materials; creating an inventory; and developing an online database available to the public for research and study.

In November, the William K. Brewster collection opened for research. Brewster served as U.S. Rep. from Oklahoma’s 3rd District from 1991 to 1997. More information about the collection is available at https:// arc.ou.edu. The archives also opened a recent accrual of campaign and election material to the James R. Jones Collection.

Senior archivist J.A. Pryse attended the joint annual meeting

of the Council of State Archivists, National Association of Government Archives and Records Administrators, and the Society of American Archivists. The meeting was Aug. 12-18 in Washington, D.C. Archivist Rachel Henson attended the Oklahoma Archivists Association annual meeting Oct. 25-26 in Tulsa, Oklahoma.

Civic Engagement Fellows The 2018-2019 Civic Engagement Fellows, Carson Ball, Stephen Cromwell and Madison Morrow, had a busy semester. They attended the National Campaign Conference at Harvard University Sept. 21-23. The conference focused on “Activating

Archives The archives developed and implemented an internship program for nontraditional students.

Undergraduate and graduate students are able to remotely access a variety of online and virtual projects while getting “hands-on” experience within a working archive.

In October, the archives partnered with the University of Oklahoma Army ROTC to create an archive program to capture and represent the 24

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The Civic Engagement Fellows accepted an award from the Oklahoma State Regents for Higher Education on behalf of OU as the overall winner of the 2018 Campus Compact voter registration contest. Pictured (front left to right) are State Regents Chair Jay Helm, Madison Morrow, Lauren Schueler, and Chancellor Glen D. Johnson; (back left to right) Stephen Cromwell and Carson Ball.

Campus Voter Participation” and the fellows joined students from around the country to discuss best practices and ideas to mobilize student voter turnout ahead of the midterm election.

The fellows were also responsible for an unprecedented voter registration drive on OU’s campus, registering 685 students. The fellows registered students and coordinated with multiple campus organizations to register students. For their efforts, the fellows were recognized at the State Regents for Higher Education’s December meeting Dec. 6 for winning Oklahoma’s Campus Compact Voter Registration Drive.

In early October, the center partnered with the Ross Initiative in Sports Equality (RISE) Foundation on their RISE to Vote initiative — a nonpartisan effort to register professional and college athletes to vote. On Oct. 2 center Director of Administration Katherine McRae worked with RISE staff member Dexter Mason to register and check the registrations of the NBA Oklahoma City Thunder players. Oct. 3, McRae, Director Michael Crespin and Fellow Stephen Cromwell registered Thunder staff and fans.

In a continuation of their voter registration efforts, the center partnered with OU’s Headington College to sponsor an election night watch party to celebrate the fellows’ efforts and allow a nonpartisan space for students to watch election returns.

Fellow Carson Ball was named one of five OU sophomores to receive the 2018 Rita H. Lottinville Prize.

The winners were selected from 639 eligible sophomores who maintained a 3.8 GPA or better their freshman year while taking a minimum of 12 credit hours. A diverse faculty committee interviewed the eight finalists before selecting the winners. The prize includes a $1,500 scholarship. Ball is a political science and Native American studies major.

Women’s Leadership Initiative The Women’s Leadership Initiative welcomed a new undergraduate student employee, Makayla Williams. She is majoring in political science with a minor in business administration.

During the 2018 midterm election cycle, 10 graduates of the center’s women’s leadership programs ran for office in Oklahoma. Five candidates were NEW Leadership graduates: Devyn Denton, House District 39, Jasha Lyons Echo-Hawk, House District 35, Carri Hicks, Senate District 40, Kassie McCoy, Rogers County Associate District Judge, and Cyndi Munson, House District 85. The other candidates participated in Pipeline to Politics: Merleyn Bell, House District 45, Cathy Costello, Oklahoma State Labor Commissioner, Karen Gaddis, House District 75, Julia Kirt, Senate District 30, and Natalie Mai, Oklahoma County District Judge.

The center partnered with the Oklahoma Women’s Coalition to host the 10th “Pipeline to Politics” conference to help increase the number of women in politics and public service. More than 50 Oklahoma women attended the conference at the OU-Tulsa Schusterman Center in Tulsa.

For the third year, an online fundraising campaign was held through OU’s Thousands Strong platform for the 2019 NEW Leadership program. During the campaign, alumnae were challenged to donate in honor of their class year and to compete for bragging rights to see which class could get the most graduates to donate. The campaign was a success and $9,000 was raised in 30 days. If you missed your chance to donate, please visit bit.ly/GiveWLI.

Community Scholars During the fall semester, seven undergraduate students participated in the Community Scholars

program, a public service-learning opportunity. The students worked 18 hours per week in a nonprofit or public agency in the Norman area where they developed professional experience and skills, and learned how organizations function and interact with the broader community.

The students also attended weekly seminars and briefings with leaders from the nonprofit and public service sectors.

The 2018 Community Scholars and their assignments were: Hayley Lim, Pioneer Library System; Amy Mailo, Legal Aid Services of Oklahoma, Inc.; Saidy Orellana, Visit Norman; Arden Nerius, Cleveland County District Attorney; Emmaleigh Ridenour, Women’s Resource Center, Norman; Hicham Salim, United Way of Norman; Weston Thompson and Sophie Tiger, City of Norman, Development Coordinator’s office.

The center is grateful to the Schwartz Family Foundation for its continuing support of Community Scholars with a $10,000 grant to provide student stipends.

Undergraduate Research Fellows The center continued to offer important research opportunities for undergraduate students. The 20182019 Undergraduate Research Fellows are Ananya Bhaktaram, Maitlyn Brucks, Matt Carey, Grayson Kuehl, Thomas Larkin, Amy Vanderveer, and Braden Zimmerman. These students conduct research tasks for faculty mentors. In the spring semester, students write a paper and are encouraged to present their research at OU Undergraduate Research Day.

Presentations Graduate Fellows Henry Ashton, Matthew Geras, and Sarina Rhinehart, with associate director Charles Finocchiaro, presented extensions | Winter 2019

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“‘Family Matters:’ An Analysis of Family Dynamics and Congressional Voting Behavior,” at the APSA annual meeting.

Director Michael Crespin presented “Minority Participation on Major Legislation: The Case of the Civil Rights Act of 1964” at the APSA annual meeting. He also discussed the PIPC Votes Roll-Call Dataset at the Legislative Rules and Procedures Conference and participated on a Redistricting Reform Forum roundtable discussion held by the Alliance for a Better Utah.

Publications Associate director Charles Finocchiaro published “Making Washington Work: Legislative Entrepreneurship and the Personal Vote from the Gilded Age to the Great Depression,” with Scott MacKenzie in the American Journal of Political Science. The article draws on his ongoing research cataloging all House and Senate bills from roughly 1850 to 1950. Finocchiaro also coauthored an article on student research engagement with a large group of scholars who conducted site studies of polling lines across the U.S. in the 2016 election. The article is titled “Pedagogical Value of Polling Place Observation by Students” and appears in PS: Political Science & Politics.

The work of Graduate Fellow Sarina Rhinehart who partnered with Undergraduate Research Fellows Grayson Kuehl, Amy Vanderveer and Braden Zimmerman was featured in a blog post published by the London School Economics’ U.S. Centre. The post is titled “The evidence shows there was no ‘Trump effect’ in the 2018 midterms” and is available at https://bit.ly/2UbTQxe. Graduate Fellow Matthew Geras and Director Michael Crespin published “The Effect of Open and Closed Primaries on Voter Turnout,” in the Handbook of Primary Elections, Robert G. Boatright ed.

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Routledge Press.

Crespin and Finocchiaro published an invited op-ed in The Hill titled “Why congressional leadership might not be excited about the prospect of earmarks returning.”

Visiting Scholars Nancy Beck Young, University of Houston, visited the center to conduct research on Franklin D. Roosevelt’s first Vice President John Nance “Cactus Jack” Garner and his wife Mariette “Ettie” Rheiner Garner.

John Dearborn, a Ph.D. candidate in political science from Yale University, visited the center to conduct research on how political ideas influence political development. Dearborn also gave a presentation on his research involving the development of the modern presidency as a result of changing conceptions about presidential representation.

Carl Albert Center Graduate Fellow alumnus and professor of political science at the University of Missouri Marvin Overby conducted research on the election of Helen Gahagan Douglas for his forthcoming book. This past fall, Overby was a visiting scholar at the Library of Congress’s John W. Kluge Center.

Carl Albert Center People Graduate assistant Vivian Feng graduated in December with a master’s in library and information studies. Feng worked in the center’s archives for more than a year and helped process five collections including the David L. Boren collection and the William K. Brewster collection.

Kristen McMurray joined the center in August as a staff assistant.

McMurray is an OU graduate and her experience includes five years at Oklahoma City Community College, 3 where she was the Health Professions Division secretary and a clerical assistant. Before that, she worked for

OU for several years.

Katherine McRae completed Lean/ Six Sigma Green Belt training and received her certification in November.

McRae’s group project analyzed the benefit of implementing an electronic process for OU employees to sign up for direct deposit. McRae is the center’s Director of Administration.

Lauren Schueler was accepted into the 2018-2019 class of Leadership Norman during which she will learn about community organizations in Norman. She will be working with The Virtue Center, a nonprofit assisting people with substance abuse, addiction and other mental health issues. Schueler is the Director of the Women’s Leadership Initiative and Civic Engagement.

Graduate assistant Heather Walser received a $500 grant from the Association of Centers for the Study of Congress in recognition of her research conducted in a congressional collection. Walser is pursuing her doctorate in history and will serve as a graduate teaching assistant for the history department beginning spring 2019.

Alumni Updates Carl Albert Graduate Fellow Jessica Hayden successfully defended her dissertation and received her doctorate in political science in August. She is now an assistant professor of political science at Western Carolina University in Cullowhee, North Carolina.

On Nov. 6, Daniel Pae was elected State Representative for Oklahoma’s House District 62. Pae is a former Carl Albert Center Undergraduate Research Fellow and Capitol Scholar, and will represent his hometown of Lawton, Oklahoma in the state Legislature.

Save the Date: Oct. 22-24, 2019 The Distinguished Lecturer for the 2019 Julian J. Rothbaum Distinguished Lecture in Representative Government will be Bruce E. Cain. Cain is professor of political science at Stanford University and the Spence and Cleone Eccles Family Director of the Bill Lane Center for the American West. His lectures will touch on the common policy challenges in the west related to climate adaptation to drought and fires.

Faculty and staff from various Monnet Hall departments raised funds to purchase a record 24 bicycles and helmets to donate to OU’s Fill the Trolley drive benefitting the Cleveland County Christmas Store.

Community Center staff Kay Blunck and Kristen McMurray led the annual Monnet Hall bike collection to support OU’s Fill the Trolley event. After gathering donations from faculty and staff who work in various offices in Monnet Hall, a record number of 24 bikes and bike helmets were purchased and donated to benefit The Christmas Store of Cleveland County.

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In Memoriam Laurie McReynolds retired June 30, 2018, after nearly 20 years of service at the Carl Albert Center and OU. Regretfully, she died Oct. 10, 2018.

Laurie genuinely cared about helping students, faculty, staff and visitors to the center and played a key role in making the center’s programs and operations successful. She will be remembered for her professionalism, kindness, dependability, wit and style. An avid supporter of Sooner athletics, she also served on the board of The Sooner Theatre of Norman and will be missed by many in the OU and Norman community.

You can read more about Laurie’s legacy at www.dignitymemorial.com.

FOLLOW US ON FACEBOOK AND TWITTER! /CarlAlbertCenter /womensleadershipinitiative

Laurie McReynolds was a valuable member of the Carl Albert Center.

@CarlAlbertCtr @W_L_I extensions | Winter 2019

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$39.95 HARDCOVER· 408 PAGES· 25 B&W ILLUS., 13 FIGURES With its rock-bottom approval ratings, acrimonious partisan battles, and apparent inability to do its legislative business, the U.S. Senate might easily be deemed unworthy of attention, if not downright irrelevant. But that would be a mistake. Despite its dysfunction, the Senate finds itself at the center of attention as 2017 develops under a new presidential administration and a heavy slate of legislative issues. Republicans hold the White House, majorities in both chambers of Congress and an ambitious, controversial agenda that includes repeal and replacement of the Affordable Care Act, immigration reform and tax reform.

Because the Senate has become the place where the policy-

making process most frequently stalls, any effective resolution to our polarized politics demands a clear understanding of how the formerly august legislative body once worked and how it came to the present crisis. Steven S. Smith provides that understanding in The Senate Syndrome.

Like the Senate itself, Smith’s account is grounded in history.

Countering a cacophony of inexpert opinion and a widespread misunderstanding of political and legislative history, the book fills in a world of missing information about debates among senators concerning fundamental democratic processes and the workings of institutional rules, procedures, and norms. And Smith does so in a clear and engaging manner. He puts the present problems of the Senate — the “Senate syndrome” — as he calls them, into historical context by explaining how particular ideas and procedures were first framed and how they transformed with the times. At stake is resolution of the Senate syndrome, and the critical underlying struggle between majority rule and minority rights in American policy making.

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THE CARL ALBERT GRADUATE FELLOWSHIP PROGRAM ~ A Commitment to the Study of Representative Government ~ The Carl Albert Graduate Fellowship is a highly-competitive and prestigious program at the Carl Albert Congressional Research and Studies Center at the University of Oklahoma.

Carl Albert Fellows work closely with Center faculty, in cooperation with the Department of Political Science, to pursue a rigorous and individualized program of study leading to a PhD. Fellows focus their program of study on fundamental issues in representative government in America including the study of institutions, processes and public policy.

Faculty regularly interact with fellows in a physical space that facilitates collaboration and scholarly exchange. The laboratory model of graduate education means students will be involved with research from day one.

The robust fellowship package provides up to four years (including summers) of financial support as a teaching or research assistant and a final additional year with no work obligations to complete the dissertation.

The fellowship pays for full tuition and fees, funded research and conference travel, course work at the Inter-university Consortium for Political and Social Research (ICPSR) and dissertation research funds. The Center also assists fellows in finding the best possible placement to meet career goals.

Carl Albert Center Director and Curator Mike Crespin (left) with Carl Albert doctoral fellows (left to right) Courtney Kellogg, Sarina Rhinehart, Henry Ashton, Jessica Hayden and Matthew Geras.

Carl Albert Fellows are introduced to nationally known political leaders and scholars through special guest lectures and seminars.

Distinguished visitors to the Center include Representative Tom Cole, Former Ambassador James R. Jones, and leading scholars such as Daniel Carpenter, Jennifer Hochschild, Frances Lee, John Patty, David Rohde, Steven S. Smith, and Keith Whittington.

Carl Albert Fellows access a rich and diverse selection of other resources at the University of Oklahoma: • Carl Albert Center Congressional and Political Collections: bit.ly/CAC-Archives • National Institute for Risk and Resilience: risk.ou.edu • Political Commercial Archives: pcc.ou.edu

CARL ALBERT GRADUATE FELLOWSHIP Application Deadline: February 1 of each year.

Apply Online bit.ly/CAC-GradFellow extensions | Winter 2019

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extensions | Winter 2019

Extensions is a copyrighted publication of the Carl Albert Congressional Research and Studies Center. It is distributed free of charge twice a year. All Rights Reserved.

Extensions and the Carl Albert Center symbol are trademarks of the Carl Albert Center. Copyright Carl Albert Center, The University of Oklahoma, 1985.

Statements contained herein do not necessarily reflect the views of the Carl Albert Center or the regents of The University of Oklahoma.