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Obama Should Still Resist Congress on Solyndra: Stephen Carter

November 18, 2011

Nov. 11 (Bloomberg) -- A deal may be in the works to allow the Obama administration to comply with a subpoena from the House Energy and Commerce Committee demanding additional documents about the Solyndra LLC mess.

The White House has been resisting, but last night the committee announced, a bit vaguely, that the administration has agreed “to begin providing responsive materials.”

Although the committee’s statement may be premature, a settlement would certainly be good politics, enabling the White House to avoid a confrontation a politically weakened president doesn’t need.

Yet the constitutional scholar in me finds something admirable in the administration’s original instinct to demur. Congressional investigations of the executive branch have been out of control for a very long time, under both parties, and a little more resistance now and then would be a useful corrective.

The chairman of the committee, Republican Representative Fred Upton of Michigan, insists that the documents, which include every internal e-mail in which the word Solyndra appears, are necessary in order to uncover the “full truth” about the administration’s relationship to the maker of solar panels that declared bankruptcy a few weeks ago, leaving taxpayers on the hook for a half billion dollar loan guarantee.

The White House has been arguing that the demands represent “a significant intrusion on Executive Branch interests.”

No Entitlement

Administration critics have been quick to denounce what they call a cover-up, but they are missing the point. Congress has no entitlement to documents from the heart of the executive branch, and can usually fulfill its legislative function without them.

From the earliest days of the republic, every President has taken the position that it is up to him, and not the legislators, to decide how much of the private deliberations of the chief executive and his advisers should be disclosed.

George Washington denied some congressional requests for internal documents of his administration. Perhaps the best-known case was his refusal in 1794 to provide the Senate with copies of the correspondence between the French government and the U.S. ambassador, and between that envoy and the State Department. After consulting his Cabinet, Washington agreed to the request “except in those particulars which, in my judgment, for public considerations, ought not be communicated.”

Every president has made similar reservations, even up to the point of resisting subpoenas. Andrew Jackson refused to give Congress memoranda from his advisers. Abraham Lincoln successfully resisted congressional efforts to obtain documents on many controversies. More recently, Bill Clinton relied on the claim of privilege to shield everything from documents on the firings at the White House travel office to a 1996 memorandum supposedly critical of his handling of the drug war. George W. Bush refused to release papers relating to matters ranging from communication between the White House and the Environmental Protection Agency to pardons issued by his predecessor.

Often the president wins these confrontations. Sometimes the parties fight and snarl before reaching some compromise, respecting both the legitimate role of the legislature and the need to protect the internal deliberations of the executive.

For most of the nation’s history, both branches understood that this political byplay was precisely what the Framers of the Constitution expected. Only in recent decades has the president’s effort to assert his constitutional prerogative been attacked as some sort of illegitimate concealment.

Information Asymmetry

It is no doubt true, as scholars assert, that the ability of the executive to resist congressional demands leads to an information asymmetry that makes legislative oversight more difficult. In 1927, in the midst of the Teapot Dome scandal, the Supreme Court decided in McGrain v. Daugherty that a necessary adjunct to the power of legislation is the power of investigation -- the only way for Congress to obtain information that is, as the justices coyly put it, “not infrequently” in the possession of others.

The trouble is that the investigative power can also create a certain legislative laziness, especially in executive oversight, which too often descends into farce. A good example is when presidential functionaries are called to Capitol Hill to be lectured about snippets of memoranda that are selected because they make good television.

I am not suggesting that all congressional hearings are circuses, or that all circuses are bad. Consider the hearings into the causes of the 1929 stock-market crash, a tale compellingly told in Joel Seligman’s 1982 book “The Transformation of Wall Street.” The atmosphere was ridiculous, as one millionaire after another was called on the carpet for the sin of being rich. Seligman concedes that no plausible legislative purpose was served by forcing the titans of finance to disclose their personal incomes. Yet, he points out, the disclosures “galvanized broad public support for direct federal regulation of the stock markets.”

Sometimes, then, the circus is needed to get people to pay attention, and the public’s attention is needed to enact legislation. The testimony of the consumer advocate Ralph Nader before multiple committees is widely credited with building support for traffic-safety legislation in the 1960s.

Too often, however, the hearings serve a scant legislative purpose at best. They serve, more directly, an electoral purpose: to embarrass political opponents; to get the faces of legislators on television; and to raise money by signaling to supporters of whatever party controls Congress that their interests are being protected. (One thinks of demands last summer by various powerful constituents that Congress “investigate” ratings company Standard & Poor’s after it downgraded U.S. debt; or Planned Parenthood, for various real or imagined sins.)

Defenders of broad congressional investigative authority point to Watergate, or even to the current hearings on how a Justice Department program that was aimed at tracking illegal weapons sales ended up putting guns in the hands of Mexican drug dealers, who used them to kill an agent of the Drug Enforcement Administration.

Personal Destruction

But for every committee pondering a genuine outrage, there is another one ready to use its powers in the service of personal destruction. Even the vicious ravages of the House Un- American Activities Committee were plausibly, if distantly, related to a genuine legislative purpose.

There’s no reason to expect any president to cooperate in the destruction of his own administration. If, on the other hand, the congressional need for particular documents is truly pressing, its members aren’t limited to public fulmination. Of George Washington’s refusal to turn over documents, the distinguished legal scholar Abraham Sofaer once noted that the senators were always free to use “their power over foreign policy, funds and offices to pressure the President to divulge.”

Exactly. Congress holds enormous constitutional authority to bend a recalcitrant president to its will. But standing on a soapbox is so much more fun.

I’m not defending the administration’s conduct, either in the original decision to grant Solyndra the loan guarantee or in its response to criticism as the scandal has lingered. And although at one time I supported the program of loan guarantees for firms investing in alternative energy, I have been persuaded that the critics were right all along, that this sort of crony capitalism is bad for both markets and democracy, and is unlikely to accomplish its goals.

But no White House e-mails are needed to make this point. If House Republicans want to end the loan program, they are free to vote its abolition, and then lobby the Senate to follow suit. If on the other hand their true goal is to embarrass the administration, then the president should continue to resist.

(Stephen L. Carter, a novelist, professor of law at Yale University and the author of “The Violence of Peace: America’s Wars in the Age of Obama,” is a Bloomberg View columnist. The opinions expressed are his own.)

--Editors: Max Berley, David Henry.

Click on “Send Comment” in sidebar display to send a letter to the editor.

To contact the writer of this column: Stephen L. Carter at stephen.carter@yale.edu

To contact the editor responsible for this column: Tobin Harshaw at tharshaw@bloomberg.net


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