President vs. Congress: Does the separation of powers still work? (1980) | ARCHIVES
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President vs. Congress: Does the separation of powers still work? (1980) | ARCHIVES

September 17, 2019

Announcer: From the nation’s capital, the American
Enterprise Institute for Public Policy Research presents Public Policy Forums, a series of
programs featuring the nation’s top authorities presenting their differing views on the vital
issues which confront us. Today’s topic, president vs. congress, does
the separation of powers still work? John Charles Daly: Nearly 200 years ago, our founding fathers in the Federalist argued that the accumulation of all powers, legislative, executive and
judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed
or elective, may justly be pronounced the very definition of tyranny. The preservation of liberty requires that
the three great departments of power should be separate. The underlying argument elsewhere in “The
Federalist Papers” states that great security consists in giving to those who administer
each department the necessary constitutional means and personal motives to resist encroachments
of the others. Ambition must be made to counteract ambition. Then nearly 100 years ago, the federalist
concept was hotly challenged and by one who would later be president of the United States,
Woodrow Wilson. Wilson denouncing the almost absolute power
of the standing committees of the congress and the overriding discipline of an external
authority, the political party to which the majority of the congress owed allegiance called
for cabinet government. He defined cabinet government as simply to
give to the heads of the executive departments the members of the cabinet seats in the congress
with the privilege of the initiative in legislation. Thus, in essence was launched the debate in
modern times on reform of our system of government toward the British parliamentary system, modifications
of which are general in Western Europe, and yes, in Japan. And the turmoil and frustrations of these
past years, both in the domestic and foreign affairs areas, and urgent demands for more
effective and efficient government have renewed debate on the question, does the separation
of powers still work? To lead us through this labyrinth, we have
a highly expert panel. To my far right, Mr. Henry O. Brandon, Foreign
Correspondent, War Correspondent, Diplomatic Respondent, and now, Bureau Chief and Associate
Editor in Washington of “The Sunday Times” of London. To my immediate right, Mr. Lloyd N. Cutler,
a distinguished Washington attorney with broad experience on government and academic boards
and commissions, kept by service in the White House as counsel to President Carter. To my immediate left, Mr. Laurence Silberman,
also a distinguished Washington attorney, former Deputy Attorney General of the United
States, former ambassador to Yugoslavia, former Undersecretary of Labor, and senior fellow
at the American Enterprise Institute. Mr. Silberman is presently an Executive Vice
President of the Crocker National Bank in San Francisco. To my far left, Dr. James Q. Wilson, a member
of AEI’s Council of Academic Advisors, former director of the Joint Center for Urban Studies
of MIT and Harvard, and Harvard’s Henry Lee Shattuck Professor of Government. Well, to begin gentlemen, I would pose the
same question to each of you, is our 200-year-old separation of powers tradition an anachronism,
obsolete in the technology, and mass and speed of communications in modern society? Mr. Cutler. Lloyd Cutler: John, I believe it is an anachronism
and one in need of some revision, along with then professor then later President Wilson,
I believe we do need to do a better job of forming a government in the parliamentary
sense that can legislate and execute a balanced program for governing and that with every
succeeding administration, this need is becoming more acute. I also believe that the fault is not personal
to any president or a legislator, but that the structure of our constitution and in particular,
the rigid separation between the legislative and the executive branches, prevents us from
doing significantly better. And I think, and I’ve been urging that it’s
time for all of us to start pondering and debating in forums like this one, about whether
and how to correct this structural fault. John Charles Daly: Ambassador Silberman? Laurence Silberman: Well, I’m afraid I disagree. I’m inclined to believe today as people believed
200 years ago that the separation of powers doctrine is an enormously important protection
for American citizens. That is to say that the separation of powers
between the three branches of government makes it very difficult for the government to accrue
power. And I think it is as desirable today as it
was 200 years ago to make it difficult for the government to accrue power, because that
is after all, the potential or of one potential threat to the well-being of citizens. John Charles Daly: All right. Mr. Brandon. Henry Brandon: I want to make it clear from
the start that I do not mean to propose the imposition of the British monarchy or the
British parliamentary system here. I am in favor of reforms of the present American
political system. It is a system that is today the oldest and
the least changed in the world. The office held today by the American president
is far more like that held by President Washington than that held by Queen Elizabeth II, it resembles
that held by George III. The United States today is a leader of the
free world. And as such, it has to undertake some very
major and important commitments. And if the president cannot be sure that he
can adhere to those commitments, it becomes very difficult for the United States to be
recognized as a world leader. John Charles Daly: Dr. Wilson. James Q. Wilson: To paraphrase Winston Churchill,
I think the separation of powers is a poor philosophy of government save in comparison
to all others. It has its defects, those will probably come
out in our discussion, perhaps notably with respect to the conduct of Foreign Affairs,
but it has the virtues of those defects as well. It facilitates scrutiny at the expense sometimes
of action, it protects the particular and the individual sometimes at the expense of
the general, but it has brought about the capacity to engage in great national commitments
when important national emergencies arose, and it has above all, permitted a union to
be created out of great diversity by providing separate constitutional places on which individuals
could focus their loyalties. John Charles Daly: Right. Mr. Cutler, your article in foreign affairs
in the closing months of 1980 entitled, “To Form a Government,” has brought debate on
the separation of powers to center stage. You wrote particularly of the separation of
powers between the legislative and executive branches. And you said,”The separation of powers between
these two branches, whatever its merits in 1793, has become a structure that almost guarantees
stalemate today.” Now, in a very broad brush, you suggested
that we should have candidates for president, vice president and congress run as a team
in all election districts that require a half of the cabinet to be or allowed to be members
of the congress, establish a six-year term for the president, the vice president, the
members of the senate and the house, establish procedures for the president or congress to
be able to call for general elections when stalemate sets in for the remainder of the
current terms, this election process to take no more than 120 days. Lloyd Cutler: My argument really has two basic
points to it. Let me say first that I did not advocate any
of those constitutional revisions that you enumerated. I simply tabulated them as ideas that had
come to the forum. My central proposition is that we need to
study and appreciate more than we have the costs of the separation of powers between
the legislature and the executive that need to be weighed alongside its admitted benefits. My central thesis is that at least in 1980
and then in the decades ahead, if not at some earlier time, we need to have in this country
a balanced program for governing, rather than a hodgepodge program for governing. By that, I mean, that government has any number
of important social, and economic goals, controlling inflation, providing jobs, increasing productivity,
ensuring social justice and social welfare, providing for our national defense, accepting
America’s role today as the guardian of the entire free world, protecting the environment,
that not all of those goals can be pursued in full vigor at the same time even in a country
as rich as this one, and that the art of governing has become striking the proper balance among
the goals, and coming forward with a balanced program presented to the electorate on the
basis of which elected officials are elected, and can then proceed to legislate if necessary,
and then execute that balanced program. My thesis is that today, it is impossible
for the elected president or the elected majority in either house or both houses of congress,
to legislate and execute a balanced program. We have no way given the structure of the
presidency, and the congress, and the many things that have happened to our party system,
the growth of single interest political groupings, the well-meant reforms of congress, no way
in which the resulting policies adopted are a balanced set of policies, which anyone elected
will endorse. The president does not endorse the package
that emerges. It’s not his program. It is not the program of a legislative majority. It is a series of individual ad hoc majorities
each pursuing its own policy on each particular issue as it arises. And as a result, when failure comes, when
the effort to pursue these various policies gets out of balance, we have no one to hold
accountable. The president cannot fairly be blamed because
his program has not been adopted. The majority of congress or the minority cannot
fairly be blamed. They don’t have any particular program of
their own, and the majority differs from one measure to another. And that that is a basic problem of American
government, not shared by the parliamentary governments including those with written constitutions,
many of which we help to write in the post-war era ourselves, notably the constitutions of
Germany and Japan. It may be that some of the deficiencies that
have resulted, that is the lack of power in anyone, any group of elected officials, to
enact a balanced program and execute it, could be cured by non-constitutional measures, but
they are structural problems, which every president elected in this century has had
to endure and which every president with the possible exception of FDR in the face of two
great national crises that helped to bring us together has been unable to solve. John Charles Daly: All right. You have put a large agenda on the table. Ambassador Silberman, do you like to do that? Laurence Silberman: Yes, I will, John. Actually, given one axiom or one hypothesis,
I would agree with Lloyd entirely. If we could reach behind there and pull down
those books and find the balanced program that we could all agree upon, he would be
absolutely right. But in fact, there is no such thing as a balanced
program. There is one program, another program, other
person’s program. In Lloyd’s article, he uses as an example
of an excellent piece of legislation, indeed a treaty, the SALT treaty in which all people
would recognize it was balanced. Well, in fact, there was a substantial, perhaps
majority, certainly significant minority in this country, that thought it was awful and
in fact, thought the president behaved imprudently in negotiating that since he had been signaled
at the very outset by the selection of his arms control negotiator and the 40 senators
who voted against the confirmation that he was going to have a very difficult time getting
the SALT treaty that he wished to negotiate through the senate. In fact, had he been more prudent, he might
have come up with a different treaty, and might have gotten it through. But you can’t take the proposition and accept
it, that what President Carter thought was balanced. That is to say which worked out of a bureaucratic
clash between various executive branch agencies was somehow superior in any way to that which
would come out either in legislation, or treaties, or whatever, out of the process of the executive
proposing and the congress compromising and legislating. In other words, in short, there is no magic
to Lloyd’s assertion that there is some magic kind of balanced program which will come forth
from an executive, a president, if you just leave him alone. John Charles Daly: Dr. Wilson? James Q. Wilson: As I read Mr. Cutler and as I
listened to him, I think he has a philosophy of governance that was at odds with that,
the framers of the constitution embodied in that document. Good policy, good government is, I think to
Mr. Cutler, the product or the act of a single will, it is an active management of allocation,
of balance. The framers I think thought differently, that
good policy could be recognized when it appeared but to achieve it in the real world required
that in the process of ambition, counteracting ambition, coalitions would have to be formed,
coalitions out of partially self-interested groups, and they helped that the constitution
would lead these coalitions to emerge only on the principle of the common good. This has not always happened, but it is a
first approximation of their effort. I think it is intellectually unlikely that
given the difficulty and magnitude of our problems, admittedly great, but I suspect
no greater than the problems other presidents in past centuries have had to deal with, that
intellectually we can devise a program that corresponds to a theory of governance based
on an act of will or intelligence. And I think politically, it’s unlikely that
we can devise institutions which could translate that will if formulated into a desirable effect. If we consider Great Britain, with due respect
to Mr. Brandon, I do not see that great, steady hand, that even philosophy of governance,
that striking for balances that emerges from the parliamentary system, they have nationalized
and denationalized interests, industry at a dizzying rate, they have perhaps the worst
labor management relations of any Western democracy, they have had extraordinary difficulties
in deciding whether they’re going to be part of the European community or not part of the
European community, I have profound sympathies with their difficulties because I think we
would have as many. But it does not suggest that once you put
in place the appropriate parliamentary devices, that there is a will which when revealed will
produce altogether good effects. John Charles Daly: Mr. Brandon. Henry Brandon: I want to, first of all, take
issue with my colleague, George Will, who seemed to have blamed President Carter for
these constitutional difficulties. So it’s often also said that the problems
that have arisen are all due to the aftermath of Vietnam and Watergate. As a little practical example, in 1962, President
Kennedy asked congress for a tax cut. And for months, he labored to get that tax
cut, and he couldn’t get it. And it happened that I saw Prime Minister
Macmillan at the time in London, and he said to me, “You mean to say that if the American
president wants a tax cut, he can’t get a tax cut?” I said, “Yes, that’s the case.” He said, “You know, if I need a tax cut, I
can get it within a month.” Now if a president has decided that it is
the right thing for this country to have a tax cut, and he can’t get a tax cut, how on
earth can he do the best for his country? How will Mr. Reagan be able to govern if he
finds himself in a very similar position? I don’t know whether he will get his tax cut
or not. But you can’t tell me whether he is going
to get that tax cut. So it is very difficult for any government
in this country to plan ahead. You want a long term policy that stretches
maybe over two, three, or four years particularly in the economic field. And if you cannot say that I would like to
accomplish in two years, this or that, how on earth can a president govern? John Charles Daly: Well, Ambassador Silberman, Franklin
Roosevelt, Harry Truman, despite election year invective, Dwight Eisenhower, Lyndon
Johnson, all managed to work effectively with congress under varying conditions. There is no intent here tonight to focus on
President Carter because we’re really talking about the problems of the presidency in the
issue of separation of powers. But is it possible that policy failure and
stalemate, as we have noted and identified it in our times, to a high degree depends
on the incumbent in the White House? Laurence Silberman: Well, of course. I hesitated to take up Lloyd’s example of
President Carter’s governance, for want of a better word, over the last four years because
the election is over and we shouldn’t be partisan anymore. But since George Will is being attacked for
suggesting that a good part of President Carter’s problems were brought upon himself, I must
confess, I totally agree with that. And I think the reason for that is that… John Charles Daly: All right. I just hope we can have a repeat of this program
three and a half years from now. Ambassador Silver: You’ve got a guarantee,
you’ve got a guarantee. And incidentally, President Reagan’s proposal
for a tax cut is a balanced program. Well, you’ll accept that, won’t you? John Charles Daly: I would like to see President Reagan
and the elected majority, and unfortunately there isn’t one, have the opportunity to carry
out the Reagan program, so the Republican platform program. Laurence Silberman: President Carter governed
very much out of the philosophy, it seems to me, of Lloyd Cutler’s article. He took each problem by itself sort of as
an ad hoc engineering problem, and thought there was a “right solution,” or to use Lloyd’s
word, a “balanced solution.” And he would work on it, and arrive at it,
and spring that forth to the congress, and then wait with astonishment when the congress
either rejected it, chewed it up by amendment, or ignored it. Well, the fact is that we want something more
out of a president than the intellectual will, or the individual who can promulgate messages. We want a savvy politician who can form consensus,
and who also comes to the presidency with some kind of coherent notion of what he wants
to do with the presidency. And after all, that is only what he has is
the presidency. And I would submit to you that if anyone goes
back and looks at Jimmy Carter’s campaign promises, despite some of the illusions in
Lloyd Cutler’s article, you’ll find it very difficult to find that coherent program. That is to say I think he came to office without
a clear idea about doing anything except reorganizing the government, moving boxes around, and theoretically
creating less agencies, and he ended up creating more. And as a result, since he had no coherent
idea of what he wanted to do, and he disdained the political process, which is the process
by which you build consensus, it was inevitable that he would fail. And finding solace in the structure of the
Constitution seems to me whistling in the dark. Lloyd Cutler: Well, if we’re going to get political,
as a veteran, an administration of one president who was unable to complete his term, the only
one who resigned in history, and another president who was unable to win an election, I’m surprised,
Larry, that you would make remarks of that kind. The issue is an issue of whether anyone’s
program or any majority’s program can be adopted. Is there anyone you know of during the Ford
Administration or the Nixon Administration who was ready to say, “The programs that were
followed during my administration are programs I totally endorse. And I submit to you, you will not find that.” President Ford over and over again was ready
to criticize that democratic congress, which did not allow him to carry out his programs. One of the oddest things, but one I think
that helps to prove my point is that we not only have a system in which the presidency
and the congress, majority in the congress, have been held by opposite parties for half
of the last seven administrations, and we’re now about to enter an eighth. But that even when they are held by the same
party, it doesn’t seem to make any difference. The opponents of SALT II, if you wanna bring
that up, had no balanced program of their own for governing. They might have had a way to go about arms
control and an arms race in the way that they thought was best, but they had no solution
as to how that was to be balanced with the other problems of the budget, and unemployment,
and social justice, and social security. No one is prepared to endorse the outcome
of what our combined melange of legislators and president come up with. Essentially, to go back, as I mentioned in
my article, to old Joe Jacobs, the fight manager, it’s every man for their self, as a recent
AEI book urged in its last chapter. When we speak of how the president ought to
be able to manage the government, there isn’t any government down there to manage. There are a series of sub-governments pursuing
single interests of one kind or another. And a new majority has to be formed on every
single issue. I’d like to come back to Jim Wilson’s point,
if I could, that my thesis is at odds with the framers. I would agree with that because the framers
did not want the government or a government to exist that could manage our lives and manage
all the problems that we face in the world. If you believe that the government should
do the very least possible, not only in domestic affairs but in foreign affairs as well, the
framers had a very good system for doing that. I’d also like to point out, Jim, I’m not speaking
of the act of a single will. I am not urging more power for the president
and less power for the congress. What I am urging is that the president and
the majority, the elected majority in the congress in one way or another have to be
made to share the same political fate, and take a joint responsibility for forming a
balanced program, carrying it out and living or dying politically by the results. That’s the central thesis. And how to go to accomplish that, I admit,
is a very, very difficult proposition. But without it, I submit, stalemate and a
continued melange of policies that no elected official is prepared to endorse because he
always had a better program, and he should not be held accountable for the result, is
an unsatisfactory method of governing ourselves in this century especially with the need we
have to react promptly to new events and crises all over the world, which are no longer within
the reach of American military power. John Charles Daly: Dr. Wilson. James Q. Wilson: You see, Lloyd, though I grant
some force to your argument with respect to the conduct of Foreign Affairs, I don’t think
that in general, it corresponds to what the American people expect. They do not wish to have an opportunity to
vote yes or no on a party’s cohesive performance in office in which it takes responsibility
for the policies that have been put in place because the American public does not exist
as a public, it is a collection of separate publics that has discovered I think or would
readily admit if it were pointed out to them that if they have to vote yes or no on a comprehensive
set of policies, they can’t. They are torn with too many internal contradictions. I think they would far prefer, and over the
last 200 years have more or less successfully modified policies by taking up the various
constitutional opportunities presented to them, off term elections for the House, six-year
terms for the senate, presidential elections, the congressional oversight process, the lobbying
process, campaign contributions as a way of giving expression to particular preferences,
which I admit, the unlucky folk in Washington must cope with and try to put together into
a coalition around that issue. This creates great difficulties for those
who govern, so great a difficulty that many persons have traditionally, especially those
associated with activist presidents, regularly published books about the deadlock of democracy. Whenever the deadlock is broken, however,
as they allege it has been in recent years, they bring out a new title of a book, it’s
called, “The Imperial Presidency.” And that doesn’t seem to be desirable either. I happen to agree with the notion that the
imperial presidency is a mistake, but I don’t think we’ve had an imperial presidency with
perhaps a few exceptions. I think the deadlock of democracy is not a
deadlock at all, that it produced in the ’30s, and in the ’60s, and in the ’70s an extraordinary
outpouring of legislative innovation because there was a sufficient coherence to certain
ideas to permit change to occur. But the people are unwilling to simply vote
yes or no in a national referendum about the record of a party because the people are too
various. They wish these diverse opportunities to peck,
and chip, and constrain in order to moderate policy. My view is that if you take American policy
and compare it to that of most parliamentary democracies, its leading characteristic is
its moderation. There are many policies I don’t approve of
and regularly call immoderate. But taken as a whole, we tend to temper the
enthusiasm of temporary majorities by the need to constantly reformulate that majority. Lloyd Cutler: But let’s go on to something that
everybody in this audience would agree on, and that’s the budget. If there is any critical element to running
a government or running an economy, it is a budget. We are the only democracy in the world that
I know of in which the legislature is able to enact an aggregate budget and appropriations
greater than proposed by the leader of the government. We have a budget consistently with a higher
deficit than the president wants, than the majority leaders want, than every member of
congress wants because we cannot get together on a single budget. The result of the melange of interest that
Jim and Larry have described make us essentially ungovernable. We cannot have a budget. The central feature of modern government and
running a modern economy today for which either the elected president or any, any of the 535
elected members of the congress, senate and house, will take responsibility. They all wanted a lower budget with more for
their programs and less for somebody else’s programs that would be more balanced but they
couldn’t get it and nobody is at fault. I say to you, that is not a government and
that is not a responsible way of conducting ourselves in this latter half of the 20th
century. John Charles Daly: Mr. Brandon. Henry Brandon: I think it comes down to the
simple fact that there has to be someone who can define and determine the national interest. And a body like congress in its today’s composition,
and I’m not talking about 100 years ago, cannot do that. It cannot formulate, for instance, a foreign
policy. It cannot formulate a budget. So you have to have someone you trust, and
after all the president is elected by the people. And the president has a vast a variety of
counselors. And you have to assume that he can make mistakes. But maybe, his mistakes in the end are less
perilous than having no policy, or having a policy, as Lloyd calls it, of a hodgepodge. John Charles Daly: Dr. Wilson? James Q. Wilson: I wish we wouldn’t agree so readily
that America has a foreign policy that is a hodgepodge. I disagree with many elements of it and certain
tendencies of it, but we’re speaking now of a country that won the Second World War, that
put in place European reconstruction, that rearmed the West, that created the NATO alliance,
that gave aid to Greece and Turkey, that established a ring of alliances, that gave some hope to
democratic regimes in all parts of the world, that fought communist interventionism when
it was not in our material interest to do so, and though we have surely made mistakes
in the pursuit of all of these objectives, I really don’t think that’s
such a bad policy. And if you ask would a stronger president
have a better one, I ask did General de Gaulle have a better policy when he was President
of France with certainly all the power he could have wished for. With respect to the budget, I agree that the
budget cycle that Lloyd accurately describes, proves conclusively that there is a difference
between the public interest and the summation of private wants, something that my colleagues
in political science like to deny, but this fact, I believe, establishes it. The question is how do we deal with that? And I’m not sure it’s by having a stronger
president who can say, “This is my budget. Take it or leave it.” President Johnson did this during the Vietnam
War, and decided to print money to finance a deficit. It seems to me perhaps we have to have a sharper
restriction. And though we have not mentioned it so far,
if constitutional revision is to occur, perhaps we should consider those forms of revision
that place a limitation linked to gross national product and public expenditures. John Charles Daly: Well, I believe we have broadly presented
the subject, and also the issues that are concerned in it. Time for the question and answer sessions. May I have the first question, please? Sir. Mel: Mr. Cutler, I’m Mel Elfin of “Newsweek”
Magazine. Under your system, you suggested that when
the president and the congress reached a stalemate, they would necessarily have to resign and
have new elections, how would that contribute to the efficiency of government and speed
in dealing with foreign policy issues? Don’t we necessarily…wouldn’t it put us
on the road to have a kind of Fourth Republic? Lloyd Cutler: Mel, I didn’t suggest any of the
proposals that are listed. I simply tried to catalog them. The present French constitution, as you may
know, empowers the president to call for new elections in the parliament, not the other
way around. One possibility that has been brooded about
is a possible two-way street, one in which the president would have to take the initiative. If he exercised a constitutional power to
dissolve the congress and call for new elections, a majority or perhaps two-thirds of the congress,
only in that event, could call for a new presidential election at the same time. That power is sort of an ultimate nuclear
weapon kind of power admittedly. But its existence might break many stalemates
because of the distaste of the members of congress for having a new election. That’s the theory of it. And of course, it could only work if we had
an electoral system and we would have to adopt it as part of any such change, which could
produce a new government as in Britain or in the constitutional parliamentary systems
within 30 to 60 days. Mel: Can I ask this question? John Charles Daly: Dr. Wilson. Lloyd Cutler: Unless the incumbent government
is staying in until the election had been held. James Q. Wilson: Once you start unraveling the
sweater, it all starts coming apart. You cannot change one part of the system without,
as Mr. Cutler has indicated, thinking about changing all parts of the system. If we have the president calling an election
or the congress forcing a presidential election we have to change the party system, which
means we have to change the degree of control of the national government over state governments
because ultimately, they control the local party systems, we have to force a different
kind of primary or convention system. This alters the relationship between the state
governments and the parties. I cannot, because I lack the wit, imagine
all of the additional permutations that are implied. My point is simple, there are no simple changes
in the constitution. Mel: But also, Mr. Cutler, doesn’t it work
in the system where the party is unified over principle, where there are smaller constituencies
and more unified homogeneous countries? In our country of 220 million people and so
many diverse political interests, our political parties really couldn’t sit down and subscribe
to a single body of values, look at the fighting that goes on over something like a political
platform in a convention. It is the least, lowest common denominator. It would be hard to find a group of congressmen
and a president of either political party who could sit down and agree on a balanced
program. It would be exceedingly hard, and I therefore,
I think it would lead to incredible instability. Lloyd Cutler: For any of these various measures,
the whole point of it is to induce the kind of shared political faith between legislators,
majority of legislators as a group, and the president that would lead them to agree on
a balanced program. If we are going to accept the proposition
that we’re so diverse, we can’t agree on a balanced program, and therefore, we can’t
have one, well, I really fear for what’s going to happen to this country if we can’t have
a balanced program, we can’t control our budget. Excuse me, I’m going to say one more thing. My main thesis though, Mel, is not to advance
any one of these solutions. I agree every one of these solutions has a
lot of problems to it. My main thesis is to try to establish the
proposition that we need to do better in forming a government, as I describe it, that we don’t
do it today, that structural problems stand in the way, particularly the lack of a shared
political faith between the legislators and the president or the candidate for president. And that that’s what we need to focus on. John Charles Daly: Ambassador Silberman? Laurence Silberman: Well, I would simply
mention very briefly and reiterate the point that I don’t think we could define a balanced
program. I think that’s a very illusory word. It suggests some kind of objective standard
and there is not. Lloyd’s balanced program would be an anachronism
to me. And to go back… Lloyd Cutler: Larry, that’s the whole point. Laurence Silberman: To go back Henry’s point,
I don’t think we can trust anybody to define the national interest, even the president,
except me. And I don’t think you’ll give me that constitutional power. Lloyd Cutler: It’s not a question of whether
program A is better than program B, whether more defense and less social welfare is better
than the other way around, whether we ought to lower taxes to increase productivity or
have the federal government do something. It’s that somebody’s program is given a chance. What we have today is nobody’s program. No one is prepared to endorse what we have
today, and I will wager you anything that Governor Reagan, President-elect Reagan, will
not be able to carry out his program, however he chooses to define it. And he will say, “You can’t blame me.” And the congress will do the same thing. John Charles Daly: Mr. Brandon? Henry Brandon: I only want to add that Mr. Elfin
defined the reasons why I think the British parliamentary system could not be applied
in this country. John Charles Daly: The diversity of our society. Henry Brandon: Yeah. Male: We got a question. John Charles Daly: Yeah. All right. Next question, please? Yes, sir. Walter: I’m Walter Berns, American Enterprise
Institute. Mr. Cutler, I’m afraid I have to ask you a
question or two. It seems to me that you exaggerate the difficulties
that the President faces both in foreign policy and in domestic policy. With that, of course, I mean that he faces
difficulties that are a part of the system of separated powers and that these difficulties
really prevent him from doing what has to be done at any particular time. Could it fairly be said that it was the separation
of powers that prevented President Carter from responding properly at the time when
the hostages were seized? John Charles Daly: Mr. Cutler. Lloyd Cutler: I don’t think in the case of the
hostage crisis, which united this country, in which congress probably would have done
anything that the President asked, that the separation of powers was a factor. I disagree with your conclusions that the
President adopted the wrong policies. I haven’t heard any other policies put forward
either before or after the fact that had much of a chance of achieving any different result
than what we now have. But I’ll give you some other examples. I’ll give you the invasion of Afghanistan
and the need, number one, or at least the perceived need by the President to provide
some additional aid to Pakistan, where we ran into the problems of legislative requirements
that neither military nor various some types of economic aid could be given to Pakistan,
unless Pakistan had given certain non-proliferation assurances, which could not be obtained. Or the case of draft registration in which
when the President, the head of our government in foreign policy determined that one appropriate
signal to the Soviets was that at the very least, we were going to prepare for the possible
need for a draft. The difficulty of obtaining draft registration
approval even for a $20 million appropriation, that’s all that was at stake, took so long. And all as to blunt the message we were trying
to send and proved almost insurmountable. Walter: Your first response, I think, is interesting. That’s to say your response to my first point
about the seizure of the hostages. You said, if I can recall exactly, that on
that particular occasion, it was certainly not the separation of powers that prevented
the president from doing what might be done because there was such a unanimity of view
in the country. And that any policy that made sense probably
would have… Lloyd Cutler: Even some that didn’t make sense
that have been enthusiastically supported by Congress. Walter: And probably some that wouldn’t make
sense, yes. Now it strikes me that that is exactly the
sort of thing that Mr. Wilson was talking about earlier that when indeed that kind of
unanimity behind a particular policy is understood to be, or is present, and when there is that
kind of agreement in the country that a particular problem has to be dealt with and so forth,
the separation of powers is not an insuperable barrier to the achievement of policy. Lloyd Cutler: That’s entirely right. Walter: And that’s why I conclude by repeating
what I said at the beginning, in my opinion, you exaggerate the difficulties pulled by
the separation of powers. Lloyd Cutler: I tried not to. I tried to point out in my article that when
the system has worked, when we have been able to legislate and execute a policy for dealing
with a situation, the Great Depression, an FDR second experience of World War II, the
early days of the Johnson Great Society, perhaps the early days of Wilson’s own new frontier
that when there is a great consensus in the country, usually brought on by a great crisis,
an external shock, the assassination of a beloved president, whatever it might be, for
a while, the system works. But those are very rare times in this century. And when we think of when the system worked,
when we think of great presidents who accomplished something in their administrations, we tend
to think of Wilson, FDR, perhaps, Lyndon Johnson and perhaps Ike who governed successfully
for eight years by running the most limited possible government. Ike, I think you can throw out because his
theory was to do as little as possible. And while it worked in 1952, I, at least don’t
think it works in the world we live in today where we, our own economy now, is such an
integral part of a worldwide system over most of which that rid of our constitution, and
our government just doesn’t run at all. I don’t think it is possible any longer to
let our little free enterprise system unmanaged flower in a world of managed and competing
world economies. I may be wrong about that, and I don’t wanna
debate that. John Charles Daly: You wanna talk to these points Mr. Ambassador? Laurence Silberman: Yes. I would just respond to Lloyd Cutler’s last
remark. It seems to me his comment about the Eisenhower
Administration reflects what is the underlying reality of his thesis. It is posed in terms of a procedural reform. But in fact, it’s based on certain subjective
notions of what are a proper policy. And if you read his article, it’s quite clear. He goes through and explains all the things
that the Carter Administration couldn’t get done, which he thinks should have been done. And then he describes him as balanced. And then he says, “Since we couldn’t do that,
there is a fundamental defect in American government and it has to be our constitution.” And it seems to me it’s very difficult reading
his article or hearing him tonight to think of any neutral question that somehow can be
described outside of a subjective policy view. Now, earlier when I talked about one man’s
balanced program is another man in the extreme program, he made his second point which is,
well, put that aside, still at least there ought to be a political accountability and
everybody ought to have to stand together under a single program, the congress, senate,
president. Well, as a matter of fact, we had an election
in the latter part of 1980 in which a great deal more of that than many thought was likely
or possible showed out to be true. Then a number of senators were turned out
of office as well as the President for voting for and adopting certain policies, which the
majority of the American people thought were wrong. John Charles Daly: Let us get onto another question with
no objection. Next question, please. Ruth: Yes. I’m Ruth Hinerfeld with the League of Women
Voters. I would like to pursue this question of a
national consensus. As Dr. Wilson said, the public interest is
not necessarily the sum of private interests. And as Mr. Cutler has pointed out, national
consensus only seem to emerge in times of great national adversity. What institutional improvements or changes
can there be short of the kind of changes advocated by Mr. Cutler that would help the
nation in its search for consensus? John Charles Daly: So since you were first mentioned, would
you start, Dr. Wilson? James Q. Wilson: I’m not confident there are institutional
strategies to achieve that objective. I think among the reasons why there is not
only descensus, but in some quarters disaffection about the government is that the government
has promised more than it could achieve, and has done so at the expense of inflating the
currency and harming in a very visible way, a style of life that most Americans thought
was their birth right. I am not convinced, and this is the source
of my ultimate skepticism about Mr. Cutler’s proposal, that institutional reforms of the
sort he proposes would do anything more than feed this process by enlarging expectations,
enlarging the role of the president as a national leader, conducting a not an election but a
plebiscite in which his proposals would be put forward, and based on assembling a coalition
out of by offering as much as possible to as many as possible. And that though this would sound good in the
short run, it would lead to these enlarged and then ultimately frustrated expectations. Lloyd Cutler: Well, I agree with Jim Wilson
as to what wise policy is for the federal government. I also would like to see it be more modest
and much more forthright in recognizing that we can’t have energy self-sufficiency and
a perfect environment, and a productive industry all at one in the same time. But my difficulty with what he suggests is
that, it is going to be very difficult for a president elected on a mandate of having
government be more moderate to carry out that policy. And we need a way, and I think in the end,
the public is going to look for the party that is going to say, “We do intend to discipline
ourselves. If you elect us to office, both the presidency
and the legislature, we are going to stick together and carry out this program. And if the majority whip goes against the
leadership and the President on a particular matter, he’s gonna lose his office of whip,
something we don’t do today in our system. John Charles Daly: Anybody else wish to talk to this question? Next question, please. Yes, Dr. Stein. Dr. Stein: Herbert Stein, American Enterprise
Institute. There is a question which I did not hear discussed
and that has to do with this change in the kind of thing that government does which has
affected the balance of power between the executive and the legislative branch in a
very fundamental way, and that is this enormous explosion of government regulation, which
the congress has no possible way of exercising any control over and which has inevitably
made an enormous shift of power towards the executive. And I wonder whether anybody has any suggestions
for ways of readdressing that imbalance. Lloyd Cutler: I will move right over with you
and Larry on that proposition. I’ve proposed myself that the president should
assert power over the executive branch, regulatory agencies, and even that the congress give
him power over the independent agencies. But once more, to be able to do any of these
things, you need the discipline as between, even an executive so disposed and the majority
in the congress, to accomplish it, because as you know, every congressional, every regulatory
agency has…even with its single mission, has behind it a single mission congressional
committee and single mission constituencies. And it’s very hard even for a determined president
to impose the need for balance and considering other national goals on that agency. John Charles Daly: Dr. Wilson. James Q. Wilson: I am ordinarily not cast in the
role of a reformer. But if reforms are to be sought, I think we
should seek them from within the American experience on the basis of those institutional
arrangements with which the American people have become accustomed, that we should not
reach overseas to…for approximations of the parliamentary system but we should look
at state and city government in this country and ask what modifications in federal arrangements
already tested at the city and state level might commend themselves. Many governors have in fact line-item vetoes
awarded to them by state constitutions. Many city charters deny to city councils the
right to increase the executive budget. None of them, so far as I know, allow the
governor or the mayor to force a new election or vice versa, nor do they require the abolition
of the separation of powers. These more modest changes, which would require,
as Mr. Cutler says, constitutional change, are the sorts of ones on which I think we
could focus attention with a greater confidence that we knew what we were getting as a result. James Q. Wilson: I think that’s an excellent point. But one thing since we have certainly indicated
a disagreement between Lloyd Cutler and myself, I would say apropos of his last remark that
in his article at one point, he does advocate that the president have control of the executive
branch agencies. And I know he has previously described that
in a more elaborate way. And I thoroughly agree with the notion that
the independent regulatory agencies is a constitutional anomaly, and a constitutional anomaly because
it is, in many respects, in defiance of democratic theory because these independent agencies
are not responsive to any democratic process, not to the congress, not to the president. I would go further on that and here, Lloyd,
probably wouldn’t agree with me to suggest as I did earlier, that many of our problems
include many of the frustrations of the executive come about because of the valid and open judicial
policy-making, which was not contemplated by the founders of the constitution. I knew I’d lose you on that one. Lloyd Cutler: If we return to this thing, let
me cite Paul McAvoy, Herb’s colleague, or one of his successors, as an example for the
proposition that more new regulatory agencies, and from the present cost imposing standpoint,
some of those with the greatest impact were created during the Republican Nixon and Ford
Administrations, and during the Kennedy, Johnson and Carter Administrations combined. Now, I hasten to say, as you would say, that
that most of that was done because there were Democratic congresses during those administrations. But I submit to you that proves my point. We had not formed a government capable of
carrying out a policy during those administrations. That’s when EPA originated, by a Nixon executive
order. That’s when OSHA originated. That’s when the Consumer Product Safety Commission
originated. They are all children of this bastard form
of government we have, in which the president might go one way and the legislature or parts
of it were free to go another, and would, and did. John Charles Daly: All right. This concludes another public policy forum
presented by the American Enterprise Institute for Public Policy Research. On behalf of AEI, our hearty thanks to the
distinguished and expert panelists, Mr. Henry O. Brandon, Mr. Lloyd N. Cutler, Ambassador
Laurence Silberman, and Dr. James Q. Wilson. Announcer: It’s the aim of AEI to clarify issues
of the day by presenting many viewpoints in the hope that by doing so, those who wish
to learn about the decision-making process will benefit from such a free exchange of
informed and enlightened opinion. This public policy forum series is created
and supplied to this station as a public service by the American Enterprise Institute, Washington,
DC. AEI is a nonprofit, nonpartisan, publicly
supported research and education organization. Information on this and other subject areas
including government regulation, economic policy, social security and retirement, health
policy, legal policy, tax policy, political and social processes, energy policy, defense
policy, and international affairs is available from the Institute. For a transcript of this program send $3.75
to the American Enterprise Institute, 1150 17th Street Northwest, Washington, DC, 20036.

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