Foreign Policy Consultation between the President and Congress

The Hon. Lee H. Hamilton
Elliott School Lecture
George Washington University
Oct 14 1999

Introduction

Thank you, Harry, for that generous introduction. I'm thrilled to be here and excited about beginning this series of lectures.

The American President and Congress often seem to be working at cross-purposes in foreign policy. To give just a few recent examples: - The administration requests funding of the United Nations, and Congress links the funding to an anti-abortion provision it knows the President will veto.

  • The President asks for supplemental funds to support the Wye Accords and the Middle East peace process, and Congress is reluctant to provide the money.
  • U.S. diplomats convey to their counterparts in Taiwan our uneasiness over Taiwanese statements about establishing "state-to-state" relations with China, and senior Members of the House of Representatives travel to Taiwan and express their strong support for Taiwan in a way that seems to endorse these controversial Taiwanese statements.
  • The President signs the Comprehensive Test Ban Treaty and declares it a high priority, and the Senate rejects it.

This kind of tug-of-war between the President and Congress is not necessarily bad. Foreign policy disagreements between the branches are inevitable, and even, sometimes, constructive. Debate and tension can lead to useful refinements and improvements of our policies.

But our foreign policy is poorly served when the executive-legislative relationship is excessively adversarial. Congress should be an independent critic of the administration, but its criticism should always be in the context of seeking a better partnership with the administration. Cooperation between the branches is conducive to the formulation of a sound American foreign policy.

The importance of consultation

An important element of cooperation is consultation. Consultation is the process of discussion and mutual exchange between the branches designed to foster cooperation in the making of policy. Foreign policy consultation can take many forms, including executive branch testimony at congressional hearings, briefings by foreign policy officials, and informal conversations. More important than the form of consultation is the attitude of the parties involved. Consultation is most effective when each branch makes a sincere effort to involve the other branch in its decision-making processes.

There are many benefits of good consultation.

American foreign policy always has more force and punch to it when the President and Congress speak with one voice. Congress is our most representative branch of government. It best articulates the concerns of different segments of the population. When the President takes these views into consideration in formulating foreign policy, the policy that results is more likely to have strong public support. And foreign policy with strong domestic support makes the U.S. more respected and effective abroad.

Consultation fosters mutual trust between the President and Congress, and encourages them to develop our foreign policy together. It helps prevent the branches from taking our foreign policy in two different directions, and discourages Congress from micro-managing programs out of frustration from being excluded.

Consultation does not -- and should not -- ensure agreement between the branches. Differences will remain, especially on the toughest issues. But even on those tough issues, consultation will smooth some of the hard edges of disagreement, and refine and strengthen our policy.

Consultation with Congress provides the President with a wider range of perspectives than he may receive from his own advisers. The President is isolated in our system of government. Unlike the British Prime Minister, he rarely faces his critics face-to-face. No one, as George Reedy once said, tells the President to go soak his head. Cabinet officials and other high-ranking advisers serve at his pleasure. Their jobs depend on his favor, and they usually can decipher the direction in which the President wants to go. Members of Congress do not serve at the President's favor. Their independence from the President gives their advice added weight. The President may not like, or take, the advice of Congress, but his consideration of it is likely to produce better policy.

Consultation is necessary because the Constitution gives foreign policy powers to both the President and Congress. The President is the commander-in-chief and head of the executive branch. Congress has the power to declare war and the power of the purse. The President has the power to negotiate treaties, but the Senate must ratify them. Given this shared responsibility for foreign policy, the branches must work together in order for our foreign policy to have coherence. The ideal is not an identity of views between the branches, but a creative tension out of which emerge policies that best reflect American national interests and the views of the American people.

Edwin Corwin, the great constitutional scholar, noted that the Constitution is an invitation for the President and Congress to struggle for the privilege of directing American foreign policy. Seen from this perspective, tug-of-wars between the branches are just what the founding fathers ordered.

But too often our government's battles over our policy are destructive, rather than constructive. Improved consultation could go a long way toward strengthening American foreign policy.

I. Poor consultation

The President is the chief architect of U.S. foreign policy, and therefore he has the primary responsibility for initiating consultation. Yet every administration that I have known has consulted inadequately on major foreign policy issues.

Examples of poor consultation

The most prominent examples of poor consultation in recent history are the Vietnam War of the 1960s and '70s and the Contra War in Nicaragua of the 1980s. Both became major political controversies, and had serious political repercussions for the Johnson, Nixon and Reagan administrations. These examples stand out because consultation was not simply poor, but was intentionally poor, because the administrations wanted to conceal information from Congress and the public. In both cases, policy was controlled by a small group of high-level officials, and few others either inside or outside the executive branch knew the full extent of our government's activities. Administrations viewed Congress in these instances as a nuisance to be avoided, rather than as a partner in the formulation of policy. Reagan administration National Security Adviser John Poindexter stated in hearings about the Iran-Contra scandal that he "simply did not want any outside interference" from Congress.

More recently, the Clinton administration has consulted poorly on a number of important issues. Perhaps the most politically damaging example involved our intervention in Somalia. In October, 1993, eighteen American soldiers were killed in Somalia during a botched military operation. The tragedy created a media furor, which called for some explanation. Secretary of Defense Les Aspin and Secretary of State Warren Christopher came to Capitol Hill to brief Members on what had happened, but the briefing failed to explain how the administration planned to proceed. No real consultation took place because the administration had no policy proposals to discuss. The briefing inflamed congressional criticism of the administration's policy, and cost Les Aspin his job.

Consultation has not been good on our military involvement in Bosnia and Kosovo. Following the end of the war in Bosnia, in late 1995, the Clinton administration decided the U.S. would participate in a NATO-led deployment of peacekeepers. The administration did not adequately consult Congress on the decision, and the President did not explain in a comprehensive manner the purpose of our engagement. The President also misled Congress by saying the deployment would only be for a year, even though such a short time frame was unrealistic. Then, one year later, while Congress was out of session after the 1996 election, the President decided to continue the deployment of U.S. troops in Bosnia for another year and a half. Many in Congress believed the decision was intentionally made at a time when Congress could not oppose it. The administration managed to get its way on this issue despite poor consultation, but it paid a high price in lost good will of many Members.

During the crisis in Kosovo, the administration only consulted sporadically with Congress prior to the start of the NATO military action against Serb targets last spring. Once NATO began its air campaign, the administration struggled to gain congressional support, in part because of distrust remaining from the experience with our policy in Bosnia. The President exerted strong public and diplomatic leadership in support of the NATO effort, but the Congress never authorized the action, and the lack of firm congressional backing weakened the President's and NATO's position in the war.

On other issues, poor consultation has prevented the Clinton administration from achieving its policy goals. This has been the case with its efforts to obtain funding for the United Nations and ratification of the Comprehensive Test Ban Treaty. The administration has worked to build congressional support on these issues, but the efforts have been sporadic and occasional. They have not been sustained. The President, in particular, has not been sufficiently involved in rallying support. On the test ban treaty, the administration did not expend enough energy and resources on consultation over the past two years, and then was unprepared to deal with the strong congressional opposition when the Senate finally took up the treaty during the past two weeks. The result was Senate rejection of one of the most important foreign policy initiatives of the Clinton administration.

Deficiencies in the consultative process

These examples of poor consultation point to a number of common executive branch shortcomings in the consultative process.

  • Often Congress is only informed of executive branch decisions, rather than genuinely consulted. Members of Congress are notified of decisions after they have already been made, or they are provided with only limited information. I have often heard an administration come to Congress and insist there was no alternative to a decision it has made -- when, in fact, it was a 55/45 decision within the administration. There are always options in foreign policy.
  • Executive branch officials tend to treat Congress as an obstacle to be overcome, rather than as a potential partner. Many officials believe that Congress is ignorant of sophisticated foreign policy issues and only gets in the way of good policy. They avoid consulting with Congress until circumstances -- like a disclosure in the media -- force them to. Administrations are especially reluctant to hear from Members in an open-ended discussion. They prefer highly-structured, almost ritualistic, hearings, if they must deal with Congress in some form.
  • Consultation tends to take place only when a crisis is at hand, and is not sustained. On many complex foreign policy issues, administrations must build in Congress a strong base of knowledge over a period of years so that Members are well-informed when the issue comes up for a vote or becomes publicly discussed. But administrations rarely consult Congress on issues that are not on their immediate agenda. Members are then taken by surprise when the administration suddenly requests support for something Congress has heard nothing or hardly anything about. Successive administrations' failure to educate and consult Members on international financial institutions is a classic case -- no wonder it was so difficult for the Clinton administration to get congressional approval for an $18 billion IMF quota increase.
  • Consultation is often driven by headlines. Sometimes administrations call Members to give them a "heads-up" on an issue because it will be appearing in the newspapers the next day. These heads-ups are self-serving; consultation on the eve of a press leak is not consultation at all.
  • Administrations sometimes authorize only a few officials to discuss our policy. In several periods of crisis, I was distressed to learn that only three or four officials were trusted by the President to consult -- at a time when administration spokespeople should have been consulting all over Capitol Hill. During the months leading up to the Gulf War, only the Secretary of Defense, Secretary of State, and Chairman of the Joint Chiefs of Staff were authorized by President Bush to discuss policy on Iraq with Members of Congress.
  • The executive branch often consults with only a limited number of Members. To be effective, consultation must target different Members depending on the issue - for instance, focusing on the ad hoc Caucus on Ireland when dealing with a matter pertaining to Northern Ireland. Members with a strong interest in a particular foreign policy issue are sometimes left out of an administration's consultation on that issue. The administration does not always do a good job of recognizing which Members are concerned with which issues.

Congress also has several shortcomings when it comes to consultation.

  • Consultation with Congress is difficult because power in Congress is so diffuse, and shifts with each issue. In the old days, the President could consult with Congress effectively simply by talking to a few important congressional leaders and committee chairmen -- Speaker of the House Sam Rayburn, Senate Majority Leader Lyndon Johnson, Chairman of the Senate Foreign Relations Committee Arthur Vandenberg. Today, dozens of Members of Congress and many congressional committees play important roles in foreign policy. Members are younger, more sophisticated, more active, more diverse, more independent and less respectful of traditional patterns of authority. There is no single person -- or group of people -- that the executive branch can consult with and conclude that it has gained congressional support.
  • Congress is often not receptive to consultation. There is a tendency in the Congress to want to be briefed by the President, the Secretary of Defense, or the Secretary of State, and an unwillingness to hear from lower-ranking officials. After the 1994 so-called Agreed Framework with North Korea was negotiated, I thought it would be useful for Congress to be briefed on the agreement since it was of major importance to our security interests in Asia. I helped organize two briefings for Members on Capitol Hill with the State Department official who negotiated the agreement, and a total of one Member showed up.
  • Congress is often poorly informed about foreign policy. Most Members focus mainly on domestic issues, and many of them give little thought to foreign affairs except when a vote is pending or a crisis breaks. This lack of sustained interest in foreign policy makes it more difficult for an administration to consult.
  • Congress tends to be heavily influenced by special interests, prominent ethnic groups in their districts, and short-term objectives. This narrow perspective can complicate an administration's efforts to develop long-term policies that offer no immediate political benefit to Members.
  • Congress is often unwilling to accept responsibility for formulating our foreign policy. Members criticize the President's policy without offering any constructive alternatives. Then Members sit back and let the President take the heat if our policy fails. For too many Members, foreign policy is just another battleground for seeking political advantage over the President.
  • Partisanship in Congress can weaken consultation. Early in the Clinton presidency, House Speaker Newt Gingrich refused to be consulted by the administration while Democrats were present. This kind of attitude makes it harder to develop bipartisan consensus.
  • Congress can leak sensitive information. Executive branch fear of leaks can discourage officials from sharing information with Congress. But it should also be said that leaks come from the executive branch as well. Many administration officials are skillful at leaking information to Congress and the public to advance their own agendas.

II. Good consultation

Despite these serious deficiencies in the consultative process, there have been a number of times in my experience when consultation has worked well. Most presidents can gain support for major foreign policy issues when they set their minds to it.

Easy cases of good consultation

Some cases of effective consultation are easy ones because Congress and the President are generally in agreement on policy to begin with.

Take NATO expansion. Over several years, President Clinton's administration pushed for and achieved the expansion of NATO to include Poland, the Czech Republic, and Hungary. The administration did a good job of making the case for the expansion, but Congressional support for expansion was strong prior to the administration's efforts, thanks in part to vigorous lobbying efforts by Polish, Czech and Hungarian-Americans. Public opinion was generally either supportive of expansion or neutral on the issue, and in the 1996 presidential campaign, both Republican leader Bob Dole and President Clinton voiced their support for expansion. The administration therefore had a favorable environment for consultation. In such circumstances, administration officials often like to consult.

Another easy case is support for the Middle East peace process. Successive administrations have consulted extensively on this issue because it is considered to be very important politically, Congress is keenly interested in it, and billions of dollars in aid are at stake. When administration officials travel to the Middle East for negotiations, they almost always brief Congress when they return and keep Congress well-informed of the latest developments. This consultation is important because it helps sustain congressional backing for the administration's activities, and may discourage or deflect unhelpful congressional initiatives. Despite some recent disruptive congressional initiatives, and difficulties obtaining funding in support of the Wye Accords, consultation on the peace process is usually relatively easy because most Members of Congress are strong supporters of it and of aid to Israel and other peace partners in the region.

Tough cases of good consultation

More difficult cases of good consultation are those in which the President must work hard to build support and must overcome strong opposition.

In the late 1970s, the Carter administration consulted very effectively in order to achieve congressional approval for turning the Panama Canal over to Panamanian control, and for arms sales to Saudi Arabia. On both of these issues, the Carter administration faced heavy resistance in Congress. At the outset of discussions, most Members were generally opposed to giving up control over the Canal, and were very concerned about arming a potential enemy of Israel. The administration changed the minds of many Members by lobbying Congress very aggressively and employing a variety of consultation techniques. The administration:

  • briefed Members of Congress extensively, both in groups and individually;
  • distributed to Members detailed notebooks on the issues;
  • sent Members on visits to the regions;
  • and engaged itself at the highest level, with the President getting personally involved.

Over time, the administration's persistence paid off as it wore down the opposition and gained congressional passage of its proposals.

The Bush and Clinton administrations consulted effectively to gain support for aid to Eastern Europe and the Soviet Union after the fall of communism. Many Members of Congress were initially opposed to giving large amounts of aid to our former enemies, but the administrations presented persuasive arguments for assistance and involved Congress heavily in the process of designing the aid programs. This cooperative approach strengthened support in Congress, and enabled the passage of two major programs of assistance to the former communist bloc countries.

The Bush and Clinton administrations have also consulted well to maintain support for preserving normal trade relations with China. This issue has clearly been very important to the administrations, and they have devoted substantial resources to it. The Secretary of Defense, Secretary of State, Secretary of Treasury, and the U.S. Trade Representative have all traveled regularly to Capitol Hill to explain the benefits of trade with China, and many lower-level officials have lobbied heavily as well. My staff and I probably had a dozen meetings per year on the issue with the administrations when I was in Congress. During the critical days preceding the annual vote on renewing normal trade relations, Presidents Bush and Clinton personally called individual Members to lobby for their support.

III. Rules for good consultation

These examples of good consultation suggest that the common deficiencies in the consultative process can be overcome, or at least mitigated. Here are ten ways the branches could improve foreign policy consultation.

First, each branch must understand its proper role, powers and limitations in foreign policy. The executive branch must recognize that Congress plays an important role in the formulation of foreign policy, and can provide our foreign policy with stronger public support. Congress has responsibility for refining policies, for providing informed consent, and for legislation. Yet Congress must recognize that its role is generally limited to helping to formulate policy, and must give the executive branch some flexibility in the day-to-day implementation of policy. For instance, Congress has a legitimate right to speak out in favor of providing arms to Columbia, but it should not try to dictate how many and what types of helicopters we provide, or when and to whom they should be delivered.

Congress must strike a balance between responsible criticism, based on measured oversight of the executive branch, and responsible cooperation. There should be an implicit agreement between the branches that if Congress is seriously consulted, it will act with some restraint and allow the executive branch to lead.

Second, the President and Congress must build a relationship based on mutual trust, respect and partnership. Executive branch officials must take the perspectives of Congress seriously, and respond to congressional concerns. Members of Congress must be sensitive to the complexity of foreign affairs, and the difficulty of crafting and implementing policy. The two branches must engage in a genuine dialogue on the problems that concern them most.

Third, consultation must take place, to the extent feasible, prior to decisions, not after they have already been made. Congress should be given a legitimate opportunity to participate in the making of policy. The executive branch should not come before Congress after a lengthy and contentious interagency debate, and tell Congress that there is no choice other than that which it has chosen. The executive branch should inform Congress of the range of policy alternatives, and seek Congress's advice. If the administration does intend simply to inform Congress of a decision, it should make this clear and not pretend to be genuinely seeking congressional input.

Fourth, support for consultation must come from our leadership. Consultation is most effective when the President himself, or other high-level officials, are personally involved. The President, his senior national security team, and leaders of Congress must set the example and make consultation a priority. Part of the President's leadership must be a clear articulation of what policy is, and how the policy is to be implemented. Good consultation is not possible if administration officials do not understand or know what the policy is. This may sound elementary -- and it is -- but it is also surprising how often administration officials will privately complain about a lack of clarity in policy.

For their part, leaders of Congress must set the example for other Members by their constructive approach to the making of American foreign policy. They can also help the administration understand the many perspectives of Members.

Fifth, consultation must be bipartisan. Too often executive branch calls for bipartisanship are simply appeals for the opposing party in Congress to approve the administration's agenda. Real bipartisanship means engaging the other party in policy formulation. An administration cannot sustain support for a foreign policy in one party alone: it needs bipartisan backing.

Congress must also strive for bipartisanship. It is most effective in advancing a foreign policy position when that position has strong support in both parties.

Sixth, the executive branch must devote more resources to consultation. 535 Members of Congress cannot be reached by just a few, select administration lobbyists. The administration must trust more than a handful of people. It should increase the number of people working to consult with Congress, and assign high-quality people to that task. It should frequently send mid-level, as well as high-level, officials to Capitol Hill. It should keep closer track of the foreign policy views and concerns of every Member of Congress. More former Members of Congress should be hired to work in the executive branch as a means of strengthening ties between the branches.

Seventh, the executive branch must have a sustained focus on consultation. The administration should not focus on consultation only during crises, or when it needs immediate congressional support. Congressional support in crisis situations will be more forthcoming if Congress is kept aware of issues before they become crises. On critical issues like China, Japan, and the international financial institutions, the administration should begin educating Members as soon as they enter Congress. The administration must build ties in calm periods so that it has a rapport with Members and access to them when a crisis develops.

Eighth, the executive branch must consult in many different ways and have a flexible approach. The administration must recognize what form of consultation is appropriate for a given set of circumstances. The kind of consultation required varies from issue to issue, from situation to situation, and from Member to Member.

Consultation must be tailored to the needs and attitudes of individual Members. Some Members are as knowledgeable as administration officials on an issue -- and must be dealt with at that level. Others will scarcely know of the issue, let alone know much about it. Administration officials must be aware of differences in knowledge and perspective among Members, and adapt their consultation appropriately. One-on-one discussions between officials and Members can be especially effective. President Lyndon Johnson was a master at one-on-one meetings because he knew where each Member was coming from and what was important to him or her. He then employed whatever argument was best suited to gain the Member's support.

Ninth, Congress must make consultation a higher priority. Members should encourage consultation by attending briefings and displaying interest in foreign policy. When Members do attend briefings, they should ask questions and press the administration on issues. Congress should be receptive to consultation from mid-level officials as well as high-level officials. Congress should hire more former executive branch officials in order to give it a deeper understanding of the workings and perspective of the executive branch.

Finally, Congress should create a permanent consultative group of congressional leaders. In 1993, I joined several other Members of the House in introducing a bill to establish such a group made up of the congressional leadership and the chairmen and ranking Members of the main congressional committees involved in foreign policy. Other Members with special interest or expertise could join the group's work on certain issues. The group would meet regularly -- perhaps as often as once a month -- with the top executive branch foreign policy officials, including the Secretary of State, the Secretary of Defense, and the Director of Central Intelligence. The agenda for these meetings would not be strictly limited, allowing Members to raise issues they are concerned about. The group would also meet on an emergency basis whenever the President was considering military action abroad.

Such a group would enable the executive branch to consult with a wide range of congressional leaders in a single setting, mitigating the problem of being accused of insufficient consultation with Congress. The group would encourage the congressional and administration leadership to work through important policy questions together, and provide a centralized forum for foreign policy discussion and for dissemination of appropriate information to other Members.

Conclusion

Improved consultation will not end differences and conflict between the branches over foreign policy. Often, the branches will differ on the substance of policy no matter how much consultation takes place. For instance, in 1997, President Clinton and House Speaker Gingrich worked very hard to gain congressional passage of fast-track authority for negotiating trade agreements, but they were simply unable to get enough votes for the legislation to pass.

That kind of failure is to be anticipated in our system of government. Congress has a responsibility to challenge executive branch proposals with which it disagrees. Good consultation will not, and should not, always be correlated with congressional support.

But more often than not, good consultation will help an administration gain greater backing in Congress. It will almost always strengthen policy. The power of the presidency is such that the President will usually be given the initiative on foreign policy matters. When the President keeps Congress involved in the policymaking process, and consults sufficiently, his chances for success with Congress increase.

It is not easy to make our constitutional system for conducting foreign policy work. But, if both the President and the Congress understand their respective roles, make a greater effort to work together, and put our national interests ahead of partisan personal concerns, the country will be well served because a stronger, better foreign policy will emerge.