Is the Federal Election Commission a dysfunctional agency deaf to voters fed up with loophole-riddled campaign finance rules? Or is it a newly revived organization making unprecedented moves to invite a wide-ranging public debate over its regulations?
The answer may be both. In a fit of productivity on Oct. 9, the FEC managed to outrage its critics, thrill political party leaders, send election lawyers scrambling and break out once again into public bickering. It was an abrupt departure from the months and even years of partisan deadlock that have rendered the FEC incapable of settling even the most routine enforcement disputes. Full story
Scalise testified in favor of re-establishing regular accounts for what are now called Congressional Member Organizations like the RSC. (Bill Clark/CQ Roll Call File Photo)
My previous column left some readers in a state of suspended agitation because I praised the revival of the Members’ Day congressional reform hearing in the Rules Committee (after a 12 year hiatus), but failed to discuss any of the specific proposals recommended. Hopefully this account will douse the ire, though it doesn’t begin to cover all the proposals submitted by the 28 members who offered testimony. Full story
Q. I heard that Rep. Tom Petri, R-Wis., may face ethics discipline because he assisted companies in which he owned stock. I know that Members are not supposed to use their position for their own personal gain, but I didn’t realize that meant they are disqualified from taking action on behalf of any companies in which they might own stock. Is that really the rule?
A. No, it is not. A member’s mere ownership of stock in a company does not disqualify the member from taking official acts on the company’s behalf. But, as the Petri matter illustrates, members should take special care when they assist companies in which they happen to own stock. Exactly what that means, unfortunately, is less than clear.
In a report made public last month the Office of Congressional Ethics, which filters allegations of misconduct for review by the House Committee on Ethics, concluded there is substantial reason to believe Petri “improperly performed official acts on behalf of companies in which he had a financial interest.” The OCE therefore recommended further review by the House Committee on Ethics, which it is now considering.
There is no dispute that Petri took official acts for companies in which he owned stock. That is allowed. At issue in the Petri case is whether he did so “improperly.” That is not. Full story
Kimberley Fritts may not be the Podesta Group’s typical public persona. That role most often belongs to Democratic donor and firm founder Tony Podesta.
But with the GOP poised to make gains in the Senate — perhaps big enough to capture control of the chamber — Fritts, a former Republican staffer who usually stays behind the scenes, recently sat in her downtown corner office and touted the shop’s ties to her party.
“We’ve got a very strong bench of Republicans here that I’m really proud of,” said Fritts, Podesta Group’s CEO. Full story
Differences between national political campaigns and corporate or public affairs campaigns are slim these days.
That’s according to Iowa native Dave DenHerder, who is settling into his new role as a partner with FP1 Strategies this week after finishing nine years at Burson-Marsteller, including his most recent position as the U.S. CEO of the firm.
“The landscape of communications, be it political communications or corporate communications is changing,” DenHerder said in a phone interview Tuesday — his first day with FP1 Strategies — before catching a flight to London. “If you think about the way that corporations or businesses are running their communications, it is very similar to the way you run a presidential campaign.”
The House Rules Committee recently resurrected a custom first established in 1996 by then-Chairman Jerry Solomon, R-N.Y., inviting members of both parties to testify toward the end of the second session on rules changes they would like to see adopted in the next Congress.Solomon called the hearing “Members’ Day” to connote the open-ended opportunity for any member to suggest improvements in House operations.
The hearings produced an array of proposed rules changes ranging from the ridiculous to the sublime. It also helped affirm that some members still cared about the health and well-being of the institution — a concern that has been dwindling in recent years.It’s much easier to bash Congress from the inside than to praise or defend it, especially given the foul mood of voters today toward government.
This year, the Rules Subcommittee on Rules and Organization of the House, chaired by Rep. Rich Nugent, R-Fla., hosted the reform fest.Nugent indicated it was the first time since 2002 the hearing had been held. It was so long ago that ranking subcommittee Democrat Jim McGovern of Massachusetts, first elected in 1996, said he had completely forgotten it had ever happened.
Nugent also made clear twice during the hearing that it would not be taking place if it did not have the full blessing and clearance from the Republican leadership — a reminder that Rules is a leadership committee and makes no moves independently, especially as they relate to the operations of the House.
During the two-hour session on Sept. 17, the subcommittee heard from 15 witnesses (eight Republicans and seven Democrats), who found themselves agreeing more with each other and their Rules Committee interrogators, than disagreeing. Eleven other members submitted statements for the record.
The hearing was different from the highly charged partisan exchanges that usually take place in the committee’s small hearing room on the third floor of the Capitol. McGovern didn’t grasp that at first and read a prepared opening statement blasting Republicans for their procedural unfairness and record-breaking number of closed (no-amendment) rules.When it became apparent this would not be the usual bare-knuckled committee brawl, he spent the rest of the hearing praising the chairman and witnesses from both parties on their thoughtful contributions.
Following the session, first-term Rules Committee Chairman Pete Sessions, R-Texas, issued a statement saying the purpose of the hearing was to provide a forum for members of both parties to offer ideas on “how we can build on the positive reforms we have put in place over the last several years.” Sessions said his goal as chairman “is for members to play an active role in shaping the rules package for the next Congress,” and that the hearing “was an important first step in that process.”
If it were any other committee, such kudos and commitments might be taken as perfunctory nice-speak, signifying little. Hearings are, after all, one way chairmen give their colleagues something to take credit for without having to give away the legislative store.But the Rules Committee is a horse of a different color, not prone to making symbolic gestures, let alone to dispensing party favors across-the-aisle.
Having worked closely with the committee over nearly three decades, including serving as Solomon’s chief-of-staff when the members’ day custom began, I sensed this was a genuine first step being taken by Boehner, through Sessions, after a 12-year hiatus, to signal a more inclusive and collegial tone and direction for the next Congress. I could be wrong. It wouldn’t the first time my optimism has outraced reality.But I also sense that House members, reflecting public demands to end gridlock, are ready for change and that this may be the real deal.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.
There are a lot of things that can change campaigns: Your candidate’s opponent says he “likes to fire people;” the Supreme Court upholds key parts of your candidate’s signature legislative piece; the opponent says he has “binders full of women.”
More than that, though, campaign teams need to get voters excited about the issues they think are important. For Josh Cook, the former Pennsylvania digital director for President Barack Obama’s re-election campaign who became vice president of digital engagement at the New York City firm BerlinRosen in July, getting voters is one of the best parts of the job.
“You had to get people excited about any number of issues,” Cook said over the phone. “It’s not one policy, it’s not one platform … you have to get people excited about veterans’ issues, about women’s rights, about education, you name it. It’s fun, it’s a challenge every day.” Full story
VoteVets.org, led by Chairman Jon Soltz, has set out to spend some $7 million to help Democrats in midterm elections (CQ Roll Call File Photo).
Veterans organizations with overtly partisan messages and agendas have spent millions promoting candidates in tight Senate races in this election cycle, prompting criticism from veterans and established vet groups on both sides of the aisle.
Concerned Veterans for America, a conservative advocacy group with ties to the billionaire industrialists Charles and David Koch, has spent more than $2 million blasting Democratic Senate candidates, Center for Responsive Politics data show, largely for failing to fix problems at the Department of Veterans Affairs. The veterans group has both stoked and capitalized on outrage over the VA scandal involving long wait times for medical care and the agency’s cover-up of those delays.
On the liberal side, the progressive group VoteVets.org has set out to spend some $7 million to help Democrats in the midterms, according to its organizers. The VoteVets political action committee has delivered more than $1 million to candidates both in direct donations and in bundled contributions since its founding in 2006.
The explosion in veteran-focused campaign spending alarms some veterans and longtime vets organizations. Membership-focused veterans associations, such as the American Legion, have long enjoyed special tax protections coupled with strict limits on their political activities. Some vets associated with the “old guard” worry politics will swallow the best interests of veterans.
“Most mainstream veterans groups are required to be nonpartisan, and it concerns me that we do have groups on both extremes that are very partisan in their approach and very calculating in what they want to accomplish,” said Joe Violante, national legislative director of Disabled American Veterans, established in 1920 and congressionally chartered in 1932.
Violante voiced particular concern over attacks by Concerned Veterans for America against the VA. The conservative group has challenged VA funding increases and supports partially privatizing veterans’ health care. Such steps could make fewer veterans eligible for more limited services, Violante warned.
Concerned Veterans of America is run by and champions veterans, countered Dan Caldwell, the group’s issues and campaign manager, a veteran himself. The group fills a void in the veterans’ community, he said, by advocating VA changes, deficit reduction and national security. Caldwell acknowledged the VA scandal “changed the whole dynamic of our organization,” but denied that the group’s high-dollar attacks on such Democrats as North Carolina incumbent Kay Hagan and Bruce Braley in Iowa for failing to help veterans are political.
“These ads we consider issue advocacy,” Caldwell said. “They are based out of our VA reform efforts. We are not just a fly-by-night 501(c)(4) trying to use the VA scandal as an election-year issue. We have a long history on these issues. We have a real agenda on VA reform.”
But Concerned Veterans for America’s frequent attacks on the Affordable Care Act align it squarely with other Koch-affiliated groups. Freedom Partners Chamber of Commerce, a trade association at the heart of the Koch donor network, gave $5.2 million to Concerned Veterans for America, 2012 tax records show.
Freedom Partners also purchased extensive airtime in Iowa and North Carolina earlier this summer, according to the Sunlight Foundation — valuable spots that were eventually used by Concerned Veterans for America. Caldwell said his group paid for the spots, and Freedom Partners had simply canceled its reservations, which freed up ad space.
VoteVets Chairman Jon Soltz rejected any comparison between Concerned Veterans for America and his organization, which claims 450,000 members and was founded in 2006.
“I’m hesitant to say they’re anywhere equivalent to what we’ve built over eight years,” Soltz said. But VoteVets.org has also taken heat for its campaign advertising, recently drawing public criticism from a prominent Kentucky veteran over an ad assailing Senate Minority Leader Mitch McConnell for failing to back a bill that would have boosted VA funding by $21 billion. The ad was part of a $600,000 ad campaign against McConnell by VoteVets, which operates both a PAC and a social welfare arm known as VoteVets Action Fund.
McConnell “has been a vocal advocate about the urgent need for reform at the VA and was instrumental in helping ensure Senate passage of the important bipartisan veterans bill that was signed into law last month,” declared Karl Kaelin, vice chairman of a Kentucky committee of the Veterans of Foreign Wars, in a statement released by the McConnell campaign.
McConnell’s camp also dismissed VoteVets as a front “funded by environmental activists.” The VoteVets Action Fund has received more than $6 million in grants from a long list of environmental, labor and other progressive groups since 2010, according to the CRP. The group has also doled out grants to such Democrat-friendly allies as the American Bridge 21st Century Foundation and America Votes, an umbrella group for progressive activists, according to IRS records.
“We’re progressive, period,” acknowledged Soltz. “There are a lot of veterans out there who don’t feel veterans organizations represent them.”
Veterans’ issues have always resonated powerfully with voters, and that is particularly true in this election. The number of veteran-themed ads, by both outside organizations and candidates themselves, hit 34,000 nationwide as of the end of August, according to Kantar Media Ad Intelligence.
“Veterans are great messengers, because they don’t look political,” said Soltz. “And these are mom-and-apple pie issues: taking care of our veterans.”
But as veterans’ organizations become increasingly politicized, their credibility may be at risk.
Eliza Newlin Carney is a senior staff writer covering political money and election law for CQ Roll Call.
Republicans and Democrats called on Gingrich to move one-minute speeches in 1996 amid increasing partisan acrimony. (Bill Clark/CQ Roll Call File Photo)
Every year I take a group of Wilson Center fellows to Capitol Hill where we observe an hour of House proceedings from the gallery. Some of the fellows, especially those from other countries, are both fascinated and perplexed by the opening ceremonies — the prayer, the pledge, the welcoming of a guest chaplain, followed by a series of one-minute speeches by members on anything they want to talk about.
I tell the fellows this opening round of mini-speeches has been dubbed by someone, “the one-minute happy hour” because it is such an eclectic slice of Americana, from praising the hometown football team on winning the state championship, to commending a 100-year-old couple from the district on their 80th wedding anniversary, to blasting the opposition party.
In the latter case, I inform the group that priority seating in the front row of the chamber goes to two groups of ringers on either side of the aisle dividing the parties. They lead off with their scripted, political messages, with recognition alternating between the parties. The Republicans call their speakers “The Theme Team,” and Democrats call theirs “The Message Group.” The remarks are usually a mix of the positive and negative, from touting the party’s programs and accomplishments to criticizing the opposition party’s irresponsible policies.
To a visitor in the gallery it might appear that the bells convening the day’s session have triggered a partisan Pavlovian response. In 1996, one-minutes got so nasty that a bipartisan group of 50 members wrote to then-Speaker Newt Gingrich, urging him to move one-minutes to the end of the day because the partisan punch lines were poisoning the well of the House before the day’s legislative business even began.It reminded me of the nursery rhyme, “Pussy’s in the Well,” but with a twist: “Ding-dong bell, let’s go poison the well.” Full story
The LCV will spend money on the Senate race in Colorado, where Udall is seeking re-election this cycle. (Tom Williams/CQ Roll Call File Photo)
The League of Conservation Voters will spend a record $25 million this cycle, organizers announced Thursday, five times what the environmental group spent on the 2010 midterms.
“We are poised to spend by far the most money we have ever spent in an election cycle,” President Gene Karpinski said in a conference call with reporters.
Most of the money, approximately $20 million, will be targeted to help Democrats running for Senate in Colorado, Iowa, Michigan and New Hampshire. The league’s Alaska affiliate is also backing incumbent Democrat Mark Begich there. Another $5 million will go to assist pro-environment gubernatorial and legislative candidates in tandem with the league’s state affiliates. Full story
McDonnell is appealing his conviction of 11 counts of bribery, conspiracy and extortion. (Bill Clark/CQ Roll Call File Photo)
As Bob McDonnell’s lawyers gear up to appeal the former Virginia Governor’s conviction on 11 counts of bribery, conspiracy and extortion, federal prosecutors, legal experts and elected officials around the country are all watching closely.
The McDonnell case hinges on a question that goes to the heart of the national campaign finance debate, namely: What is corruption? Must it involve out-and-out bribery — the deliberate exchange of money or favors for official acts? Or can corruption take the form of ingratiation, influence and distortions of public policy?
McDonnell’s lawyers argued during his dramatic public trial that businessman Jonnie Williams Sr. received nothing beyond routine courtesies in exchange for his $177,000 in gifts and loans to the McDonnells. Some experts argue that McDonnell has strong grounds for an appeal, and that his indictment effectively criminalizes politics and constituent service.
But a Virginia jury lost no time indicting McDonnell on 11 criminal counts and his wife, Maureen, on nine, after hearing descriptions of the designer clothes, $6,500 engraved Rolex watch, lakeside vacation, free golf outings, wedding catering and a low-interest loan that the McDonnells received from Williams. Particularly damning was an email McDonnell sent to an aide to discuss Anatabloc, the dietary supplement Williams sought to promote, just six minutes after McDonnell spoke with Williams about a $50,000 loan.
McDonnell’s official appeal must wait until his sentencing in January. The appeals process is likely to drag on for months as it wends through the courts — possibly reaching as high as the Supreme Court. Though the McDonnells were indicted under ethics and not campaign finance laws, the question of what constitutes corruption cuts across both sets of rules. And the Supreme Court has defined campaign finance corruption increasingly narrowly.
In April, McCutcheon v. Federal Election Commission struck the aggregate campaign contribution limits, a court plurality concluded that election laws may only target ‘quid pro quo’ corruption in the form of official acts exchanged for money.
But in a strongly-worded dissent, Justice Stephen Breyer and three other justices objected that McCutcheon flies in the face of previous court rulings, including the high court’s 2002 McConnell v. FEC ruling. That ruling, which upheld the soft money ban enacted with the McCain-Feingold law, concluded that Congress had an interest in preventing more than “simple cash-for-votes corruption,” wrote Breyer. He quoted that 2002 ruling as follows:
“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”
Indeed, many on Capitol Hill – mostly Democrats but some Republicans, too – complain that the pressure to constantly raise money has contributed to partisanship, gridlock and a sense of disconnect from average constituents.
“It is a very rare exception where there is a quid pro quo – a donation for an action,” Sen. Christopher S. Murphy, D-Conn., recently told CQ Roll Call. “But when you are spending a lot of time with people who believe a certain set of things, it’s hard not to be influenced by that viewpoint.”
Colorado Democrat Michael Bennet sounded a similar note during debate last week on the constitutional amendment that he introduced with Sen. Tom Udall, D-N.M. Turned back on a procedural vote, the amendment would have authorized Congress and the states to limit political spending, contrary to prior Supreme Court rulings.
“The court imagined a world where people with bags of money are wandering around Capitol Hill and only then could you regulate it, trying to get people to do something for them,” Bennet said on the Senate floor. “Ninety-nine percent [of] what happens around here is people trying to keep you from doing something, trying to keep things the same. Trying to keep the incumbent interests embedded in our tax code, in our regulatory code, in our statute book. The Supreme Court was silent completely on that corruption, and I would argue that is at the core of our dysfunction as a Congress.”
Republicans denounced the proposed amendment as a violation of the First Amendment, and as an election year ploy by Democrats, who have railed against large, unrestricted contributions throughout the midterm.
Such anti-big money attacks have failed to resonate much in the past, partly because voters tend to regard both parties as equally reliant on special interests. But there are signs that voters are beginning to pay attention. Advocates of the constitutional amendment delivered thousands of petitions to Capitol Hill and staged events at congressional offices around the country last week.
Virginia voters, too, are taking notice. State legislators may or may not toughen up Virginia’s historically lax ethics rules in response to the McDonnell indictments. (Virginia also imposes no limits on campaign contributions.)
But the scandal has reportedly sent a chill through the legislature, prompting state officials to think twice before taking the lavish gifts that had become routine to doing business in the Old Dominion. Judges and prosecutors will continue to haggle over what constitutes corruption. But jurors — and voters — have a tendency to know it when they see it.
Q. As an aide to a Member of the House, I have a question about the rule requiring the separation of campaign work from official House activities. In our office, we are generally careful about keeping these separate. But, one problem we run into time and again is that people outside the House are not at all familiar with the distinction. For example, we frequently receive calls or emails about the Member’s upcoming campaign at our Member’s House office. We don’t want to run afoul of the rules. But, we don’t want to ignore folks either. What can we do?
A. Campaign season is upon us! Does it ever really go away?
Yes, campaigning has become a year-round activity, and members and staffers must always be mindful of rules governing campaign activity. But, as November approaches, the increased activity and urgency makes the risk of violations grow even greater.
While there are many, many rules governing campaign activity by House staffers, your question concerns the prohibition against using official House resources for campaign purposes. Let’s take a look at that rule and see how it might apply to your quandary.
Broadly, official House resources may only be used for official House purposes. They may not be put to personal use or used for campaign activities. These restrictions derive from the general rule that congressional allocations of funds must be used for the purpose for which they are allocated.
As you point out, many House staffers and campaign staffers are familiar with the prohibition against using House resources for campaign purposes, and responsible House offices and campaigns take care to comply with it. For example, a compliant House staffer would never perform campaign activities while at work or using official House resources. Staffers who wish to work on campaigns generally know they must do so outside their congressional office and on their own time.
Unfortunately, many people who contact these offices, including constituents, are not aware of these rules. In fact, some even seem unaware there is any distinction at all between someone acting in their official capacity as opposed to for campaign purposes. So, when these people contact a House office with a campaign question, what can you do? Do you have to ignore them?
The short answer is no. The rules do not require incivility. But you do need to be careful about how you respond.
Last month, the House Committee on Ethics issued a memorandum about campaign activity that might help. It contains no new rules, but instead is a “reminder to the House about commonly encountered issues” related to campaign activity. In addition to a top 10 list of “things to remember” about campaign activity, the memorandum contains a useful series of questions and answers with tips from the committee itself.
One question is right on point. It asks: “What do I do if people call, email, stop in, or write to the congressional office about campaign activities?” The memorandum answers generally that congressional offices receiving such communications may refer them to the appropriate campaign office. Conversely, campaign offices may refer to their respective congressional offices any communications received regarding officially related matters. All such referrals, the memorandum says, should come at the expense of the campaign.
The memorandum offers several tips for how congressional offices can handle these types of communications without running afoul of the law. Broadly, it says the “best practice” is to use the least amount of official resources necessary to forward the communications to where they belong. More specifically, for calls, the memorandum says the campaign should bear the expense of any long-distance calls in response to messages left at the office related to campaign activity. For letters, a congressional office should consider having on hand envelopes and stamps paid for by the campaign that can be used in responding to letters about the campaign to inform the sender to contact the campaign. And, for emails, congressional offices may simply forward the email to a campaign email address, and then the campaign may respond.
Note that there can be severe sanctions for those who blur the lines between campaign activity and official work, including steep fines and even jail time. When answering the phone, the rules don’t require you to be rude. Just careful.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to firstname.lastname@example.org. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
Boggs, who died on Monday, is remembered warmly by his colleagues. (CQ Roll Call File Photo)
Thomas H. Boggs Jr. had the clout of an oracle, the air of a senator and a joie de vivre that gleefully declared his family’s Louisiana roots.
The son of the late House Majority Leader Thomas Hale Boggs and Rep. Lindy Boggs built his firm into the top grossing K Street practice. He was an institution himself, representing trial lawyers, businesses and associations until his death Monday of an apparent heart attack at age 73. Lawmakers and presidents of both parties sought more than his campaign cash; they wanted his counsel. He gave them both.
“He was a pioneer in our industry,” said Haley Barbour, founder of the BGR Group and the former Republican governor of Mississippi. “But for most of us who knew him, he was just a great friend and very, very smart.” Full story
Journalist Carl Bernstein wrote in 1998 that Boggs was “Washington’s premier agent of influence.”
Boggs’ family has been influential in Washington since the mid-20th Century. His father, Thomas Hale Boggs Sr., served in Congress for nearly 60 years and was the House majority leader until his disappearance while on a flight to Alaska in 1972. Following her husband’s death, Corinne Claiborne “Lindy” Boggs joined the House, where she served for more than 15 years. She died last year.
Sen. Mark Begich, D-Alaska, whose father, Rep. Nick Begich, D-Alaska, was on the same fateful Alaska plane as the senior Boggs, released the following statement about the junior Boggs’ death: “I was saddened to learn of the passing of respected lawyer and advocate Tommy Boggs. Our two families have known each other for a long time and have been through much together. Tommy was a larger than life personality in the nation’s Capitol, yet was gracious and generous and visited Alaska at my invitation. My family will always have a special connection to the Hale Boggs family, including the late Congresswoman Lindy Boggs. Deborah and I will be keeping them in our thoughts.”
Boggs made an unsuccessful run for Congress in 1970. But since then he has wielded considerable power in Washington. Patton Boggs now employs nearly 350 lawyers around the world. Boggs himself represented dozens of corporations, state and foreign governments and trade associations.
In his Sept. 10 address to the nation, President Barack Obama asserted he already had authority to go after the Islamic State of Iraq and the Levant but would welcome congressional action to underscore the U.S. commitment. Leaders of both parties in Congress, while supportive of the president’s aims, visibly balked at holding a direct vote to authorize military action, at least before the midterm elections. It was a rare profile in bipartisanship if not courage.
To date, the president has been pursuing a limited mission to protect American personnel and threatened religious minorities in Iraq. Obtaining a full-fledged congressional debate and vote for wider military action would both educate the public and fulfill Congress’ responsibilities under the war powers resolution. Failure to pass such a measure, however, would throw the administration’s foreign policy credibility into further disarray.
A year to the day before his Sept. 10 address to the nation, the president asked Congress for authority to enforce his “red line” against Syria for using chemical weapons on its own people. Congress made clear then it didn’t want such a vote and that, if taken, it would fail. Before the matter came to a head the confrontation was preempted by a Russian-brokered deal with the Assad regime.
By contrast, in 2011, the president avoided seeking such a vote from Congress for the NATO air strikes against Libya’s Gadhafi regime to head-off an anticipated massacre of civilians. The president leaned instead on support from the Arab League and United Nations.
The War Powers Resolution was enacted by Congress in 1973 over President Richard Nixon’s veto. Nixon and all his successors called the act an unconstitutional intrusion on their authority as commander-in-chief to protect the nation. Especially objectionable was the requirement that, absent congressional approval, troops must be automatically withdrawn from hostilities after 60 days, or 90 days if the president certifies additional time is necessary to ensure their safe withdrawal.
The act was plagued from the start by ambiguities because a House-Senate conference committee did not fully resolve differences between the bodies. One section specifies “only” three situations in which the president can commit troops to hostilities: A declaration of war, specific statutory authorization, or to repel a direct attack on the U.S., its territories or armed forces.
Another section requires the president to report on situations in which U.S. forces “are introduced into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances,” or “into the territory, airspace or waters of a foreign nation while equipped for combat” — all without specific reference to any attack on the U.S., its territories or armed forces.
Not surprisingly, a group of 15 House members initially voted against the legislation for fear future presidents would consider it a three-month free pass to wage war anywhere for any reason without congressional acquiescence. That concern has proved especially prescient.
Presidents have generally honored the law’s reporting requirements when committing U.S. forces to hostilities or imminent hostilities. In the meantime, unless specifically asked for authority by the president, Congress prefers to avoid a vote on extending troop commitments beyond the deadline and does not insist on their automatic withdrawal thereafter. The unauthorized bombing war over Libya, for example, went on for seven months as the mission morphed from humanitarian to regime change.
Obama’s claim that he has authority for the latest military campaign under the 2001 Authorization for the Use of Military Force ignores Congress’ specific rejection in that instance of broader language requested by the Bush administration. In addition to requesting authority to “use of all necessary force” against those responsible for planning, authorizing, committing, aiding or harboring those who committed the 9/11 attacks, the administration wanted blanket authority to “to deter and preempt any future acts of terrorism or aggression against the United States.” Congressional negotiators said “no.”
The Constitution is clear that the power to declare war resides in Congress. History shows, however, that the residents aren’t always home or answering the door when a president or circumstances come knocking.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.