Impeachment Lessons: Where Has Deliberation Gone?

Whatever one’s view of the impeachment case against President Clinton, there is little doubt that the deliberative process in Congress is in tatters. Long before the House Judiciary Committee’s party-line vote Friday and yesterday, all pretense of deliberation had vanished. The committee’s conduct over the last month did nothing to persuade Americans that it had pursued a fair investigation of the facts. To the contrary, nearly all members of the committee—on both sides of the aisle—seemed to have made up their minds before the first witness was called.

In our view, the hearings have undermined the credibility and legitimacy of the impeachment process, and thus the eventual outcome—whatever it may be.

The underlying assumption of deliberation is that a slow, cautious discussion of the issues allows a consensus to emerge. A deliberative process requires that participants have the capacity and opportunity to learn new facts, recognize new interpretations and change their views. The views of others must be afforded equal validity and importance until the evidence proves such views are untenable or should be modified. It would seem obvious that a decision to overturn a national election—which, after all, is the consequence of impeaching and convicting the president—should take place only after a careful, deliberate sifting of the facts and evidence.

Why then, as Judiciary Committee Democrat William Delahunt has asserted, is the process in such a shambles? To some degree, it is the product of the events leading up to the hearings. But the more important lesson is that the committee’s rush to impeachment is the product of some regrettable political, partisan and institutional currents pervading our politics.

What is the evidence that deliberation is fast becoming extinct? Consider the following:

* Several Republicans on the Judiciary committee sponsored a resolution in November 1997 to initiate an impeachment inquiry—three months before the Lewinsky affair was disclosed and nine months before independent counsel Kenneth Starr’s report was written and sent to the committee.

* The committee’s Republican leadership justified its immediate release of the Starr report—and of the tape of the president’s grand jury testimony—on the grounds that the public should be allowed to see the raw evidence and decide for itself—a decision that sounds good, but is hardly consistent with a calm, even-handed and deliberate process.

* Once the committee opened its impeachment “inquiry,” it conducted no additional investigation, called no material witnesses to corroborate the independent counsel’s charges and held no formal discussions among committee members. The only witnesses heard were those known to have a position supporting or opposing impeachment, or legal experts who discoursed on the meaning of the constitution.

* Committee Republicans encouraged Starr to make the case for impeachment (which he did with great force) rather than to present facts and leave the conclusions to the members. His testimony ended with a standing ovation from the Republican side.

* Committee counsel exhibited the sharpest partisanship we have seen in presenting evidence and responding to questions from elected members of Congress.

* Articles of impeachment were drafted and released to the public before Clinton’s lawyer had finished presenting testimony.

* Many committee members spent their early mornings, their breaks during the hearings and their evenings and weekends in front of television cameras justifying a vote for or against impeachment—before any debate had occurred on the specific articles.

* Long before the committee voted, the majority whip was counting heads and devising a strategy that could win a vote on the House floor.

A case can be made that circumstances explain the partisan rush to judgment: Starr’s report need not have recommended impeachment (the statute requires only that the information related to impeachable acts be provided), but it did. By late September, having read the report and watched the president’s grand jury testimony, most Americans had enough information to offer their own opinions on impeachment. Then as now, it was hard to see what new information might have changed our view of the facts. Quite reasonably, many Judiciary committee members, both Democrats and Republicans, saw things the same way.

But the particulars of the case against Clinton aren’t the main reason for the vanishing deliberative process. The bitterly partisan environment in Congress makes true discussion almost impossible. By our reckoning, the parties are more polarized ideologically than at any other time during the past half-century. Only a small portion of members consider themselves “moderates,” creating a wide ideological gulf between the two legislative parties. Such divisions are plainly evident in the makeup of the House Judiciary Committee, where no familiar centrists such as Democrat Charlie Stenholm of Texas or Republican Jim Leach of Iowa hold seats.

A fractious and rudderless Republican majority makes deliberation even harder. A strong speaker of the House—either incoming or outgoing—could have, and should have, demanded different behavior from committee members. But Republican leaders have not yet learned to govern, displaying instead the consequences of 40 years in the wilderness as a House minority. They seem unable to rise above their party’s pronounced divisions; no wonder they can’t set an appropriate tone for a nonpartisan deliberation of the facts in the impeachment debate.

The truth is, the “permanent campaign” that now pervades our national politics gives legislators little incentive to deliberate with care. Indeed, it teaches them the opposite. The attack/counterattack tactics that have come to dominate modern elections now pervade the politics of governing as well. Opposition research, normally generated for the campaign trail, now provides ammunition for political assassination. The result of this permanent campaign is that reasoned public discourse is rare, with television programs such as Crossfire hardly a forum for the discussion essential to nonpartisan deliberation.

The institutional context of the legislative environment also works against true deliberation. Sunshine and other reforms of the early 1970s certainly made the House a more responsive and accountable institution. But today’s open Congress encourages rampant media protrusion into delicate legislative debate and fuels demands for more openness.

The system of campaign finance also has leads members to shun the close confines of trust and mutual respect that deliberation demands. Dialing for dollars isolates members from each other, especially members of different parties. The result is a body of legislators who spend little time together and know less and less about each other.

There’s no magic bullet for whipping Congress into deliberation, but some incremental steps might help. First, rein in future independent counsels. If Congress renews the law that governs independent counsels—not a sure bet at this point—it should put all future counsels on a shorter leash and a limited budget.

Second, reestablish some buffers between members and the media: Keep impeachment sessions closed unless a majority votes to open them; restructure the hearings to consider evidence on real charges; and reconsider the ready access of media to certain committee deliberations.

Finally, reform the campaign finance laws so that legislators spend less time seeking contributions and more time—yes, more time—in Washington while Congress is in session. That will keep the sessions shorter and get legislators talking to one another.

To be sure, Congress has rarely met high standards for deliberation. Still, we have a right to expect that a House committee loaded with lawyers would conform its rhetoric and demeanor to meet standards of nonpartisan deliberation and would avoid unnecessary discussion of the case in the media. We should expect all top party leaders, not just the outgoing and incoming Speakers, to remain true to the spirit, as well as to the letter, of their articulated wish that every member make an independent judgment about impeachment.

The closed Congress of 50 years ago is hardly an acceptable model for us today. But some new ways must be found to reward independent-minded members, to lessen partisan tensions within the chambers and to encourage legislators to work together. Only by creating the conditions conducive to deliberation is Congress likely to restore the credibility that today’s impeachment proceedings have sorely lacked.

Steven S. Smith is a professor of political science at the University of Minnesota. Sarah Binder is a fellow at the Brookings Institution and an assistant professor of political science at George Washington University. They are the authors of Politics or Principle: Filibustering in the U.S. Senate (1996).