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Republicans Can't Get Rid of These Watchdogs

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The stealth Republican move Monday night to weaken the ethics oversight office in the House of Representatives is a good reminder that the U.S. Constitution provides only limited protections when a single party rules. But the swift rollback of the plan on Tuesday is also a good reminder that the Constitution does have an oversight mechanism built in: the press. When one party controls the legislature and presidency, the “Fourth Estate” isn’t just a metaphor. It’s a necessity for functioning free government.

The Office of Congressional Ethics wouldn’t be anomalous in northern Europe, where many countries have independent ombudsman offices that oversee government ethics. But it’s a fairly unusual entity in U.S. terms. It was created in 2008, not by a law requiring a presidential signature, but in a resolution passed by the House itself, under Democratic leadership.

The office is under the control of an eight-member board of directors, who are private citizens. It can’t subpoena, and it can’t punish. Its power comes from its twin mandates of efficiency and publicity. It must complete its two-stage review process relatively quickly, by Washington standards (30 days and 45 days, respectively). And it must make public the recommendations it makes to the House Ethics Committee. It can also refer cases to the Department of Justice.

In short, the ethics office is designed to ensure that an independent, nonpartisan entity makes a public judgment when there are allegations of ethical violations by House members. If that task sounds familiar, it should: It’s also part of the essential function of a free and independent press that takes the job of in-depth investigations seriously.

In essence, the cuts would have taken away the office’s independence by giving the House Ethics Committee power to block investigations and by barring the office from investigating anonymous reports or referring investigations to federal prosecutors without first getting permission from the committee.

The proposed cuts, which were initially approved by the Republican conference, can only be explained by the existence of a single party majority in both houses of Congress and soon in the White House.

True, the office only supervises the House. But House Republicans didn’t take this step when they formed a majority in 2010, or at any time since.

The difference now is that the Republican House is about to start passing major legislation that is going to become law, which wasn’t the case as long as the Democrat Barack Obama was president. That legislative process is going to involve some heavy-duty lobbying by representatives of major regulated industries. And it’s a lot easier to streamline the passage of legislation if members of Congress don’t have to worry about an ethics office looking over their shoulders.

What’s more, House Republicans are clearly feeling empowered by the Republican ascendancy across the branches. Democrats can make objections, to be sure. But the bully pulpit of the presidency, in particular, will only be occupied by a Republican.

All this starkly points to the reality that when the president and Congress come from the same party, the checks and balances contained in the Constitution have a far more limited effect than when there is partisan opposition across the branches.

When James Madison generated his constitutional design, he aspired to block the effects of political parties from the federal government. In the words of the historian Richard Hofstadter, Madison sought to produce a “constitution against parties.”

That didn’t work out, as Madison himself learned in the first Congress. Eventually Madison embraced partisanship and became the founder of the Republican Party, which was arrayed against Alexander Hamilton’s Federalist Party. But the U.S. was left with a system that attributed an unrealistic interest in balancing to a Congress controlled by the same party as the president, or vice versa.

Yet there is an all-important constitutional provision that does assure some oversight even when the president and Congress come from the same party: Madison’s First Amendment, specifically its guarantee of freedom of the press.

According to a later attribution by the writer Thomas Carlyle, it was the great English political thinker and parliamentarian Edmund Burke who first referred to the press as the “Fourth Estate” alongside -- and perhaps more important than -- the Commons, Lords and Clergy represented in Parliament. If the attribution is accurate, then the notion arose around the time Madison was drafting the First Amendment.

The basic idea is that a free press has an essential constitutional job: It oversees the branches of government, even when they aren’t checking each other.

For this to work, the press doesn’t have to be “objective.” It can have a political bent. Newspapers were partisan in Madison’s age. The Gazette of the United States was identified with the Federalist Party, and Madison helped create and then wrote for the competing National Gazette to express the Republican point of view.

The point is that a newspaper, even a partisan newspaper, keeps publishing even when the party it supports isn’t in power. The House Republicans can gut the ethics office, but they can’t gut the national news media.

Investigating members of Congress isn’t always easy. In its infinite wisdom, Congress hasn’t extended the Freedom of Information Act to itself. Identifying backroom deals and directions of lobbyist influence is hard work.

But it’s also work that is absolutely crucial to the functioning of democratic government in the years ahead. In this way, the Constitution doesn’t just permit a free press: It requires it.

That’s the difference between one-party political dominance, which the U.S. will soon have, and one-party rule, which we know from Russia, Egypt, Turkey and the like.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net