My meeting with the King of Jordan, or the inevitability of legislative diplomacy
Editor’s note: This speech was given before the Open World Leadership Center’s conference on women in leadership and legislative diplomacy on November 19, 2019.
Good afternoon. My name is Matt Glassman and I’m a Senior Fellow at the Government Affairs Institute at Georgetown University.
I am also an alumus of the Hill. I worked for a decade at the Congressional Research Service (CRS), where my portfolio consisted of institutional issues in congress, including separation of powers and legislative capacity. I also worked on the Legislative Branch Subcommittee of the House Appropriations Committee, and for the Chair for of the Homeland Security Committee in the New York State Senate.
I’ve never worked in the executive branch of any government. I am a legislative branch patriot and committed to the goal of a modern, capable, and powerful legislature.
In all my time in these legislative roles, I don’t think I ever used the term “Legislative Diplomacy.” But I certainly felt the inherent constitutional tensions encapsulated by it and witnessed the regular struggles on the Hill over it. Often it was exasperated members looking to steer misguided executive foreign policy, or just to stop it dead in its tracks.
It’s easy to miss legislative diplomacy, and the angst about it, if you aren’t looking for it. So much of it—and so much of the frustration about it—takes place in private. But sometimes it’s just right there in the newspaper. Speaker Pelosi meeting with heads of state on a Mideast trip last month. Or Senator Graham drawing red lines with Turkey on Twitter. Just last week, there was a long retrospective in CQ magazine on Congressman Leo Ryan and Jonestown, arguably the most tragic instance of legislative diplomacy.
As I was preparing these remarks, a variety of stories from my time on the Hill came to mind. I’ll share with you now three of them that I think illustrate some important dynamics of congress, the separation of powers system, and the struggle over the role of the legislature in diplomacy.
I’ll start with a humorous one. It was 2009. I was sitting in my Legislative Branch Appropriations office in H-147 at the Capitol, early on a pretty quiet morning, around 8:30am. I’m alone. Phone rings. Capitol Police. “Uh, hi Matt, we’ve got a visitor here at the Carriage door, uh, can we stash him in your office for 10 minutes?”
This was not an unusual request. H-147 is a large, beautiful office with a view down the Mall, located seconds from the House floor. We often hosted guests. And since we had control over their budgets, we had a good relationship with both the Capitol Police and the Office of the Sergeant-At-Arms.
“Sure, who is it?”
“It’s the King of Jordan.”
That was decidedly not usual. I scrambled to my feet and surveyed H-147. It wasn’t a total mess.
“Sure. Send him down.”
I hung up the phone and raced to tidy up the couches and coffee table, stopping only to pull up the King’s Wikipedia entry and learn everything I could learn in the few moments I had.
Thirty seconds later, the Sergeant-At-Arms knocked on my door. “Thanks for letting us use your space, Matt. Uh, address him as Your Majesty, and remember—you’re now representing the United States of America. Don’t do anything stupid.”
Two minutes later, the King—and his security—arrived. The Sergeant-at-Arms and I made small talk with him for 5 minutes. He asked me about my work. We accepted a gift from him on behalf of the United States—I later argued we should have accepted on behalf of the House, more on this in a bit—and then an earpiece buzzed and he was whisked away to where he was intended to go, no doubt to meet with other legislative branch employees far, far more important than me.
The point of this story is not that I was engaging in high-level diplomacy with a head of state. I certainly was not. But the King’s visit was a reminder that Congress—whether the president likes it or not, whether OLC thinks it’s constitutional or not,—is, as a practical matter, going to be involved in diplomacy, simply because Congress has extensive authority and power over foreign policy and is thus going to be subject to, at a minimum, interest by foreign governments in interacting with us.
Too many Americans don’t appreciate this. Congress has incredible power to control foreign policy. There’s a general tendency to equate the president with foreign policy and Congress with domestic policy. But congressional control over lawmaking guarantees significant direct authority over foreign policy, and perhaps more importantly, significant control over the process by which executive foreign policy is made.
But, of course, other countries know this. Trade agreements. Military alliances. Cybersecurity. Immigration rules. To say nothing of appropriations. All the policy pieces of American foreign relations run directly through the United States Congress. So of course, foreign nations are going to directly engage with Congress.
And of course, Congress has the duty to engage directly with foreign nations in the course of making legislative foreign policy. To say otherwise would be to imply either an absurdly expansive presidential role in policymaking, or to deny Congress to ability to collect information relevant to policy choices. Whatever our normative or legal theories, foreign nations are going to have multiple diplomatic relationships with the United States.
In this sense, the realities of the separation of powers system sidestep much of the legalistic constitutional debate. Whatever the formal diplomatic powers and prerogatives of the presidency—the “sole organ” doctrine is incorrect, in my view, as a legal theory but certainly is a reasonable framework for thinking about official U.S. foreign policy positions—the informal reality is that political power is located all over the system, and Congress has plenty of leverage over the executive branch if it wishes to be involved in diplomacy, or at least enough power to resist if the executive seeks to cut the legislature out.
More importantly, perhaps, it’s not in the president’s interests to box out the legislature in diplomatic affairs. The wonderful Richard Neustadt phrase about the president being surrounded in Washington by people who “share in the governing” of the country evokes the right image: the president has very little formal power unless it is backed by the informal support (or at least acquiescence) of the others in the system; if the president stubbornly goes it alone against the views and positions of those with whom he shares governing responsibility, his power is diminished, and his opponents will have ample ability to block his policies.
And so cutting legislators into the development and execution of diplomacy is just good strategy for a president seeking to influence foreign policy. Unlike many of the parliamentary systems, our governments are rarely unified, and the departments are not headed by members of the legislature. The formal apparatus of executive foreign policy is far more isolated from the legislature, all while the president has less comfort that he can depend on legislative consent to his diplomatic decisions.
Could bringing Henry Cabot Lodge to Paris for the peace conference in 1919 have saved Wilson and his doomed League of Nations? Maybe, maybe not. But it’s hard to see how it would have hurt. Could president Trump have built a more stable base for his foreign policy vision if he had brought more of Congress into the diplomatic decision-making? Probably. Note that he’s vetoed six bills to date, arguably all of them over disagreements with Congress over foreign policy.
The surprise diplomatic interaction I had in my capitol office also raises a key question about legislative diplomacy. What was I doing there with the King? Was I really there representing the United States, as the Sergeant-At-Arms noted? Or was I representing the legislature? Or the House? Or the committee? Or just myself?
As professor Ryan Scoville has so carefully identified, we need to separate, at a minimum, the legislatures’ role in (1) sovereign diplomacy for the nation, and (2) a legislative diplomacy that exists at a sub-sovereign level, in which Congress participates in diplomacy not for the nation, but for the legislative process.
Put it this way. There’s legislative participation in sovereign diplomacy, and then there’s sub-sovereign diplomacy in service of the legislature. It seems to me that, whatever the value of Congress using its power in the separated system to participate in diplomacy and influence foreign policy, there’s an absolute independent value to the legislature pursuing its own diplomacy for Article I ends.
And if legislative diplomacy is important, Congress needs to have the capacity and resources to engage in it.
A second story. When I was working at the Congressional Research Service, I was invited to give a talk about separation of powers and congressional capacity at the Canadian Embassy. I was enthusiastic about the invitation, but a lot of people around me were not. They argued that it wasn’t really serving Congress for me to go speak at the embassy and that, even if it was a reasonable way to serve Congress, it wasn’t worth my time when I had so much other work on my plate that was unambiguously helpful to Congress.
The point here is that there’s a widely held view, among the public and even among many on the Hill, that diplomacy is the province of the executive. However true it might be that Congress could assert itself under the separation of powers to forge an increased role in diplomacy and foreign policy, the widely held political position is that it’s normatively better if the executive branch just handles it. Or, at any rate, Congress has better things to spend it’s time doing.
And, of course, there’s some grounds for these ideas. The case of executive control of sovereign diplomacy has been made for hundreds of years—the executive has unitary decisional authority and speaks with a singular voice and creates a singular node of accountability, can act quickly, has less problems keeping secrets, represents the whole of the nation, and is never out of session.
All of this has been backed up historical reality—the American experience with legislative-centered diplomacy has been, well, poor. The Continental Congress both before and under the Articles of Confederation was decidedly poorly structured as the center of diplomatic affairs, and the Framers of the Constitution were cognizant of the lessons learned, specifically locating much of the formal diplomatic authority in the presidency.
But a more careful inspection of the claims against legislative diplomacy largely boil down to the claims against all legislative government. It’s often messy. It’s usually slow. It can be parochial. Accountability is diffuse. Sometimes, these arguments against legislative diplomacy drift toward arguments against legislatures themselves.
Too many people are apologists for legislative power. Part of the answer to why legislative diplomacy is necessary is wrapped up in the simple question of why are legislatures necessary?
And that’s an easier question to answer. We can start with the negative reason: executives and monarchs have proven themselves time and again, for centuries, to have serious problems in foreign affairs when unconstrained and left to their own devices.
As much as the Founders understood legislatures had diplomatic weaknesses, they were just as certain that executives had major foreign policy weaknesses, mostly notably the substitution of personal glory for the national good. Unilateral, total control of diplomacy is dangerous because the concentration of power in any single institution is dangerous.
But we can also make a positive case for legislatures, both generally in the diplomatic arena. The strengths of the legislature are, not surprisingly, the opposite of those of the executive. An extended discussion is not possible here, but it’s worth mentioning them.
First, representation of a large, diverse society. Legislatures don’t think like executives, and that’s a good thing. Whatever merit this is a “national good” outlook, the often-derided local focus of representatives is also good. Congressman Leo Ryan’s role in Jonestown is a good example of this. He made his fact-finding trip, in part, because the State Department was not being responsive to constituents raising alarms about what was going on. If the legislature is sometimes too parochial, the executive is sometimes too nationally focused.
Second, deliberation. There are surely benefits to unitary decision-making. But the deliberative process of the legislatures requires proponents of foreign policy choices to grapple with the best arguments against their positions. They cannot ignore dissenting views by shutting them out of mind and excluding information from their vision. Trade-offs and limitations of chosen lines of policy will get a voice.
Finally, openness. There is obviously an important role for secrecy in diplomatic relations and foreign affairs. But an open, legislative process allows far more direct participation by the public, and may ultimately result in a more publicly satisfying line of policy.
A third story. During my time at leg branch appropriations, there were significant efforts to get the Open World Leadership Center out of the leg branch budget. A fair number of members didn’t see the value of having a legislative branch exchange program. None of the detractors were against the program, per se, they just thought the money could be better used on other things, and that programs like Open World belonged more in the State Department.
It wasn’t a lot of money, even by leg branch standards. Open World was something like 1/10 of 1% of the legislative branch budget, which itself is less than 1/2 of 1% of total federal discretionary spending.
This belief, that legislative diplomacy might be valuable, but isn’t cost efficient in the context of already tight legislative branch budgets, is pervasive on the Hill.
But it’s also a self-fulfilling prophecy: without the resources to increase capacity, members will have less interest and less ability to engage in meaningful diplomacy, which in turn becomes the justification for not building the capacity.
Legislative diplomacy—both of sovereign type and the sub-soverign type—is a particular victim of a more general congressional capacity problem.
Recent surveys of senior staff on the Hill paint a terrifying picture, with less than 1/3 of those polled believing Congress has adequate resources to fulfill its role in our democracy, and only a little more than half saying that Members have a strong understanding of what that role actually is.
I can remember numerous meetings with Members who were frustrated at the general impotence of Congress in the face of aggressive presidential unilateral action. I would often start discussions about congressional power by half-joking that we could just turn off the power at the White House and show them whose boss. Inevitably, I’d get a shocked response. “Wait, we can do that?” Members often simply didn’t conceptualize the executive branch as being built and maintained by Congress. “Of course,” I’d say. “We can just zero out the White House and State and make him come over here to call our allies.”
Obviously, this was a joke to make a point. Everyone agrees the president needs the capacity to lead executive diplomatic relations, and no one thinks he shouldn’t have the resources and advisors necessary. But it highlights the mindset that many members of Congress resign themselves to adopting: foreign policy and, in particular, diplomacy are not things within their control, so they might as well be things they don’t worry about.
This is understandable. As individuals, there’s usually little they can do, either alone or to steer the collective. And more importantly, their voters largely do not care about foreign policy, and in particular do not care about it in regard to their vote choice for Congress.
Capacity problems in Congress, aren’t exactly a revelation. For whatever reason, voters hate it when members of Congress spend money on the legislative branch. And that puts a downward democratic pressure on members to keep legislative branch spending lower than they might otherwise be, and certainly lower than the executive branch. Member pay. Staff sizes. Staff pay. Institutional investment in technology. Non-partisan support resources.
At the same time, investment in executive branch resources continues to outpace the legislature; the ratio gap in branch spending between the executive and the legislative continues to grow.
Congressional policymaking is inherently tied up in legislative diplomacy, but the informal politics of the public sphere works against the notion that Congress should focus on it, and even if they want to, against their ability to provide for their own capacity to undertake it.
There is, of course, no easy solution to this. But I would urge all those interested in enhancing legislative diplomacy to make congressional capacity a top priority. And those interested in increasing congressional capacity to make sure that foreign policy and legislative diplomacy aren’t left behind.