Why the Democrats can't stop the surge

As a young House candidate in 1972, I learned just how little Congress can do to pull the plug on a war started by a president.

By Walter Shapiro
Published January 18, 2007 1:00PM (EST)

With the Vietnam War raging in 1972, I ran for Congress as a militantly antiwar candidate. My signature issue -- and it was almost enough to propel me to victory in a Democratic primary -- was a flamboyant promise to "filibuster war appropriations." This was a passionate, although preposterous, pledge, since I knew at the time that House rules strictly barred delaying tactics like the filibuster. But as a 25-year-old graduate student, I was confident that my antiwar wiles could outwit age-old congressional procedures, if only the voters of Michigan possessed the wisdom to send me to Washington.

My memories of the home-front battles during the Vietnam War have shaped, in large measure, my skeptical reaction to the rising crescendo of congressional voices vowing legislative action to curtail George W. Bush's war plans in Iraq and to set a timetable for American withdrawal. The late 1960s and early 1970s demonstrated the ineptness of Congress at condemning a war it once condoned. So many legislative vehicles, so much anguished debate and so little to show for it before 1973, five years into the Nixon administration and nine years after Lyndon Johnson first escalated the war in 1964. Even when Richard Nixon announced the withdrawal of U.S. ground troops from Vietnam on March 23, 1973, he was not so much humbled by Congress as buoyed by the Paris peace agreement with Hanoi. "We have prevented the imposition of a Communist government by force on South Vietnam," he declared.

This scornful view of Congress during the Vietnam War is not only my retrospective verdict but also that of scholars who have examined the legislative record. Liberal legal theorist John Hart Ely etched a scathing portrait of a toothless Congress in his 1993 book, "War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath." Ely persuasively argued, "Throughout the Indochina War ...a majority in Congress showed itself to be consistently unwilling to end the fighting ... but at the same time quite resourceful in scattering the landscape with rationalizations whereby it could continue to claim that it wasn't really its war."

There are many who would vigorously argue that political realities are different today. President Bush was repudiated by the recent congressional elections, even though Democratic majorities in Congress are razor thin. Bush's low job-approval ratings (about 35 percent) are at levels that Nixon reached only as he was swept up in the whirlpool of Watergate. The pace of political change is also much faster in the 21st century, thanks to cable television (everything from Fox News to Jon Stewart), blogs, YouTube and a larger media culture that caters to truncated attention spans.

But the continuities of the American political system are also strong, especially its bias toward the executive branch in wartime. The Constitution has not changed in the past three decades, nor has the difficulty of getting 535 members of Congress to speak with a unified voice on anything. The dizzying variety of plans floated on Capitol Hill in the past week to "do something" about Iraq -- from "nonbinding" resolutions to long-shot challenges to war funding -- underscore the problem. Once again we have a stubborn and isolated president in his White House bunker. Once again, we have legislators who see the war through the lens of a reelection campaign, and that inevitably brings with it both timidity and a preference for easy rhetoric over difficult results.

The biggest problem that Congress has in stopping a war is -- bluntly -- its own complicity in starting it. That remains as true now as it was in the years after the 1964 Gulf of Tonkin Resolution, which authorized Lyndon Johnson to expand the Vietnam War. Some of the angriest senators (John Kerry, Chris Dodd, Chuck Hagel and George Voinovich) hectoring Condi Rice before the Foreign Relations Committee last week voted for the 2002 legislation granting Bush the power to go to war. A healthy majority of the current members of Congress have consistently voted for war appropriations in the past without imposing any conditions on the president. All those votes have set legal precedents that are difficult to untangle, which is why a congressional measure to modify or revoke its 2002 blank-check approval for the invasion of Iraq would not end the war.

The denizens of Capitol Hill have been down this road before. In 1971, in a typical legislative shell game, Congress voted overwhelmingly to rescind the Gulf of Tonkin Resolution. Despite pious antiwar speeches, nothing changed. The reason was, as Ely explains, "Congress had ... by a number of appropriations measures, quite pointedly reiterated its authorization of the war." John Lehman, who was then working for Henry Kissinger in the Nixon White House, gleefully points out in his 1992 book, "Making War," that the repeal was orchestrated by Republicans. Their reason? According to Lehman, they wanted to demonstrate that Nixon's legal authority for the war was based "on the president's power as commander in chief and the annual authorizations and appropriations Congress passed for the war."

Another obstacle Congress faces is the ultimate constitutional weapon -- the presidential veto. The most ambitious congressional initiative to end the Vietnam War was the McGovern-Hatfield amendment, rejected by the Senate in 1970 and 1971, which would have set a timetable for the withdrawal of American forces from Indochina. But had it passed Congress (and that is a big if, since the amendment never received more than 42 votes in the Senate), it would have been subject to Nixon's veto.

The same would be true of any effort to mandate a timetable for withdrawal from Iraq today. As long as Bush retains the support of most Republicans in Congress, he can make a veto stick, since all he needs are 146 votes in the House or 34 in the Senate to prevail. It is infinitely easier for nervous Republicans to make a few critical comments about the war before TV cameras on Capitol Hill than to actually vote to restrict the war-making powers of the president. And remember: Most House Republicans hold safe one-party seats and would be in little political jeopardy even with a Democratic tidal wave in 2008.

The guiding principle on Capitol Hill for legislators in both parties is virtually always the self-protective mantra: "Don't blame me if anything goes wrong." That is why Congress will always carve loopholes into any military legislation in order to permit the president to take action to protect U.S. troops in the field. No matter how unpopular the war, Congress can suddenly prove skittish when it comes time to mandate an exit strategy. There are many Democrats who would worry about taking political fire if, say, the attacks on U.S. forces increased during any pullout period from Iraq.

Politicians might also worry about the danger of revisionist history, since pretty soon Rush Limbaugh and company would start claiming that America was winning the battle of Baghdad until the meddlesome Democratic Congress sounded the trumpets of retreat. There is already the right-wing trope (and tripe) that Congress lost Indochina. An extreme version of this argument came from former Nixon Defense Secretary Melvin Laird, who wrote in Foreign Affairs in late 2005: "The truth about Vietnam that revisionist historians conveniently forget is that the United States had not lost when we withdrew in 1973. In fact, we grabbed defeat from the jaws of victory two years later when Congress cut off the funding for South Vietnam that had allowed it to continue to fight on its own." It is flat-out absurd to believe that the South Vietnamese army, already in full retreat, lost its morale in 1975 when Congress belatedly voted not to squander more money on a lost war.

In theory, it is possible to attach, say, a timetable for withdrawal to a bill that the president has to sign, such as legislation to provide the funding for essential government operations. In return, beleaguered presidents can play hardball. In 1973, Nixon vetoed a bill that contained funds for Social Security because it included the Eagleton amendment banning future bombing runs over Cambodia. Nixon eventually yielded when Congress then attached a similar restriction to legislation lifting the debt ceiling. But this is high-stakes brinkmanship. An impasse over the debt ceiling, say, could provoke a run on the dollar. No one wants to emulate the Newt Gingrich of 1995, who ended up being excoriated for shutting down the government in his budget dispute with Bill Clinton.

House Democrats, led by war critic John Murtha, have recently been trying to write language that they can add to a military appropriations bill that would prevent Bush from escalating the war. A major difficulty -- and senior Democrats will admit this privately -- is timing, since Congress has already given the Pentagon enough funds to pay for the initial phase of the Iraqi buildup. (In government, as in life, money tends to be fungible).

But the real stumbling block is concocting legislative language that distinguishes a dangerous escalation (which most in Congress oppose) from military activities to support U.S. forces (which everyone supports). As Winslow Wheeler, a longtime Senate budget expert now with the Center for Defense Information, puts it, "Congress has total control over every penny of spending under our Constitution. What Congress does or doesn't do, however, depends on the adroitness of their wording."

A classic example of these wording problems came during the early 1970s in the aftermath of restrictions on U.S. military operations in Cambodia -- the one arena in which Congress eventually prevailed over Nixon. Legislation had made a careful distinction between the bombing runs permitted over Cambodia to support the U.S. troops in Vietnam and the illegal ones designed to buttress the government of Lon Nol. But how do you determine the purpose of bombs dropped in relative secrecy on a foreign country? Small wonder that this dispute temporarily landed in U.S. District Court in 1973 -- not the ideal venue from which to manage American foreign policy.

All of these legislative pitfalls underscore why most congressional scholars believe that Congress' major power in wartime is its ability to shape public opinion. Nothing on Capitol Hill during the Vietnam period mattered as much as the high-profile Senate Foreign Relations Committee hearings that challenged the premises of first Johnson's and then Nixon's war. Making the linkage between Vietnam and Iraq, Thomas Mann, a scholar at the Brookings Institution, said, "Congress' leverage is primarily political rather than constitutional. They can create a climate of opinion against escalation."

But as Nixon demonstrated during his first few years in office, as he made Johnson's war his own, a president does not have to heed the popular outcry over an ongoing conflict. All a lame-duck president like Bush has to do is to play out the clock, public opinion be damned. Caustic as the Senate Foreign Relations Committee was last week during Rice's appearance, neither she nor the president she serves is on the ballot in 2008. Fortified by the fantasy that they are Harry Truman and Dean Acheson -- or maybe Don Quixote and Sancho Panza -- Bush and Rice can convince themselves that they will be vindicated by history. And, meanwhile, the war in Iraq continues and grows.

This is why Congress loves the sound of its own voice. A Republican senator like Norm Coleman, who is facing a difficult reelection road in Minnesota, can make headlines back home with his tough questioning of Rice and his public skepticism about escalation. These statements, with no actions behind them, will probably win Coleman as much political credit as if he voted to impose a withdrawal deadline on the White House. When the rewards come from talking and the risks come from voting, it is not hard to predict which activity will prevail on Capitol Hill.

Maybe the final throes of the Iraq war will rewrite the familiar story of legislative ineptitude in wartime. Maybe Bush will ultimately yield to popular opinion -- especially the wails of Republicans facing uphill reelection fights in 2008 -- and reverse course in Iraq. But the Vietnam analogy extends beyond American hubris and the ease with which arrogant presidents can become trapped in unwinnable civil wars. Vietnam also reminds us how near impossible it is on Capitol Hill to stop a war that was hatched in the Oval Office.

Walter Shapiro

Walter Shapiro, a Fellow at the Brennan Center for Justice at NYU School of Law, is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked as Salon's Washington bureau chief, as well as for The Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale University. He can be reached by email at waltershapiro@ymail.com and followed on Twitter @MrWalterShapiro.

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