Can enhanced oversight repair "the broken branch"?

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 765-793

  Kriner, Douglas ^a  

^a Boston University   (United States)

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EID: 67649582950     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (136)

1. 1 THOMAS MANN and NORMAN ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA and HOW to GET IT BACK on TRACK (2006).
2. 2 Richard Fenno, If as Ralph Nader Says, Congress Is "The Broken Branch, " How Come We Love Our Congressmen So Much?, in CONGRESS in CHANGE: EVOLUTION and REFORM 277, 277-78 (Norman J. Ornstein ed., 1975) (observing that while ninety-six percent and eighty-five percent of House and Senate incumbents, respectively, won reelection, only twenty-five percent of the electorate gave Congress a positive rating).
3. 3 CBS News Poll, The Bailout, the Economy and the Campaign (Oct. 1, 2008), http://www.cbsnews.com/htdocs/pdf/SEP08D-BAILOUT.pdf.
4. 4 ROBERT C. BYRD, LOSING AMERICA: CONFRONTING a RECKLESS and ARROGANT PRESIDENCY 39 (2004).
5. 5 See, e.g., DAVTO W. ROHDE, PARTIES and LEADERS in the POSTREFORM HOUSE 11-13 (1991);
6. JULIAN E. ZELIZER, ON CAPITOL HILL: THE STRUGGLE to REFORM CONGRESS and ITS CONSEQUENCES, 1948-2000, at 8-10 (2004).
7. 6 See, e.g., WALTER OLESZEK, CONGRESSIONAL PROCEDURES and the POLICY PROCESS 324-35 (2007);
8. BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES in the U. S. CONGRESS 3-7 (1997) [hereinafter SINCLAIR, UNORTHODOX LAWMAKING].
9. 7 See, e.g., GARY W. COX and MATTHEW D. MCCUBBINS, LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT in the HOUSE 17 (1993);
10. GARY W. COX and MATTHEW D. MCCUBBINS, SETTING the AGENDA: RESPONSIBLE PARTY GOVERNMENT in the U. S. HOUSE of REPRESENTATIVES 2 (2005) [hereinafter Cox and MCCUBBINS, SETTING the AGENDA] (asserting that a majority party's ability to set the agenda, rather than its ability to garner sufficient votes, is an important source of its legislative power).
11. 8 STANLEY BACH and STEPHEN S. SMITH, MANAGING UNCERTAINTY in the HOUSE of REPRESENTATIVES: ADAPTATION and INNOVATION in the SPECIAL RULES 41-42 (1988) (describing the use of special rules allowing party leaders to compromise outside of committees);
12. DONALD R. WOLFENSBERGER, WOODROW WILSON INT'L CTR. for SCHOLARS, A REALITY CHECK on the REPUBLICAN HOUSE REFORM REVOLUTION at the DECADE MARK 18 (2005), available at http://www.wilsoncenter.org/news/docs/repub-rev- essay.pdf.
13. 9 For a thorough analysis of the full range and increasing frequency with which such procedures have been employed, see SINCLAIR, UNORTHODOX LAWMAKING, supra note 6, at 3-7 (outlining how the legislative process in practice diverges from the legislative process in theory);
14. STEVEN S. SMITH, CALL To ORDER: FLOOR POLITICS in the HOUSE and SENATE 1-2 (1989) (discussing the increased importance of floor decision-making in Congress).
15. 10 ZELIZER, supra note 5, at 16 (recounting the rise of "extremely powerful" Speakers of the House).
16. 11 These are the twin pillars of conditional party governance theories. Rohde, supra note 5, at 31-34; see JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN and TRANSFORMATION of POLITICAL PARTIES in AMERICA 194 (1995). On increasing polarization, see generally NOLAN MCCARTY, KEITH T. POOLE and HOWARD ROSENTHAL, POLARIZED AMERICA: The DANCE of IDEOLOGY and UNEQUAL RICHES (2006);
17. BARBARA SINCLAIR, PARTY WARS: POLARIZATION and the POLITICS of NATIONAL POLICY MAKING (2006).
18. 12 SARAH A. BINDER and STEVE S. SMITH, POLITICS or PRINCIPLE? FILIBUSTERING in the UNITED STATES SENATE 2 (1997).
19. 13 Id.
20. 14 Id. at 1; GREGORY J. WAWRO and ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION and LAWMAKING in the U. S. SENATE 1-6 (2006).
21. 15 See, e.g., DONALD R. WOLFENSBERGER, CONGRESS and the PEOPLE: DELIBERATIVE DEMOCRACY on TRIAL 6-7 (2000);
22. Gerald B. H. Solomon and Donald R. Wolfensberger, The Decline of Deliberative Democracy in the House and Proposals for Reform, 31 HARV. J. on LEGIS. 321, 321-22 (1994).
23. 16 See Cox and MCCUBBINS, SETTING the AGENDA, supra note 7, at 224; Andrea C. Campbell, Gary W. Cox and Mathew D. McCubbins, Agenda Power in the U. S. Senate, 1877-1986, in PARTY, PROCESS and POLITICAL CHANGE in CONGRESS: NEW PERSPECTIVES on the HISTORY of CONGRESS 146, 164 (David W. Brady and Mathew D. McCubbins eds., 2002);
24. Sean Gailmard and Jeffery A. Jenkins, Negative Agenda Control in the Senate and House: Fingerprints of Majority Party Power, 69 J. POL. 689, 689 (2007).
25. 17 MANN and ORNSTEIN, supra note 1, at 226-39.
26. 18 See, e.g., JAMES L. SUNDQUIST, THE DECLINE and RESURGENCE of CONGRESS 38 (1981).
27. 19 Id.
28. 20 See DAVID EPSTEIN and SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH to POLICY MAKING UNDER SEPARATE POWERS 11 (1999) ("Congress delegates less and constrains more under divided government."). However, for a more nuanced view, see Craig Volden, A Formal Model of the Politics of Delegation in a Separation of Powers System, 46 AM. J. POL. Sci. 111, 111 (2002) (exploring the delegation of power under both unified and divided governments).
29. 21 Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L. J. 672, 701 (1972) (concluding that "Americans originally understood Congress to have at least a coordinate, and probably the dominant, role in initiating all but the most obviously defensive wars, whether declared or not").
30. 22 U. S. CONST, art. I, § 8, els. 11-13.
31. 23 Id. at art. II, § 2, cl. 1.
32. 24 THE FEDERALIST no. 69, at 3 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Of necessity, this is an oversimplification of the vigorous debate on the constitutional distribution of war powers. For a more complete discussion, see generally JOHN HART ELY, WAR and RESPONSIBILITY: CONSTITUTIONAL LESSONS of VIETNAM and ITS AFTERMATH (1993) (discussing the state of war powers post-Vietnam);
33. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY (1990) (examining the division of war powers through legal precedent);
34. Louis HENKIN, FOREIGN AFFAIRS and the UNITED STATES CONSTITUTION (1996) (examining the distribution of foreign affairs powers under the Constitution);
35. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER the IRAN- CONTRA AFFAIR (1990) (arguing that the Iran-Contra Affair was a result of ineffective national security laws);
36. JOHN YOO, THE POWERS of WAR and PEACe: THE CONSTITUTION and FOREIGN AFFAIRS AFTER 9/11 (2005) (revisiting the issue of the distribution of foreign policy powers between Congress and the President and advocating for flexibility in times of war);
37. Lofgren, supra note 21 (exploring the executive's war powers as understood by the founders).
38. 25 LOUIS FISHER, CONGRESSIONAL ABDICATION on WAR and SPENDING, at xiv (2000) (arguing that Congress has given the war and spending powers the Framers intended for the legislature to the President);
39. Louis FISHER, PRESIDENTIAL WAR POWER, at xii (1995) [hereinafter FISHER, PRESIDENTIAL WAR POWER] (commenting on the strength of presidential war powers after World War II).
40. 26 FISHER, PRESIDENTIAL WAR POWER, supra note 25, at 84.
41. 27 Id. at 118.
42. 28 50 U. S. C. §§ 1541-1548 (2000) (setting the procedure by which the President and Congress can engage the U. S. in hostilities abroad).
43. 29 Id. § 1544.
44. 30 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
45. 31 Id.
46. 32 Detainee Treatment Act of 2005, 42 U. S. C. §§ 2000dd to 2000dd-l (2000) ("No individual in the custody or under the physical control of the United States Government... shall be subject to cruel, inhuman, or degrading treatment or punishment.").
47. 33 Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 41 WEEKLY COMP. PRES. DOC. 1919 (Dec. 30, 2005).
48. 34 See, e.g., PHILLIP J. COOPER, BY ORDER of the PRESIDENT: THE USE and ABUSE of EXECUTIVE DIRECT ACTION, at xi (2002);
49. WILLIAM G. HOWELL, POWER WITHOUT PERSUASION: THE POLITICS of DIRECT PRESIDENTIAL ACTION 183 (2003);
50. Kenneth R. Mayer, Executive Orders and Presidential Power, 61 J. POL. 445, 445 (1999).
51. 35 See EPSTEIN and O'HALLORAN, supra note 20, at 34; Terry M. Moe and Scott A. Wilson, Presidents and the Politics of Structure, 57 LAW and CONTEMP. PROBS. 1, 26 (1994);
52. Terry M. Moe and William G. Howell, The Presidential Power of Unilateral Action, 15 J. L. ECON. and ORG. 132, 140 (1999);
53. Barry R. Weingast and William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, are not Organized as Markets, 96 J. POL. ECON. 132, 136 (1989).
54. 36 DAVID W. BRADY and CRAIG VOLDEN, REVOLVING GRIDLOCK: POLITICS and POLICY from CARTER to CLINTON 7 (1998);
55. KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY of U. S. LAWMAKING 22 (1998) (commenting that two super-majoritarian procedures, the presidential veto and the Senate filibuster, limit the legislative majority's power to pass legislation).
56. 37 INS v. Chadha, 462 U. S. 919, 959 (1982).
57. 38 Eric Schickler, Institutional Development of Congress, in THE LEGISLATIVE BRANCH 35, 40 (Paul J. Quirk and Sarah A. Binder eds., 2005).
58. 39 For a more detailed analysis of congressional oversight in the Roosevelt era, see SUNDQUIST, supra note 18, at 133-39.
59. 40 This is a key component of McCubbins and Schwartz's argument about fire alarm oversight. If bureaucrats know that interest groups or the public will sound the fire alarm if the agency strays too far from congressional and interest group preferences, then they will be reluctant to do so and the observable result is little active congressional oversight. See Matthew D. McCubbins and Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 176 (1984).
60. 41 NAT'L COMM'N on TERRORIST ATTACKS UPON the U. S., THE 9/11 COMMISSION REPORT 419 (2004) [hereinafter 9/11 COMMISSION REPORT] (recommending a strengthening of "congressional oversight of intelligence and homeland security" and recognizing that this "may be among the most difficult and important" recommendations to implement).
61. 42 Id.
62. 43 Id. at 420 (referring to previous congressional oversight of intelligence as "dysfunctional").
63. 44 JOEL D. ABERBACH, KEEPING a WATCHFUL EYE: THE POLITICS of CONGRESSIONAL OVERSIGHT 35-47 (1990) (surveying the trends in congressional oversight and finding a sharp increase in oversight in the early 1970s);
64. Joel D. Aberbach, What's Happened to the Watchful Eye?, 29 CONG. and PRESIDENCY 3, 5 (2002). For another study challenging the conventional view of Congress's abdication of its oversight role, see Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 68 (2006) (arguing that Congress has exercised oversight in many ways, both formal and informal, and not just by conducting oversight hearings).
65. 45 See, e.g., MANN and ORNSTEIN, supra note 1, at 157.
66. 46 Aaron Wildavsky, The Two Presidencies, 4 TRANS- ACTION 7, 7 (1966). See generally BARBARA HINCKLEY, LESS THAN MEETS the EYE: FOREIGN POLICY MAKING and the MYTH of the ASSERTIVE CONGRESS (1994);
67. ANDREW RUDALEVTOE, THE NEW IMPERIAL PRESIDENCY: RENEWING PRESIDENTIAL POWER AFTER WATERGATE (2005);
68. THE PRESIDENT, the CONGRESS and the MAKING of FOREIGN POLICY (Paul E. Peterson ed., 1994).
69. 47 See DOUGLAS KRINER, AFTER the RUBICON: CONGRESS, PRESIDENTS and the CONDUCT of MILITARY ACTION (forthcoming) (manuscript at 213, on file with author);
70. William Howell and Douglas Kriner, Congress, the President, and the Iraq War's Domestic Political Front, in CONGRESS RECONSIDERED 311, 319 (Lawrence Dodd and Bruce Oppenheimer eds., 2009) [hereinafter Howell and Kriner, Iraq War's Domestic Political Front].
71. 48 Norman Ornstein and Thomas Mann, The Hill Is Alive with the Sound of Hearings, FOREIGN AFF., Mar. 21, 2007, http://fullaccess.foreignaffairs.org/20070321faupdate86276/norman-j-ornstein- thomas-e-mann/the-hill-is-alive-with-the-sound-of-hearings.html.
72. 49 This data is taken from Howell and Kriner, Iraq War's Domestic Political Front, supra note 47, at 324.
73. 50 Id.
74. 51 Id. In previous work, Howell and Kriner coded both positive and critical hearings and examined the influence of each on popular support for the war effort. Id. at 324-31. Because the focus of this Essay is on legislative responsibility and oversight as a tool by which Congress can retain an important check on presidential action in the military arena, I focus here exclusively on critical oversight. Moreover, Howell and Kriner's multivariate regression model showed no evidence of a statistically significant correlation between positive hearings and public support for the war. Id. at 329.
75. 52 See, e.g., Oversight Hearing on Waste, Fraud and Abuse in U. S. Government Contracting in Iraq Before the S. Democratic Policy Comm., 109th Cong. 1 (2005) (statement of Sen. Dorgan) ("[T]here is a serious problem here in the Congress with a lack of oversight hearings.").
76. 53 151 CONG. REG H4833 (daily ed. June 21, 2005) (statement of Rep. Waxman).
77. 54 For the critical importance of the Iraq War in both the House and Senate 2006 elections, see Christian R. Grose and Bruce I. Oppenheimer, The Iraq War, Partisanship, and Candidate Attributes: Explaining Variation in Partisan Swing in the 2006 U. S. House Elections, 32 LEGIS. STUD. Q. 531, 550 (2007), and Douglas L. Kriner and Francis X. Shen, Iraq Casualties and the 2006 Senate Elections, 32 LEGIS. STUD. Q. 507, 523 (2007), respectively.
78. 55 Howell and Kriner, Iraq War's Domestic Political Front, supra note 47, at 326 (identifying fifty critical hearings during Republican rule from 2003-2006 compared with sixty-five hearings during the first fifteen months of Democratic control).
79. 56 Jonathan Weisman and Lyndsey Layton, Democrats' Momentum is Stalling, WASH. POST, May 5, 2007, at A1.
80. 57 BRADY and VOLDEN, supra note 36, at 157-58.
81. 58 Howell and Kriner, Iraq War's Domestic Political Front, supra note 47, at 326.
82. 59 Id.
83. 60 To illustrate the difference, consider two hearings in the 109th and 110th Congresses on the Department of Defense's health care and transitional assistance programs for veterans. Compare Seamless Transition: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Veterans' Affairs, 109th Cong. (2006) [hereinafter Seamless Transition], with Hearing to Receive Testimony on the Departments of Defense and Veterans Affairs Disability Rating Systems and the Transition of Servicemembers from the Department of Defense to the Department of Veterans Affairs: Joint Hearing Before the Comm.
84. On Armed Servs. and the Comm. on Veterans' Affairs, 110th Cong. (2007) [hereinafter Disability Rating Systems]. In some places, the 109th congressional hearing did raise ways in which the Department of Defense program could be improved. Seamless Transition, supra, at 2 (statement of Rep. Gus Bilirakis, Chairman, Subcomm. on Oversight and Investigations of the Comm. on Veterans' Affairs) (commenting that "more can be done" to smooth the transition from military to civilian life). However, the fundamentally more aggressive and critical approach to oversight of this program under divided government is readily apparent from a quick comparison of the opening statements by Chairman Bilirakis (R-FL) in the 109th Congress and Chairman Levin (D-MI) in the 110th Congress.
85. Compare id. (statement of Rep. Gus Bilirakis, Chairman, Subcomm. on Oversight and Investigations of the Comm. on Veterans' Affairs) (recalling a visit to Walter Reed Army Medical Center and applauding the Departments of Defense and Veterans' Affairs for "their efforts to achieve seamless transition"), with Disability Rating Systems, supra, at 1-3 (statement of Sen. Carl Levin, Chairman, Comm. on Armed Servs.) (listing the challenges to achieving a seamless transition, including the difficulty some wounded veterans have getting into VA programs).
86. 61 Peter Baker, For an Opaque White House, a Reflection of New Scrutiny, WASH. POST, Mar. 7, 2007, at A1.
87. 62 All models were re-estimated using negative binomial event count models and autoregressive Poisson models with very similar results.
88. 63 All significance tests are one-tailed; all models report robust standard errors.
89. 64 This method follows that of previous attempts to identify positive and negative "rally" events. See PAUL BRACE and BARBARA HINCKLEY, FOLLOW the LEADER: OPINION POLLS and the MODERN PRESIDENTS 183-85 (1992) (describing the method for classifying and coding events);
90. Paul Gronke and John Brehm, History, Heterogeneity, and Presidential Approval: A Modified ARCH Approach, 21 ELECTORAL STUD. 425, 433 (2002) (updating the Brace and Hinckley series and developing a more detailed coding method).
91. 65 DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, and INVESTIGATIONS, 1946-2002, at 178, 223 (2005).
92. 66 Douglas Kriner and Liam Schwartz, Divided Government and Congressional Investigations, 33 LEG. STUD. Q. 295, 295 (2008).
93. 67 Id. at 297.
94. 68 Id.
95. 69 See, e.g., Randall L. Calvert, Matthew D. McCubbins and Barry R. Weingast, A Theory of Political Control and Agency Discretion, 33 AM. J. POL. SCI. 588, 589 (1989) (showing that agencies do not operate independent of the legislature);
96. John Ferejohn and Charles Shipan, Congressional Influence on Bureaucracy, 6 J. L. ECON. and ORG. 1, 1 (1990) (investigating "congressional influence on bureaucracy");
97. Matthew D. McCubbins, Roger G. Noll and Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 432 (1989) (expanding on the contention that the legislature controls agencies);
98. Terry M. Moe, An Assessment of the Positive Theory of 'Congressional Dominance, ' 12 LEG. STUD. Q. 475, 480 (1987) (criticizing the theory of congressional dominance);
99. Barry Weingast and Mark Moran, Bureaucracy Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765, 765 (1983) (examining legislative control of agencies).
100. 70 See, e.g., Moe, supra note 69, at 487 (questioning the efficacy of budgetary mechanisms as a check on bureaucratic discretion).
101. 71 See, e.g., RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION in the UNITED STATES, 1780-1840, at 1 (1969).
102. 72 Id. at 1.
103. 73 THE FEDERALIST no. 51 (James Madison), supra note 24, at 1 (emphasis added).
104. 74 EDWARD S. CORWIN, THE PRESIDENT: OFFICE and POWERS: HISTORY and ANALYSIS of PRACTICE and OPINION 200 (1940).
105. 75 Elizabeth Williamson, Revival of Oversight Role Sought; Congress Hires More Investigators, Plans Subpoenas, WASH. POST, Apr. 25, 2007, at Al.
106. 76 Charles Babington, Democrats Pursue Agenda With Inquiries: When Bills Fail in Congress, Switch is made to Subpoenas, Probes, MSNBC, Aug. 22, 2007, http://www.msnbc.msn. com/id/20387829 (quoting Thomas Mann).
107. 77 See Moe, supra note 69, at 487.
108. 78 Id.
109. 79 See supra Part LB.
110. 80 DAVID R. MAYHEW, AMERICA'S CONGRESS: ACTIONS in the PUBLIC SPHERE, JAMES MADISON THROUGH NEWT GINGRICH, at x (2000) ("By 'public sphere' I mean a realm of shared American consciousness in which government officials and others make moves before an attentive stratum of the public, and in which society's preference formation, politics, and policymaking all substantially take place; they are substantially endogenous to it.").
111. 81 Id. at 62, 66-70.
112. 82 Id. at 18.
113. 83 See, e.g., JONATHAN MERMIN, DEBATING WAR and PEACE: MEDIA COVERAGE of U. S. INTERVENTION in the POST-VIETNAM ERA 5-6 (1999) (expounding on the indexing hypothesis by adding correlation and marginalization versions);
114. W. Lance Bennett, Toward a Theory of Press-State Relations in the United States, 40 J. COMM. 103, 106 (1990).
115. 84 See MERMIN, supra note 83, at 16 (focusing on television in order to examine the notion that "television coverage of war and human suffering" can actually pressure the government to use military force).
116. 85 See, e.g., Timothy Groeling and Matthew A. Baum, Crossing the Water's Edge: Elite Rhetoric, Media Coverage, and the Rally-Round-the-Flag Phenomenon, 70 J. POL. 1065, 1081-82 (2008) (finding that the following factors influence public support: party affiliation, debaters' party affiliation, "costliness of the messages communicated to the public, " and media coverage (or lack thereof) of "particular speakers and messages").
117. 86 Id. at 1072 ("We collected data on all congressional comments on the president and the executive branch during 61-day windows surrounding each rally event, from 30 days before to 30 days after the announcement or initiation of the major U. S. force deployment associated with each event.").
118. 87 Id. at 1078-80 (providing results of public opinion hypotheses testing, which indicate larger effects on popularity during "casualty periods").
119. 88 But see id. at 1080-81 (responding to criticism of reverse causality).
120. 89 William G. Howell and Douglas L. Kriner, Bending so as Not to Break: What the Bush Presidency Reveals About the Politics of Unilateral Action, in THE POLARIZED PRESIDENCY of GEORGE W. BUSH 96, 123 (George C. Edwards III and Desmond S. King eds., 2007);
121. William Howell and Douglas Kriner, Political Elites and Public Support for War 7 (2009) (unpublished manuscript, on file with author).
122. 90 Howell and Kriner, Iraq War's Domestic Political Front, supra note 47, at 327. Data was initially taken from GARY C. JACOBSON, A DIVIDER, NOT a UNITER: GEORGE W. BUSH and the AMERICAN PEOPLE (2006). Several polling outfits asked virtually identicallyworded questions. Multiple polls in each month were averaged; the question was only not asked in four of the sixty-two months since March 2003; for these months, the value was linearly interpolated.
123. 91 For a multivariate analysis of this data, see Howell and Kriner, Iraq War's Domestic Political Front, supra note 47, at 324-30. Even after controlling for a host of factors including American casualties, positive and negative events, the state of the economy, and progress in Iraqi reconstruction, Howell and Kriner observe a strong negative correlation between days of critical oversight and war support. Id. at 329. However, Howell and Kriner do not conduct an instrumental variable analysis to account for endogeneity. Absent this, we cannot know whether increasing congressional oversight is causing decreased public support for the war, or whether turning tides of public opinion are emboldening greater criticism of the war in Congress.
124. 92 All significance tests are one-tailed; all models report robust standard errors. " indicates predicted values of days of oversight obtained from a first stage equation using the number of days Congress was in session in the given month as the instrumental variable.
125. 93 As multiple prior analyses of casualties and public opinion have noted, any measure of cumulative casualties is almost perfectly correlated with time. See Adam Berinsky, Assuming the Costs of War: Events, Elites, and American Public Support for Military Conflict, 69 J. POL. 975, 980-82 (2007);
126. Scott Gartner and Gary Segura, War, Casualties, and Public Opinion, 42 J. CONFLICT RESOL. 278, 280 (1998). Thus, it is virtually impossible to draw conclusions about whether cumulative casualties are producing the observed erosion of popular support, or some other factor that is highly correlated with time.
127. 94 Kriner and Schwartz, supra note 66, at 314.
128. 95 9/11 COMMISSION REPORT, supra note 41, at 419.
129. 96 Id. at 420 ("Under the terms of existing rules and resolutions the House and Senate intelligence committees lack the power, influence, and sustained capability to meet this challenge.").
130. 97 Id.
131. 98 See MANN and ORNSTEIN, supra note 1, at 155.
132. 99 THE FEDERALIST no. 51 (James Madison), supra note 24, at 1.
133. 100 See id. at 157-58.
134. 101 See supra note 52 and accompanying text.
135. 102 See 9/11 COMMISSION REPORT, supra note 41, at 420.
136. 103 See, e.g., ZELIZER, supra note 5, at 8-10.