Incommunicados

FOREWORD

Government Turns a Deaf Ear to “We the People”

by Bruce Fein*

Congress and to a lesser extent the executive branch have become dysfunctional.
The lobotomizing of Congress began in earnest under House Speaker Newt Gingrich (R- GA) nearly three decades ago. He slashed funding for House committees and staff and turned committee chairmen into leadership pawns. The long touted Office of Technology Assessment was defunded and put in mothballs. Gingrich’s successors have preserved or augmented the bloated powers they inherited at the expense of the rank-and-file representatives and the

institutional strength of Congress to function as a co-equal branch.
I speak from the bright lamp of experience, not theory. I have testified before Congress

more than 200 times and met with congressional staff and members in congressional offices on hundreds of occasions during my 50 professional years in Washington, DC. The deterioration in competence and performance has known no party or ideological lines. Congressman Bill Pascrell, Jr. (D-NJ) wrote in the Washington Post, “Why is Congress so dumb?” (January 11, 2019): “Our available resources and our policy staffs, the brains of Congress, have been so depleted that we can’t do our jobs properly . . . Congress is increasingly unable to comprehend a world growing more socially, economically, and technologically multifaceted—and we did this to ourselves.”

Meanwhile, the executive branch has become intellectually stunted and backward by purging all dissenters from dictated “talking points” as “disloyal” or “treasonous.”

The result has been an epidemic of constitutional and professional illiteracy in the political branches of government; a loss of institutional memory; and sub-optimal and inexperienced staff with high turnover caused by Dickensian parsimony. A necessary intellectual infrastructure for congressional oversight of the executive branch – for drafting legislation challenging well- heeled special interests, and avoiding executive branch groupthink that begets calamity ad infinitum – has crumbled.

Congress and the executive branch urgently require the collective genius of its citizens that far surpasses their own to craft and implement enlightened government for “We the People of the United States.” Never has it been more urgent for both branches to honor the first amendment right of citizens to petition government for a redress of grievances by providing serious, substantive, responses to their considered views and proposals. Yet instead, Congress and the executive branch are severely restricting civil servants from even responding to the media, let alone average citizens.

The right to petition implies a corollary right to a government response on the merits. Otherwise, the right becomes as otiose as shouting at the weather.

This booklet and Ralph Nader’s introduction meticulously document the self-ruinous disdain by Congress and the executive branch for thoughtful citizen input into government policies and practices. Citizen petitions, letters, memoranda, and articles are routinely unacknowledged and universally categorized as unworthy of a substantive response. Even speaking to a live person in a congressional office as opposed to leaving a voice mail has become a herculean test of endurance and patience.

Suppose Rachel Carson today sent to Congress or the Department of Agriculture a copy of her pioneering book Silent Spring documenting the contamination of the environment by pesticides and urging congressional action. Staff who first received the book would probably not recognize Carson’s name and would, in any event, abandon it to a remote bookshelf to gather dust. Political leaders and their courtiers are too uniformed to distinguish between pyrite and gold.

Government dysfunction of this magnitude is not inescapable, like Newton’s laws of motion. One of my daily tasks during my service in the executive branch was to alert members of Congress to executive branch activities in their districts or states to avoid political surprises. Private groups were readily given in-person opportunities to voice their grievances with the attorney general or other cabinet officers. And congressional staff whom I knew reported that non-automated citizen letters received prioritized substantive responses.

Honoring the right to petition by sincere engagement with the citizenry also fortifies popular legitimacy of government. Just as giving litigants a fair day in court to air their legal grievances provides cathartic relief for the losers, so citizens with political grievances are far more likely to accept disappointment in legislative chambers or executive offices if their views and opinions have been received with respect and professionally evaluated.

Justice Louis Brandeis instructed in Whitney v. California (1927) that “the greatest menace to freedom is an inert people. . . .” If there are better ways to induce citizen inertness or resignation than by sending a message through non-responsiveness that their views do not count, they do not readily come to mind.

March 2023

* Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan, Research Director for the Minority on the Joint Congressional Committee on Covert Arms Sales to Iran, and is author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.