The President’s Question Time: Power, Information, and the Executive Credibility Gap

The rule of law depends on a working separation of powers and transparency and accountability in government. If information is power, the ability of one branch of government to control information represents the ability to control federal legislation, policy, and decision-making. The Framers of the United States Constitution developed the Madisonian model of separated powers and functions, and a system of checks and balances to maintain those separations, with this in mind. History has shown a progressive shift of the power to control information toward the executive branch and away from the Legislature. Particularly when unified, one-party government precludes effective Congressional investigations and oversight, little recourse exists for accessing information. This article addresses an institutional design element that would increase transparency and accountability: periodic question-and-answer sessions between Congress and the President modeled on the United Kingdom's Prime Minister's Question Time. This article makes the case for such a measure in the U.S. by examining the comparative political history and legal norms of the U.K. and the United States, and the need for a Question Time to increase government transparency and efficiency. A BSTRA CT 247 INTRODUCTION 248 I. NO EFFICIENT CHECK ON AN INCREASINGLY POWERFUL EXECUTIVE BRANCH 250 A. CONSOLIDATION OF POWER IN THE EXECUTIVE BRANCH 252 * Assistant Professor of Law, Western New England College School of Law. J.D. Columbia Law School, A.B. Stanford University. Sudha Setty © 2007. I owe great thanks to those who discussed with me the ideas in this article, or who reviewed and commented on drafts, including: Robert Chesney, Allison Christians, Robert Ferguson, Richard Kay, Kim Lane Scheppele, Miguel Schor, Erin Buzuvis, Lauren Carasik, Jamison Colbum, James Gordon, Jennifer Levi, Bruce Miller and Matthew Charity. I also appreciate the comments and suggestions offered by workshop participants at the Northeastern Junior Faculty Exchange, where I presented a draft of this paper. Finally, I thank the editors and staff of the Cornell Journal of Law & Public Policy. 248 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:247 B. THE LACK OF TRANSPARENCY AND ACCOUNTABILITY IN THE EXECUTIVE BRANCH 256 C. ONE-PARTY RULE AND THE LIMITS OF THE CONGRESSIONAL INVESTIGATIVE FUNCTION 260 II. A PRESIDENT'S QUESTION TIME? COMPARATIVE HISTORICAL AND NORMATIVE CONSIDERATIONS 262 A. THE PRIME MINISTER'S QUESTION TIME 264 1. Role of the Prime Minister 264 2. History of Parliamentary Questions 266 3. Development of the Prime Minister's Question Tim e 267 B. A PRESIDENT'S QUESTION TIME 270 1. Accountability and Transparency to Improve the Function of Government 270 2. The Role of the House of Representatives ....... 277 III. INFORMATION-SHARING: THE STRUCTURE OF THE CONSTITUTION AND EARLY PRACTICES ..... 278 A. THE LANGUAGE OF THE CONSTITUTION 278 B. CHECKS AND BALANCES AS ENVISIONED BY THE FRAMERS . 280 1. The Desire to Strengthen the Executive Branch .. 281 2. Legislative Tyranny Is Feared but Unrealized ... 285 C. EARLY EXPERIMENTS WITH INTER-BRANCH COMMUNICATIONS 287 IV. INFORMATION-SHARING IN THE MODERN ERA ... 291 CONCLUSION 294 "You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."'