DESCARGANDO EL CÓDIGO DE ANDROID

The third criticism of my last element of good deliberation, universal discourse principle, is often made by political activists. Iris Young argued that a mild voice of reason could not force members of Congress to be responsive to citizens’ voices.

Similar to Mouffe’s argument, she opines that the structure of congressional deliberation would only reflect the inequality with which justice is meted out in society .⁶² This is because procedural norms are always biased toward more powerful agents but not open for full and equal participation. Therefore, Young argued that the only way to make Congress responsive is to take direct political action conditioned by a strong civil society.⁶³

Nevertheless, the scenario drawn by Young above is precisely what the Founders worried about. In particular, the Founders were afraid that the function of congressional deliberation would be undermined by factions and populism. They opined that a reasoned decision cannot be made without a relatively insulated space.

That is why they expected that a representative body elected from a wide territory could be beneficial to a cool-headed deliberation and decision. Hence, the design of the electoral system should be a means toward the realization of public reason but not an end for narrowly local interests or mere demonstration of reason.

62 See Iris Young, Activist Challenges to Deliberative Democracy, 29 POLITICAL THEORY 675 (2001).

63 The difference between Mouffe’s argument and Young’s is that Mouffe still believes in representative politics but Young does not. Therefore, Young advocates a constructive political activism:

The activists is suspicious of exhortations to deliberate because he believes that in the real world of politics, where structural inequalities influence both procedures and outcomes, democratic process that appear to conform to norms of deliberation are usually biased toward more powerful agents. The activist thus recommend that those who care about promoting greater justice should engage primarily in critical

oppositional activity, rather than attempt to come to agreement with those who support or benefit from existing power structures.

Id., at 671.

Deliberative theorists hypothesize that the tension between elite deliberation and populism can be relatively mediated by a well-designed deliberative process in Congress. In particular, members of Congress indeed have an obligation to deliberate, especially over those highly contested issues, independently from their constituents;

yet representatives should also deliberate and accommodate their constituents, as much as possible, before voting. For deliberative theorists, what is important for the division of deliberation between the formal institution and the broader civil society is that members of Congress should pay equal respect during a deliberative

disagreement. After profound deliberation with their constituents, the representatives still could vote the opposite of what the constituents think if they sincerely believe that the reasons they hold for voting in Congress the way they do are sufficiently

reasonable.⁶⁴ Deliberative theorists hypothesize congressional rule setting could facilitate such a job.

Accordingly, following the above assumption, it is natural for deliberative theorists to investigate the effects of congressional rule and non-congressional rule setting have on the quality of deliberation. If the result shows that a more

participation-inclusive and information-facilitative congressional rule does generate a better congressional deliberation, deliberative theorists would be able to argue that congressional institution can make a decision that is both independent and responsive, and not be as pessimistic as political activists are.

In sum, an examination of how universal discourse principle affects both the deliberation over and the law regarding the war and foreign affair powers is important for two reasons. First of all, deliberative theorists argue that procedural institution in Congress could condition congressional deliberation to be both responsive and rational in the public sphere, which is especially important in discussing a just cause for a war.

64 See AMY GUTTMANN &DENNIS THOMPSON, supra note 29, at 137-40.

Second, precisely for this reason, the elements of procedural due process in

lawmaking and deliberation that are crucial to condition congressional war and foreign affair decisions that are prudent, are thus worthy of being identified through an

empirical analysis.

CHAPTER 3:

GROUND WORK FOR EMPIRICAL RESEARCH ON WAR POWER

As I suggested in chapter 2, deliberative democracy theorists already provide many normative arguments about the condition and content of democratic deliberation. At the same time, we also see that deliberative theorists are not satisfied with

philosophical debates over democratic deliberation theory. A call for empirical investigation of democratic deliberation in real-life situations has become keener in the past decade. This chapter is a preparatory work for such an empirical response regarding the relationship among congressional deliberation, congressional check, and presidential use of force.

In the following sections, several important ground works for empirical analyses will be elucidated, including: (1) a brief literature review and critique of empirical research on presidential use of force and its implications for the construction of one of the principal variables, congressional control index; (2) another brief

literature review and critique of empirical research on the quality of congressional deliberation and its implications for constructing another major variable, discourse quality index; (3) an explanation of the theory underlying the empirical hypotheses;

and (4) an explanation of the sources of data and variables for the empirical analyses. I have two main critiques of the aforementioned literature reviews: (1) conventional research on presidential war power neglects what Congress actually says in a specific military event, which suggests that we should focus more on the contents of a law; (2) empirical research on the relationship between congressional deliberation and policy outcome is too static to observe how the executive branch responds to a congressional decision and how Congress further reacts to the executive response, thus suggesting

that a more comprehensive research on the pattern of congressional deliberation and decision thereof is needed.

I. Review and Critique of Empirical Research on Presidential Military Deployment

To explore the implications of conventional empirical research on presidential military deployment, the following review will mainly focus on the development of the

empirical model employed in conventional research, the hypotheses underlying a presidential decision to military deployment, and the significant variables affecting the presidential decision on military deployment. I argue that the most important

implication of these conventional studies of presidential military deployment is that event-count model, focusing only on the frequency of presidential use of force, neglects the patterns of how Congress attempts to place checks on the president through passage or rejection of legislation during the deliberative process.

A. Review of Empirical Research on Presidential Military Deployment In surveying the past thirty plus years of empirical research on presidential use of force, one cannot disregard Barry Blechman and Stephen Kaplan’s pioneering study of incidences of non-major military action (“short of war”), which has long served as a classic ground work for empirical study on military deployment. Blechman and Kaplan argue that those “short of war” incidents are presidential “political” military deployments for conveyance of national resolve, promotion of national interests, and commitment to the U.S.’s allies, and can meet the president’s short- and long-term political agendas both nationally and internationally. The main contribution of Blechman and Kaplan’s study is that it is the first to include, identify, and

operationalize the concept of non-major military action into the empirical research on

presidential war power. However, given the limits of their datasets, they merely make simple descriptive results without exploring causal relationships.

Building upon Blechman and Kaplan’s dataset, Charles Ostron and Brian Job adopt an event-count empirical model to analyze how “domestic political factors”

influence a presidential decision on use of force. They argue that the president, as a

“political leader,” comprehensively “monitor[s] salient dimensions in the domestic, international, and political arenas” before dispatching the troops abroad. In particular, Ostron and Job argue that though international politics characters by definition affect influence the presidential decision on use of force, domestic political characters, including presidential approval rating, national elections year, and various weighted economic misery indices, are the primary factors that substantially affect the

presidential decision on use of force.

Some studies show that electoral connection is the most significant factor influencing the frequency of presidential use of force. First, building on Blechman and Kaplan’s dataset, Benjamin Fordham takes a somewhat different argument from that of Ostron and Job, and argues that domestic political and economic factors influence the presidential decision on use of force only indirectly. In particular, Fordham argues that the president only regards those domestic political and economic variables as proxies of his opportunity to be reelected. His event-count model demonstrates that if the national economic situation, namely, low inflation and high employment rate, is better, then the president has less incentive to use force abroad, as it would imperil his chances of being reelected. Second, the electoral connection argument is also

demonstrated in Richard Stoll’s research on presidential use of force. His event-count model demonstrates that the initiation of military force systematically peaks during the wartime reelection years and drops during peacetime reelection years.

Some research focuses on the relationship between congressional partisan component and the presidential decision on use of force. In particular, William Howell and Jon Pevehouse build upon a different event-count model dataset and refine

congressional partisan composition into three different variables—unified

government, percent president party, and president party power—to test the frequency of presidential use of force. They demonstrate that use of major force is significantly affected by congressional partisan component and argue that domestic political factors are the most prominent factors affecting congressional controllability over the

presidential use of force.

B. Critique of Conventional Research on Presidential Use of Force The conventional empirical studies on presidential use of force presented above inform us about the importance of inclusion of domestic political factors into an empirical model. However, for the reasons I elaborate below, I argue that an event-count model cannot acevent-count for a systematic pattern of dynamic power variation between the president and Congress after a presidential use of force.

All of the statistical models mentioned above employ an event-count model to analyze the ebb and flow of presidential war power relative to congressional power.

Such a statistical model suggests that the event of a presidential use of force stands for the failure of the congressional attempt to provide a check on the presidential use of force. For example, Howell and Pevehouse model the presidential war power as an expansion of presidential power if Congress has a short time to linger on the president’s decision before a military action. This veto-player perspective is also reflected in John Ely’s argument.¹ He claims that Congress by design is intended to

1 See JOHN H.ELY,WAR AND RESPONSIBILITY 3-11 (1993).

“clog the road to combat” by responsively slowing the president’s calls for military action.

However, viewing Congress only as a veto-player of each military action event ignores the fact that Congress also often cooperates with the president to initiate a military deployment. A presidential use of force is not necessarily a zero-sum

interaction game between the president and Congress. Therefore, I think it is essential to observe the presidential-congressional war power relationship from two aspects, which could make empirical research on use of force being more approximated to complete: (1) the pattern of congressional attempts at checking a presidential use of force through rejection and passage of legislation and (2) the pattern of presidential responses to the congressional attempts at gaining control over presidential use of force.

Another critique I flesh out from the above review is that conventional studies do not inform us how the president and Congress respond to and manage a foreign crisis either before or after a use of force. By focusing on the frequency of military deployment, an event-count model can only treat each military event as discrete, and neglects the fact that each military event often consists of a series of congressional and presidential efforts to manage a foreign crisis through various non-military

deployment measures. Therefore, I think it is vital not only to include military deployment decisions made by both the president and Congress into the empirical dataset, but also to include non-military deployment decisions into the scope of empirical analyses.

II. Review and Critique on Empirical Research of Congressional Deliberation² There are a few empirical studies on the quality of congressional deliberation. The underlying theme of these empirical research efforts is the development of a discourse quality measurement unit applicable to each congressional member’s speech, so as to either provide or test the relationship between congressional deliberation and the institutional rules or the quality of a congressional decision. In the balance of this section, I will briefly review the development and critique of those empirical studies of the measurement of quality of congressional deliberation and decision thereof. My overall critique is that current empirical research on congressional deliberation is too static to observe both political actors’ responses in the public sphere to a congressional decision and how Congress reacts to political actors’ responses to its decision in the public sphere through its deliberative process.

A. Review of Empirical Research on Congressional Deliberation The first research call for study on congressional deliberation was proposed by Edward Lasher, who provides a series of hypotheses as “a preface to empirical analysis”³ of the quality of congressional deliberation. He hypothesizes that if the relevant information of an issue is more salient and accessible within the legislative process, then legislative decisions will better meet a more correct and legitimate decision. Although Lasher warns that an empirical test of this kind is not easy to construct or conduct, he still believes that “it is sufficiently important to clarify the

2 As I pointed out in Chapter 1, this deliberative turn is both general and particular in practice. Broadly defined, deliberative democracy includes transformation of both formal institutions and civil society. In other words, all of the talks that occur in the public sphere can be deemed as deliberations, but are not merely limited to elite-elite, citizen-elite, or citizen-citizen talks. Empirical research on deliberative democracy tends to take one of these three lines. Because my research focuses on only congressional deliberation, I exclude the discussions of public talks.

3 Edward L. Lasher, Assessing Legislative Deliberation: A Preface to Empirical Analysis, XXI LEGISLATIVE STUDIES QUARTERLY 4, 501 (1996).

concept of deliberation”⁴ and to “make the study of deliberation as concrete as possible.”⁵

John Dryzek and Valerie Braithwaite go further by outlining a set of

congressional discourses for Australian politics in accordance with different political values. They propose two major hypotheses regarding the relationship between the quality of deliberation and political values. First, Dryzek and Braithwaite posit that a higher quality of deliberation can be expected if people holding different political values demonstrate an engagement in the democratic process.⁶ Second, they suggest a correlation between both a higher quality of deliberation and political actors whose discourse is value-oriented and who usually enjoy substantial support from their constituency. Otherwise, different value-holders would imperil their reelected opportunity.⁷

Although Dryzek and Braithwaite provide several hypotheses about how the appreciation of the same political and social institution and value-oriented discourse tend to generate a higher quality of deliberation, they do not further identify how each actor’s discourse brings about such a higher quality. Katharina Holzinger supplements that work by applying speech act theory to her observation of two German cases: a mediation of a waste management conflict, and a parliamentary debate on embryonic stem-cell research.⁸ She categorizes speech acts into bargaining and arguing modes.⁹

4 Id., at 503.

5 Id.

6 See John Dryzek & Valerie Braithwaite, On the Prospects for Democratic Deliberation: Values Analysis Applied to Austrian Politics, 21 POLITICAL PSYCHOLOGY 241-66 (2000).

7 Id.

8 See Katharina Holzinger, Context or Conflict Types: Which Determines the Selection of Communication Mode, 40 ACTA POLITICA 239, 240 (2005).

9 Id., at 240-3.

Her hypothesis and frequency test are intuitive: more arguing modes would result in a higher quality of deliberation. In other words, a higher level of justification would generate a better collective decision. More importantly, her frequency test also shows that congressional debate does not necessarily involve complete argumentative speech.

Thus, she concludes that institutional factors and the nature of an issue are crucial to predetermine the quality of democratic deliberation.

As Holzinger points out, discerning how institutional context influences deliberation is a natural first step in future empirical studies on congressional deliberation. Jürg Steiner, Andre Bachtiger, Markus Sporndli, and Marco

Steenbergen’s empirical research on four parliamentary deliberations accepts the challenge in this field by developing the “Discourse Quality Index” in accordance with Jürgen Habermas’s discourse ethics theory to test the influence of institutional factors and issue characteristics on congressional deliberation. In particular, following

Habermas’s division between facticity and legality, Steiner argues that a complete justification should relate a normative argument to the issue at hand. In other words, a higher level of deliberation means a justification is developed and defended through reflection on an actual case.

Steiner’s empirical tests are two tiered. The first- tier test pertains to the relationship between institutions and issues on the one hand and deliberative quality on the other. The second- tier test regards the association between deliberative quality and its consequences. Among various empirical results, it is noteworthy that his empirical model shows that the United States presidential system does not necessarily generate strong deliberation in terms of the complexity of discourse justification, especially in comparison to the British and German parliamentary systems.¹⁰

10 Id., at 122-5.

However, the discourses among the members of the United States Congress are more respectful.

B. Critique of Empirical Research of Congressional Deliberation

The review of empirical research on congressional deliberation presented above makes two important contributions to future research. First, it reveals that both institutional (e.g. a presidential as opposed to a parliamentary system) and political factors

(reelection opportunities) influence the quality of congressional deliberation. Second, it suggests that a complete justification in discourse should consist of both normative and positive elements. For the reasons elaborated below, I argue that research on congressional deliberation can be more comprehensive if an empirical model can account for the interaction between Congress and the broader public sphere.

Although all of the studies on congressional deliberation mentioned above emphasize the importance of context or actual case reflection in deliberation, this goal is not fully realized in those studies, for they do not look into responses of other political actors, such as the president. I think an investigation into the event of a presidential response is more consistent with Habermas’s division of facticity and legality.¹¹ In particular, the main purpose of congressional deliberation is to promote the legitimacy of Congress’s own decision. One of the standards of legitimacy is not only other political actors but also private citizens must be willing to abide by the law passed by Congress. In consequence, and in the context of this dissertation, it is important to see how the president responds to congressional regulation of his war

Although all of the studies on congressional deliberation mentioned above emphasize the importance of context or actual case reflection in deliberation, this goal is not fully realized in those studies, for they do not look into responses of other political actors, such as the president. I think an investigation into the event of a presidential response is more consistent with Habermas’s division of facticity and legality.¹¹ In particular, the main purpose of congressional deliberation is to promote the legitimacy of Congress’s own decision. One of the standards of legitimacy is not only other political actors but also private citizens must be willing to abide by the law passed by Congress. In consequence, and in the context of this dissertation, it is important to see how the president responds to congressional regulation of his war