DOMEocracy

hardline political news and analysis

Happy to Be Proven Wrong!

Sometimes, when you go out on a limb, you’re going to have a rough landing.  In the last DOMEocracy, I predicted that “the House will pass something [on health care] that the President will define as ‘amazing.’” I have never been as pleased to say: “I was wrong! Mea culpa!” I have never been happier to have been proven a faulty seer.

I should have known better. First, congressional behavior is always tough to predict, and the current band of wayward miscreants who control the House are fixated on defying all historical antecedents. After all, this is the same crowd that gleefully pleaded with John Boehner (who surely is somewhere with an enormous grin on his face and a merlot in his hand) to shut down the government. The same crowd that proclaimed how wonderful it would be to default on the national debt: who refused to vote for continuing resolutions or stimulus bills or any other urgent legislation because they worship at the shrine of chaos, not to mention practice the dark art of ineptitude.

Since the Republicans bulldozed their way to the majority in 2010, I have described their behavior as bizarrely Orwellian. Failure=success: allowing (even encouraging) government to fail is an achievement, because it promotes the broader objective: to destroy peoples’ confidence in government. Now, with the collapse of the “repeal and replace” (snicker) ACA movement, it is they, not government, who look indescribably incompetent, not because they failed to pass a bill, but because their inability to translate 7 years of buffaloing the public into real legislation has exposed them as a bunch of hyperbolic windbags.

I mean, if you can’t kill off the law you’ve spent a solid 7 years trashing, with your governors refusing to create exchanges or accept Medicaid expansion dollars; if you’ve spend billions on political campaigns begging the American people to elect a unified Republican government to end the “abomination of Obamacare”; if you’ve had a narcissistic blowhard waving his Executive wand for two months pretending to be King Donald I – you’ve got all that going for you and you still crash and burn – and I mean, spectacularly crash and burn – on your first serious legislative outing: well, what else can you say except, “You’ve been exposed as frauds.” Not to mention, amateurs.

Give them credit, they did achieve something Barack Obama never could: they made people appreciate the Affordable Care Act. Perversely, their focus on the law’s protections and benefits reversed the public hostility to the law. Now, the public wants ACA left as it is by a 3-1 margin. Even Republican politicians can count those numbers, not that they weren’t tempted to make them even worse. The photograph of a large group of white men sitting around the table in the White House Cabinet Room dissecting the ACA and removing maternity benefits: come on!

Now this little band of wounded warriors can turn their attention to what always was the first goal of Republican politicians: cutting taxes for rich people and bumping up the national debt in order to create a rationale for additional cuts in domestic programs. But they may have done themselves in by exposing their meanspiritedness and mendacity. When they begin writing the budget resolution and appropriations bills, they will have not only the health care fiasco as a burden to carry, but also Trump’s egregiously stupid idea to slash Meals on Wheels, which uses religious charities, among others, to deliver nutritious food to homebound senior citizens. The inclusion of so malevolent an idea can easily obliterate every other message in a multi-trillion dollar budget simply because it gives you the keyhole to look into the values and morality of those composing the plan, and in this case, those values are contemptible. The annual budget to feel a home-bound senior through Meals on Wheels is probably less than a really nice Trumpian feast at Mar-a-Largo.

Perhaps the most serious political fallout will affect the relationship between Trump and Republicans in Congress, who are unlikely to grovel before his golden throne after this week’s demonstration of incompetence. His bluster surely did not help build a trusting relationship, particularly his threat to support primary opponents against those who dared to defy his edict.

The other big loser is Paul Ryan who learned the hard way that nothing has changed since the Freedom Caucus drop-kicked John Boehner out of the Speaker’s chair. Ryan made the mistake of trying to ride the tiger which, as John Kennedy once warned us, often consumes those who take such chances. The Senate Republicans are doubtless delighted with the outcome: Ryan’s stature is lowered, and they do not have to upset the base by tempering the House’s loony legislation (which the House probably wouldn’t have passed when it arrived back on the south side of the Capitol, unrecognizable, in a few months).

All in all, quite a good week. The Republicans can rest up a bit before the forthcoming April recess, which will bring a new round of harrowing town hall meetings with outraged constituents. At least the GOP representatives won’t have to explain why they voted to slash health benefits to women seeking mammograms or pregnant women seeking prenatal care. A silver lining in an otherwise grim forecast.

It’s Showtime for the Health Care Battle

The biggest legislative day for the 115th Congress and President Donald Trump – without much competition – is lining up to be this Thursday, when the House is scheduled to vote on the mutating American Health Care Act, the secretively conceived and widely disparaged “replacement” for the Patient Protection and Affordable Care Act. Written without the input of most of the House Republicans, affected health care industry groups, impacted patient organizations or senators who will have to respond to a House-passed bill, the road forward proves to be rocky. However, when the dust settles (and it may not be on Thursday), I will go out on a limb and predict the House will pass something that the President will define as “amazing.”

My willingness to make a prediction has less to do with the details of the AHCA than the politics. After years of horsing around with make-believe “ACA repeal” bills, the House Republicans have had to put a real legislative plan on the table. Let’s stipulate it is a stinker: there is no more sophisticated term for a bill that throws 26 million people off health care, undermines the economics of the health care industry, and showers hundreds of billions in tax relief on the wealthiest Americans. It wasn’t that long ago (1993 to be precise) that it was Democrats who united groups like the American Medical Association, the pharmaceutical industry and insurance companies to denounce health care legislation. Now, all those groups are condemning RyanCare, or TrumpCare, or whatever name will ultimately be stenciled on this abomination.

A terrible process creates a terrible bill. Not only did Republican leaders hide their cards from their own members and Democrats alike, but they insisted on proceeding without a word of testimony, a day of open hearings or the sina qua non standard for serious policymaking, a score of the cost and impact from the Congressional Budget Office. When CBO delivered the bad news, after two committees had already marked up the bill, the GOP leadership naturally trashed the non-partisan office. That kind of high-handedness doesn’t sit well with serious policy people or many Members, for that matter. There is a reason CBO, not the President’s Office of Management and Budget, has long provided the definitive analysis of the impact of proposed legislation: it is nonpartisan and unusually accurate which aggravates Democratic as well as Republican majorities.

Republican myth makers like to assert that the Democratic health bill was similarly developed in secret and foisted upon an unsuspecting and uninformed Congress in 2009, except that the GOP’s characterization is utterly untrue. Three House Committees spent 100 hours in hearings, listening to 181 witnesses; they held well-publicized mark-ups at which 239 amendments – Democratic and Republican – were offered and 121 were accepted. In the Senate, the bill received 53 hearings and 8 days of mark-up during which they considered 135 amendments. There were bipartisan discussions in Committee and at the White House. There were extensive consultations with medical, patient, hospital, drug and other impacted groups. And there was a CBO score before floor action (which predicted a trillion dollars in budget savings). Any comparison of the ACA process to the stealth AHCA is as phony as the Trump Tower wiretaps.

Republicans, commentators and those who are taken in by them also love to rationalize their secrecy by quoting Speaker Nancy Pelosi’s statement – one line in a long speech about health care – that “we have to pass the bill so that you can find out what is in it,” conveniently leaving out the remainder of the sentence, “away from the fog of controversy.” Pelosi was perhaps overly optimistic to imagine that Republicans would ever allow the ACA to be “away from the fog of controversy,” but she certainly was not suggesting no one knew what was in a bill that had been the subject of such detailed and prolonged discussion and negotiation. Rather, she was admitting the obvious about the legislative process: as legislation undergoes repeated amendments and ping pongs back and forth between the House and Senate, one can never say what the “final” version of a law is until the last stage in its creation. We can’t say what the final score in a baseball game is in the 7th inning either but that doesn’t make the game illegitimate.

Lacking much commitment to sound policy, Speaker Paul Ryan is feverishly offering up amendments to buy much-needed conservative votes. Not surprisingly, some House Republicans are uneasy with a bill that could deprive thousands of constituents of their health insurance – many of them Trump voters who hate ObamaCare but sure love that ACA that covers their unemployed spouse or their special needs kid. And there are the Freedom Caucus zealots, always happy to impose parliamentary chaos with Cat-in-the-Hat irreverence, who are harrumphing they will never support a bill they have denounced as “ObamaCare 2.0.”

Despite these observations, however, Ryan is likely to cobble together the 216 votes he needs to pass whatever concoction the AHCA has morphed into by Thursday, for the simple reason that he does not want ACA repeal to die on his watch. And this argument, more so than the details of the bill, is what will doubtless find resonance among 216 Republicans, though perhaps not many more. House members reflexively gag at arguments that their bills must be tempered to accommodate the whims of senators, who can drag out the filibuster rule or the rulings of the Senate parliamentarian when needed to muscle the House into submission. The House often anticipates such Senate obstinate behavior by passing legislation that satisfies the House’s internal politics, recognizing that a reckoning with reality lies somewhere down the road.

The atmospherics are different in the Senate. Where Ryan can afford to lose a couple of dozen Republicans and still pass a bill, the Senate margin is far tighter, only 2 votes. While a significant number of House members can vote “no” because their particular district demands it (as was the case with Democrats in 2009), a senator has to confront the impact across an entire state — a broader view of reality that causes grief to people like Lisa Murkowski, Susan Collins, Rand Paul and Rob Portman. A “yes” vote from these senators has draconian impacts on hundreds of thousands of constituents who have health insurance for the first time thanks to the ACA. The House hardliners are right: the Senate will alter whatever the House sends over in order to accommodate Senate realities. Then will come the moment of truth: can Paul Ryan cobble together the 216 votes needed to pass a Senate version that, for example, might retain Medicaid until 2020 (when everyone undoubtedly hopes cooler heads will prevail and the phase-out is scrapped)? Unless circumstances change dramatically (and they won’t), Ryan will not be able to count on Democratic votes to pass the Senate bill, so a displeased Freedom Caucus could still sink a more moderate Senate work product.

For the moment, such a scenario is down the road and a far more immediate test awaits Ryan.   President Trump lumbered over to the Hill today for a pep rally in support of the AHCA and predictably put his foot into it, musing that any Republicans who voted against the bill on Thursday might lose their seats in 2018. (The translation of the not very subtle dog whistle, in the words of a Republican inside the room, “If you don’t get behind this … it looks like you’d be ripe for a primary.”) Things may have changed since my departure from the Hill four years ago, but in my experience, presidents secure more votes when they exude charm rather than venom, and that is undoubtedly true for a president who is likely less popular in most districts than the members of Congress he was threatening. Yet Trump, utterly unschooled in Hill deference, not only issued the broad threat but singled out Freedom Caucus Chairman Mark Meadows with a promise, “I’m gonna come after you” if the North Carolinian doesn’t swallow his pride and embrace Ryan’s bill. Meadows has not responded favorably, advising that such warnings “don’t bring us closer to ‘yes.’ If anything, they have an opposite reaction.”

Time will tell how the politics and the policy play out, surrounded by the continuing chaos that is the Trump Administration. It is important to remember that today’s Republican Conference has been unable to enact any complex legislation without Democratic votes since assuming the majority in 2011. Believing they can succeed on something so convoluted as health care, with the entire health industry opposing them, is difficult to fathom. As former Speaker John Boehner noted last month, “Republicans never, ever, one time agreed on what a health care proposal should look like. Not once.” Will they have done so when the fight over AHCA is over? Maybe, but negotiating the policy and political labyrinth is going to be awfully confounding for an unproven and inexperienced majority.

Rewriting History (and the Affordable Care Act!)

 

Deep in the bowels of the Capitol, Republican staff members (and perhaps some Members and outside policy wonks) are furiously fashioning a brand new national health bill that House leaders pledge will be passed by the end of March. It is an unconventional way to draft legislation that, if enacted, would not only unravel health insurance coverage for millions who have gained it under the Affordable Care Act (ACA) of 2010, but would have sweeping impacts on an industry that affects one-sixth of the nation’s economy.

However Republican leaders spin this secretive process over the coming weeks, there is no question that such “legislating in the dark,” as an account of the 2009 stimulus legislation termed the process, is the wrong way to approach so contentious and significant an issue as health policy.

Over the past several days, several legislators of both parties have endeavored to secure a copy of the much-vaunted “replace” component of the Republicans’ “repeal and replace” prescription for ACA. GOP Sen. Rand Paul and Democratic Whip Rep. Steny Hoyer both conducted futile missions to find the furtive bill drafters. Instead, Hoyer was informed by Majority Leader Kevin McCarthy, “You can look it up when we mark it up.”

How’s that? Does McCarthy mean to say that House Democrats will not see a bill that impacts millions of their constituents until the committees “mark it up”? For those who have not spent their lives in and around legislators, “mark up” is the amendatory process conducted by committees on legislation before it is passed (reported) and sent to the full House or Senate membership “on the floor” for amendment (sometimes) and final passage (usually). It is difficult to draft amendments to legislation you have not seen. It is even more difficult to vote on legislation that has never been the subject of scrutiny – not by the minority, by the press, by affected constituents, by the health care industry. Even the basic parameters of the law, let alone how much it would cost and whether it would deprive Americans of affordable care they posses under ACA, are unknown.

Speaker Ryan seems to disagree with his own Majority Leader, pledging that “This bill will go through the committee process. It will go under regular order.” But Ryan was unclear whether “regular order” would include open (or any) hearings, a full vetting of the bill, and unrestricted mark-ups – all processes used en route to passage of the ACA.

In an indication of how Ryan and Republicans are attempting to alter history, the Speaker asserted that regular order was the “opposite of what Democrats did in 2009.” But Ryan has his history wrong, and such assertions are little more than an effort to revise the record to impugn Democrats and sanction secret lawmaking.

House Democrats held hearings on the health care proposal in 2009 in three committees, providing an open forum to hear from an exhaustive list of supporters and critics. In the Senate, the hearings were among the longest on record, causing much consternation among House Members who feared the same kind of effort to run out the clock that had doomed a child health bill in 2008. Mark-ups occurred after a thorough public airing, and contrary to the revisionist versions of the ACA legislative process, many Republican amendments were accepted in an effort to secure bipartisan support that ultimately proved elusive. Republicans might not have liked the outcome – although the ACA, as is widely known, is based more on the Heritage Foundation/Mitt Romney Massachusetts model than the single payer/Medicare expansion many Democrats would have vastly preferred – but they were not denied an ability to review, discuss or amend the underlying bills.

Critics often point to Speaker Nancy Pelosi’s much ballyhooed statement that she could not know the provisions of the ACA until it was passed as evidence of the secret nature of the bill on which Members were compelled to vote. But this history, too, has been cynically misrepresented by those seeking to ridicule Pelosi and taint the ACA. Pelosi’s statement merely acknowledged that the final version of the bill could not be known until the House and Senate had completed their revisions to each other’s versions of the bills. For the uninitiated, it is called “the legislative process,” and Pelosi’s much maligned statement merely acknowledged the back-and-forth inherent in reaching a complex measure’s final provisions.

ACA critics certainly have every right to criticize the law’s impact, although they would do well also to acknowledge how severely their obstructive efforts have complicated implementation. Complex statutes always require amendment in the years following enactment, but instead of a good faith effort to address the inevitable problems in implementing a nationwide health law, Republicans have spent years wasting time on over four dozen futile efforts to repeal it with no idea how to substitute a program that matches ACA’s impressive achievements. Now, with majorities in the House and Senate and a Republican President, they have their chance, not as a symbolic sideshow but as substantive policy, and hopefully in the light of day and using regular order.

Managing the Modern Speakership: Pelosi and Boehner

My article on the two most recent former Speakers of the House had just been published in “Extensions,” the journal of the Carl Albert Congressional Research and Studies Center at the University of Oklahoma (Winter, 2017).  The paper is based on the talk I gave at the June, 2016 Congress and History Conference in Norman, OK.

The article is on pp. 20-25 of the journal, which can be found at the following web site for the Carl Albert Center: http://www.ou.edu/carlalbertcenter.html

Budget Balderdash

One of the serious complications resulting from Donald Trump’s reliance on fabricated information is that, on those rare occasions when he says something truthful, many people dismiss it as balderdash. Trump’s unpredictability, his destructive refusal to comply with the norms of political etiquette, and his dangerous reliance on the mythical infallibility of his own judgment are astonishing, but every once and a while, he actually does say something with a ring of accuracy.

For example, today he shared some thoughts about the challenges of developing an alternative to the Affordable Care Act. Congressional Republicans seem intent on replicating their efforts in the last Congress – on nearly 60 occasions – to repeal the health law with no plan for repairing its admitted shortcomings (hardly surprising in a complex 6-year-old law) or replacing it. But as some GOP governors, especially those like John Kasich of Ohio who have opposed repealing the Medicaid expansion, have been warning that such action by the Congress would be devastating not only to those newly covered by ACA but to the hospitals, clinics, health care providers and state budgets that would be left to cope with the chaos. Even within the dysfunctional Trump White House, it is said, some senior staff are reportedly growing wary of dismantling a law that has expanded health care to over 20 million Americans – many in states that voted for Trump.

It is hard to know whether to be gratified or embarrassed by Trump’s admission that health insurance coverage is “an unbelievably complex subject,” as the President confessed. “Nobody knew health care could be so complicated.” Well, actually, everybody (except apparently Trump, who has never had to worry about his own health care) knows how complex health care is, which is why Democrats initially sought to create a simplified single payer system or, at least, a system including a public option that offered an alternative to reliance on private insurance companies. Republicans unanimously opposed those approaches, insisting on an alternative that would have extended coverage to one-tenth the number of people covered by the ACA.

Trump’s amazement at the complexity of governing should also be kept in mind when he delivers his initial speech before a joint session of Congress on Tuesday night. It seems that a portion of the audience will show up out of respect, while a significantly larger share will watch the speech just to see how he interacts with a suspicious Congress. The key initiative in the speech will likely be his budget proposal, which like most GOP budgets, strives for lower deficits on the backs of the middle and lower-income taxpayer. The most important feature, it is reported, will be a $54 billion increase in military spending with a corresponding reduction in non-defense spending. Not a dime will come from closing tax loopholes or compelling the most affluent to pony up their fair share of taxes; no sacrifice will be requested from entitlements that are responsible for 70% of government spending, including most of the unfunded deficits.

Instead, 100% of the cuts will come from the non-defense discretionary portion (NDD) of the budget which, incidentally, just took the brunt of the trillions in spending reductions imposed by the 2012 budget agreement and the subsequent sequestration. This NDD portion of the budget is just 12% of overall spending – education, health programs, law enforcement, energy, infrastructure, the environment – but it bears the overwhelming burden of sacrifice when the long budget slashing knives come out.

One area of the budget that won’t contribute much to deficit reduction is that old whipping boy that Americans love to hate: the foreign aid we lavish on those ungrateful countries that secretly hate us. Ask a deficit hawk where we should cut spending to balance the budget, and year after year, the leading target is foreign aid. In a poll last December by the Kaiser Family Foundation, the average respondent estimated that more than a quarter of the entire federal budget was showered on other countries. It goes without saying that if we trimmed back that program, the deficits would dry up pretty quickly.

Well, unfortunately, foreign aid barely registers as an asterisk in the federal budget (where spending is rounded off to the nearest $100 million). The actual share of the federal budget spent on foreign aid: less than one percent. Reducing the alleged “waste” in the foreign aid budget, which feeds and clothes and shelters millions of people around the world, would be the budgetary equivalent of getting a haircut to lose weight. Indeed, when respondents were told that eliminating foreign aid would have a negligible impact on the federal budget, only 28% still believed the federal budget needs cutting.

Budgets are often a case of legislative legerdemain; the savings you get are often less than predicted while the spending is more. (One favorite sleight of hand: hide the ballooning cost of a program outside the ten year “budget window” to obscure the true cost of the initiative.) This year, in addition, the House Republicans changed the House rules to mandate that budget analysts use guffaw-inducing “dynamic scoring” to make income revenues unrealistically swell to achieve alleged deficit shrinkage.

Here’s the test for the seriousness of any budget proposal: Whom does it make squirm? From whom does it ask for “sacrifice?” If the response to the forthcoming Trump budget is a sigh of relief from the fat cats, you can be pretty sure that once again, the old bait and switch has been played on the unsuspecting voter. Count on it.

 

The Harrison Award Winner for 2017

Although coming a day or two early, I am prepared to award the First Annual William Henry Harrison Award to President Donald Trump. The W.H.H. Award will be given to that political individual who records the very worst month in public office. It will be difficult to surpass the performance of the eponymous Award’s namesake; Harrison died just 30 days after taking the oath of office in 1841 (in part because of the horrendous cold he acquired delivering the longest Inaugural address in history). Trump seems likely to survive physically and politically his first month (having delivered one of the shortest, albeit, most vitriolic Inaugurals), but may well have simultaneously undermined his chances for a productive presidency, although to listen to him at Thursday’s press conference, you wouldn’t know it. “There’s never been a presidency that has done so much in so short a period of time,” Trump boasted. No, really; he said that. Really.

Not that the President lacked competition for the Award. No less than an Honorable Mention must be given to Gen. Michael Flynn, whom the President nominated and fired within three weeks as National Security Advisor. Flynn’s flare-out following disclosure of his secret conversations with Russian officials was spectacular for how it illuminates the care with which Trump has selected his close national security advisors (like Steve Bannon, whom he – perhaps unwittingly – appointed to the National Security Council).

Flynn’s actions are dangerously irresponsible and self-destructive, and reportedly, the recently-deposed spy chief just had his security clearance withdrawn. Everyone – and I mean, everyone – with a smidgeon of experience in intelligence and national security matters knows that when you are on the phone with another nation’s embassy, your conversation is (a) being overheard by someone other than the person with whom you are having a supposedly “private” conversation, and (b) probably being recorded by both sides for future use. Denying you had such a conversation or, implausibly, claiming you can’t recall the subject matter– say, whether you broached the topic of curtailing economic sanctions – is ludicrous.

The probable existence of tapes of the Flynn conversations raises the tantalizing question of when the contents will be splashed across the Nation’s newspapers and handheld devices. Note I said “when,” not “if.” The $64,000 question is whether Gen. Flynn also forgot that he might have mentioned the President-elect’s name in those conversations, and especially if he suggested he was calling at the behest of, or on the direction of, Mr. Trump. Such a revelation would be nothing short of cataclysmic, and congressional investigators (let alone the press) are certain to “demand access to the tapes to assess what the President knew, and when he knew it.” (That phrase has such an historic ring to it…)

Republicans in the House and Senate face a conundrum. If they block an inquiry into the Flynn scandal, they will share culpability for any and all violations of any national security procedures that might be documented when the truth inevitably tumbles out. Only the most hopelessly naïve observer could believe those who have been churning out national security information on Flynn would hesitate to steer a little more of it towards, say, the Washington Post, if it looks like a cover-up is being constructed to protect the President from the leaks. (Again, these words have such familiarity to them.)

Flynn’s was not the only stunning setback in the continuing horror show at 1600 Pennsylvania Avenue. Right behind Flynn on his way out the door was Andrew Puzder, and he, admittedly, deserves a Special Mention. Puzder doubtless had been told that his nomination for Secretary of Labor was doomed following disclosure that he (a) employed an undocumented immigrant and failed to pay taxes on her compensation (i.e., cheated that person and American taxpayers), (b) worked for a lawyer who represented organized crime, and (c) abused his wife (although she later retracted the claim). Personally, I would like to think the fact that he opposes increasing the minimum wage, embraces automation as a reasonable way to address labor needs, and has had his fast-food empire cited dozens of time for labor law violations might have also influenced senators to advise Puzder to head back to flipping burgers.

Flynn and Puzder are only two of those selected by Trump who are manifestly unsuited to the jobs for which the President nominated them. One must stand in awe of the pure atrociousness of the vetting process for top government officials. For a guy whose television success was based on evaluating and “hiring” the right employees, Trump in real life (or as close to it as he ventures) has been exposed as a remarkably poor judge of character. And if you think these individuals have been stunningly unqualified and extreme, pay very close attention to the sub-Cabinet level deputy and assistant secretaries he will be appointing. Count on them emerging from extreme congressional offices, think tanks and industry hierarchies. By insinuating themselves into the rule-making and administrative processes of the departments agencies, they will do far more damage than the high-profile secretarial level nominees.

Meanwhile, Trump continues to play at being President, attempting to delegitimize every other source of power or information – the press, foreign leaders, the Judiciary. “The news is fake,” he declared, using the logic of a 3 year old, “because so much of the news is fake.” If the Republicans in Congress were doing anything other than watching the unfolding circus with gaping mouths and visions of electoral cataclysm swirling before their eyes, he’d be denouncing them, too. He barely has time for denigrating Democrats (although he did thoughtfully blame Hillary Clinton for the continuing instability in the Mid-East during his welcoming remarks for Israeli Prime Minister Netanyahu), but declares the rollout of his immigration and refugee ban was “very smooth.”

A couple of weeks ago, I wrote a DOMEocracy blog that argued the dysfunctional Trump Administration would be “a test for Congress, especially the Republican majority.” That test has expanded from a quiz to a mid-term in the ensuing weeks; will Congress fulfill its constitutional responsibilities to hold the Executive Branch accountable and to scrutinize mismanagement (or worse) at the White House, or will it abandon decades of effort to restore itself as a co-equal branch, uncowed by a reckless presidency intent on shredding not only the social compact, but perhaps even the Constitution?

So, to you, Mr. President, goes the William Henry Harrison Award for 2017. Based on your first month in office, I would predict you have a better than even chance of winning the 2018 Award as well.

Floor Fights Have Consequences

Observers may come to consider Sen. Mitch McConnell’s decision to invoke Senate rules to silence Sen. Elizabeth Warren on Tuesday night as a misogynistic blunder that skilled politicians should instinctively avoid making. But there may have been more behind McConnell’s unusual maneuver to force the Massachusetts senator to relinquish the floor and sit down than is immediately apparent, and there may be multiple unforeseen consequences in the decisions of both senators.

Warren was reprimanded for supposedly violating one of those inviolable Senate rules – Number XIX – that admonishes members of “the greatest deliberative body in the world” not to impugn their colleagues. During her diatribe against the nomination of Sen. Jeff Sessions for Attorney General, Warren read a 1986 letter from Coretta Scott King in opposition to Sessions’ nomination to the federal bench. Sessions’ record as the longtime U.S Attorney for the Southern District of Alabama had displayed a consistent tendency, according to Mrs. King, to “chill the free exercise of the vote by black citizens,” focusing on the kinds of “politically motivated voting fraud investigations” now favored by Donald Trump. Sessions allegedly had used his official powers to do “what local sheriffs accomplished twenty years ago with clubs and cattle prods.” There were, Mrs. King intoned, “serious questions about his commitment to the protections of the voting rights of all citizens.” These were the kind of concerns that prevented Sessions from being confirmed for the judgeship.

Supporters assert that Sessions, elected to the Senate ten years later, is a changed man, and he may well be. The issue, however, is whether Sen. Warren should have been silenced for sharing with her fellow senators a 32-year old letter already in the public record whose content might upset Sessions. The merits of the ruling against Warren are dubious: she was not voicing her own opinion but quoting a highly respected source with solid knowledge of Session’s record as a public official in Alabama. Other could, and have, made the case that Sessions is an ardent defender of black Americans, but Warren is under no obligation to do so.

Notwithstanding Senate rules, the optics of McConnell and other male senators ordering Warren to “take her seat” and remain silent were nothing short of stupefying. An innumerable number of worse statements about other senators have been uttered on the Senate’s hallowed floor without triggering such a punitive response. Indeed, when Sen. Tom Udall (NM) admirably took up Warren’s cause and read the King letter, no Republican gaveled him silent.

Many observers immediately concluded that what occurred on the floor was a mini-drama related to including Warren’s 2018 re-election race or even the 2020 presidential campaign. Warren now has the material for her first commercial, thanks to McConnell’s blustering; indeed, she read the entire King letter into YouTube, which recorded millions of viewers (and likely, tens of thousands of contributors without spending a thin dime on fundraising). Meanwhile, McConnell stood up for Trump’s nominee and for a fellow Republican senator under assault, which burnishes his role as GOP Leader. Whether there are lasting consequences to the dust-up remain hard to predict.

Two years before Mrs. King penned her letter criticizing Sessions, an eerily similar to the McConnell-Warren spat broke out on the House floor resulting in the historic rebuke to a sitting Speaker and the elevation of hard-driving Republicans who already could envision one of their own holding the House gavel.

On May 15, 1984, Speaker Tip O’Neill, like Warren a Massachusetts legislator, was infuriated by the innuendos of treason leveled against Democratic House Members by the likes of Georgia Rep. Newt Gingrich, a perennial gadfly and irritating junior backbencher. Republicans had insinuated that their liberal colleagues were conniving with Nicaragua’s Sandinista rebels to undermine President Reagan’s efforts to displace the leftist government, and they used after hours floor speeches to dare Democrats to respond to their wild accusations. Since the House had completed its legislative business and the floor was empty, Gingrich and others knew full well no Democrats could respond, and used the opportunity to construct a contrived scene in which it appeared Democrats refused to respond to the hyperbolic accusations.

O’Neill, who had inveighed against televising the House floor for fear of just such theatrical abuses (he actually warned the cameras would catch Members “picking their nose or scratching their ass”) had enough. Taking to the floor, the Speaker condemned the Republicans’ incendiary, late-night attacks. “You deliberately stood in that well before an empty House and challenged these people and you challenged their Americanism,” thundered O’Neill, calling the tactic ”the lowest thing” he had ever seen in 32 years of decades of House service. He admitted he harbored ”much harsher thoughts” about the tactics and the language being directed against his Caucus colleagues.

Affront to the Speaker’s statements was taken by the Republican Whip, Trent Lott of Mississippi, who complained that ”a lot of people feel their integrity and motives have been impugned.” Lott asked that the Speaker’s words be “taken down,” a House procedure to expunge offensive language from the Congressional Record. Under the rules, the acting Speaker, an anguished Joe Moakley of Massachusetts, was compelled to side with Lott, and O’Neill was rebuked and silenced for the remainder of the day.

Gingrich famously crowed, “I am a famous person!” and a delighted Lott declared “our point has been made.” Although a press account noted, “leaders from both parties say they are getting tired of Mr. Gingrich and his allies, who openly prefer public clashes to private compromises,” the incident helped elevate the conservative activists. By securing a ruling that punished the Speaker, for the first time in history, they demonstrated their savvy knowledge of floor procedure, the kind of symbolic victory that earns admiration among your supporters. Even many moderate Republicans increasingly became enamored of the obnoxious Gingrich, who seemed more determined to oust O’Neill and the Democrats than the less vindictive GOP Leader, Bob Michel, who liked to travel and sing with O’Neill.

In the history of the rise in a polarized electorate, a more partisan atmosphere within the Congress, the ideological realignment of the parties, and the utilization of media to appeal to the hard-core base, the O’Neill-Lott confrontation has a special significance and symbolism. Time will tell if historians will look back on the Warren-McConnell clash as an important political drama, or if it is simply one more piece of evidence that the hallowed decorum and procedures of the Senate are heading for the proverbial dustbin.

 

Congress Needs to Get Involved

Just eleven days into the troubled Trump presidency, a moment of truth has arisen for the Congress, few members of which (of either party) believed that elevating an inexperienced demagogue to the White House was an inspired thought. Republicans have largely fallen in line behind Trump’s vaguely sketched policy goals, although there was reported grumbling at the recent bicameral policy retreat in Philadelphia about insufficient consultation. Democrats, despite some pronouncements about working collaboratively, have largely condemned each action of the new President. Not a harbinger of bipartisanship.

With the stunning upheaval over Trump’s Executive Order on immigration and refugee policy, there is an opportunity – and an obligation — for the parties to unite on the common ground of standing up for the institution they have sworn to defend, and in which they serve. Although coming earlier in the Trump Administration than many had predicted (or thought possible), the crisis has arrived in the form of irrational policy, inadequate consultation with affected government leaders, amateurism at the highest staff levels, inexplicable rebuke to key foreign leaders and international colleagues, and, in all likelihood, a massive insult to the Constitution. In just 11 days. As Rahm Emanuel has advised, “Never let a serious crisis go to waste,” because it allows one to take steps that might have previously been impossible. This is such a moment for the Congress.

Those who care about the integrity of the House and Senate – and there are plenty on both sides of the aisle – have an opportunity to use their constitutional powers now to begin the task of regaining public respect.

Congress needs to find out who makes policy in the non-transparent White House, and how they do it, before more serious damage is done, perhaps involving nuclear weapons. The same diehard Republican inquisitors who set up special committees and spent many months investigating Benghazi and Planned Parenthood should convene oversight hearings and summon White House officials – there aren’t many in other departments of the Executive Branch as yet – to explain the decision-making that resulted in the Executive Order on immigration and refugees. Not only was the initial process cloaked in secrecy, but the aftermath has been chaotic: the White House policy director standing by the Order, the chief of staff reinterpreting it, and the Homeland Security Secretary clarifying (i.e., reversing) its impact on green card holders.

The purpose of such hearings should not be to fix blame – President Trump has been quoted as saying he thought implementation of the Order has been going just fine – but to clarify the lines of authority within the White House. Pulling in these officials and illuminating the decision-making process and players can be done this week, and it should be. One never knows when the next crisis will arise, although it seems safe to say it won’t be in the distant future.

Only the Republican majority can call an official hearing. Only the majority can issue subpoenas to those who decline an invitation to testify. If the Republican majority in the House and Senate decline to use their constitutional powers (not to mention their institutional responsibility) to initiate such oversight, they will have forfeited any legitimate claim to control the Congress, and will share fully in the culpability for the future blundering of an amateurish and insular White House. Oversight always drops precipitously when the White House and Congress are controlled by the same party; this time, however, that pattern needs to be reversed.

Although in the minority, Democrats have an opportunity to send a clarion message to Americans and the world by introducing legislation to reverse Trump’s unwarranted Executive Order. Such legislation could also establish clearer criteria for challenging or prohibiting entry of certain suspect classes of prospective immigrants or refugees, if that is even needed. True, as the minority, Democrats cannot schedule official hearings, compel the attendance of Administration witnesses, or mark-up legislation, but if Republicans refuse to exercise the prerogatives of the Legislative Branch, Democrats can file a discharge petition on their bill, bypassing the normal procedures to force their legislation to the floor. Republicans who refuse to sign onto that petition – it takes 218 signatures and therefore cannot succeed without majority co-signers – will have little basis for denying culpability for the aftermath of the current crisis, and will instantaneously become prime targets in the 2018 election.

The best outcome, of course, would be to pass a comprehensive immigration bill that addresses these and many other unresolved issues instead of continuing to govern by Executive decree and fulminating about a multi-billion dollar wall between the U.S. and Mexico. Such a bipartisan bill did pass the Senate just 4 years ago, but could not even get a subcommittee hearing in the Freedom Caucus-driven House. The atmosphere for a bipartisan solution to immigration may be among the casualties of Trump’s reckless blundering.

This is a test for the Congress, and especially for the Republican majority that alone has its hands on the steering wheel and its foot on the gas pedal. Either they follow the leadership of Republicans like John McCain and Lindsay Graham who dare to challenge the haphazard Commander-in-Chief (and who responded to their criticism by accusing both senators of “always looking to start World War III”) or, by their inaction, they diminish the Legislative Branch of our government and create a huge electoral opportunity for Democrats.  The disorder of the past week should be evidence enough that it is never wise for Congress to blindly defer to the Executive Branch, believing that loyalty is equated with patriotism or public service.

Playing at Being President

Donald Trump’s precise relationship to the Republican Party he putatively leads, and to its majorities in Congress, continues to be very much a work in progress. During his campaign, in his bellicose Inaugural address, and even in Thursday’s speech before the Republican congressional retreat in Philadelphia, Trump pointedly distinguished himself from the “politicians” he castigates.

In Philadelphia, he blamed those “politicians” for the failures of the federal government. He assured his colleagues that he was speaking of “not you here,” a curious dispensation since Republicans have been in charge of one or both houses of a largely somnambulant Congress since 2011, but to “others,” before menacingly adding, “Maybe.”

What Trump has said in his first week in the White House is less significant than what he has done. On a daily basis, Trump has signed Executive Orders to fulfill campaign pledges, ordering all federal agencies, for example, “to the maximum extent permitted by law,” to “waive, defer, grant ­exemptions from or delay” application of any provision of the Affordable Care Act that “imposes a financial or regulatory burden.”  Such a sweeping directive could apply to anyone compelled to buy insurance or to provide health services, it would seem, and likely constitutes an egregious over-reach by seeking to invalidate an existing statute.

With his trademark swagger, Trump has declared he will “reduce regulations big time,” and suspended all new regulations (including those intended to ease or modify earlier regulations on businesses) for months.  Developing replacement regulations will take months due to the laborious publishing and comment requirements, one reason that many companies are not happy with the regulation freeze.

Trump dubiously asserts that his orders will “save thousands of lives, millions of jobs and billions and billions of dollars.” He froze the hiring of new federal employees, which may result in greater reliance on non-unionized contractors who lack protections granted federal employees.  He reversed course on the controversial Keystone and Dakota Access pipelines (although final action will take months of hearings and rules proceedings), limited the admission of refugees based on religious considerations ((interestingly, not in those countries where the Trump Corporation does business), and withdrew from the Trans-Pacific Partnership, which pleased Democratic labor leaders more than pro-trade Republicans and their business allies.  While boasting “our relationship with Mexico is going to get better,” he disinvited President Enrique Peña Nieto of Mexico, a crucial ally on drugs, crime and immigration and one of our largest trading partners.  Such a visit to Washington would be “fruitless,” he asserted, if Peña Nieto refused to accept the responsibility of paying for the Great Wall of Trump. Peña Nieto’s decision to forgo his planned visit to Washington ranks as the most popular one of his troubled administration.

Trump and his supporters justify this torrent of Executive initiatives by pointing to former President Obama’s heavy use of such orders, but there is a difference.  Obama was slow to resort to unilateral action (his pace ran behind many recent presidents for most of his term) until it became evident that Republicans would block his  legislative proposals. Obama was left with little recourse if he wanted to implement the policies on which he had successfully campaigned in 2012.

“This Congress is going to be the busiest Congress we’ve had in decades,” Trump told the Retreat participants, but thus far, he has shown a preference for substituting his solitary judgment for that of the peoples’ representatives.  That circumvention of Congress’ deliberative procedures is particularly disturbing since his initial orders cover highly divisive and incendiary topics that represent a complete reversal of existing policy, a reversal not embraced by a majority of voters.

Had Trump received a genuine electoral mandate to effectuate such changes (as Obama arguably did on such early Executive Orders as the closing of Guantanamo), the precipitous action might be warranted. Instead, he is intent on making policy by spouting wildly fabricated notions, justifying his immigration restrictions on his belief that “if you were a Muslim you could come in, but if you were a Christian, it was almost impossible.” (The numbers were effectively equal last year.)

Congressional Democrats have predictably reacted with anger to Trump’s cascade of executive actions, hardly a surprisingly response. The Republican response is of greater significance. According to one report, Republicans had no idea if Trump’s orders conflicted with the laws Congress has written “because they hadn’t reviewed them.” Neither have the departments that will have to implement them, including the National Security Council, the Departments of State, Homeland Security and Health and Human Services. One man’s flawed impulsive and cartoonish judgment is being substituted for the entire policymaking process.

Only in the case of the military, where civilian presidential control is actually essential, does Trump appear willing to cede decision-making to congressionally approved leaders.  Reiterating his discredited belief in the effectiveness of torture, Trump agreed to bow to the views of Secretary of Defense Mattis, who discounts the value of “enhanced interrogation techniques” like waterboarding.  “I don’t necessarily agree,” said Trump, but “he will override [me] because I’m giving him that power.” Still, the President, asserted, “I happen to feel that it does work. But I’m going with our leaders,” before adding the Trumpian coda, “We are going to win, with or without.”  (Trump ended his musings on torture with the frequent self-editing that marks his pronouncements, “But I do disagree.”)

In the 1960s, the Congress on a bipartisan basis began to push back against the steady accumulation of power in the hands of a more agile presidency.  Legislators and scholars agreed that Congress had withered into what Sen. Joseph Clark of Pennsylvania described as the “sapless branch” of government, helping to produce what James MacGregor Burns of Williams College memorably called a “deadlock of democracy.” Reformers demanded that Congress, created in the first Article of the Constitution, reassert itself as a co-equal branch rather than continue to defer to the Imperial Presidencies of Lyndon Johnson and Richard Nixon.

Much of what Trump wishes to do will require the involvement and assent of the curiously quiet Congress, and securing agreement on issues from health care to energy to immigration and infrastructure will surely require vast stores of policy experience, personal relationships and patience — traits that Trump has not displayed to this point.  He can claim to have followed through on his campaign promises with his early Executive actions, but it is hard to escape the impression he is just sitting at the Resolute desk in the Oval Office, playing at being President. It remains to be seen whether Republicans in Congress have the courage to challenge Trump when he veers towards the irresponsible, or the capacity to move beyond the nay-saying rhetoric of the past 6 years and produce effective legislation themselves.

The Trump Inaugural

As newly sworn President Donald Trump began his Inaugural speech, the dark rainclouds that had gathered all morning began pelting the new Chief Executive. It was, without a doubt, the brightest moment of the 20 minute tirade that followed, a gloomy diatribe that set an ominous tone for a new Administration.

Presidents have often assumed office in the midst of crisis – wars, depressions, scandals – but the incoming leader has always summoned up rhetoric intended to appeal to what Lincoln, in 1861, called “the better angels of our nature.” Trump missed the opportunity to strike a comparable note in an historic era far less dismal for the Nation, avoiding a message of reconciliation and common ground in favor of summoning the devils of division who dominated his campaign perorations.

Trump displayed none of the graciousness, none of the aspirational imagery, none of the optimism one generally hears at the outset of a new administration. While rattling off references to the men on the platform who had preceded him as President, he noticeably failed to acknowledge the former First Lady, senator and secretary of state who won nearly 3 million more votes from her countrymen than did the victor. A brief recognition of her presence, and her civility in accepting the twisted outcome of the election, would have sent a welcome message.

Instead, Trump chose to resurrect the imagery of a nation in crisis, an economy in shambles and a country at risk that he fatuously promoted throughout the campaign. Where Ronald Reagan spoke of a “shining city on a hill,” Trump referenced “American carnage” in the form of empty factories like tombstones and a landscaped scarred by wanton violence. Of course, Reagan’s inaugural rhetoric was theatrical, like much of his rhetoric; a few months later, the one-time union president fired the Nation’s air traffic controllers who dared to defy his invective, but on January 20th, he understood the importance of sending a message of calm and conciliation.

One can only imagine what foreign leaders will make of Trump’s embrace of the concept of “America First,” a term imbued with nationalism, isolationism and anti-Semitic overtones that politicians have avoided for seven decades even as they promoted their concept of “American exceptionalism.” One can only conclude that neither Trump nor his advisors spent much time consulting historians before preparing a speech that sends worrisome signals to allies and adversaries around the globe.

Trump, the billionaire businessman who salted his Cabinet with a Team of Tycoons committed to undermining the departments they will lead, missed an important – perhaps an irreplaceable – opportunity to send a message of fairness for all Americans and a willingness to consider the opinions and recommendations of those who do not share his own bombastic and distorted portrayal of the nation. From his studiously unbuttoned suit jacket to the thumbs-up signal of self-confidence, he did little to alter the image of the. swaggering, confrontational bully that incredibly persuaded tens of millions of Americans (though far from a plurality) to grant him the enormous power and responsibility he acquired today.

One can only imagine the response had Barack Obama closed his Inaugural eight years ago with campaign style rants and a fist lifted over his head. Instead, in the midst of genuine crisis – an economy in meltdown rather than recovery, unemployment skyrocketing rather than cut in half, two wars growing in intensity instead of radically pared down – Obama sent a very different message. “On this day,” the 44th President declared in 2009, “we have chosen hope over fear, unity of purpose over conflict and discord.  On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.”

If, in the end, Obama’s vision proved more optimistic than events warranted, it was designed to inspire hope and inclusiveness at a time of national crisis. Trump’s imagery painted a barely recognizable, Gotham City-like portrait of the nation that he now leads. Trump promises to “make America great again,” offered only a grim picture of a prostrate and divided nation that ignored the improvements since 2009. From this point onward, however, he will be judged on more than incendiary sloganeering, but little of what he has said since Election Day, including his remarks today on the Capitol steps, indicates a seriousness of purpose or an achievable agenda.