DOMEocracy

hardline political news and analysis

A Civics Lesson for Trump and Sessions

As if we needed any further reminders of the reckless disregard for law and the Constitution rampant in the Trump Era, a panel of Republican federal judges has forcefully rejected efforts to punish so-called Sanctuary Cities by curtailing federal grant funds. It is a fair barometer to assume that when a Republican judge uses terms like “tyranny” to describe the actions of Trump officials, even the GOP’s catatonic congressional leadership should wake up and start acting like they are paying attention.

The remarkably strong decision by judges of the U.S. Court of Appeals for the 7th Circuit is a sharp reminder that it is a good idea for officials not only to check the merits of their arguments, but also the backgrounds of judges before whom they will make appeals. The judicial panel, led by Judge Ilana Rovner, not only belittled the arguments of Attorney General Jeff Sessions’ Justice Department, but also delivered a ringing defense of congressional prerogatives and separation of power that is clearly a matter of low priority to the current occupant of the White House.

At issue was whether Sessions (channeling some of the most reprehensible of Donald Trump’s prejudices) should be able to inflict punishment on so-called Sanctuary Cities that decline to cooperate with the federal government’s aggressive policy of rounding up and deporting undocumented people. Cities like Chicago, the subject of Wednesday’s case, have not voided federal law – the constitutionality of which was settled some time ago by a nasty civil war – but rather have declined to cooperate with actions to terrorize immigrant communities. Trump and Sessions responded to vows of non-cooperation by threatening to withhold DOJ grant funds designated for these defiant jurisdictions.

Not so fast, instructed District Judge Harry Leinenweber last September. Leinenweber, who had been named a federal judge by Ronald Reagan, imposed a nation-wide injunction against punishing Sanctuary Cities for protecting their residents. Yesterday, a 3-panel appeal court in Chicago upheld Leinenweber’s decision, and used some strong language to disclaim the logic and constitutionality of the Administration’s argument.

Unfortunately for Sessions and Trump, the judge writing the decision in the appeal was Ilana Rovner, a Reagan and Bush I appointee who with her mother had fled Latvia as a child in 1942 to escape the invading Nazi army. Such an experience is bound to make an impression on a 4-year old.

Apparently it did. Rovner’s ruling dripped with contempt for the Administration’s arguments. Sessions’ heavy-handed intimidation was described as a thinly disguised effort to use “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” And that wasn’t the mildest of Rovner’s rebuke. “The issue before us strikes at one of the bedrock principles of our nation,” she lectured the Attorney General, “the protection of which transcends political party affiliation and rests at the heart of our system of government — the separation of powers.”

To someone who teaches students about the proper role of the Congress in the law-making process, Rovner’s decision reads like a textbook example. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government” she wrote. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”

Indeed, as Rovner wrote, Congress “repeatedly refused” efforts by some members to link the funding of federal programs to immigration policies. Numerous bills have been introduced directing that such linkage be imposed, with such menacing names as the “Stop Dangerous Sanctuary Cities Act” and the “Stop Sanctuary Policies and Protect Americans Act,” but Congress declined to enact these alarming bills. She reminded the Administration of the lesson of which legislative drafters are acutely aware, that the language of the law, on which Congress actually voted, is “the best indicator of Congress’s intent [and] and that absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”

Perhaps Sessions and Trump missed class the day a teacher explained that Congress’ failure to act does not confer special powers on the Executive Branch.

Congress of course can choose to give to the Attorney General, or to anyone else, the power to link the provision of federal funds with certain conditions. But it is up to Congress to make an affirmative decision, not for others in government to assume those powers when Congress fails to do so. Rovner belittles Session’s argument that states and local communities cannot be allowed to interfere with federal law enforcement. “That is a red herring,” she rightly declares, since Sanctuary Cities in no way obstruct enforcement actions by federal officials.

In case the zealots in the Administration missed her point, Judge Rovner further explained that “We are a country that jealously guards the separation of powers, and we must be evervigilant in that endeavor.” But Sessions’ “repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch,” and when the Executive overreaches, it “falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”

Rovner’s scolding must have stung the White House and Justice Department, but it was surely welcome for teachers of civics throughout the country. It s a sorry state of affairs when conservative judges have to remind the likes of Donald Trump and Jeff Sessions what the Constitution says and judicial precedent means. Probably time to get ready for the Tweet storm about lenient liberal judges.

 

 

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The Art of [Breaking] the Deal

The Trump Administration’s decision to roll back national auto efficiency and emissions standards and challenge California’s right to set tougher criteria will not only make Americans sicker and increase dependency on foreign oil. Trump’s unilateral action will violate an understanding that taxpayers would not finance the revitalization of a non-competitive and inefficient auto industry.

Only a decade ago, Congress agreed to allow tens of billions of taxpayer dollars to be spent out of the financial rescue package in order to save the prostrate desperate U.S. auto industry. Late in 2008, U.S. carmakers begged Congress and the Bush Administration to stave off the collapse of their businesses and the associated loss of millions of jobs in related wholesale and retail enterprises. They were enormously fortunate that congressional leaders were feeling more positively towards auto manufacturers because, a year earlier, a new law had imposed the improved fuel efficiency and emissions standards that would promote competitiveness with Japanese and European rivals.

The negotiations over that legislation had been bitter and protracted. Senators and representatives from Michigan, home of the U.S. industry, had long resisted demands  to modernize their standards. In the midst of the legislative battle on energy policy in November 2007, House Speaker Nancy Pelosi told House freshmen that she would not be bullied as Congress had been for decades. Public officials would set the efficiency criteria, Pelosi declared, not the manufacturers, who would be compelled to implement Congress’ decision. “What were you thinking,” Pelosi reported she had told the auto manufacturers, “to fight [tougher standards] for 30 years?”

Within Congress, reformers like Henry Waxman (D-CA) had long battled the industry’s apologist, Commerce Committee chairman John D. Dingell (D-MI). Sensing that Pelosi and Waxman had the votes, Dingell pleaded to give the auto manufacturers a reasonable time to recalibrate the efficiency of their fleet. Dingell told Pelosi he was prepared to “stuff down the throats of industry” a five-year time frame for industry compliance. “You hate the bill, but you can live with it if you work with me,” Dingell recalled telling Detroit’s big shots. “Otherwise, you’ll get a bill you can’tlive with.”

The resulting Energy Independence and Security Act required auto manufacturers to increase their passenger vehicle and light truck fleet average efficiency to 35 miles per gallon by 2020 – not a 5, but a 13 year glide path — and allowed the Environmental Protection Agency to increase standards when technologically feasible. With growing evidence about the impact of carbon concentration on climate change, President Barack Obama used that authorization to order a fleet average of 50 miles per gallon by 2025.

Only one year later, the manufacturers were at Congress’ door pleading for billions of taxpayer dollars to forestall bankruptcy. Despite their protests that efficiency standards made cars more expensive, they knew it would be futile to seek a relaxation of the mandates while appealing for their bailout. As the financial markets teetered on collapse and jobless claims soared, the Bush Administration and Congress knew that allowing the Big Three auto companies to fail would cause downstream bankruptcies for thousands of auto parts manufacturers, distributors and dealerships with a resulting loss of over a million jobs.

Still, securing the federal aid was far from a certainty, even with the industry pledges to modernize their fleets. Indeed, the new Treasury Secretary, Timothy Geithner, warned congressional leaders that the companies’ recovery plan, due in February 2009, would probably be prohibitively expensive, and that it was “very hard to imagine a sufficiently strong plan outside bankruptcy.” Pelosi, having asked her members to vote for hundreds of billions of dollars for both the Bush and the Obama stimulus plans, plus the TARP financial services bailout, as well as a trillion dollar Omnibus spending bill, was wary of going to the well yet again.  The companies, she advised, would have “to be realistic.” A planned bankruptcy might well be the “best of bad alternatives.”

The earlier legislation setting tough standards for fuel efficiency and emissions reductions helped persuade many reluctant legislators that the auto manufacturers were worth the public risk. Ultimately, the companies received an $80 billion loan using taxpayer funds, with a requirement that they repay it all. To date, unlike other TARP beneficiaries, the auto manufacturers still owe taxpayers billions of dollars.

Now the manufacturers, restructured, back on their feet and competitive again, are cheering on Trump’s decision to weaken the standards that earned them the public’s trust just a decade ago.  Trump’s relaxation of emission and mileage efficiency improvement was “the right decision,” intoned Gloria Bergquist on behalf of the Alliance of Automobile Manufacturers. But Trump’s proposal has drawn angry responses from congressional Democrats. Pelosi dismissed Trump’s rollbacks as part of the “GOP’s dirty energy agenda.”

To many on Capitol Hill, Trump’s announcements looks exactly like a used car salesman’s bait and switch operation, and it is the taxpayer who is getting used. Manufacturers that secured taxpayer subsidies based on compliance with efficiency upgrades are now walking away from their obligations. Car executives should not be surprised if the next time they plead with taxpayers for assistance, they get, as John Dingell had warned, something less salutary “crammed down their throats.”

Ryan’s Decision to Quit

It has been 32 years since a Speaker of the U.S House of Representatives has truly left office of his – or her – own volition. Paul Ryan has not been forced to resign like Jim Wright following a scandal or John Boehner following repeated defections by his own troops. He wasn’t booted out by his own party, like Newt Gingrich, or ousted by an election that ceded power to the opposition like Tom Foley, Dennis Hastert and Nancy Pelosi. Ryan just quit.

Ryan’s decision brings to a close a brief speakership marked by spectacular underachievement. Like Boehner, Ryan proved incapable of effectively managing his deeply riven Republican Conference. Even granted the limited legislative objectives of the modern Republican Party, Ryan has been unable to summon up the political astuteness to perform the most basic function of the congressional majority: to govern.

Only by fashioning the same short-lived coalitions with Democrats as Boehner has Ryan avoided disastrous shutdowns that so delight a substantial portion of his Conference. By stepping up to his obligation to fund the government and prevent the disruption and political damage that inevitably follows shutdowns, Ryan also inflamed the Freedom Caucus/Tea Party faction whose election elevated the GOP to the majority and which now intimidates its Conference colleagues and their leaders.

True, Ryan was able to secure his supreme if misguided goal, a costly tax cut that disproportionately benefits corporations and the wealthy. Together with Senate Majority Leader Mitch McConnell, Ryan shredded conservatives’ so-called commitment to reducing the deficit, not only by pushing through his $1.5 trillion tax cut, but also by bulldozing through Congress an Omnibus spending bill that together added over $1.4 trillion to the Nation’s red ink.

With all due respect to Speaker Ryan’s often touted legislative skills, reducing the taxes of the super-rich and corporations while providing meager cuts to regular Americans (Ryan bragged of a constituent who was receiving $1.50 a month from the tax cut) is not exactly legislative legerdemain. Any demagogue can cut taxes, especially if he doesn’t care about the impact on the deficit.

Moreover, Ryan admitted that his real goal was to inflate the deficit so as to create a rationale for cutting programs like Social Security, Medicare and Medicaid, which benefit tens of millions of Americans, mostly poor, elderly and disabled. Having abandoned h effective deficit-reducing mechanism of the Pay As You Go requirement instituted by Democrats, Ryan instead promoted  a “Balanced Budget Amendment” whose underlying principle he has no ability or interest in honoring.

But Ryan’s failures go even deeper than these examples of his hypocrisy on the question of economic fairness, spending control and deficit reduction. In slavishly capitulating to the erratic, unprincipled and dangerous lurchings of Donald Trump, Ryan has undermined the stature of the institution he was solemnly charged with leading. For nearly a half-century, Democrats and Republicans alike in the House have fought to reassert the role of the Congress as a separate and co-equal branch of government, developing its own legislative initiatives, not simply accepting the demands of an Imperial presidency. Congress, since the 1970s, has engaged in vigorous oversight of the Executive Branch, demanding answers about the spending of funds and the scrutiny of programs that originate with the Congress, and which the President has the responsibility to manage.

Under Ryan, the House has utterly failed in that mission, largely reverting to its onetime status as the pitiful “sapless branch” of government decried by Sen. Joseph Clark (D-PA) a half century ago. Ryan not only weakened Congress by obsequiously deferring to a president who demonstrates contempt for his party’s members, but he severely damaged the honor of the House itself by abandoning the regular legislative order, neutering members of policy committees on both sides of the aisle, restricting opportunities to offer amendments on the floor, and ignoring the pleas of overwhelming majorities of Americans of all ideologies to address issues like gun policy and immigration.

Such a harsh assessment of Ryan’s failed career as speaker undoubtedly will strike some as unkind; doesn’t he deserve compassion, even sympathy, for having to endure the constant pressures, threats and obstructionism from the far-Right Freedom Caucus from which he himself emerged?

Absolutely not. Speakers don’t have the luxury to offer excuses. They play the hand they are dealt as best they can. Nancy Pelosi had to cater to conservatives in her Caucus and deal with an unpopular president whose reckless behavior had driven the nation into two wars as well as an historic recession. John Boehner inherited the speakership by virtue of an extremist minority that showed him little deference and forced him to cut deals with Pelosi and Barack Obama to ensure the continued functioning of the institution he was charged with running.

Ryan has shown no courage and minimal skill. Despite an unearned reputation as a policy wonk, he has little to show for either creative or innovative legislation; in fact, he has little to show for any legislation at all, which may well have been the goal.

He leaves behind a president who adds another trophy of the Washington elite to his wall. He leaves behind a House that has lost institutional capability and public respect. He leaves behind a Conference that is divided and ineffective, one that may well spend much of the rest of this year deciding who might next inherit the job Ryan leaves, or the job he perhaps feared: Minority Leader. From the standpoint of those who care about a functioning, independent House, Paul Ryan has made one sound decision: he quit.

 

 

Lamb’s Victory and the 1974 Precedent

Conor Lamb’s improbable but likely victory in yesterday’s congressional race in the 18th district of Pennsylvania raises  comparisons to the 1974 victories of Democratic candidates running in traditionally Republican districts. The significance of those earlier upsets as precursors to a November wave victory, is recounted in my just-published book, The Class of ’74: Congress After Watergate and the Roots of Partisanship.

In one of those surprise elections, in February 1974, John Murtha, the first Vietnam veteran elected to the House, won a seat in Pennsylvania’s 12th district. Murtha’s military background and moderate views, were at odds with the majority of those Democrats running in November, but they helped him win the votes of district residents who had not sent a member of his party to Congress since 1936.

Even more stunning was the election a few weeks later of Richard Vander Veen in Michigan’s 5th district. The seat was vacant not only because the Republican incumbent had resigned, but because that incumbent was the House minority leader, Gerald Ford, who had been appointed vice president. Ford’s seat had been safely in Republican hands since 1912 and few had expected so secure a seat to change parties just 15 months after Richard Nixon’s landslide victory.

Two more special elections in 1974 – Tom Luken in Ohio and Bob Traxler in Michigan – seemed to set a pattern of Democrats filling vacancies in Republican districts, and panic began to spread among Republicans across the country. The House Judiciary Committee’s impeachments hearings and bipartisan resolutions, the Supreme Court’s decision against Nixon on the Oval Office tapes, the President’s resignation and then Ford’s surprise pardon just two months before Election Day all set the public mood against the GOP. In addition, the steadily worsening economy and growing energy crisis contributed to a decidedly anti-Republican sentiment.

Shortly before the election, Congressional Quarterly predicted “substantial gains” for Democrats, perhaps as many as 35 seats, and teased there was “at least the hint of a landslide.” Independent polls showed voters favoring Democrats in a generic congressional race by 20 points in the Gallup and 24 points in Harris. Democrats led in 18 seats held by Republicans, and were reportedly running even in another 32. Just a few weeks before the election, Ford was playing golf with Majority Leader Tip O’Neill and asked his old friend for a prediction. “It’s going to be an avalanche,” O’Neill advised the startled Ford.

The polls, and the early harbingers of Murtha, Vander Veen and the other special election winners proved prescient. Democrats picked up 49 seats from Republicans, elected 76 new members, and pushed their margin in the House to 291-144. The new members of the Class of ’74, called “The Reinforcements” by New York’s Bella Abzug, joined with veterans to implement sweeping modernization of the House and the Democratic Caucus, disbursing power more widely, imposing discipline on chairmen, and elevating issues of importance from Vietnam withdrawal to energy, the environment and children’s policy.

It may be too early to make predictions about the fortunes of congressional Democrats in November based on Lamb’s successful campaign, but some conclusions are clear. In a wave election, when the public is sufficiently fed up and hungry for change, incumbency and party labels do not provide the level of insulation one had long depended upon. While gerrymandered districts can afford Republicans some protection in typical elections, displeased voters stay home, and many seats thought to be secure can be lost. In 1974, well-entrenched Republicans like New Jersey’s William Widnall and Charles Sandman lost supposedly safe seats.

Another clear lesson is that parties aspiring to the majority must cast their nets wide, not only with voters, but with candidates. Lamb does not unqualifiedly reflect the liberal orthodoxy of the national Democratic Party, although evidence suggests he, like others elected in marginal districts, will reliably vote with the party on most measures once in office. But Lamb is the kind of candidate, running in the kind of district, that Democrats must win to reach the 218 seat majority. As liberal Rep. Phil Burton advised junior members in the mid-1970s, “Get to know southerners and conservatives. Be nice to those guys; listen to them. Without them, there is no Democratic majority.”

Several months ago, Democratic National Committee chairman Tom Perez declared Democrats would not support candidates who were not 100% pro-choice. His remarks drew criticism from many who recalled that, but for congresspeople who were not reliable on key issues, the party would not have won the majority in 2006 or been able to pass landmark legislation like the Affordable Care Act. Democratic activists can have purity or they might just be able to have a majority, but the chances of having both are less than, say, the odds of Conor Lamb being elected to Congress.

***

You can order The Class of ’74: Congress After Watergate and the Roots of Partisanship” from the following online addresses:
JHUP: https://jhupbooks.press.jhu.edu/content/class-74

Amazon: https://www.amazon.com/Class-74-Congress-Watergate-Partisanship/dp/142142469X/ref=sr_1_1?s=books&ie=UTF8&qid=1508946588&sr=1-1&keywords=The+Class+of+%2774

Barnes & Noble: https://www.barnesandnoble.com/s/Class+of+%2774?_requestid=489232

 

A Holiday for Oil Producers

The Trump Administration has decided oil companies are in desperate need of a holiday, and guess who is going to foot the bill? Surprise, the American taxpayer will pay for this first-class fleecing.

Two decades ago, when oil was selling for less than $30 a barrel, President Bill Clinton promoted a “royalty holiday” that forgave drillers from paying the mandatory fees for the production of oil from deep water leases in the Gulf of Mexico. Freeing oil companies from the royalties, Clinton argued, would fuel interest in federal tracts located in 100 feet or more of water on the outer continental shelf (OCS). Taxpayers would benefit, Clinton asserted, from the payment of up-front bonus bid fees paid by the companies to acquire these so-called “deep water tracts.”

As the Democratic staff director of the House Resources Committee whose ranking member was Rep. George Miller of California, I was very familiar with OCS policy. Miller and I had played a role in the design of the 1978 law that modernized OCS leasing and production.

Although a leading environmentalist, Miller’s district included several large refineries. I was dispatched to ask company executives if, as proponents asserted, a royalty holiday would prompt them to purchase, explore and develop deep water leases. Every executive I interviewed responded with the same answer. “If you want to sell me a lease without any royalty, sure, I’ll take it,” the executives said. “But I would not premise that purchase on a promise that Congress could rescind at any time.”

Congress unwisely approved Clinton’s royalty holiday, which was supposed to end when the price of oil rose to $28 a barrel. But oil prices rose past $30, past $40 to more than $50, and still, the holiday was kept in place by regulators sympathetic to the industry despite oilman George W. Bush’s campaign critique of the policy in 2000 as a “huge tax break.” Tens of billions of dollars due taxpayers have been lost from  development that would likely have occurred anyway.

Now the oil industry friendly Trump Administration is preparing a royalty free holiday of its own, although circumstances are quite different from those of the 1990s. The price of oil is not low and the industry needs little incentive to drill in the deep Gulf, where they have more than two decades of experience. Moreover, the same companies have extensive experience drilling in the deeper, and more perilous, North Sea.

Unlike other nations, the United States does not award its leases to companies that bid the highest royalty rates (although such an option – net profit sharing — was authorized in the 1978 law). Instead, the Department of the Interior auctions off leases to the company that offers the highest “bonus bid” for a tract, a bid that might, or might not, reflect the actual value of the oil and gas deposits within the tract. Federal officials love the up front bonus bid system because they don’t have to wait for years to reap money from the sale as they would if, like other countries, American taxpayers received fat royalties from production of publicly owned oil and natural gas.

If the tract is productive, lessees pay the government from 12.5% to 18.5% in royalties, far less than the royalties they willingly pay other countries for access to their offshore lands. And if the holes come up dry, the government keeps the bonus windfall anyway. If the bid turns out to have undervalued the value of the actual find, taxpayers lose many billions of dollars that could have been recouped had companies competitively bid on the royalty.

Now, the Trump Administration is offering to give up even the inadequate royalties secured by taxpayers for the valuable offshore energy resources they own.

There is no urgent need to spur oil development in America’s deep waters. Oil prices are not historically low, necessitating a spur to development. Perversely, selling off lands prematurely can flood the market with bargain leases, causing the value of bonus bids to drop. Companies winning these leases often defer exploration and production, waiting for prices to rise, fully aware that the Interior Department lamely enforces the law’s due diligence requirements.

With enormous federal deficits swelled by the new tax law, it is no wonder that federal officials are in the hunt for some quick cash, and even speculative bonus bids fit that description. Unsurprisingly, the royalty holiday is being encouraged by the industry-dominated Royalty Policy Committee, whose friends and allies stand to pocket billions of dollars in profits. Even so, the insufficient proceeds gleaned from OCS development are impressive when measured against the taxpayers’ take from private companies that haven’t paid a royalty for the gold, silver, uranium and other valuable minerals they have produced from public lands since 1872. (That is not a typographical error.)

Nearly a decade ago, Miller, Ed Markey, Nick Joe Rahall and others in Congress responded to the Republicans’ “drill, baby, drill” mantra by insisting that companies be barred from bidding on new leases if they were not diligently producing the public leases they already owned. Not surprisingly, Republicans sympathetic to the energy industry laughed off the suggestion. Now, the Trump Administration appears ready to once again auction off public resources for a fraction of their true value. It may be a holiday for oil executives, but once again, it is the taxpayer who will be taken for a ride.

 

My new book,The Class of ’74: Congress After Watergate and the Roots of Partisanship,” is now available for order from Amazon.com, JHUP and Barnes & Noble. “An essential work of congressional history.” Kirkus Review

The Speaker’s Grovel

We may not know how the ultimate budget impasse of 2018 will be resolved (the next shutdown deadline having been delayed six weeks). Nor do we know the resolution of the increasingly tense DACA dilemma – unnecessarily created by President Trump’s decision to rescind the broadly supported program. But as Congress inartfully stumbles through each of these artificially created crises, we have come to understand one incontrovertible fact about Speaker Paul Ryan: not only is he remarkably unskilled as a strategic leader, but he also fundamentally misunderstands the constitutional role of the institution over which he presides.

Granted, like John Boehner before him, Ryan has the misfortune of leading an agglomeration of factions ranging from hard-boiled conservatives to ideologically purist wing nuts who view their own leadership as perilously close to traitorous (to use a currently popular accusation). Boehner would compare the difficulty of assembling a working majority of 218 out of the diverse Republican Conference to herding chickens. A significant portion of those Republicans who strutted into Congress in 2010, as well as those who have followed them in three successive elections, has little interest in whether Congress operates in a responsible manner or garners public trust. Congress, to their way of thinking, is the enemy, along with the rest of the federal government, and actions that reduce public regard for these institutions are valued, not avoided.

The large dissident faction admittedly makes Ryan’s job more challenging. Indeed, with the exception of last year’s tax law, he has been unable to pass into law any bill that contained a whiff of controversy, and has been forced to rely on Democrats (as he did again with the latest CR) to pass anything at all. And, to state the obvious, passing a law that unloads tax cuts (even if skewed to the rich) is not the toughest sell to members, even if it does violate the Right’s anti-deficit mumbo-jumbo.

But Ryan should, at a minimum, demonstrate a dedication to the constitutional role of the institution he leads. For a half century, the congressional pushback against the Imperial Presidency and its dangerous tendency to vacuum up power from other branches of government has been a largely bipartisan effort. Even when both the presidency and Congress have been controlled by the same party, House and Senate members – who after all have a different constituency from a president – have asserted the prerogatives given them under Article I of the Constitution to promote their own agenda and check the exercise of executive authority.

Not Paul Ryan, who displays unequivocal loyalty to Donald Trump, who in October of 2016 dismissed the Speaker “a very weak and ineffective leader.” Trump may have been onto something, but it hardly should earn him the Speaker’s unqualified fealty. Yet loyalty is what Ryan has served up, including a virtual lack of oversight of Trump’s widespread use of executive authority in issuing regulations impacting pollution, environmental protection, financial institutions, health, education and dozens of other controversial topics. not to mention the stunning failure to conduct anything approaching competent investigations into the efforts of Russia to interfere in U.S. elections or the relationship of the Trump Administration to innumerable shadowy figures conducting dubiously legal activities.

The latest example of Ryan’s fecklessness and deference to the Tweeter-in-Chief came in response to Democratic demands that the Speaker follow the leadership of Senate Majority Leader Mitch McConnell and set a time to begin debate on DACA legislation. Senate Democrats secured such a promise from McConnell to put immigration legislation on the Senate floor in March, but no such pledge has been forthcoming from Ryan. Indeed, the Speaker has not even committed to take up legislation if sent over to the House by a bipartisan Senate vote, a disturbing reminder of the failure of the House to consider the Senate-passed bipartisan comprehensive immigration package in 2013.

Instead, the constitutional leader of the legislative branch has declared that he will schedule a vote on DACA legislation only if President Trump supports it.

Hello, Mr. Speaker, not the way the place is supposed to run. Legislation originates in Congress; that old, “President proposes, Congress disposes” slogan went out decades ago (remember: no Obama-proposed legislation was “disposed of” for 6 years!). Here is the crucial source material that might help you understand your responsibilities to the American people: https://www.archives.gov/founding-docs/constitution-transcript; check out Article I. The job of members of the House (especially) is to listen to your conscience and the constituents you were elected to serve, not grovel before Donald Trump or any other president.

Courts Rethinking Gerrymandering

Whenever a discussion of the origins and causes of contemporary partisanship takes place, it doesn’t take long for the subject to turn to the pernicious topic of gerrymandering: drawing legislative district lines to enhance the probability that one party will win a larger number of seats than the partisan vote distribution in the state merits.

In the past, the courts have hesitatingly weighed into the frequent battles alleging manipulation of district lines, mainly in cases where the boundaries have been tortuously drawn to disenfranchise racial or ethnic minorities (typically by hyper-concentrating them into one district to purge adjacent districts of their influence). Now, however, it appears the courts are so offended by the excesses of Republican legislatures (for the most part, since the GOP dominates in the control of line-drawing legislatures) that they may impose a tougher standard that could play an enhanced role in diminishing the partisanship so decried by politicians and the general public.

On Monday, the Pennsylvania Supreme Court threw out the congressional districts drawn after the 2010 Census by the Republican legislature for “cleanly, plainly and palpably” violating the state’s constitution. The court declared that if the Legislature does not redraw a plan that the Democratic governor agrees to submit by Feb 14, in time for the state’s upcoming primary election, the court will do the job itself. With an eye towards the ungainly, spindly districts concocted by the Legislature, the court insisted that the new districts reflect the common standards of being “compact and contiguous territory” composed of a roughly equal number of voters and that do not divide counties, cities towns or other subdivisions except to achieve numerical equity.

Pennsylvania is a prime candidate for such distortions because its sizeable Democratic population is hyper-concentrated in just a few areas of the state around Philadelphia, Pittsburgh and Scranton. As a result, it has been easy to give safe seats to a few Democrats like Bob Brady and Dwight Evans whose Democratic margins are nearly double those enjoyed by any other incumbent, Democratic or Republican. Providing these few Democrats with so many excessive, “wasted” votes (in the parlance of redistricting) bleeds enough Democrats out of nearby districts to give an advantage to Republican candidates. As a result, although Democratic candidates won over 50% of the combined votes for the U.S. House seats in the state, they were able to win just 5 of the state’s 18 seats in Congress.

The Pennsylvania decision is very timely. The U.S. Supreme Court is also weighing a significant gerrymandering case that ventures beyond race-based motives for disenfranchising voters to the less clear standard of deliberate distortion to gain disproportionate political advantage. Courts have been hesitant to rule on such cases in the past since the Constitution is silent on the issue of political parties and says little aboutthe overall issue of reapportionment and state elections.

But the concern about partisanship appears to have moved the courts to adopt a more pro-active stance and question whether drawing lines to favor one party over the other contributes to a poisoned political environment. Many believe drawing such safe districts has just such an impact by empowering more extreme elements who prevail in primaries where voter participation is light and skewed to the more ideological office-seekers.

Fixing the abuses of gerrymandering is not without risk, especially to minorities. Black voters in particular, long suffered from the “cracking” gerrymandering strategy that fragmented their votes (when they were allowed to vote at all. These communities benefitted from reapportionment changes in the 1990’s that allowed the creation of “majority minority” districts by hyper-concentrating minorities (and therefore, Democrats) into districts to ensure the election of a minority legislator. As a result, the number of minority-held seats swelled, but likely at a cost of many adjacent districts that were deprived of minority Democrats who had made those districts more competitive. Instead, those adjacent districts were now occupied by Republicans and often by hard line conservatives who win their primaries.

David Lublin of American University studied this conundrum in the 1990s, concluding that the benefits of ensuring the election of minorities to these safe districts was confounded by the increased probability that the resulting legislature in which they served was unlikely to have a majority sympathetic to the minority’s policy objectives. Courts have winked at this race-based gerrymandering in order to empower minorities, but the current round of reviews may result in some fine-tuning, perhaps by limiting the proportion of minority voters to ensure the election of a minority legislator. Is it 65%, or in the post-Obama world, is that figure closer to 45%?

Fixing gerrymandering alone is unlikely to significantly roll back the partisanship that is suffocating our politics, but it could make several dozen districts more competitive. That outcome might well reward legislators who fought for more moderate approaches, assuming moderate voters vote in primaries and help select those candidates. And purging Congress of grotesquely distorted districts would likely put control of the House itself in play more often, although the presence of more competitive districts and uncertain control may accentuate party discipline more than enhance collaboration. Still, how much worse could it get?

 

The Wrong Foot

Whatever Donald Trump mused about on New Year’s Eve, while gorging himself on ravioli pasta, beef tenderloin, and baked Alaska (apparently missing the irony of serving this particular dessert in a time of climate change), it decidedly was not how to improve his working relationship with the Democratic congressional leadership. Presumably, someone at the White House understands they are going to have to collaborate with Nancy Pelosi and Chuck Schumer on a raft of urgent policy matters including an upcoming spending resolution, a new budget, and immigration reform.

But Trump began the New Year brimming with contempt for those he will likely need to avert a cataclysmic government shutdown and policy meltdown. A White House parley with the leaders is planned for tomorrow, and Trump not only set the agenda but also once again gratuitously insulted the Democratic participants.

“Democrats are doing nothing for DACA,” Trump tweeted on January 2, they are “just interested in politics.” He predicted that “DACA activists and Hispanics will go hard against Dems, [and] will start ‘falling in love’ with Republicans and their President!” However, all that will have to wait, since White House functionaries have declared that the DACA discussion is off the table for the January 3 meeting although Trump had promised the congressional leaders the issue would be imminently considered.

However, the discussion tomorrow will focus only on “setting budget caps, not immigration or some of these other issues which are on this month’s overall agenda but not driving the substance of this meeting.” In other words, Trump only wants to talk about cutting entitlements, especially Medicaid and Social Security, and slashing non-military domestic discretionary spending while busting through the 2012 military spending caps. You know, the Trump-McConnell-Ryan post-“tax reform” agenda. Pelosi and Schumer have been warned not to raise what the White House consider to be extraneous issues.

I could be misreading the situation, but if that is the way the West Wing meeting goes down, I will volunteer to be one of Santa’s elves next Christmas. It is inconceivable that Pelosi and Schumer would abide by the absurd ground rules laid down by the Trump White House. They certainly will raise DACA and perhaps other urgent issues on which the Congress failed to act in 2017. Those “DACA activists and Hispanics” would have every reason to become frustrated with the Democrats if the leaders did not insist that these topics be raised at the first face-to-face meeting of the year.

Which raises the question: why go through the charade of declaring the Democrats’ highest priorities to be off the table, while only Trump-McConnell-Ryan topics are fit for discussion? Is the goal to make Pelosi and Schumer seem impertinent by raising topics that the White House has declared off limits? Is it to send a signal that only Trump gets to decide what topics are suitable for discussion, and when?

Decoding Trump tweets is as impossible as discerning his strategy or decision-making processes, but it seems obvious that he is trying to create a tableau depicting Democratic insolence and ineffectuality that he will then trumpet as illustrating his superior capacity for determining the parameters of the debate. He is misjudging his adversaries. Pelosi, for one, gives enormous deference to the office of the President, but as she illustrated in her bare knuckles relationship with George W. Bush, she will not hesitate to forcefully confront the person occupying the office, and she certainly will not allow her position, or that of her party and constituents, to be misrepresented or belittled.

Trump closed off his tweet by declaring, “We are about RESULTS.” If he hopes to improve on the desultory legislative record of 2017, however, he is going to have to display sharper political acumen than simply baiting the opposition. Maybe his subcontractors in New York real estate were intimidated by his bluster and bankrolls, but it won’t work with Capitol Hill.

 

 

 

Here Comes Santa Claus (for the 1%)

Well, well, here comes the tax bill, all tied up in a nice red bow for Christmas. That’s “red” for the deficits its authors admit it will create (not to mention the much larger ones every other economist predicts it will generate). Also “red” as in “red-faced” for the duplicitous behavior of those behind this irresponsible law.

Not that the outcome was ever in doubt. As I have written before, tax cuts – especially for the wealthy and corporations – are the sine qua non of Republican governance: the essential reason the circus that is the Trump-McConnell-Ryan Express rolled into town. Unlike efforts to repeal the Affordable Care Act, the “affected industry” in this case was gung-ho for passage, a sentiment shared by something around 25% of the rest of the country.

There is a certain absurdist quality to the intensity and obsessiveness surrounding passage of the tax bill. After all, when the only congressional response to madmen using automatic weapons to slaughter scores of people is to ease the interstate ability to carry concealed handguns into states that do not allow such a practice, one could reasonably wonder if the entire Republican legislative agenda is not intended as some kind of sick joke.

Any serious analysis of the tax legislation must begin and end with an evaluation of its distributional effects: how concentrated are the benefits? Of course, in sheer dollar terms, any law that grants benefits to the middle class is going to spend a lot of money doing so; but the benefits accrued by the middle class (maybe enough to buy a wide screen TV monitor) are miniscule compared to the largesse piled on the plates of the 1% (enough to buy a house to put the TV in). Indeed, more than 83% of the benefits of this absurd bill will flow to the top 1%.

The second act of this farce will be the looming cuts to Social Security, Medicare and Medicaid, and a vast array of discretionary spending, compelled by the language of the tax bill in order to address the $1.5 trillion deficit it acknowledges will be created. And don’t go to the bank that the $1.5 trillion number is a ceiling; baked into it are rosy economic scenarios endorsed by a small number of serious economists; actually, by none. Never the mind, count on Republicans suddenly rediscovering their inner deficit reduction mania sometime after January 3. Sort of like an arsonist torching a building and then complaining the fire department took too long to arrive.

“Couldn’t be better,” an exultant Mitch McConnell declared after ramming the little analyzed bill through on a party lines vote. Actually, it could have been, if Mitch had been able to keep the sweetheart arrangement he surreptitiously dropped in to benefit a college in his own state, but that provision (like the very title of the bill) was ruled out of order by the Senate parliamentarian.

There are many big lies surrounding this legislation, but none moreso than to label it “tax reform.” It is a tax cut, pure and simple, ill-timed since the economy does not require priming, and inappropriate since it fails to address economic challenges like infrastructure development, the effects of expanding automation, or offshoring of U.S. jobs. Nor does it slam shut the “carried interest” loophole that allows a tiny fraction of hedge fund billionaires to escape fair taxation – a tax reform Donald Trump had promised during the 2016 campaign. Instead, like all other Republican tax schemes, this bill promises that growth will eradicate the deficits the new law will create. But take it from Bruce Bartlett, who authored the “supply side” scheme for Rep. Jack Kemp. “It’s not true,” Bartlett has admitted. “It’s nonsense, it’s BS.”

Well, considering the circus analogy I used earlier, “BS” probably is as good a way to describe the new tax cut as any, and the people walking behind the GOP elephants are the supposed Senate hardliners who were going to oppose the bill unless it cracked down on the deficit, protected health care and addressed DACA students: Susan Collins, Jeff Flake, Bob Corker, and John McCain. McConnell delivered nothing to any of them but a wink and a nod, and they went for it like a 5 year old swallows the magic trick in a sideshow. Don’t think for a minute these clowns are going to clean up the mess left behind the Republican elephants; the bill, while admittedly flawed in their views, was “good enough.”

The people who do deserve credit are congressional Democrats who unanimously opposed this fatally flawed legislation that they were given no role in fabricating. Since passage was assured with Republican-only votes, it would have been easy for House and Senate Democrats facing difficult races next year to relieve themselves of having to explain why they voted against a tax cut for their constituents. But they didn’t: whether for policy or politics, they stuck together, banking that the bill’s low approval rating and long term consequences will prove them right for having opposed it.

In the short term, however, there will be more celebrating by Republicans in the Congress and Donald Trump (himself an enormous beneficiary of the new law), and to some extent, they are entitled to crow. After all, no one can say they hadn’t explained their intentions; too many voters either weren’t paying attention or thought it would all work out well for them in the end. Well, it won’t, nor for the economy of the country. Politico called the new law a “once-in-a-generation success,” and let’s hope they are right; we can’t afford too many “successes” like this one.

 

 

Alabama After-Action Review

Doug Jones’ slim victory in the Alabama Senate race last night was a gigantic event in American politics, but it remains to be seen whether it, like the Virginia election in November, was a genuine harbinger of an anti-Trump, Republican-rejecting mid-term course correction. Trump naturally was quick to diminish the significance of Jones’ astonishing victory in a state he won by nearly 30 points just 13 months ago. Predicting Jones’ tenure in the seat will not last beyond the 2020 election, the President commented, “It never ends!” Don’t we know it.

Democrats have every reason to be exultant by the outcome, but there are important lessons for party activists as we gear up for the 2018 congressional races. No one should be under the misimpression that the Alabama (or Virginia) results give license to Democrats to behave like, well, Democrats, chasing every sparkling light and divisive, identity-based cause and demanding absolute ideological fealty to “progressive” axioms. Republicans are unlikely to reliably provide a Bible-thumping molester as their candidate of choice, so the district-by-district, state-by-state battles next year will not necessarily provide the same kinds of opportunities that Roy Moore presented.

  • In an election decided by about 1.5%, only 35% of Alabamans voted despite a well-publicized recognition this would be a close and consequential contest. Some of the low turnout, common in special and off-year elections, was doubtless attributable to Republicans who (for whatever reason) voted with their feet and stayed home; GOP turnout in many key counties was low. But 2018 presents a challenge for Democrats who must sustain the anger and energy that propelled the Alabama and Virginia victories to generate atypical off-year turnout; whether they can, given the inevitability of disappointments over the next year (that may leave base groups indifferent to the party) will be crucial to seizing the House and/or majority.
  • Democrats did much better among white suburbanites, college educated and white women than they did in 2016, but those changes could prove ephemeral against candidates less toxic than Moore. Even with his hair-raising record of misconduct, Moore still won white women by 29 points last night.
  • Black turnout (along with other members of the Democratic coalition) will be crucial to victory in 2018 and 2020. Although black voters were faulted for not turning out sufficiently in the key Mid-Western states whose loss cost Clinton victory in 2016, they substantially outperformed white voters in Alabama; over 70% of black voters cast ballots, a constituency Jones won by 92 points. Will black voters be as engaged nationally in 2018? Will Hispanics be, if Democrats are not perceived as pushing the DREAM Act as hard as they can in budget negotiations?
  • Democrats showed some strategic discipline, overlooking Jones’ moderate views on some topics. Will they also forgive some moderate votes he will assuredly cast in the Senate? While Jones was upfront, and risked real dangers, in his support of abortion rights, he did not pledge fealty to every special interest in the Democratic catechism. He and others understood that if you make unreasonable demands of Dixie Ds, you get Dixie Rs. DNC Chair Tom Perez caught criticism earlier in the year when he asserted the party would reject any anti-abortion candidate (he was quickly rebuked by Nancy Pelosi and others). Democrats must realize that the most crucial (i.e., the ones that determine majorities) elections are won in the middle, and must accept candidates whose views actually reflect, rather than confront, their constituents. This fall in Alabama, the activist base showed signs of behaving like politicos instead of simply like protestors.
  • Electorally, Alabama shows any seat can be in play (well, there’s always Utah) with the right candidate and the right political atmosphere. Howard Dean was correct: you need to fight everywhere to win somewhere. As was the case in the 1974, 1994 and 2010 wave elections, you can win seats you never thought were in play.
  • At the same time, no one should come to the conclusion that the conservative political movement has suffered any type of deep organizational setback. The underlying machinery of the hard Right remains quite strong, although encumbered by the divisive primary challenges promised by Steve Bannon and others. The conservative infrastructure – organization, finance, media – is  deeply rooted in three generations of American politics, and it remains largely unaffected by Moore’s defeat. Absent the multiple morals charges and the abandonment by key GOP allies like Sen. Richard Shelby, Roy Moore, in all his holy roller, gun waving, Scripture spouting goofiness, would be heading to the United States Senate (as would virtually any other Alabama Republican).
  • Among the winners, Sen. Cory Booker, who came into the state touting his own roots in sweet home Alabama and seemingly demonstrated an impressive ability to rally black voters to show up and vote. National Democrats are unlikely to ignore his success (along with John Lewis and Barack Obama, neither of whom are looking at 2020 in quite the same way as Booker).
  • Potential winners: Susan Collins and Jeff Flake. With the GOP’s Senate majority now at 2 (since a tie means VP Pence gives Republicans a victory), Collins and Flake have enormous leverage to press the demands they made during the Senate vote on the tax bill, neither of which Mitch McConnell has any intention of keeping. Now we will see whether these two “mavericks” are, as they say here in Santa Fe, all hat and no cattle. House Democrats used to say that Collins was always there when we didn’t need her. Will she insist McConnell’s promises be kept, or fold like a cheap suitcase?

In the end, the Jones victory proved Nancy Pelosi’s longstanding observation that adherence to the 3 M’s wins elections, especially under difficult circumstances: money is crucial, and Jones outspent Moore 6-1 on television; message discipline is key: stick to core issues that resonate with the target electorate, like jobs and economic opportunity), and mobilization: mailings and TV/radio are nice, but organize an army of foot soldiers, as did Jones whose supporters knocked on over 300,000 doors. Good lessons, great campaign, and an upbeat ending to a year of disorienting political chaos.

NOTE: My forthcoming book, The Class of ‘74: Congress After Watergate and the Roots of Partisanship is now available for pre-order.

Some early reviews:

  • “I’ve never read anyone who ‘gets’ Congress and its characters as Lawrence does.” Chris Matthews, MSNBC
  • “A fascinating account of the Class of ’74 … Students of American politics must read this gripping story of these turbulent years on Capitol Hill.” Julian Zelizer, Princeton University
  • “A landmark volume on congressional history.” Norman Ornstein, AEI
  • “A fascinating account that sheds new light on Congress’ past and reveals deeper truths about its present.” E.J. Dionne, Brookings, Washington Post
  • “A remarkably vivid portrait … It is hard to put down and downright fun to read.” Frances Lee, University of Maryland

Pre-order:

Amazon: https://www.amazon.com/Class-74-Congress-Watergate-Partisanship/dp/142142469X/ref=sr_1_1?s=books&ie=UTF8&qid=1508946588&sr=1-1&keywords=The+Class+of+%2774

JHUP: https://jhupbooks.press.jhu.edu/content/class-74

Barnes & Noble: https://www.barnesandnoble.com/s/Class+of+%2774?_requestid=489232