DOMEocracy

hardline political news and analysis

Strict Obstructionism

 

Just when it appeared that the 2016 presidential campaign could not possibly become more of a cacophonous contest, Supreme Court Justice Antonin Scalia dies and suddenly, a whole new layer of contention has oozed its way to the surface of the national debate.

President Obama, conservatives assert, is a lame duck and therefore should not appoint a Scalia successor until the people have spoken (assuming one can discern “the people’s” Supreme Court preferences from an election). Obama, noting that one-eighth of his presidency is still before him (three times as long as the longest confirmation process in recent memory, that of Clarence Thomas) intends to exercise his constitutional right to send a nominee to the Senate.

Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley have already declared they will not allow the Senate to consider any Obama nominee, not even one like Appeals Court Judge Sri Srinivasan, who in 2013 was confirmed in a 97-0 Senate vote that included support from Mitch McConnell, Chuck Grassley, Marco Rubio and Ted Cruz.

The Court is in the midst of considering a slew of highly controversial issues including abortion, health care, and affirmative action. Without a replacement, it is possible that there will not be a majority for either side, and yet one more branch of the American government can move into gridlock!

The debate over whether or not a “lame duck president” has the right to nominate a Court appointee is a ridiculous one.   The Constitution, whose immutable clarity Justice Scalia dedicated his career to defending, was, well, quite clear. It says right there, in Section 2 of Article II of the Constitution that “The President” (I note no references to “lame ducks” or any other fowl) “shall nominate” (not “shall nominate except in the last year of his term”) “Judges of the supreme Court.” Period.

Now, of course, few really believe that the precise words of the Constitution, set down nearly 230 years ago, are to be taken absolutely literally (the late Justice Scalia being an exception). So when strict constructionists like McConnell or Ted Cruz pontificate about why Obama should be precluded from fulfilling his clear constitutional duties, they are revealing their truly mendacious and conniving intentions.

Coincidental to this moment’s focus on strict constructionism is the publication of The First Congress by historian Fergus Bordewich. While strict constructionists like Scalia would have us believe that the words of the Constitution were written by perfect men and venerated even then as immutable truths, the actual history is anything but so idyllic. As Bordewich pointed out, the Constitution – itself the product of exhausted negotiation and compromise – was the skeleton upon which early legislators had to build the actual structure and design of a national government that lacked not only a permanent home, but credibility in the skeptical minds of many who had fought the Revolution. In formulating that structure for the federal government, senators and congressmen of 1789-1790 (as have all since) made countless compromises and concessions to cobble together the votes required (11 in the Senate, 33 in the House) to pass a law. President Washington’s authority to veto a law passed by Congress was even debated; the Supreme Court sat around with nothing to decide since the appellate and district courts did not yet exist. In other words, they were making it up as they went along.

Nothing against the Founding Fathers, but the point is this: it’s kind of ridiculous to assert that we of the 21st century posses some clairvoyance to know how they might have addressed highly complex contemporary issues. They were fabricating a country, and they, of all people, realized the uncertainty with which the finality of their work would be viewed by future generations, which is why they allowed for an amending process. They were cutting deals like a rug dealer during a “going out of business” sale, as all legislators, in all times, must do.

But on this point they were quite clear: the President nominates Supreme Court justices, and the Senate is supposed to consider them: up or down, but not rewrite the intent of the Constitution and obstruct the operations of the third branch of government.

The emergence of this new battle may well have great salience in the campaign. Politicians are always struggling to convince the electorate to pay attention to issues that seem slightly out of focus for the average voter, such as how a presidential contest will affect the composition of the Supreme Court. Scalia’s death, and the coming debate over whether, and with whom, to fill the vacancy, moves the Court issue front and center, impossible to ignore. Indifferent millennials will be shown a powerful lesson about the election’s ramifications for the Court. Issues like abortion rights, gay rights, gun control, health care and others may serve to motivate voters to become more engaged, realizing the outcome of the election unquestionably will impact not only the Scalia seat, but perhaps two or three others that could become open in the next five years.

Secondarily, the debate over whether to consider an Obama appointee may well impact some Senate races. No Republican senator up for re-nomination will dare side with Obama’s right to nominate a replacement as long as he or she may face a primary challenge for such apostasy. Donald Trump honed the team cheer in Saturday’s GOP debate: “I think it’s up to Mitch McConnell and everybody else to stop it: It’s called delay, delay, delay.” I can almost hear James Madison uttering those stirring words.

In general elections, however, such hardline positions could come back to hurt vulnerable GOP senators in states like Ohio, Wisconsin and Pennsylvania, opening them to the charge of excessive partisanship while the Democratic opponent need only ask that the senator do his or her duty and “advise or consent” but not obstruct. Doing so would be the strict obeisance to the Constitution that Antonin Scalia would have endorsed.

The New Hampshire Vote

Daniel Webster, that great son of New Hampshire, once advised, “How little do they see what really is, who frame their hasty judgment upon that which seems.” Webster’s cautionary admonition is always timely, especially following the eye-popping results in his home state’s presidential primary on Tuesday. Nevertheless, some conclusions do jump out quickly from the preliminary data, and they suggest a long, messy and potentially seriously demoralizing primary season.

Webster also cautioned to “Keep cool; anger is not an argument,” but coolness had nothing to do with the results in New Hampshire. The blow-out victories by the two candidates most hostile (and that is saying a lot)to business-as-usual politics certainly gave a definitive coloration to the 2016 race, at least thus far.
If nothing else, the NH results illustrate the differences between the complex machinery of a caucus state like Iowa, where turnout is unpredictable and behavior inside the caucus venues is often idiosyncratic. NH was a straight out primary: you show up, you vote, you don’t have to confront your neighbors or reveal your choices. And in this more common form of American voting, Trump and Sanders blew away opposition that had flummoxed them in Iowa.

Where does it go from here? How predictive is tiny NH when compared to the coming primary in South Carolina, or Super Tuesday, or the long slew of other primaries and caucuses? No one knows, but some “hasty judgments” seem worth noting.

The most obvious conclusion is that the loud voices of anger (sorry, Sen. Webster) with government, and especially the federal government, made their point, and not just among the predictably hostile Republicans. Sixty-one percent of Democratic voters were “dissatisfied or angry with the federal government,” and that sizeable group favored Sanders by a 42-point margin. Unless Democrats elsewhere feel much more warm and toasty about Washington, or events merit a dramatic reversal of sentiment, that number would not suggest enthusiasm for Sanders is going to cool off any faster than his allegation (perhaps a little misplaced coming from someone with three decades as a public official) that Clinton embodies “the establishment.”

There are two more troubling statistics coming out of NH for Clinton, however. The first is that independent voters broke almost 2-1 for Sanders. If at least a significant portion of those Sanders votes were attributable to his being perceived as an outsider, it may suggest a trend that could damage Clinton not only through the remaining primaries but in the fall, especially if she emerges with the nomination and faces a Republican who can claim the “independent” or “outsider” mantle.

Even more problematic is Clinton’s performance with what I always consider the key polling question: “Who cares most about people like me?” Voters can forgive many transgressions by politicians – bad votes, ideological misalignment, behavioral misconduct – but it is really difficult to win over a voter who doesn’t believe a candidate cares about them. Not “understands” or “is compassionate towards” or “sympathizes,” but “cares.” Sanders won this crucial cohort of voters 82% to 17%. Less surprising, but equally important, Sanders crushed Clinton 91% to 5% among the one-third of voters who said that being “honest and trustworthy” mattered most.

Those are numbers that should make even the most loyal Clintonistas or pundits who believe her nomination and even election are inevitable (if not messily achieved) ponder alternative scenarios.

One cautionary note to the Clintons: Bill and Hill often do not seek to reach the electoral mountaintop, following a bruising setback, via the high road. That was certainly the case in South Carolina 8 years ago.   Sanders seems to recognize it might get a little nasty. “They are throwing everything at me except the kitchen sink,” he said Tuesday night, “and I have the feeling that the kitchen sink is coming pretty soon as well.” That might be the primal instinct within the Clinton camp, but it would be a mistake of potentially fatal proportions. The very worst thing a politician can do is to confirm voters’ hostile impressions of them. The road back for Clinton must be based upon re-emphasizing her steadiness on national security issues, her longstanding commitment and performance on subjects key to the Democratic base, and a contrasting of her depth of achievements with the fringe performance of Sanders in national politics over the decades before he became “Bernie!”.

This race is a long way from being over, but Clinton needs to act and sound gracious, compassionate and calm as she plows forward. For all the noise and drama of Iowa and NH, she still leads Sanders in delegates, largely because of superdelegates falling in line behind her. The next few weeks are going to be brutal for her, as the media smells danger in the Clinton campaign and will emphasize every miniscule piece of evidence that the wheels are coming off the campaign plane. She needs to send a much clearer and far more succinct message of what she stands for, downplay the substantive differences between her and Sanders, and highlight the need for experience and maturity in the Oval Office. Bernie has a clear and resonating message and 110% of the enthusiasm right now, but most skilled political hands are being wrung at the prospect of his emerging as a nominee.

As for the Republicans, the big losers certainly were Christie, who proved to be an outstanding attack dog (as only a fellow New Jerseyan can fully appreciate) and Rubio, who has the teeth marks of a New Jersey attack dog to thank for a dismal collapse. Christie decamped to New Jersey to reassess; one can only imagine how pleased he was with his campaign’s decision to play the Bon Jovi song, “Who Says You Can’t Go Home?” at Tuesday night’s rally.

Rubio has always sounded like he was running for class president rather than U.S. president (and not of a very impressive high school, I might add) but it took Christie to make the point effectively on national television. We will always be indebted to Rubio for confirming the charge so guilelessly just micro-seconds after Christie hurled it at him, and for assuring us in his concession speech on Tuesday night that he would not be caught mechanically repeating himself. “That won’t happen again,” Rubio promised his supporters. “That won’t happen again.” OK, maybe he was kidding, but it was an awkward time for self-deprecating humor.

Although Bush treated his fourth place finish as some sort of “Comeback Kid” moment, that conclusion is a bit premature. While Trump ran true to the polls, Cruz’ third place finish deserves attention since the evangelical community in NH is pretty thin compared to that in Iowa which delivered last week’s victory. But Cruz’ 12% indicates he isn’t going anywhere soon, and combined with Trump’s 34%, illustrates there remains a very sizeable outsider faction in the GOP that is going to be hard for any “establishment” Republican to corral not matter how much pundits add up the “establishment” GOP “majority” opposed to Trump and Cruz.

John Kasich spent a lot of time and money in NH and it paid off, especially with what appears to have been a significant defection from Rubio. Kasich strikes fear into many Democrats because we know him from his days in Congress and he could send a formidable November message of pragmatic politics. But he is so dour and operational that he seems to generate little of the genuine excitement it will take to sustain primary/caucus interest over the long months ahead. He also will always be manacled to his wise decision to take Ohio into Medicaid expansion under the Affordable Care Act, Original Sin to base Republicans from which he may never recover.

Which means that, hard as it may be to believe, Jeb! might actually survive as the establishment Republican when all the shouting and voting are over, although selling him to a GOP electorate that has elevated Trump and Cruz is going to be a serious challenge and perhaps an invitation to a third party by Tea Party/Freedom Caucus activists. One can see Sanders’ voters reluctantly accepting Clinton (if not necessarily voting in droves for her) should she prevail and, in fact, polling in NH reflected just such a willingness by Democrats, but less so among Republicans to accept a second or third choice. That polling raises the interesting question of predicting an outcome if the November election, following a season of outsider angst, turns out to be between the two ultimate insiders: Clinton and Bush. Who might be the third party alternative (other than Michael Bloomberg, just what we need, another billionaire swaggering in to confirm the oligarchic drift of American politics)? There was a candidate in the NH Democratic primary I want to investigate: Vermin Supreme. Or perhaps that was editorial comment.

 

 

The Wrong Kind of Oversight

While most political commentators are micro-analyzing the intermezzo between the Iowa and New Hampshire presidential contests, an important drama is playing out in the House of Representatives that is stunning in the opportunity it presents to Democrats seeking an effective messaging challenge to the Republican majority.

The House Committee on Oversight and Government Reform, chaired by the aggressive Chairman Jason Chaffetz (R-UT), has been firing off letters demanding information relating to the horrific contamination of the water supply of Flint, Michigan. Given the extensive federal involvement in the issue of water quality under multiple statutes, oversight of the local decision-making in Flint is perfectly appropriate. The Environmental Protection Agency and the U.S. Department of Justice are also undertaking investigations into the decisions to continue supplying lead-tainted water to Flint’s largely minority population for two years despite the fact that the contamination was well known to state officials.

Moreover, Michigan’s Governor Rick Snyder, notwithstanding his bona fides as a trash talking conservative who never misses an opportunity to impugn “Washington,” has requested – in the tradition of anti-Washington conservative governors – assistance from the big spenders on the Potomac to remedy a crisis the federal government had no role in creating. Snyder has sought assistance from the Federal Emergency Management Agency (FEMA), which has been distributing bottled water to the city. (The state government has been supplying clean bottled water to employees in its Flint office buildings for months without bothering to alert the rest of the city to the contamination of its supply.) and asked President Obama to declare a state of emergency so the nation’s taxpayers, with the help of Congress, can provide water, food, electrical generators and millions of dollars in funds to address the crisis. Federal agencies including EPA, HUD CDC and FEMA are already on the ground helping Michigan and Flint officials.

Snyder, who took many months to respond to what officials in his administration knew was a serious problem, accepted responsibility in his recent State of the State address. “No delays, no excuses. We are accountable,” he told state residents, although he noted Flint shared a problem of deteriorating infrastructure along with many other parts of the country (a fact all members of the Congress might want to consider when they votes on major infrastructure initiatives).

Snyder may have been a little late in recognizing and responding to a severe public health crisis, but at least he has owned up to his personal culpability. His admission is what makes Chaffetz’ repeated refusal of requests by Committee Democratic to invite the governor to testify before the committee so incomprehensible. As the Democrats noted in a February 3rd letter to Chairman Chaffetz, Michigan “has primary enforcement responsibility for public water systems in the state,” yet Chaffetz has insisted on taking testimony only from Flint and federal agency officials.A water advisory task force appointed by the governor to look into the Flint water pollution crisis concluded last December that “primary responsibility for what happened in Flint rests with the Michigan Department of Environmental Quality. It failed in that responsibility and must be held accountable for that failure.” Apparently not by the House Committee on Oversight, since Chaffetz’ spokesman asserted that “our responsibility as a committee is at the federal level.” Democrats disagree, noting in their letter that if the Chairman continues to refuse to call Snyder to testify, “the Committee’s credibility will be impaired and subjected to accusations of partisanship that will undermine our work.”

For a committee that has found time to investigate not only politically charged topics like the alleged Benghazi cover-up (disproved) and Planned Parenthood’s supposed marketing of fetal parts (disproved), let alone the cost overruns in constructing the new embassy in London, it is a bit of a surprise that there is no interest in hearing testimony from the person who readily admits responsibility for the contamination of the water supply for a city of 99,000 people, largely minority.

The investigative blind spot behind which the Republicans are hiding Gov. Snyder is no minor issue, and needs to be highlighted by Democrats as a startling illustration of why a change in the governance of the House is urgently required. The role of oversight is not to provide political cover for the misdeeds and culpability of officials, let alone officials who admit their responsibility. Yet there surely is no other rational explanation for Chaffetz’ repeated refusal to acquiesce to Democrats’ demands to bring Gov. Snyder before the Committee.

This highly partisan management of the Chaffetz Committee is a pure example of what political scientists David Parker and Matthew Dull refer as the “weaponization and politicization of congressional investigations,” and serves as a case in point for why Republicans have forfeited their right to serve in the majority. It is bad enough that urgent public issues from immigration to tax reform to college affordability to preschool education are ignored year after year by the House. The Flint cover-up, especially in contrast to the extensive (and costly) hearings on Benghazi and Planned Parenthood, provides a clear, understandable, impartial example of the need for new leadership. Democratic Administrations and governors in the past had more than a few bruising experiences with oversight chairmen like John Dingell, John Moss, Henry Waxman and Jack Brooks who did not grant a safe haven to culpable bureaucrats or elected officials simply because they came from their own party. But apparently if you are a Republican state official who has admitted overlooking the poisoning of tens of thousands of your constituents for many months, you can count on House Republicans to shield you from questioning while they turn their fury on federal officials in an effort to pass the blame to “Washington.”

House rules allow Democrats on the Committee, led by the very able Elijah Cummings, to request their own hearing, with their own witnesses, if Chaffetz continues to stonewall on Snyder’s behalf. As Hill veterans know, however, Chaffetz gets to set the time of any hearing, so Cummings may find himself chairing an inquiry during the Super Bowl or some other time when viewership is minimal. Nor is it clear that Cummings will be able to compel Snyder’s attendance, which is necessary to understand what transpired and a bi-partisan response to preventing a recurrence in one of those other cities in which, as Gov. Snyder helpfully reminded us, the water delivery infrastructure is just as deteriorated (and potentially hazardous) as Flint.

Perhaps while he is testifying before Rep. Cummings, Gov. Snyder can thank the federal government for coming to Michigan’s aid in responding to the Flint crisis, just as taxpayers came to the state’s assistance, to the tune of billions of dollars, to rescue (and revive) the state’s automobile industry a decade ago. Of course, including those remarks would require some editing to the Republicans’ stock talking points about the evils of Washington.

When Politics Goes Too Far

The welcome release by Iran of Jason Rezaian and several other undeservedly imprisoned individuals offers a stark illustration of how uninformed and yet dangerous the fulminations of hyperventilating politicians can be. It’s no surprise that securing Rezaian’s release won President Obama and his negotiators no accolades from those who have condemned the President for supposedly tolerating his imprisonment, but the nature of the hostile comments bears reviewing.

Members of Congress often pontificate on issues they either willfully distort or on which they are hopelessly ignorant; in the case of the Rezaian capture and release, they got to check both boxes. In addition, the Republican presidential candidates who previously demanded some unspecified action to free the reporter, rather than celebrating his release, have turned this into a moment to shower blame on President Obama and Secretary of State John Kerry. Donald Trump, who has never negotiated anything more complex than a building lease, dismissed the negotiated outcome as a complete capitulation to Iran since “they get $250 billion [in the nuclear agreement] plus seven [prisoners] and we get four,” overlooking any other benefits to the world from the successful nuclear weapons agreement. “I will tell you it’s a disgrace they’ve been there so long,” Trump raged. No clue on how the Berlusconi of builders might have freed Rezaian and the others, let alone earlier.

The Republicans’ reflexive hatred for Obama was similarly evident in Ted Cruz’ grammatically challenged admonition, “Praise God! Surely bad parts of Obama’s latest deal, but prayers of thanksgiving.” What’s that phrase about “bad parts of Obama’s latest deal?” Cruz evidently also believes the ratio of prisoners was unfair. And of course, Chris Christie declared, as a fellow New Jerseyan should, “We shouldn’t have to swap prisoners; they should have been released without condition.” Yeah! Right! Why didn’t the President think of that?

None of these puffed up blowhards offered any suggestion as to exactly how Rezaian or the others, or the 11 American sailors captured (and quickly released) in Iranian waters last week could have been freed more expeditiously. A fair analysis must conclude that patient negotiations, combined with the good will established in the discussions over the nuclear pact, played a very significant role in securing these releases. On one point we can be incontrovertibly certain: attempting to use bluster or worse, military intervention, perhaps to make Iran “glow” in Cruz’ immortal words, would have produced a lot of dead Americans. One of the great benefits of being a candidate for President, rather than actually being President, is that you get to say ridiculously dumb things to agitate your partisans; OK, fair enough, they all do it, and not just in the United States. But when a candidate makes hyperbolic statements that could jeopardize delicate discussions and force a bad response that might be otherwise avoidable, he or she crosses the line into highly irresponsible and dangerous behavior. The Republicans blew through that line, and one must only conclude they were prepared to risk the lives of the hostages to score a very fleeting political advantage.

The would-be presidents were not to be outdone by Members of Congress like Lee Zeldin, Peter Roskam and Mike Pompeo who sounded like Sopranos-enforcer Furio Giunta, threatening to kick some Iranian butt if they did not immediately release the American sailors. For good measure, the House voted to impose new sanctions on Iran last Wednesday, (although the vote was later vacated because too many Members neglected to vote, suggesting it might not have been quite as high a priority as proclaimed), but not before huffing and puffing about how outraged they were at the Iranian kidnappers and their spineless co-conspirator in the White House.

No one knows how much these congressional malcontents really knew about what was going on to resolve the kidnapping and imprisonment situations. I suppose it is possible that they received detailed, highly classified briefings about the circumstances surrounding the sailors’ wandering into Iranian waters, but they aren’t saying. (Only Pompeo, a Tea Party activist, is on the Intelligence Committee.) One of the dilemmas of congressional intelligence briefings is that once briefed, you cannot discuss what you just learned. With anyone. Which is why some Members choose not to be briefed: so there is no question that they accidentally disclosed highly classified information.

One can only hope these congressional whiners were not briefed; if they were, and had been told of the delicate nature of the negotiations and the possibility of the swift release of the sailors, it would have been absurdly irresponsible for them to castigate the Iranians. If they did not know the status of the discussions, then why were they shooting off their mouths, potentially jeopardizing delicate conversations and endangering those who were in captivity?

This latest brouhaha is a good example of how self-centered bloviating has superseded legislating in the Boehner-Ryan Congresses of the past few years. Lots of noise about ending deficits, and then the GOP leadership proposes hundreds of billions of dollars in unpaid-for appropriations and tax spending. Interminable chatter about TARP giveaways to Wall Street (which were repaid, with interest), while voting for hundreds of billions of dollars in unpaid tax breaks for corporations without blinking an eye. Four dozen votes over 5 years to repeal all or a portion of the health care law, promising to “replace” it with some still-to-be-drafted substitute. It’s one thing to pontificate on something like the ACA when everyone knows you don’t have a clue what else to do; but shooting from the lip when lives of captured Americans are at stake is beyond defensible.

Perhaps the misguided allegations were warranted because they helped keep Americans attuned to the scheming Iranians who were probably using the sailor subterfuge to conceal their failure to comply with the nuclear agreement they negotiated with our dupe of a president. Oh, they did comply? Well, never mind.

 

 

State of the Electorate

Late on Tuesday afternoon, the Congress went into recess, the House chamber was cleared, and the security sweep was initiated for the annual State of the Union address – President Barack Obama’s last scheduled speech before a joint session of the Congress. The bomb-sniffing dogs moved up and down the aisles of brown leather seats; the temperature in the massive chamber was lowered to bone-chilling levels in preparation for over 900 participants and the withering television lights used to illuminate the room. The Members had scattered, save the dogged (and predictable) few who, regardless of party, camped out – often for hours – on the center aisle to cement their chances for a fleeting photo op – a handshake, a back pat, a kiss on the cheek – from the President of the United States as he made his way down the crowded walkway, through the momentarily cheering crowd, and up to the center lectern on the massive House dais.

There is something special about a State of the Union. Not only is it one of those rare occasions when the President journeys to Capitol Hill, but it is also a unique gathering of the entire hierarchy of the federal government: Executive, Judicial and Legislative branch members, the Joint Chiefs of Staff, the Cabinet, the Ambassadorial Corps. One member of the Cabinet is always absent, squirrelled away safely in the event of catastrophe to ensure an orderly constitutional success of power. (Last night, that was Homeland Security Secretary, Jeh Johnson.)

Since the early 1980s, when Ronald Reagan invited Lenny Skutnik, who had rescued passengers from a crashed airliner in the icy Potomac River, the SOTU has included speculation about whom the President would ask to accompany the First Lady to the speech so that reference could be made to that person (usually described as a “hero”) in the address. This year, the Obamas hauntingly chose to leave a seat vacant, to symbolize the thousands of Americans killed by guns while Congress refuses to enact gun security measures supported by 90 percent of the American people. Surprisingly, the President remained virtually silent about the issue of gun violence, despite the empty seat and the presence of former Rep. Gabby Giffords in the House chamber.

Spoiler alert: Congress is not going to act on most of the proposals recommended by the President. At long last, this inaction and indifference will not surprise even President Obama, who has made it abundantly clear that while neither the Constitution nor he can compel the Congress to act, he alone has the ability to trump (you should pardon the expression) a dysfunctional legislature. Obama, like many presidents before him, will use the Congress’ inaction as a justification for continuing his recent spate of Executive Orders that rely on constitutional or statutory authority already granted to the Executive.

The speech gave short shrift to the President’s major achievements – economic recovery, health care reform, an unprecedented investment in renewable energy, significant expansions in veterans’ benefits: all initiated in the brief period 2009-2010 when he enjoyed substantial congressional majorities that overcame reflexive Republican opposition to all of his initiatives. Obama similarly swept swiftly through the litany of priorities yet to be addressed – immigration reform, equal pay, paid family leave, an increase in the minimum wage, free community college, universal pre-K – that elicited cheers from Democratic loyalists but have no chance of consideration by the current Congress, let alone passage.

Obama clearly has exhausted his efforts at correcting those who show no interest in hewing to facts. He ridiculed the climate change doubters, he dismissed those who refused to acknowledge the strength of the economic recovery, and he chastised those who seek political advantage by falsely claiming that America is less respected or militarily powerful than at the beginning of his Administration. He made it quite clear that rather than continue to knock heads with such blockheads, he will continue to employ his Executive powers to address urgent issues his last year in office, just as Congress has used its constitutional role to ensure legislative inaction.

The portion of the SOTU that will likely be most carefully examined, and certainly will be most discussed on Capitol Hill, is the last quarter of the speech in which Obama shed the role of policy maven and instead reproached both Congress and the American electorate for allowing our political debate to descend into the hysterical and partisan babble that now passes for serious discussion. In perhaps his most pointed slap at Congress, he noted that the legislators sitting before him were among the few Americans who still enjoy lengthy employment and guaranteed benefits in an era of radically changing workplaces. Nice line, but unlikely to win him a lot of friends among the legislators. He invited the saber-rattlers to put their votes where their mouths are and authorize a war against ISIL, and he vowed to continue his offensive against the terrorists even if Congress continues to withhold such an authorization.

Reverting to his professorial best, Obama warned voters that their lack of participation in politics, whether because they were too disgusted or frustrated or indifferent, empowered those who are determined to be engaged, often the more radical fringe and those with large bankrolls. Non-participation becomes a self-fulfilling prophecy as those with whom you disagree win elections. The trick is to encourage more Americans to participate in a political system in which they have little confidence, and which they have been instructed for several decades to loathe.

The remedies Obama mentioned – congressional districts drawn without regard to partisan advantage, a decreased role for money in politics, a greater degree of public involvement – are all the correct prescriptions, but they are hardly new and are very hard to fulfill. Obama’s opponents, and many in the current crop of his potential successors, have done a great deal to poison the political debate and deflate the interest of vast numbers of potential voters – especially millennials – in political involvement. In a self-critical moment, Obama bemoaned his inability to close the political chasm that separates America and pointed to Lincoln and Franklin Roosevelt as the kinds of leaders who might have had better luck. He might want to check his history: both leaders were reviled by their political foes not only as proponents of bad policy, but as hostile to traditional American values.

Obama put his finger on a key point: democracy is not easy, and in the current environment, it is an absolute battlefield without mercy. The change he sought to inspire in 2008 did not result from his election, and will not come from the election of any individual: it needs to come from a better informed and more engaged electorate that demands change rather than one that expects it to be delivered to them. The challenge of building such a spirit among disenchanted American voters may well be a greater task than the election of any candidate or the enactment of any piece of legislation.

A Retrospective, and Look Ahead

When I was growing up, Esquire magazine used to publish a year-end feature that conferred the tongue-in-cheek “Dubious Achievement Awards” on individuals whose statements and activities over the preceding 12 months earned them this doubtful distinction. For most of the 1960s, the Awards included a picture of a buoyant Richard Nixon, who had lost both the 1960 presidential election and the 1962 California governorship, with the caption, “Why is this man laughing?” Not surprisingly, Esquire stopped asking the question after Nixon’s resurgence in the 1968 presidential election, although I suspect it was resurrected after Nixon’s ignominious downfall.

Well, here we are at year’s end and it seems like an appropriate time to recognize some trends that seem to be emerging and that we might well find amusing, or dismaying, a year from now. I will avoid the temptation to make predictions, although I must say that I had a pretty good track record in 2015.

I foresaw congressional acceptance of the big budget agreement, the Iran agreement, and the Trans-Pacific Partnership. I don’t consider these predictions to warrant any particular recognition since each was predicated on the fact that Congress had little alternative, after offering up some bluster, but to accept these policies. In an era of near-gridlock among the 535 representatives and senators, the President’s power expands exponentially since he can move swiftly and command press and media attention for a carefully honed message – something a diverse and divided Congress is incapable of doing. The aggressive use of executive power by President Obama – something many were encouraging after the 2012 election, made it clear his legislative initiatives would confront massive resistance on the Hill – demonstrates once again that however much the Legislative Branch may attempt to reassert its equality with the Executive Branch, a divided Congress faces enormous difficulties in challenging the singular power of a determined President.

Almost immediately after Speaker John Boehner announced his retirement, I advised that once the internecine Republican warfare subsided, a Speaker Paul Ryan might well emerge from the rubble on the Right. My observation was not based on my enormous respect for Ryan’s still-undetermined leadership skills, but on the painfully obvious inadequacies of other pretenders to the Speakership. I also noted that while Ryan might enjoy a brief respite from the caterwauling of the conservative Conference, inevitably he would confront the same Hobbesian choice that faced, and doomed, Boehner: acquiesce to the intemperate demands of the Freedom Caucus, including a national default and government shutdown, or cut a deal with Nancy Pelosi to pass legislation without the nefarious riders demanded by the conservative irreconcilables. Of course, Ryan would choose the latter course, and thereby earn the same condemnation that drove Boehner to retirement on the golf links in Florida. Ryan performed as predicted, abandoning the most noxious riders (defunding Planned Parenthood, repealing the Affordable Care Act, creating barriers to Muslims entering the country) because he knew he would ultimately be judged not on how well he catered to the extremists, but by how well he made the institution function.

Predictably, such bursts of responsible stewardship have not earned Ryan the approbation of the Right. The snarling Ann Coulter called for another Republican to challenge Ryan in his 2016 primary much as David Brat successful ousted Majority Leader Eric Cantor two years earlier. The hardliners at Breibart.com declared “Paul Ryan Betrays America,” and on Twitter, there were numerous assertions that Ryan’s newly grown beard provided evidence of his sympathy for Muslim extremists.

Ryan has had a fairly good first act: a multi-year highway bill, a new K-12 education bill replacing No Child Left Behind, a major increase in spending reflecting the higher levels permitted by the budget agreement’s sidestepping of the sequestration caps, and a major tax bill that included high Democratic priorities such as making both the Child Tax Credit and Earned Income Tax Credit permanent at stimulus levels. Before anyone credits Ryan’s extraordinary legislative legerdemain too fulsomely, let’s recall that increasing spending and cutting taxes are not exactly the stuff of which legislative legends is made. The tax bill created about $800 billion of new debt (as much as the Obama stimulus or TARP, though the latter was repaid with interest) which Republicans typically decry, except when handing out tax breaks to the business community. Moreover, the Omnibus spending bill was loaded down with dozens of special-interest riders (also known as the now-banned “earmarks”) for Democrats and Republicans alike – defense spending the Pentagon didn’t want, a tax break for casinos and hotels that Harry Reid did want – that boosted its cost and greased its way to enactment.

Not that there’s anything wrong with such typical legislative logrolling; what is offensive is Ryan and Company’s gross hypocrisy about forswearing deficits and earmarks while hungrily employing them. Ronald Reagan used to say that the difference between Democrats and an intoxicated sailor was that at least the latter was spending his own money. That statement needs to be updated to include the profligate Republicans, whose longstanding addiction to deficits is a matter of record, even if their recurring habits are obscured by their purported fealty to fiscal restraint.

I also anticipated that Democratic Leader Nancy Pelosi would continue to exercise outsized influence in the House’s legislative product, particularly if Republicans proved unable to consolidate their majority to ensure the 218 GOP votes needed to pass bills to avoid having to appeal to Democrats. Pelosi has demonstrated the skill first exhibited a decade ago that achieved unparalleled party unity in voting on the floor. Pelosi (like Boehner and Ryan) found it harder to command a similar level of unity once in the majority, when the inclusion of more marginal seats (whose capture created the majority) created more intra-party factions. Her enduring power in shaping legislation, notwithstanding her party’s status in the minority, must be vexing to Republican leaders and infuriating to the GOP’s far Right which had hoped to maneuver her and President Obama into accepting their radical demands.  Instead, they have had to acknowledge, as did the San Francisco Chronicle during one recent debate, that if “anyone was in control of the House floor, it was San Francisco Democratic leader Nancy Pelosi, not the Republicans who won full control of Congress.”

Lastly, I had anticipated that over time, Republican governors would abandon their resistance and choose to participate in the expanded Medicaid benefits permitted under the Affordable Care Act, a trend that is now gathering momentum. Any governor, given the large number of uninsured who remain the state’s responsibility, would be guilty of malfeasance, malevolence or mendacity to turn down the 100% federal reimbursement (until 2016) and 90% thereafter. As the New York Times has recently reported, a growing number of conservative governors are accepting the expansion, notwithstanding the opposition of the state’s congressional delegations. Recently, South Dakota Gov. Dennis Daugaard endorsed the Medicaid expansion, as have Republican governors in Arizona, Arkansas, Indiana, Iowa, Michigan, Nevada, New Jersey, New Mexico and Ohio. In Tennessee, GOP Gov. Bill Haslam ran into a hail storm of opposition from conservatives like the Koch brothers when he tried to expanded Medicaid to an 280,000 people. You can be sure the Kochs and other opponents won’t be kicking in any money to help Haslam pay 100% of the costs of covering those sick Tennesseans when they show up in clinics and emergency rooms.

Other Republicans are similarly facing reality and endorsing the expansion like Utah’s Gov. Gary R. Herbert and Wyoming’s Matt Mead of Wyoming, who had earlier sued to challenge the ACA, but now acknowledges, “It’s the law of land … so now I’m trying to be pragmatic.” Arkansas’ Asa Hutchinson similarly has agreed to continue the expansion to include 220,000 residents begun under his Democratic predecessor. These conservatives have found that their rhetoric does little to match the benefits conferred by the ACA, just as congressional Republicans have yet to come up with a credible alternative despite years of promising to “repeal and replace” the health care law.

It is not altogether clear what all this means for the second session of the 114th, an abbreviated schedule due to a combination of the election season and a minimalist agenda by congressional Republicans. Certainly all eyes will focus on Speaker Ryan and his strategy for managing his fractious Conference which cut him some slack on the recent Omnibus spending package and tax bills, but is unlikely to continue to roll out the Welcome Wagon in 2016. The prominence of the far Right base in the GOP presidential primaries will exert constant pressure on House and Senate Republicans to also demonstrate their fealty to issues like repealing the ACA and defunding Planned Parenthood, neither of which has a chance of success. Those failures will inflame the Right which will make continual, unachievable demands on Ryan. All that means the dynamic that promoted factionalism within the GOP Conference is likely to continue, which could either energize or exasperate Republican voters, whose turnout will be determinative of the nation’s political direction following the November elections.

How will it all turn out? Who knows? But don’t be surprised if next year’s Dubious Achievement Awards include a grinning Paul Ryan with the caption, “Why is this man laughing?”

‘Tis the Season

 

Well, it’s mid-December, and you know what that means: a whole lot of money is being spent. But I’m not talking about holiday presents: I am referring to two massive bills very quietly grinding their way through the Congress, out of view of the public which is going to both give and receive when the final legislation is signed.

Yes, squirreled away in the back offices of the Capitol, and over the 456-, 225 – and 224- prefix phone lines, complex negotiations are taking place on the end-of-the-year appropriations and tax bills that will help shape the politics and the pocketbooks of a few hundred million Americans in coming years. Not that many Americans would know: search the front pages of today’s major newspapers including the New York Times, Washington Post, Los Angeles Times, Boston Globe and Chicago Tribune and you will find nary a mention of the offers, counteroffers and dealings.

As always, there will be winners and losers; meritorious policy changes, and real stinkers thrown in to satisfy and powerful legislator or cobble together a few needed votes. Some will be relatively minor (remember: Congress rounds off to the nearest $100 million!); some will have lasting impacts (yes, appropriations are annual but tax changes can, and will, be permanent, or at least until the next “tax reform” bill occurs).

Without putting readers to sleep, let me run through the process here; true, people tell you “process is boring” and “no one cares.” Well, actually, the people who control the process – who happen to be the same people who write the laws – most certainly do care, and they are delighted that so few other people are willing to invest in following the intricate maneuverings. Sometimes legislating, like card tricks, is all in the wrist. Remember the warning of former Rep. John D. Dingell (who knew something about card tricks): “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”

There are two deadlines fast approaching (actually we already went past a few, but who’s counting?). Last fall’s budget agreement only established the parameters for the bill that really counts: appropriations (a/k/a, the money). Since we have long since passed the beginning of the fiscal year (October 1) without new appropriations bills in place, we are operating on Continuing Resolutions (CRs) that extend last year’s spending levels. But the budget agreement allows much more spending – tens of billions more – above the so-called “sequestration caps,” and legislators are anxious to spend it, Republicans and Democrats alike. Although for different priorities. Hence the dealing. Congress will keep extending the deadline for the final CR (or Omnibus) until all the final appropriations deals are cut, thereby avoiding the dreaded government shutdown that occurs when the spending deadline passes.

The second deadline applies to provisions of the tax code that expire on January 1, provisions that result in every bit as much “spending” as appropriations, although Republicans don’t do their budget that way, which allows them to rack up cascades of unpaid-for tax spending without having to provide the “offsets” that new appropriations require. (They rationalize this exception by assuring naïfs that revitalized economic growth resulting from the tax cuts will more than compensate for the up front losses; how quaint a theory.)

The looming expiration of many tax provisions presents opportunities to leverage new policies as trade-offs; refuse me what I want, and your tax provision dies. This tax cliff is why, back in 2012, Democrats were able to kill the extension of the Bush upper income tax cut by carving it out of the permanent extension of the middle class cut; had Republicans balked, the tax cuts would have expired for everyone, which would not have been received well back home.

The procedural thicket is where things get problematic, especially for the new Speaker. Ryan has the fancy office because John Boehner infuriated the far-Right Freedom Caucus, which refused to sign off on Continuing Resolutions that could pass the Senate and be signed into law, preferring government shutdowns. They demanded either lower spending (a no go with the Dems) or policy changes (also known as “riders,” supposedly not allowed on appropriations bills by widely permitted by mutual agreement; incidentally, they are the first cousin to the banned “earmarks’), similarly unacceptable to Democrats.

As a result of Freedom Caucus intransigence, Boehner was compelled to cut deals with Democrats to avoid the disaster of government shutdowns, and Democrats naturally demanded — and got — spending and no policy riders (like killing the health care law, for example, or ending funding for Planned Parenthood). That combination of Democratic victories, over and over again, infuriated the Freedom Caucus, which branded Boehner an Obama-Pelosi-Reid collaborator, and you know the rest of that story.

Well, here’s the thing: Ryan is basically facing the same choice. The Freedom Caucus isn’t happy about the higher spending allowed in the budget agreement (which many of them opposed) and reflected in the CR under discussion, and even if Ryan were able to sneak in a few conservative riders, most of them probably won’t vote for the CR because they want to be able to preserve their anti-spending purity. So Ryan has no choice but to get to know Mrs. Pelosi real well and real quickly, which will genuinely exasperate his Conference.

Simultaneously, however, the former Ways and Means chairman is dragging along a big tax bill (which is anything but “tax reform”) that Republicans (and many Democrats) want despite its being unpaid for, and despite its projected impact on the deficit. How big, you wonder: at last count, $700 billion … and climbing. That is nearly as big as (a) the upper income tax cut – and guess who gets most of the benefits of this tax bill; (b) the much reviled Obama stimulus bill that no Republicans voted for because it wasn’t paid for; and (c) the TARP bailout, which Republicans also opposed because it wasn’t paid for (although it did make a tidy profit for taxpayers once the money got paid back, thanks to Democratic insistence).

So, here’s the problem: Ryan probably can’t get enough Republicans to vote for the CR, so he needs Democrats. Ryan probably can get Republicans to swallow their anti-deficit pride and vote for the tax bill, but many Democrats don’t like it. Separately, each could pass; together, as Ryan would like to pass them, not so sure. And Sen. McConnell is saying the will only consider the bills as a unified package.

Procedurally, this is not a good scenario: the bills must pass identically, of course; Members cannot pass bills sequentially and have them magically reunite before travelling down to the White House. Well, actually, they can, and have, and maybe that’s how all this happens. This is where mastery of the Rules becomes essential. Ryan also could decide to pass his two bills, with different “yea” votes for each, and get out of Dodge, leaving McConnell to figure out to pass them and avoid a shutdown and expiration of the tax cuts.

Now it is worth remembering the caterwauling of John Boehner and his Republican Conference when similarly complex bills appeared on the schedule and were passed hours after being finalized. Remember him dropping the health care bill on the House floor with an enormous thud; recall the merciless excoriating of Pelosi for saying no one would know for certain what was in the health bill until it was passed (a perfectly reasonable statement, given the back and forth negotiations, skillfully twisted into an allegation that Members did not know what they were voting on). Recall the promise of the new Republican majority in 2011 to follow “regular order” and not allow bills to be brought to the floor without a 72 hour layover so every Member could read every fascinating line?

Well, forget all that. The 72 hour rule has gone the way of the disappearing quorum (RIP 1889) and regular order is essentially irregular order. The combination of complexity, deadlines and deal-cutting ensures that when ever the package is sewn up, it will move like lightening so legislators can vote, rush out of town, and get on with spending their own money for Christmas presents. Only then will reporters, bloggers and budget geeks “know what is in the bill” and who – oil companies, casinos, tech industries, etc. etc. – filled their silk stockings.

 

 

 

How Many Deaths Will It Take…

How many 747 jumbo airliners would have to crash, with a total loss of life, before the United States Congress would act? I am guessing that after a couple of such disasters, the Congress call a hearing or two, drag everyone from the aircraft designers to the window washers up, and require that they answer questions for 11 hours.

Well, we lose to gun violence every year the same number of fatalities as if 77 fully loaded 747s crashed with a total loss of life. About 32,000 deaths annually – every year. We have had a mass shooting almost every day this year. Yet Congress has done little but continue to succumb to intimidation by the Gun Owners of America and the National Rifle Association.

The reluctance to act on gun legislation reflects fear of campaign contributions and grassroots campaigns rather than responsiveness to the 70+% of the public that supports reasonable gun restrictions such as expanded background checks. Congress, it seems, would prefer to let the children in elementary schools, worshippers in churches, women seeking reproductive health care, disabled people seeking supportive services, and all of those who love them, live in terror rather than face down the gunslingers.

It doesn’t really matter, or so it seems, if the victims are in Sandy Hook or San Bernadino, John Kennedy or John Lennon, Dr. Martin Luther King, Jr. or Mrs. Martin Luther King, Sr. – or hundreds of thousands of lesser known victims. The United States, alone in the world among so-called “advanced nations,” sanctions the virtually unregulated ownership of weapons of destruction by private citizens, hunters and lunatics alike.

There is plenty of blame to go around. It is true; former Rep. John Dingell was a patsy for the NRA throughout his entire record tenure in Congress. And there are plenty of other Democrats, including many very decent people like Bernie Sanders, who can come up with one rationale or another for inaction. But what they can’t do is say they haven’t been warned, because every year, year after year, the gruesome statistics and horrific images are reliably reported.

Now here’s a headline that should cause grave concern to anyone not on a terrorist watch list:

 Republicans Kill Amendment That Would Have Prevented Suspected Terrorists From Buying Firearms

The story reported that House Republicans unanimously blocked a vote (yes, it was a technical “Motion to Recommit”) on the bipartisan “Denying Firearms and Explosives to Dangerous Terrorists Act” that would tell even members of a “well-regulated militia” that they can’t buy guns if they are on the federal no-fly list.

Surprisingly, that headline actually appeared on May 12, 2011 – that’s four and a half years ago: before Sandy Hook, before San Bernadino, before Planned Parenthood or Umpqua College or Emanuel AME Church. That vote occurred following release of a Government Accountability Office report documenting that individuals on the federal terror watch list were able to purchase firearms from licensed dealers more than 1,000 times. More recently, the Government Accountability Office  reported that between 2004 and 2014, people listed on one terror watch list – over 2,000 of them — were allowed to buy weapons 91% of the time.

Now here’s the question for Congress: if you aren’t prepared to debate how to stop people identified as potential terrorists from buying guns, what possible claim to leadership can you make? All that hot air about the Second Amendment’s sanctity is just so much bloviating: we have already violated that “sanctity” by restricting the sale of guns to ten categories of people including convicted felons and those with severe mental illness. Why can’t we have a conversation about adding “potential terrorists” to that list?

Well, we all know why: because the GOA and NRA have money to burn, sophisticated grassroots organization, skilled political operatives, and can run circles around most elected officials. Many still believe the main reason Democrats lost the House in 1994 was because of the assault weapon ban, and that questionable connection is more than sufficient to temper the willingness of many to revisit the issue.

But let’s be clear: this is a Republican problem. Sure, there are a few outliers among Democrats who would vote the NRA line, but many of the old line gun group toadies like Dingell are gone and some who once quaked before the NRA have turned around on the issue. Hillary Clinton deserves real credit for stepping into the gun debate despite the wariness of many Democratic officeholders.

It is the leadership of the Congress, which is Republican, that won’t even let the vote happen; won’t even let the debate occur. Nancy Pelosi recently suggested that the House create a Select Committee on Gun Violence instead of a new committee to investigate women’s health providers, but that suggestion has been ignored.

If murdering kids in an elementary school or people in a movie theater or worshippers in a church or students on a campus — if all that horror isn’t going to move the craven politicians to consider how we might reduce the availability of guns, then the answer does not lie in more data or in appeals to reason. It will be very difficult to beat the NRA unless people in Congress, and individuals and organizations outside Congress, are prepared to engage in the same intense level of political activism to which the gun groups devote themselves.

Three steps are essential:

  1. Take advantage of a high level of public outrage and immediately convene a bipartisan, high-level summit of political, business, police, military, religious and other leaders to develop an appropriate response to the torrent of gun violence.
  2. Identify a limited number of discrete, achievable steps that enjoy broad public support – ban large ammunition magazines, mandate universal background checks, ban all gun sales to people on no-fly lists — and hold candidates accountable on these issues at every public appearance, publicizing their responses.
  3. Perhaps most importantly, identify a small number of pro-gun candidates who are most vulnerable and throw whatever resources that can be mustered at them to defeat them. Nothing will demonstrate effectiveness like replacing gun lobby loyalists with more courageous members of Congress who listen to public opinion.   The effort must be surgically targeted to the few races where the chances for success are most promising.

Maybe there are better strategies, but whatever has been tried to this point has not been enough to move the debate, or even start the debate, in Congress.  Indeed, it is likely, especially under the current management, it’s a bad idea to demand votes in a Congress that clearly is geared to support the gun lobby.  A new strategy and a renewed determination needs to come from the millions of Americans who are appalled by the endless massacres in our country, and disgusted by the gutless passivity with which the Congress acquiesces.   Gun reformers demonstrate they can inflict political damage by wrenching some of the pro-gun proponents out of their seats, thereby  proving it is possible to compete with the NRA at their own game and beat them. Nothing less will likely have the slightest impact.

Danger for Democrats

Hillary Clinton may believe that the horrific terrorism unleashed in Paris should not be used “to be scoring political points,” but House Republicans evidently view the tragedy, and its resulting anguish and fear, as one of those crises to be exploited. The drama that surrounded the House’s hurried passage of the “SAFE Act,” effectively barring refugees from countries where terrorists control major amounts of territory, says a lot about the new Speaker, Paul Ryan, the positioning of Democrats, the awkward posture of the Obama Administration, and the impact on 2016 politics.

Ryan actually rejected more extreme legislative proposals from conservatives in his Conference and instead putting the SAFE Act on the floor on Thursday. In doing so, he violated not only his pledge for “regular order” – to allow committees rather than the leadership to produce legislation – but also the longstanding (and oft-neglected) Republican promise to allow 72 hours for review before bringing legislation to the floor. In addition, Ryan refused to allow Democrats to offer any amendments to the freshly drafted bill. So much for Mr. Ryan’s pledge to run the House in a more open, fair, and “regular” (let alone thoughtful) manner.

Ryan had to face down the hardliners in the Republican Conference who intimidated and ultimately ousted John Boehner from the speakership. Evidently, Ryan offered them no concessions, and the Freedom Caucus folded like a cheap suitcase. Efforts by Administration spokespeople to persuade Democrats to follow their leadership and oppose the bill were ineffective, according to sources inside the Caucus briefing, because the Obama emissaries could not provide clear answers to Member inquiries. As a result, 47 Democrats voted for the bill, including a good number of liberals from relatively safe seats.

The far Right has not given up on the legislation, however, with longtime activist Richard Viguerie declaring that “Paul Ryan’s SAFE Act of 2015 will not stop one jihadi posing as a Syrian ‘refugee’ from entering the United States.” Viguerie condemned reliable House conservatives for being “complicit in Obama’s dangerous [immigration] plans because they keep funding them.” The willingness of extreme conservatives to challenge any Republican they view as aiding Obama, even if that means voting for appropriations and budget bills favored by the GOP leadership, is illustrated by challenger Becky Gerritson’s condemnation of Rep. Martha Roby (the Benghazi committee member who quizzed Clinton on whether she was alone the night of the attack) for “supporting Obama’s Islamic Importation Plan.” And Roby voted for the SAFE Act!

It may be a bit more difficult than Harry Reid pledged to keep the Senate from considering the House legislation, which passed with more than enough votes to override an Obama veto. “Don’t worry, it won’t get passed,” he declared this week. Maybe, but it is likely many of the Democrats up for re-election in the Senate, not to mention those running against incumbent Republicans and crucial to a Democratic majority in 2017, do not want to be accused of preventing a vote on a bill to safeguard Americans from so-called terrorist immigrants; indeed, New Hampshire Gov. Maggie Hassan, who is opposing Sen. Kelly Ayotte, has joined Republican governors is opposing admission of Syrian refugees to her state. The veto threat by the White House may have been premature, as there are already some signs of a willingness to negotiate on the House-passed bill to avoid putting Democrats into that box, a reversal that would no doubt drive many House Democrats who opposed the Ryan bill into a fury.

The emergence of the refugee issue is a dangerous one for congressional Democrats and presidential candidates alike. Most grievously, the issue appears to legitimize Donald Trump’s offensive accusations about those who enter the country by expedited or illegal means. There is little reason to believe, with Paris as a backdrop, that Trump will tone down his xenophobic warnings or that his statements will repel the sizable portion of the Republican electorate that supports him. If anything, Paris has allowed Trump to become even more incendiary, warning that “We’re going to have to … certain things that were frankly unthinkable a year ago.” Among his ideas about actions “that we never did before” are potentially closing mosques and requiring Muslims to carry a form of special identification. Perhaps he will suggest having them sew yellow crescents to their shirts; there’s an idea that’s been done before.

For Democrats, and especially Clinton, the elevation of national security is never a beneficial development in a national campaign, which is of course why Ryan, Cruz and others have offered legislative proposals so quickly. Clinton’s speech to the Council on Foreign Relations contained a reasonable mix of restraint (limited U.S. boots on the ground) and big stick shaking (a Syrian no fly zone, demanding that Iraq arm the Kurdish fighter against ISIS “or we will”), but her campaign will not benefit from the endless questions about her tenure at State that will dominate upcoming debates and press conferences. She will also need to be careful not to adopt so hawkish a stance in response to bombings in Paris, Beiruit, Bamako or elsewhere that the anti-military contingent of Democrats begins to drift more significantly towards Sanders, resulting in early primary and caucus losses or underperformance.

It is a mistake to underestimate the potency of this issue. For all the tributes to the Statue of Liberty, our immigrant heritage, and our legacy of welcoming refugees, the history of the United States has a dark side on the question of immigration policy as well. From the times of the anti-Irish Know-Nothings during the antebellum period, through the Asian exclusion laws of the late-nineteenth century, to the hostility to immigrants from southern Europe at the turn of the 20th century, the rejection of Jewish refugees before World War II and opposition to Vietnamese and Cambodians in the 1970s, the U.S. has not always thrown out the welcome mat, even to refugees. The Populist movement of the 1890s had a distinct nativist tone. Moreover, the association with many of these earlier immigrant populations with violence – whether Irish gangs, Chinese tongs, German anarchists, Italian Mafioso or Cambodian warlords – has helped shape stereotypes that feed deep-seated suspicions about some of those seeking refuge on our shores.

Administration officials seek to assuage concerns by noting our rigorous admission reviews for Syrian refugees, but since no plan is perfect, the argument can sound less than convincing. Assistant Secretary of State Anne C. Richard, who has responsibility for refugees and migration, recently acknowledged, “I am very worried about terrorists,” and added, “I think the odds of a refugee becoming a terrorist are very, very small.” Therein lies the dilemma: “very, very small” could well mean a handful of well-disguised jihadists who carry out an unspeakable act of terror. For many voters and for politicians, who know they will be held accountable for every statement and vote on the issue, an absolute ban sounds like a safer bet than “very, very small.” As political psychologist Drew Westin has noted, “In politics, when reason and emotion collide, emotion invariably wins.” That is why this issue may well have transformed the debate, the campaign, and maybe even the outcome of the 2016 election.

Saving Speaker Ryan

When the clock strikes midnight tonight, it may well toll the end of the best day in the speakership of Paul Ryan. During today’s ceremony, everyone had their “come let us reason together” faces on, but a few days from now – coincidentally right around Halloween – things might be getting a lot scarier for the new Speaker.

Not that I am wishing the new speaker ill, but as his speech to the House indicated, there are a lot of very challenging issues, particularly within the Republican Conference, that remain unresolved, to put it gently.

In his talk, Ryan tipped his hat to the Tea Party faction that brought down John Boehner due to his unwillingness to subjugate himself to its unrealistic and unrealizable goals. Ryan pledged a “return to regular order,” which roughly translated means allowing legislation to originate in committees rather than in the leadership. “If you know the issue, you should write the bill,” said Ryan, himself past chairman of two committees, an unusual background for one who has become Speaker.

But the Freedom Caucus does not stop at extolling the virtues of committee origination of legislation. However meritorious that process may be, it does tend to empower those who are very close to complex issues (and to the special interests who know the issues and work the committees) to the exclusion of others who may not share the same perspective as committee drafters. That is why the Freedom Caucus also demands an open amendatory process on the House floor. In other words, it wants every Member to be free to offer amendments.

That approach may sound like the personification of a truly democratic House, but it is a certain prescription for disaster, as Speaker Ryan almost certainly knows.   His former committee, Ways and Means, rarely allows many amendments to be offered to its bills on the floor because they would turn the legislation into unrecognizable mush. Bills coming out of committees often reflect strategic compromises that enabled complex bills to move through the panel. Open amendment processes risk unbalancing the legislation to the point that it either has difficulty passing the floor, or no longer reflects the policy so carefully crafted in committee.

Open rules also subject legislation to poison pills that are difficult to defeat or doom the bill, or gotcha amendments that are not designed to pass but only to force political opponents into casting impolitic votes. If the rules process shuts down the amendments that the leadership dislikes, you quickly run into the “neglected minority” about which the new Speaker warned, those who feel excluded from the process and who therefore feel they have little to lose by creating other forms of obstruction and disruption. It is worth remembering that during the 1970s, reformers pressed for more open rules so that amendments challenging committee-reported legislation could be offered. What resulted was a rapid escalation in the number of amendments, a slowing of House operations, and a rise in the number of message amendments designed for gaining political ammunition. In 1969, there were just 177 recorded voted on the House floor; a decade later, after a loosening of the amendment process, that number reached 834; even given the impact of electronic voting on reducing the time it took to take votes, the trend towards more, and more contentious amendments, was clear. Indeed, when Speaker Jim Wright curtailed the abuse of the amendment process by increasingly aggressive Republicans in the late 1980s, Newt Gingrich and his allies cited that constraint as evidence of the tyranny of the Democratic leadership.

The budget and debt ceiling agreement may defer the immediate crises that loomed over Speaker Ryan, specifically the shuttering of the government and default on obligations, but it did little to restore bonhomie within the Republican Conference. A few weeks ago, 151 Republicans were willing to shut down the government over the funding of Planned Parenthood; yesterday, 167 voted against the budget-debt ceiling compromise. Ryan denounced the process, but not the outcome, which was inevitable in order to avert shut-down or default. He will face the exact same choice in the months ahead, and his concessions to the Freedom Caucus today – committee drafting of bills, open amendments, regular order – will not change the choice he will confront: concede to the Tea Party and produce an unenactable bill, or cut them loose and cut a deal with Pelosi and the Democrats, enraging the very people who doomed the Boehner speakership.

One development that is unlikely to occur is the tempering of the Freedom Caucus. They have Mr. Boehner’s head mounted on the wall, and they have made it clear they expect fealty from the new Speaker. The outrage from the far Right is going to build over the next few months as appropriations legislation reflects the higher spending allowed in the budget agreement. That is why Heritage Foundation economist Stephen Moore called the budget agreement that Ryan supported an “ unconditional fiscal surrender to President Barack Obama and the left … that eliminates all of the checks on Washington’s spend-and-borrow binge by breaking the budget caps, ending the sequester and raising the debt ceiling by over $1 trillion.” If, as Moore declares, “House Speaker John Boehner has negotiated away his greatest legacy,” where does Ryan’s support for the compromise leave him in the eyes of the Right?

It seems pretty clear that having made some procedural concessions to the Freedom Caucus, Ryan now is going to have to pivot and stand up to their unreasonable demands. If he allows them to deprive him of the authority any Speaker needs to manage the House and govern the flow of legislation, he will never recover. One is tempted to remind him of the old maxim quoted by John Kennedy in his own Inaugural 54 years ago, that “those who foolishly sought power by riding the back of the tiger ended up inside.” Ryan cannot look to the Freedom Caucus for help. Saving Speaker Ryan is up to the new Speaker.

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