hardline political news and analysis

The Big Kiss Off

When House Republicans were threatening to shut down the federal government back in 2013, many people asked me whether I thought Speaker John Boehner would cave in to his Tea Party extremists. “Absolutely,” I predicted, not because I thought Boehner wanted to shut the government (I’m pretty confident he thought it was a dumb idea), but because at some point, he had to demonstrate to the party’s insistent nihilist wing that no good would come of such an act.

That was an understatement. The Republican brand took a pounding as a result of that closure (not that the Party didn’t recoup in spectacular fashion in the 2014 election). And Boehner demonstrated to his troops that very few workable strategies emerge from legislative train wrecks, a lesson they learned only briefly, it appears.

Frankly, I was surprised Boehner did not let the Tea Partiers have their victory earlier in the 113th Congress. There was little doubt that, at some point, he would have to demonstrate that the shut down strategy would not produce the results the uber conservatives predicted, i.e., total capitulation by Senate Democrats and President Obama. So in some ways, it isn’t surprising that, with a new Senate majority and a new batch of freshmen Members, Boehner faced renewed demands to push Democrats and the Obama Administration to the wall on a key funding bill.

It is important to remember that with the exception of goofy bills that stand no chance of enactment, e.g., 56 variants on repealing the Affordable Care Act, Boehner has passed virtually nothing of significance without beseeching Democrats to help him prevent shutdowns or allowing middle class tax cuts to expire, or reneging on the national debt, or averting a number of other abysmally dumb, self-manufactured catastrophes that the hard Right has concocted. Rarely has Boehner been able to cough up more than 175 or 180 Republican votes for anything serious, requiring dependence on House Democrats to provide the supplemental 35-40 votes needed to pass must-pass bills. Just last week, the GOP leadership was forced to pull an education bill because they lacked enough Republican votes.

To his credit, Boehner has recognized on many occasions since becoming Speaker in 2011 that with the title and the impressive office comes an obligation to actually make the trains run on time, not simply allow them to plunge over the first available cliff. Because he was prepared to appeal for Democratic votes, however, Boehner is perceived as weak by a significant portion of his Caucus, as reflected by the 25 votes against his continuation as Speaker in January (a record since 1923) and his ineffectual efforts to cajole his Members into behaving like a governing majority.

Last week’s vote to fund the Department of Homeland Security for a week did not do much to alter the perception of a House Republican majority without the wherewithal to govern. As has regularly been the case, Boehner was far short of the number of Republicans he needed, although he did bump up past his prior numbers to 183 Republicans, still far short of the 208 (rather than a 218 majority) that he needed (because of absences). Those 183 votes represent just 77% of the Republicans casting a vote; to state it another way, a quarter of all House Republicans were prepared to close down DHS, or at least felt secure voting that way because once again, House Democrats made up the difference. Democratic Leader Nancy Pelosi sent out an urgent appeal to her Caucus urging support for the interim measure, and over 97% of all Democrats voting cast a “yes” vote.

So once again, the Tea Party was foiled by Boehner’s willingness to accept Democratic votes to do what he could not achieve with Republican votes alone. Even worse from the perspective of the far Right was the rumor that Boehner had pledged to Democrats that he would allow a vote this coming week on a clean bill that funds DHS through September, like the rest of the government, without a rider voiding Obama’s immigration Executive Order.

I cannot help but contrast this junior league leadership with the precision management of a contentious and divided Democratic Caucus by Speaker Nancy Pelosi back in her days as the most productive House leader in three-quarters of a century.  Few commentators or observers realize even now how difficult it was for Pelosi to round up the Democratic votes needed to pass hugely consequential bills like TARP, the 2009 stimulus, or the Affordable Care Act notwithstanding her commanding majority. Like Republicans today, Pelosi had factions within her Caucus who used their leverage to shape these bills in return for their votes. But Pelosi was skilled enough to give just enough ground to secure the votes she needed, and she was well positioned in her Caucus to keep the liberals on board while she made needed concessions to more moderate and conservative Democrats, without whom she could neither pass the bills nor hold the House majority.  Boehner, by contrast, is poorly positioned in his Conference with respect to persuading the recalcitrant right to act like a majority.

Nor can I imagine how the press and critics might have responded had Speaker Pelosi chosen to blow off serious questions about a government shutdown as did Speaker Boehner when asked how about Majority Leader McConnell’s clean DHS bill. Boehner responded with air smootches to the press corps, an incongruous and baffling un-Speaker-like response that left heads scratching throughout Washington. (

So the $64,000 question: what happens next? Well, I mean, don’t we all know? Boehner caves and passes the clean Senate DHS bill with Democrats providing the essential votes, as usual, to keep the government functioning. That is not a particularly risky prediction.   The perplexing question is why Boehner allowed the confrontation to get completely out of control, so that his only options were bad ones:

  • caving to Democrats: not good, angers the Tea Party troops, confirms the worst fears of the 25 anti-Boehner votes from January: he demonstrates a propensity to capitulate to Obama, Reid, and Pelosi, just like he did as Education Committee Chairman when he worked with Ted Kennedy and George Miller to pass No Child Left Behind, or when he worked with Pelosi to pass TARP.
  • holding out for a DHS bill that negates the immigration Executive Order, a futile act which results in a shut-down of the federal anti-terrorism department, thereby assuring that every security scare or incident for the next generation will be laid at the feet of the caviling conservatives who “shut down the Department of Homeland Security” back in 2015.

If Boehner has any interest in truly governing (an open question, in my book, since inaction constitutes success for many of his members), he is going to have to stand up to the nihilists. Doing so will likely mean negotiating with Democrats who hold the key votes for passing substantive legislation, and who can block (by a filibuster or by sustaining a veto) any Republican initiative they dislike, at least until 2017. How the GOP leaders respond will provide clear evidence whether they intend to move beyond partisanship and maneuvering in order to maintain their gavels. Challenging his nay-sayer caucus may cost Boehner his gavel (as acting decisively cost Pelosi’s hers, and many Democrats their seats), but the responsible exercise of power usually entails risk. Who knows? You could even inspire the country that Congress can function.

The Burdens of Governing

Now that the Republican majorities in the Senate and the House are settling into their new responsibilities of governing, it seems timely to look at a few indications of how successfully they have made the transition from a nagging, haggling, finger-pointing minority to mature legislators.

Speaker John Boehner declared he was “trying to get off to a fast start here.” Well, actually, not so much; but the session is young, so we can hope. There are a few early indications that the burden of actually governing (not necessarily an objective for some of the GOP) is beginning to encourage the emergence of factions as leadership presses for pragmatism (the burden of leadership) but the fringe (which in this case is a substantial one) clings to the old game plan of gumming up the works.

Rep. Charlie Dent (PA) is one of those middle level Republicans who might actually be interested in responsible governance. It didn’t take him long to criticize the chaos that enveloped the GOP conference in January. “Week one, we had a speaker election that did not go well,” said Dent, recalling the 25 GOP votes against John Boehner’s re-election as Speaker, a modern record. “Week two, we got into a big fight over deporting children. Week three, we are now talking about rape and incest and reportable rapes and incest for minors. I just can’t wait for week four.”

C’mon Charlie: you know what had to happen in Week 4: Repeal the Affordable Care Act, #56! This time, they did include the Republican “alternative”: a mandate that committees go back and work on finding alternatives. It took Democrats a few decades to get to that point, so, good luck. Now that the law is in effect, of course, there are real consequences to repeal without replacement: 19 million of them, by the end of the year, according to the Congressional Budget Office – American who have gained health care from the ACA.

By the way, it was reported this week that despite all the bluster and bravado that they would never – never! – acquiesce in the ACA, Republican governors are lining up to participate in the Medicaid expansion program, which will bring health coverage to millions of lower income Americans. And we aren’t talking moderate Republicans: GOP governors in Tennessee, Indiana, Wyoming, Utah, Alaska and Montana are all negotiating with the Obama Administration, in some cases receiving waivers to allow states to charge some beneficiaries copayments (which isn’t the end of the world as long as they do not create a barrier to service). Who’s next: Idaho? Oh, yes, Idaho is negotiating, too. It was always difficult to believe that states would allow the 100% federal funding (declining down the road to a still-generous to 90%) for expanded Medicaid to slip through their fingers. Frankly, it is surprising it took them so long, since those sick poor people do not just disappear if the state refuses to participate. They keep arriving at the emergency rooms, pushing up the costs of care and insurance premiums for everyone in the state.

Not everyone has decided to put aside campaign rhetoric and concentrate on serious governing, however, which is good because the irreconcilably taciturn provide great copy for blogs. Hands down, so to speak, Sen. Thom Tillis, the NC freshman Republicans, wins the foot-in-mouth award for January for his bold opposition to intrusive government mandates that interfere with the sacred rights of free enterprise. Tillis declared that one business regulation we could dispense with is the mandate that restaurant employees be required to wash their hands before leaving the restroom. “As long as they post a sign that says ‘we don’t require our employees to wash their hands after leaving the restroom’,” Tillis said, no problem! “The market will take care of that.” Wait minute!! So, it is wrong to require restaurant workers to wash their hands, but it is OK to require restaurant owners to post un-sanitation notices?

And speaking of the Senate, Mitch McConnell is having his own problems as Majority Leader lining up votes on the Department of Homeland Security bill. Lacking sufficient votes, McConnell has decided to force senators to vote repeatedly, hoping to shake loose a few and reach the 60 votes he needs. But according to Fox News, some Republican senators aren’t any too pleased at being manipulated by their new leader, who is being pulled “every which way.” Sen. John McCain counsels, “No one has a strategy yet. We’re going to have to build consensus.”

Back in the House, they can pass bills all day long that are doomed in the Senate or invite a veto (that will always be sustained), but small numbers of Republicans are making it clear they have problems with the symbolic votes Speaker Boehner is throwing to the Tea Party to show he hears their grumbling. A number of Southwestern Republicans voted against the provisions to roll back President Obama’s executive order on immigration; unhappy Republican women forced Boehner to pull an anti-abortion bill.   And three Republicans even voted against the ACA repeal. These are small numbers, but they illustrate the dilemma that afflicts all House majorities: as the Conference (or Caucus) gets bigger as a result of winning marginal seats, factions develop because those marginal Members understand they did not get elected to march in lock step with the hard-core base. Those divisions will become even more pronounced as we get further into the year and Boehner has to start rounding up votes for appropriations bills, continuing resolutions, a debt ceiling increase or realistic legislative objectives.

One group that won’t be going out of its way to be helpful to Boehner, however, is the newly formed House Freedom Caucus which is on guard to ensure that no one – not a left-wing President or a suspect Speaker — sells out American freedom. The HFC looks like a group that will challenge Boehner regularly and prepare alternative leadership choices down the road. The HFC, which one Republican staffer “the craziest of the crazy,” sports leadership from the likes of Rep. Jim Jordan and Raúl R. Labrador, neither of whom is likely to make Boehner’s life any easier. “They’re not legislators, they’re just assholes,” Roll Call quotes a high-ranking Republican staff person as saying. “These guys have such a minority mindset that the prospect of getting something done just scares them away, or pisses them off.” Those kinds of comments are reminiscent of the searing analysis of former longtime GOP Senate staffer Mike Lofgren who warned a few years back that the Republican Party “is becoming less and less like a traditional political party in a representative democracy and becoming more like an apocalyptic cult.”

And it isn’t even President’s Day yet!

Obama and Congress: The Battle Begins

President Obama’s sixth State of the Union address – and his first to a Republican-controlled Congress — was a smart, tactical speech that, for the most part, accomplished what little such an address can achieve. The President used his hour in the national spotlight to establish his values as well as to assert his policies, to cast himself as the reasonable conciliator rather than partisan-in-chief, and to invite the opposition to join hands for the common good or, failing that, tumble into the traps he artfully set for them.

The high points of the speech were the opening few minutes and the close that avoided the tiresome litany of presidential priorities (and standing ovations by delighted legislators) that generally are well into their half life before the SOTU speech has ended. Most presidents use the SOTU to describe such a program of initiatives, and nearly all pay a double price:

(1) the opposition party and commentators add up the cost of all the promises and translate the astronomical sum into a tax bill to be presented to the American people, or a prescription for additional debt, and

(2) the list of unenactables become check-list the following year’s SOTU commentary to remind viewers how little was achieved, and by extension, the futility of the list you are about to hear.

Having achieved a reasonable economic recovery, which Obama reminded the nation has dwarfed that recorded by Europe and Japan, the President did not need to propose a massive spending initiatives designed simply to return the country to a state of economic stability. Instead, he was able to focus on policies that improve the quality of life and security of millions of Americans by delivering measurable benefits to the middle class: affordable child care, free community college, improved infrastructure. He was able to note progress on issues that enjoy broad public support – global warming, energy independence, immigration reform – that highlight his own presidential initiatives while chiding Republicans for their inaction.

Indeed, a major goal of the speech was to legitimize his role as President, and his governance through Executive Order, contrasting his unilateral achievements with congressional inaction, and to claim the high moral, political and policy ground.

Nowhere is this truer than tax reform, where Obama focused attention on the need for the wealthiest to contribute more – not as punishment, but because protecting their super-affluence deprives the middle class of its own economic security. There is, Obama reminded Americans, a price of economic inequality that goes beyond simply moral outrage, and it impacts the vast majority of Americans, regardless of income, party or ideology. Naturally, Republicans interpret the call for higher taxes on the affluent as a revival of “class warfare” and promise a more even-handed approach to tax reform than is revenue neutral, but those promises belie the inaction of House Republicans on tax policy over the past four years during which they have controlled the House and run the Ways and Means Committee. (Incidentally, if I were advising the Democrats, I wouldn’t jump too quickly onto the “tax-cut-for-everyone” bandwagon; the Bush middle class tax cuts were made permanent only two years ago and took a major chunk out of the Nation’s revenues. Cutting taxes for the middle class again is a very expensive proposition which will exacerbate deficit concerns which will blow back with calls for additional non-defense discretionary cuts that impact lower income Americans, who get little from tax cuts.)

The speech became more routine in the middle as Obama recited the litany of initiatives he had initially said he would resist offering. This standard format yielded the standard result: Democrats rising to cheer every 30 seconds, Republicans sitting on their hands glumly as the President tossed off proposals most Americans think are no-brainers (paid sick leave, non-discrimination against LGBT Americans, protecting the right to vote). Presiding over the inert (though enlarged) Republican side of the room was the stony, tanned face of Speaker John Boehner who looked like he was glued to his chair and sucking on lemons. Boehner rarely bothered to stand up even when he was applauding, which understandably wasn’t very often.

The other Republican to share the evening with the President was Iowa’s new Sen. Joni Ernst who like most SOTU responders, has probably just registered the widest national audience of her career. Intent on denying Obama any credit, Ernst portrayed the economy as sputtering one step above calamity, completely missing the opportunity for Republicans to claim credit by having forced Obama and Democrats to accept major spending reductions (and making the case, however flawed factually, that spending cuts helped the recovery). Instead, she was left asserting the unprovable: that the economy remains in crisis, hauling out the old canard that we need to slash the deficit (i.e., cut programs she’d rather not enumerate because they are popular) despite a deficit reduction of more than two-thirds under Obama’s watch. For good measure, Ernst threw in the need for some tough new anti-abortion laws (which the House will vote on), further alienating the millennial voters whom Republicans are having trouble reaching on social issues.

Ernst did provide the memorable image, however, of walking to school in the rain with plastic bread bags covering her shoes in order to illustrate her family’s economic tenuousness and frugality. I wonder how many expensive federal farm programs – crop support, price support, USDA extension support, transportation infrastructure, farm tax credits, rural electrification, marketing orders, surplus crop supports, drought relief, soil improvement programs, disaster assistance, to name a few – the Ernst family was able to take advantage of before she (and many of her rural Republican legislative allies) decided it was time to attack free-spending federal programs.

The other memorable line of the evening, unquestionably, was President Obama’s rejoinder to Republicans who applauded his mention that he would not be running for office again. As he reminded them, that is because he won his two elections. It was a perfect put down of the reflexive Republican response to the mention of his inevitable departure from the stage in two years; I’d love to believe it was improvised, but I suspect the speechwriters had that one safely tucked into the address.

An inevitable part of any SOTU is the analysis which focuses on how much, if any, of the President’s program is likely to be enacted. In this case, the answer is pretty clearly, not much. Nor is there much prospect for collaboration in areas that there is consensus deserve attention, such as tax reform and immigration, because powerful forces want those issues alive for the 2016 campaigns, not neatly resolved with compromises that inflame the bases which are needed for turnout and fundraising.

But it is important to note that while the next two years are unlikely to produce the cornucopia of legislative achievements the country might deserve, such periods are relatively rare, which is why Congress has perennially been blamed for being a slow, unresponsive institution. Historian George Galloway called it “an oxcart in the age of the atom,” and that was in 1946. Even the massive bursts of legislative productivity – FDR’s first term, LBJ’s Great Society – occurred in periods of extraordinary political consensus and lasted far more briefly than most people appreciate.

The real issue to watch, as it plays out over the next two years, is the maneuvering between the Executive and Legislative branches of government. For four decades, since the congressional battles with the Imperial Presidencies of LBJ and Richard Nixon, Congress has been battling to reassert itself as a co-equal branch of government, as contrasted with former Pennsylvania Sen. Joseph Clark characterization as “the sapless branch.” The Ford Administration in the mid-1970s was able to assert itself against the 94th Congress by a vigorous use of the veto which frequently could not be overridden despite overwhelming Democratic numbers that far exceeded what Republicans now enjoy in the 114th Congress. Through the use of the veto pen and Executive Orders, President Obama has signaled that he will use his remaining two years to stretch presidential authority as far as he can if Congress continues to prove nonproductive, choosing consensus-based issues to maximize his authority while defying Congress to assert its own prerogatives. That is a classic, historic battle between the branches that will endure for two years and be vastly more consequential than one speech to the nation.

Ten Rules for Success on Capitol Hill

Every two years, the voters of the United States send 535 men and women to Washington, D.C. to serve as their representatives in Congress (with 5 more elected to the House as non-voting delegates and one Resident Commissioner).

As our civics teachers used to say, “Anyone can be elected to Congress,” and we prove that truism biennially. In the ranks of the Peoples’ House have served the predictable lawyers, farmers, educators, former congressional staff, doctors and state and local officials, but also professional athletes, actors, house painters, hairdressers, journalists, singers, pizza shop owners and a professional Santa Claus.

All arrive with varied experiences, opinions and aspirations. Few arrive with a pragmatic understanding of how Congress works or how to be an effective Member of the House or Senate.

That is where this guide hopefully comes in. These ten rules summarize decades of observations, experiences and lessons that can help Members and staff adjust to a role in which they will be judged immediately, mercilessly and ceaselessly by their constituents, the press, and their competitive colleagues.

  1. Assume nothing.   More screw-ups occur because someone “assumed” things would work in Congress like they do back home in Kansas City or Sheboygan than because of malevolence.  Capitol Hill is unique, for good and bad.  The sooner you figure out how to be effective, the more satisfying your career will be.
  2. Learn the difference between “advocacy” and “politics.” Advocacy is telling people what you want; politics is getting other people to agree with what you want. These are completely different skills. Your job in Congress is to get work done, not simply advocate idealistic viewpoints to satisfy the base that contributes to your campaigns and writes letters to the editor saying how great you are. If that is your preferred style, trade in your voting card for a soapbox. Notwithstanding the popular image of the bloviating congressional motor mouth, nobody likes a windbag.  To accomplish something and get ahead, be a workhorse, not a show horse.
  3. Don’t get discouraged.  Legislating is an organic, ongoing, mutating exercise; you rarely win or lose entirely, and you hopefully live to fight anther day. You aren’t running to complete a race. You are part of a relay and you will hand off the baton to someone new who needs to keep up the pace as well.  Your opponents are waiting for you to give up after a setback. Keep in mind the system was designed to be slow, deliberative and to protect the minority. After a few months of the molasses-like pace of legislating, you might agree with historian George B. Galloway who observed, “Congress is an oxcart in the age of the atom.” Keep in mind: Galloway said that in 1946.
  4. Don’t think that just because you changed the world it is going to remain that way.  Laws and policies need oversight, tweaking and periodic reconsideration. Don’t get so committed to the perfection of your idea that you lose the ability to see its flaws. And don’t get so caught up in the sense of victory after a win that you forget that the detailed work is writing regulations and enforcing that law you just passed. Many well-intentioned and well-written statutes gather dust waiting to be implemented by bureaucrats who disagree with its intent. Also, keep in mind: there’s nothing wrong with a law needing modifications or updates. That is a part of the process and helps explain where the terms “reauthorization” and “technical correction” come from.
  5. Be dissatisfied.  If you aren’t, get dissatisfied; if you can’t, get out of the business. Politics is about righting wrongs not managing programs or balancing numbers. There is always something wrong to get angry about. If you can’t think of something, think harder. And don’t complain about how hard the job is. No one wants to listen to some disenchanted officeholder complain about how difficult it is to be a congressman or senator, or how screwed up Washington is.  Your job is to fix it, or at least take a stab at it. However frustrating or maddening a day you had, it is probably nothing compared to the lousy day lots of your constituents endured at their job, so don’t expect sympathy. You probably have the best job you will ever have.
  6. Take your work seriously but not your own importance.  As they say, “The graveyard is full of indispensable men.”  95% of people serving in the House will never be known by a significant number of people outside their own districts, and only briefly by their own constituents.  An experienced politician once said, “Anytime you think you’re really important, take a ride down the freeway about ten minutes and see who knows who you are.” If you work really hard and achieve some difficult legislative victories, you might, might, make it to the Senate, or higher. But you probably won’t, so enjoy what you are doing and be good at it.
  7. Become the “go to” person on some issue. Members seek out other Members who know what they are talking about. Master a couple of issues; pass an amendment or introduce a bill to demonstrate your effectiveness. Don’t try to be an expert or have something to say on every subject. Nothing is worse than a politician making speeches to other politicians, especially if the speaker is (a) trying to show how much he or she knows about a topic, (b) is delaying the adjournment of a meeting that has already gone on too long, or (c) has already spoken and it doubtless repeating the earlier speech. As Speaker Sam Rayburn once said, “You ain’t learnin’ nothing when you’re talkin’.”
  8. Let your staff ask a question or make an observation at a meeting.  You pay them lots of money for their opinions and expertise, and then they sit or stand around silently at meetings like ornaments because Members don’t want to appear to be dependent on staff. Think of your people as your team in pursuit of a common goal, not just a cheering section designed to make you look good. And by the way: don’t fill your Washington office with campaign staff. Being a Member is different than running to be a Member; you need to do both, and you need both kinds of staff.
  9. Get to know your colleagues.   What makes the place really function efficiently, when it does, is that Members know each other and can interact and make some old-fashioned horse trades. Spending time together outside the legislative mosh pit is time well invested. You will learn more, expand your vision, get to know your colleagues, and become a better legislator.  Yes, constituents could get angry that you flew off to some far-flung destination on a CODEL, but they can always find an excuse to throw you out of office.  Throw in a stop or two at military bases or hospitals, and always get your official country team briefing so some smart aleck in the embassy doesn’t write a note to files that you blew off the diplomatic corps. Nothing impresses a cynical constituent more than your description of a good heart-to-heart with your buddy from the other party, which helps to dispel the notion that you might be becoming one of those pontificating partisan hacks everyone hates. And go meet the President at your first opportunity, no matter how briefly. As a successful politician once told me, “When you begin your sentence with, “Well, yesterday at the White House, the President told me…” people are going to listen to the rest of the sentence, even if they dislike the President. It shows you have access and got in the door, which is more than 99.9999% of the other people in Washington that day.
  10. Don’t live in fear of defeat. Of course, you need to pay attention to your district and to your constituents’ needs and opinions. Do everything you can to facilitate close communications, and hire a competent district staff that can be your eyes and ears when you are in Washington or elsewhere. But don’t agonize over every vote based on anticipated constituent reaction. As a member I know once advised a distraught colleague, “It simply isn’t worth it to calculate how each vote will sell or be attacked in the next election.   You can twist yourself into a pretzel with those kinds of political calculations.” I also knew a congressman who ran a state-of-the-art constituent operation who lost his re-election just because it was a bad year for incumbents; his recommendation to his colleagues: “If they want to get rid of you, it won’t matter what a good job you’ve done.”  By the time of your next campaign, you will definitely know enough to be able to explain your vote to any constituent. Sure, the other party may come after you with a fat bankroll and all guns blazing, but that can happen these days on almost any vote. Figure out what you really believe, develop your rationale for your constituents, and do what you think it right. If it is any consolation, I know many Members who lost their seats over a controversial vote but very, very few who regretted having voted as they believed was right. But a vote cast against your own best judgment and conscience can haunt you for a career.

Congratulations! And for the good of the country, I hope you have a very successful 114th Congress.

Show Time

On a surprisingly snowy morning in Washington, D.C., the 114th Congress convened, including the first House and Senate Republican majorities in 8 years which intend to bedevil Barack Obama during his final two years in the White House. Although the chambers rang out with the obligatory “My dear friend” and “the distinguished senator from” wherever, as well as heartfelt aspirations for ending the partisan gridlock, the deep division between the parties was only thinly disguised during the opening day ceremonies.

Certainly, the high drama of the day was the vote for Speaker, with John Boehner seeking his third term. A predictable chorus of GOP dissidents cast votes for everyone from Rand Paul to Colin Powell (no, you do not need to be a member of the Congress to serve as Speaker), and the 25 votes against his re-election constituted the largest “revolt” against a sitting Speaker in nearly a century. (Even most of the dissidents blanched at casting a vote for Boehner’s extremist opponents, Ted Yoho of Florida and Louie Gohmert of Texas, who spends evenings pontificating to an empty floor or giving tourists guided tours of the Capitol building.)

The press went wild when a much smaller number of votes were cast against then-Speaker Nancy Pelosi in 2009, so it will be interesting to see how the pundits analyze the sputtering challenge to Boehner, who has always faced skeptics in his party who doubted the reliability of his conservative credentials. Crafting education reforms with Ted Kennedy and George Miller, working with Nancy Pelosi to pass TARP, and cooperating with Barack Obama to keep the government open and America’s credit sound – as Boehner has done — are incompatible with more members in Boehner’s conference than actually voted against him today.

While the 25 Republican dissidents do represent an historically high number, it bears recalling that such contests were not that uncommon for much of our history. In fact, some early Congresses were so divided over the Speakership that members of the minority party were elected! By the late nineteenth century, however, the general rule was that you stuck with your own party’s nominee in organizing and leadership votes, regardless of political or ideological differences.

The record eclipsed by the anti-Boehner revolt was the decision of twenty progressive Republicans to challenge Frederick Gillett at the opening of the 68th Congress. The progressives lost that fight, but they did secure reforms designed to limit the ability of a chairman to bottle up legislation with which he disagreed.

Two years later, Republicans had bolstered their numbers in the House. The man who had led the fight against the 1923 insurgents as Majority Leader, Rep. Nicholas Longworth, now was the candidate for Speaker, and he also faced dissidents in his own party. This time, only thirteen progressives dared to oppose Longworth, some of whom had also angered the party hierarchy by supporting Wisconsin’s progressive Republican Sen. Robert LaFollette for President against incumbent Calvin Coolidge. Longworth, whose wife was the daughter of Progressive Republican Theodore Roosevelt, was unamused and he struck back, tossing the Progressives out of the party conferences and removing them from committees. For good measure, he rescinded the prior Congress’ reforms against the chairmen’s veto.

Two years ago, a handful of Republicans also voted against Boehner’s re-election as Speaker, and he punished several by removing them from their committees. (Pelosi did not take similar action against those who opposed her either for Speaker or Minority Leader.) Other than a few gratuitous votes in opposition to Boehner priorities in the 113th Congress, it is difficult to see what the Speaker gained by his punitive response, and it will be interesting to see whether he bothers to repeat the retribution this year.

As much as commentators will focus on the Boehner backlash, other early votes by the incoming Congress that merit scrutiny by voters. One of the most significant actions on opening day is the adoption of the House Rules package by which the majority establishes the formal procedures that will govern the institution for the next two years. In the past, the Rules package has played a significant role in implementing reforms that altered the operations of the House in order to democratize the institution, and in the small print, one can often find illustrations of the values and strategies of the majority.

The 2015 Rules package contains several provisions that signal that Boehner intends to maintain a combative relationship with Democrats, and especially with President Obama. The package allows for the continuation of the Select Committee investigating the events in Benghazi, Libya on September 11, 2012, an event that has been inflated and inflamed for two years as a surrogate assault on presumed Democratic presidential nominee Hillary Clinton.   Still, the black helicopter crowd will not be denied their three-ring circus for the 114th Congress, so taxpayer money will be wasted on re-investigating the attack.

Republican leaders also defied requests from Democrats to restore the right of the 6 territorial representatives to cast votes in the Committee of the Whole House. The delegates are Constitutionally barred from voting in the House of Representatives, which takes final action on legislation, but have long been granted voting rights in Committees, where their votes can shape, but not determine, final legislation. Under Speaker Pelosi, the delegates were also allowed to vote in the Committee of the Whole, where substantial legislative craftsmanship occurs prior to final House action, but Republicans rescinded that authority when they assumed the majority in 2011. One might have thought Republicans would make an effort to find a compromise, at least, rather than just negating the participation of six minority delegates (one of whom, Puerto Rico’s Resident Commissioner Pedro Pierluisi, is elected by more American citizens than the representatives of 20 U.S. states) but then again, no one is surprised by the Republicans’ tin ear on the subject of minority rights.

The Republican Rules also allow Speaker Boehner to continue to sue President Obama’s use of Executive power. Boehner’s use of taxpayer funds to hire high-priced attorneys to sue the President has a bit of a history, going back to his controversial decision to defend the Defense of Marriage Act after the Obama Administration refused to continue to do so. The controversy stems not only from the substance of the suits, but the fact that Boehner initiates the legal action in the name of the House, with the purported agreement of a bipartisan committee that is supposed to approve such legal action. But Boehner does not even ask Democratic Members of the BLAG to vote anymore; he just depends on his reliable GOP majority to launch costly and futile legal challenges.

The lawsuits, however, serve to focus attention on what might well emerge as the historically significant issue of the 114th Congress: the struggle between the White House and the Congress over the appropriate balance of power. Even many Democrats who support President Obama’s expansive use of Executive powers on health care, immigration, the minimum wage and marriage equality have quiet concerns about resurgence in Executive authority at the expense of the Congress. Since the days of the Imperial Presidencies of Lyndon Johnson and Richard Nixon, congressional leaders in both parties have bristled at presidential overreach as they sought to re-establish equity among the branches of government. There is understandable concern that Obama’s actions, unless cautiously undertaken, could undermine much of the progress made on restoring Congress to its Constitutional role as the first branch of government.

Yet two points deserve to be noted on this subject. While Obama has indeed acted unilaterally on a number of high-profile issues, his use of Executive Orders actually is the lowest of any President in a half century. Obama has averaged just over 33 orders a year since entering the White House, compared to Gerald Ford (nearly 69 times per year) and Richard Nixon (over 62). Even Ronald Reagan, who supposedly disdained actions by the federal government, dwarfed Obama’s use of Executive Orders by 47.6 to 33.6 per year.

Secondly, no other President has faced the steadfast, even zealous, hostility from the other party as has Obama since the moment he entered the White House. The relentless attacks have involved not only substantive issues but ludicrous and baseless personal attacks on his religion, his birthplace, even his citizenship. If Congress is incapable of passing legislation to address hot-button issues, many of which like immigration and marriage equality enjoy broad bipartisan national support, Obama is left with few options unless he simply wants to concede the management of government to Republicans who cannot even pass the policy goals they propound. Abandoning Executive authority would also represent a blow to the proper balance of power. The failure of Congress to send the President legislation has largely abrogated its right to assert claims about presidential usurpation. Yet Obama will have to be measured in order to be sure he avoids giving credibility to the irresponsible charge made against his Constitutional exercise of political authority.

One final thought for this opening day of the 114th Congress. Few House members were more influential in resurrecting the role of Congress as a coequal branch of government back in the 1970s than Don Edwards of California. Quiet, thoughtful, honest, direct, and widely respected on both sides of the aisle, Edwards was among the earliest opponents of the war in Vietnam and among the most diligent critics of Watergate. On this opening day, Don Edwards turns 100 years old at his home in California, and as the cards and emails pour in to pay him well-deserved tribute, everyone who still believes – or wants to believe – that Congress can be a constructive force on behalf of the American people, and the world, should take a moment and say a word of thanks to Don … and “Happy Birthday,” too.

Season of (at Least One) Miracle

It places at risk one’s reputation as a political observer to suggest that Congress actually is able to accomplish something meaningful despite its broad failure to act over the past 4 years. But since even a broken clock is right twice a day, it behooves us to acknowledge when an incompetently run institution breaks through its ideological polarization and political gridlock and manages to cough up something of value. So, here is the “feel good” congressional miracle for this Holiday season.

On Friday, President Obama signed into law the Achieving a Better Life Experience (ABLE) Act that allows parents of children with disabilities to establish a special tax deferred account to help those children pay the costs of housing, health care and other expenses throughout their lives. As with many of the other laws addressing the special needs community – including the Individuals with Disabilities Education Act (IDEA), on which I worked as a newcomer to the House in 1975, or the Americans with Disabilities Act – ABLE was the product of bipartisan authorship. It passed with overwhelming bipartisan support: 76-16 in the Senate, and 404-17 in the House. The chief Senate sponsors were Bob Casey (PA) and Richard Burr (NC), and in the House, the prime movers were Ander Crenshaw (FL) and Chris Van Hollen (MD).

The ABLE Act gives parents of children with special needs the ability to create a special tax deferred savings account that the children can use to pay for college or other allowable expenses including education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees and other expenses approved by the Secretary of Health and Human Services. As with all laws, interested parties must review the exact terms of the law and consult appropriate professionals to ensure strict compliance. In particular, parents will have to check with their tax advisors to see whether their child qualifies for an ABLE account, i.e., became disabled before age 26, receives Social Security Disability Insurance (SSDI) or SSI, or qualifies for a disability certification as determined by the IRS, which will write the regulations to implement the new law.

Now, simply because the ABLE Act makes sense, enjoys bipartisan support, and passed overwhelming does not mean it was a simple task. In fact, the bill was first introduced all the way back in 2008 to protect children from losing other health and related benefits (like Medicaid) if they had savings in excess of $2,000 or monthly earnings above $680. The new law allows the child to have up to $100,000 in a tax free account without impacting eligibility for other essential programs. It is a measure of the difficulty in passing any bill that this one, which is fully paid for with legitimate offsets, took so long to reach the President’s desk.

However, for those who remain completely cynical about Congress’ capacity for any action, (with more than a little justification, I must admit), the lesson of the ABLE Act is worth considering. Too often, Congress is judged to have “failed” because it was incapable of enacting a law to address a grievous or complex inequity or emergency as quickly as proponents deem appropriate. As any student of the Congress knows, the institution was never expected to act swiftly; indeed, its very Constitutional design, with all of the bells and whistles added by two centuries of rules and precedents, virtually guarantees that even proposals enjoying broad consensus in the Nation will consume months or even years to wind their way through the obstructions created by minority factions in the Congress, particularly the Senate, which daily earns its reputation as the “saucer that cools the hot tea of the House.”

Many laws on which I worked during nearly 40 years as a House staff person took years to move from the moment of conceptualization to the moment of realization, and those laws addressed sympathetic topics like expanding adoption, assisting victims of domestic violence, protecting endangered species, and aiding victims of occupational diseases. It is understandable that interest groups that beseech the Congress to act become frustrated and cynical when legislators do not view the issue with similar urgency, but Congress, of course, is not designed to railroad through every item on any supplicant’s wish list.

Too often, those seeking action from Congress become disenchanted or distracted with the long process of investigation, hearings, mark-ups, floor action and (at one time) conference committees that can consume months or years. In an era when anyone with a computer or smartphone expects answers in a third of a second, the laborious process of a large, diverse legislative institution seems anachronistic and unresponsive. Little wonder that congressional observer George Galloway observed that Congress seemed to be an “oxcart in the age of the atom.” Of course, it is worth recalling that Galloway said that in 1946.

So at this Holiday Season, when peace and good will seem quantities in short supply, let’s take a moment to thank Congress for putting aside its pettiness and partisanship long enough to pass a piece of legislation that can genuinely improve the lives of many of the estimated 58 million Americans living with disabilities.  Its enactment doesn’t excuse the inexcusable, but it does suggest the possible is not impossible, and maybe that’s good enough for right now.

Two For The Road

As accusations and recriminations flew through Washington on Tuesday following the release of the CIA report, an extraordinary collection of political leaders gathered a few blocks from the White House for a sentimental send-off to two of their legislative giants: Congressman Henry Waxman and Congressman George Miller of California. Both leave office voluntarily, heads high, with decades of accomplishments that have reshaped and improved their country and the world.

The dinner was hosted by Democratic Leader Nancy Pelosi who, as the first woman and California Speaker, presided over some of the pair’s greatest achievements, first among them national health care. Compared to the racial, gender, and ethnic diversity of the gathering, a meeting of House Republicans would look like the smoking room at the stodgy Diogenes Club of London. The guests, a collection of the California delegation, veterans of the Class of 1974, staff and family, included five Cabinet members – Treasury Secretary Jack Lew, Interior Secretary Sally Jewell, EPA Administrator Gina McCarthy, HHS Secretary Sylvia Burwell and Labor Secretary Thomas Perez — who joined in numerous testimonials to the two legislators and to their wives, Janet and Cynthia, who have endured 40 years of commuter marriages.

At first blush, Waxman and Miller might appear starkly different — one short and balding, a lifelong resident of sprawling Los Angeles; the other a towering ex-footballer and lifelong resident of tiny Martinez – but they have more in common than their trademark moustaches.

  • Both are legislative masters, expert in wildly diverse fields, hugely successful in tackling complex problems and translating them into effective laws.
  • Both chaired two powerful committees of the House, Waxman led the Committee on Oversight and Government Reform as well as the Committee on Energy and Commerce, while Miller chaired both the Committee on Natural Resources and the Committee on Education and Labor. (Miller also chaired the non-legislative Select Committee on Children, Youth and Families.)
  • Both authored laws that dramatically impacted the well-being of tens of millions of Americans who will never know their names: Waxman wrote laws on tobacco, Medicaid, women’s health, and auto safety; Miller laws on nutrition for women, infants and students, worker safety at home and around the world, compensation for those with occupational diseases, child care, college affordability, and victims of domestic violence.
  • Both helped shape the modern environmental and resource protection movement, Miller as the leading advocate for a modern water policy, protections of millions of acres of wilderness and national parks, and safeguarding of endangered species; Waxman as the leading craftsman on clean air, pesticide control, and clean water.
  • Both were fearsome interrogators, unafraid to take on wealthy, politically powerful and arrogant adversaries in and out of Congress: auto companies, oil and gas producers, asbestos manufacturers, the pharmaceutical industry, agribusinesses, professional athletics and sweatshop operators. In some cases, those adversaries were constituents.
  • Both played significant roles in international affairs as well, Waxman in the Middle East, Miller in South and Central America as well as Southeast Asia.
  • Both attracted, and kept, talented, respected and fanatically loyal staff, many of whom served for decades and who, from the receptionists to the chief of staff, were valued parts of the team who rarely, if ever, referred to the boss as anything but “Henry” and “George.”

These achievements, and many others far too numerous to mention, stand not only as examples of their remarkable legislative careers, but of the ability of Congress to act decisively, expansively and collaboratively to address genuine social needs. Miller and Waxman are living repudiations of the misguided maligning of government by the cynics who disdain our national institutions in favor of the arbitrariness of the marketplace. Indeed, if the marketplace solved all problems, there would have been no need for legislators like Miller and Waxman. Yet can we even imagine where this country would be on issues like energy, smoking, health, the environment, labor rights or product safety without them?

Despite serving in contentious times, both Waxman and Miller found ways to work constructively with their Republican counterparts. Nearly every major piece of the legislation authored by these two committed liberals – whether in the majority or the minority – was developed and enacted with the close collaboration of some of the most conservative members of the House and Senate: Don Young, Tom Bliley, John Boehner, Henry Hyde, Don Nichols, Orrin Hatch, Frank Murkowski. That record, too, stands in sharp contrast to the current belief that reasonable collaboration between the parties and ideologies is undesirable if not impossible. Indeed, one of Miller’s last legislative achievements is a bipartisan strengthening of child care law that includes his signature emphasis on improving quality.

If ever there was inarguable evidence of the ill-wisdom of term limits, Waxman and Miller are it. Their decades of service provided the wisdom, the background, the maturity and the craftiness to take on entrenched powers and prevail. The turnover rate of the past decade would seem to demonstrate that the public seems to be doing a pretty good job at replacing legislators on their own without imposing artificial limits that deprive the country of talented public servants.

Miller and Waxman are the last two House Members who arrived as so-called “Watergate Babies,” a group of 75 Democrats elected in the aftermath of the Nixon resignation and pardon and in the waning months of America’s disastrous involvement in Vietnam and Cambodia. Their service began in an era of what seemed to be incredible office innovation — IBM Selectric typewriters, WATS lines and new-fangled fax machines — and endured throughout the transformation of American society by virtue of nearly every economic, innovative, ethnic, gender and demographic measure. They helped push it along. (There are two remaining Democrats from the Class, but each has an asterisk next to his name: Sen. Ed Markey, who was elected in a special in 1976 and served longer continuously in the House than anyone who has ever moved to the so-called “upper body,” and Rick Nolan, who returned to the House in 2012 after the longest sabbatical – 32 years – in congressional history. Both attended the dinner Tuesday night.)

By the end of the evening, the harsh reality was beginning to impose itself on the most denying of attendees: this was truly the end of two historic and productive congressional careers. When the lights go up on the vote board in the House chamber next January, for the first time since 1975, the names “Henry Waxman” and “George Miller” will not be there. The institution they helped embellish and honor will be dimmed by their departure.

Don’t Count Out the House Democrats

At this Holiday time of the year, it is appropriate – and politically timely — to recall the admonition of Jesus in Luke 9:48: “It is the one who is least among you all who is the greatest.” In a strange twist of fate, the presumed “least among” Washington power players – the minority House Democrats – may well find themselves, if not “the greatest,” then influential and powerful beyond the expectations of the casual observer.

It is an axiom of politics that the party consigned to the House minority is the proverbial Rodney Dangerfield of American politics: its members “get no respect” because the majority makes all of the crucial decisions about the House rules that govern operations and committees, the scheduling of hearings and mark-ups, the floor calendar and much more. Without the formal filibuster procedure enjoyed by the Senate (ended in 1811 by Speaker Henry Clay with the adoption of the Previous Question rule to discipline the unruly House), the House majority alone pretty much determines the timing and flow of anything beyond unanimous consent requests and suspension bills (that require the votes of two-thirds of those voting.)  If the majority is willing, the minority can attempt to amend floor legislation but, increasingly, the majority has not been willing.

Only when the margins between the parties are especially tight will the minority be able to craft amendments that have a chance of passage by luring marginal Members in the other party to support amendments. Otherwise, for the most part, minority House Members occupy themselves devising strategies that expose the extremes and foibles of the majority and enhance their own message for the next election.

Over the past four years, House Democrats have been largely bypassed by the Republican majority except when needed, on a regular basis, to pass Continuing Resolutions and debt ceiling increases that are considered “must pass” bills. Repeatedly, Speaker John Boehner and his GOP leadership team have come up short when appealing to their troops to provide the votes needed to keep the government functioning, forcing Boehner reluctantly to seek support from Democrats. In each case but one, Democrats provided the margins needed to pass those “must pass” bills, even when they were uninvolved in drafting them and may not have embraced their provisions, because they were unwilling to allow a government shutdown or default to occur. Knowing he would undoubtedly need those Democratic votes, Boehner was forced to keep these bills free of the ideological baggage (such as health care repeal) that his troops might otherwise have insisted be included.

One might think that the capture of the Senate by Republicans last month would make House Democrats even more irrelevant, but that is far from the case, as the current dispute over the business tax extenders has clearly demonstrated.

As is frequently the case at this time of the year, tens or even hundreds of billions of dollars in time-limited tax breaks for business interests are set to expire, necessitating passage of last minute “extenders.” The breaks due to expire a month from now include a variety of provisions that reduce taxes on business investment, commuter costs, teachers’ supplies, small business expensing and state and local tax deductibility. Cost to the deficit (because tax cuts, unlike spending increases, do not need to be “paid for”): $400 billion. Merry Christmas!

Understandably, businesses hate this annual extender pirouette. It complicates their planning and investment strategies, which rarely are based on neat calendar year models. Not surprisingly, businesses would like their tax breaks to be permanent, freeing them from seeking further congressional approval.

“Permanent” is a very long time, and makes little sense given the impossibility of predicting business and economic cycles in a rapidly changing world and national economy. What might appear to be a sound tax break today might well be a wasteful lavishing of unwarranted goodies in five years, or ten, or twenty.

To add insult to injury, Republicans in Congress refused to grant similar permanence to the Earned Income Tax Cut (EITC) and the Child Tax Credit (CTC) which benefit low-income working families with children, who truly are the “least among” us. The Republicans have explained that they singled out the working poor (and their children) for this punishment because President Obama exercised his executive powers on immigration policy. As a result, the poorest workers and families in the country are going to pay the penalty. (The Republicans also are not going to give them an increase in the minimum wage, but that’s another story.) I thought we were supposed to reward low-income parents who actually went out there and worked at low paying jobs; apparently no, they are to be punished, while business owners get the tax breaks.

Now here is where those House Democrats get to flex some muscle. For while Sen. Harry Reid has been angling to pass the business tax extenders absent the provisions to aid the working poor (he gets a permanent deduction for state and local taxes out of the deal), House Democrats are having none of it. If the extender bill benefits only business interests, Democratic Leader Pelosi has said, House Democrats will oppose it and then will deliver the 145 votes needed to sustain a presidential veto, which Obama has promised. As they might say in the casinos in Sen. Reid’s home state of Nevada, “BINGO!” – don’t mess with House Democrats. The extender bill is likely dead, and the tax issues will be reconsidered in the 114th Congress.

Over the next two years, this scenario may well repeat itself with some regularity. Senators are notorious for finding reasons to vote for bills that are real stinkers because the nature of the Senate, with its holds and filibusters and back-patting camaraderie, allows them the ability to trade a vote for a gimme. Not so in the House, where Republicans pass policy (as contrasted with those “must pass” bills) with barely a thought of the needs of the Democratic minority. It will not be surprising, therefore, for a number of bills with noxious provisions, whether they be appropriations bills or policy measures, to pass the House with GOP votes alone, squeak through the Senate’s 60 vote keyhole with a few Democratic collaborationists aboard, and find themselves on the Oval Office’s Resolute desk notwithstanding President Obama’s veto threat. Many of them might well be bills that seek to constrain the use of executive powers the President has begun to employ in areas like immigration and clean air, both of which could easily provoke a few Senate Democrats to help Sen. McConnell send the bill downtown.

But then comes the veto strategy, and here is where those lonely House Democrats suddenly have power most observers have concluded they had lost entirely. For even if the President cannot count on Senate Democrats, he has reliable partners in Nancy Pelosi and House Democrats who, even with their diminished numbers, have far more votes than they need to sustain Obama vetoes. Indeed, Pelosi and her House colleagues let the President know this week that they objected to the tax extender bill absent inclusion of the EITC and CTC provisions, and that they stood ready to back up his veto. That promise led to a veto threat and the collapse of the permanent extension bill (good riddance to that, by the way), and hurried negotiations on a short term extension bill to allow businesses to breathe easier in 2015 while Congress and the President decide how to handle both the extenders and broader tax questions.

Whether it is true, as the Bible says (Matthew 5:5) that “the meek shall inherit the Earth,” it seems unimpeachable that the weak House Democrats will nevertheless be consequential players in the last years of the Obama Administration. The “least” may not be the “greatest,” but they still have power, and they will use it.  And with that observation, my quoting of the New Testament will end, and I wish you “Happy Holidays.”

Cheap Shot

One of the favorite canards leveled at the Obama Administration is that it committed an early strategic, policy and political faux-pas by electing to pursue a national health bill rather than dedicating its legislative energies to a second economic stimulus measure. Typically, such critiques come from those oblivious to the realities of Capitol Hill in early 2009. In the last few days, however, the allegation has been leveled by none other than Sen. Charles Schumer (D-NY) who is (and was at the time) in a position to know better.

Schumer parroted the factually inaccurate critiques, typically hurled out by opponents of both the Affordable Care Act (ACA) and the American Recovery and Reinvestment Act (ARRA – the Obama stimulus) and by some liberals as well. He also trivialized the impact of the ACA by asserting it has only helped a small number of people – presumably the 30+ million Americans who lacked basic health insurance, not to mention the millions more who gained coverage for pre-existing conditions, the children able to stay on their parents’ policies till age 26, the women who will received free cancer screenings, the elimination of caps on annual health insurance coverage, and many more benefits.

It is a favorite observation in Washington that while you are entitled to your own opinions, you are not entitled to your own facts. That truism applies to United States Senators, as well as to hysterical cable commentators – even to Sen. Schumer.

So let’s recall a few of the facts. Work on the ARRA had begun even before the Obama Administration took office. Congress had already enacted a much smaller stimulus measure and the massive Troubled Assets Relief Act (TARP) under the Bush Administration despite the ambivalence of congressional Republicans towards the crashing economy and its human toll. Once in power, the Obama Administration worked swiftly with congressional leaders to fashion the ARRA which contained hundreds of billions of dollars in middle income relief (including tax cuts designed to attract Republican votes, a strategy which proved unsuccessful at securing GOP votes) and unprecedented investments in alternative energy and other economic innovations.

Despite the Republican slant to the bill’s design and a plummeting economy, House Republicans refused to negotiate on the ARRA and three Senate Republicans supported it only after loading it up with billions of dollars for their own personal priorities. Combined with other measures designed to stabilize and stimulate the economy and aid small businesses and the middle class, Congress had passed – if narrowly – over $1.5 trillion in new public policies within a few months. President Obama and the Democratic congressional leaders turned their attention to the unsustainable health care inflation that was driving hundreds of billions of dollars in both governmental and private sector spending that fueled huge deficit growth.

Now, it is at this point that critics (including Sen. Schumer) assert that the Obama Administration and congressional leaders should have parked their commitment to health care and devoted further time, energy and spending to a third stimulus bill. Such hindsight overlooks a few crucial items: the certain inability to pass more stimulus spending in a Congress that had already enacted the stimulus laws over vigorous Republican opposition; the near-unanimous opposition of Republicans to taking any action – including extension of unemployment benefits – in response to the cratering economy; the massive impact of health costs on spending and the debt; and the rare alignment of a Democratic White House and Democratic supermajorities in Congress that held the hope – not a certainty – of passing the holy grail of progressive politics over the preceding century: health care reform.

If the prospects for additional stimulus were non-existent, the possibility of achieving health care reform were only slightly more promising. Waiting months to slug out an additional stimulus bill, which would likely have failed, might well have jeopardized the ability to pass health care. Leaders would have had to heavily pressure marginal Democrats to cast additional votes for deficit spending which would temper their willingness to vote for a future health care law.   Moreover, further delay ran the risk of a congressional death or resignation that could deprive Democrats of the razor-thin margin by which they surely would have to pass health care reform. As misfortune would have it, the death of Sen. Edward Kennedy confirmed the tenuous hold the Senate majority had on passing a health care law, forcing the novel utilization of the reconciliation process to achieve final passage.

Schumer, who has been a staunch supporter of the ACA, does not argue that the law was a bad piece of legislation, only that Democrats were ignoring the hard-hit middle class by emphasizing health care instead of pushing for more economic assistance. If President Obama and Democratic congressional leaders had promoted additional economic policies, he asserts, “the middle class would have been more receptive to the idea that President Obama wanted to help them … People were hurting and saying, ‘What about me? I’m losing my job. It’s not health care that bothers me. What about me?’”

I’m not sure which “average middle-class voter” Schumer is referencing, but there certainly was no shortage of people who desperately wanted health care reform. Millions of people could not afford care, were being dropped arbitrarily by their insurance carriers, and were facing huge premium increases when they could find coverage; millions more could not secure coverage because of pre-existing conditions ranging from cancer to developmental disabilities to being female. All Americans were enduring escalating federal deficits driven by health care inflation that were cited as reasons for slashing domestic discretionary spending that impacts education, services for the disabled and the elderly, health care research, and environmental protection and alternative energy development. Each of those issues is being positively impacted by the ACA despite the foot-dragging of Republican governors and 55 attempts by House Republicans to repeal the law.

As to the additional recession related legislation that Democrats ignored, it would be interesting to know what initiatives Sen. Schumer thinks could have been enacted: public jobs creation (not a chance), breaking up the huge financial institutions that drove much of the fiscal mischief that weakened the economy (I’m not sure Schumer’s New York constituents would have bought into that approach), tough restrictions on corporate executives and tax changes like carried interest reform to reduce income inequity (ditto for interest among the Wall Street crowd). We tried most of those approaches during the TARP and ARRA efforts and were unable to win enough support to pass any of them. Would Schumer have had Democrats try again, fail, and diminish confidence in the President and the party just when we needed broad support to tackle health care?

Now most assuredly, Schumer was thinking about his constituents with this latest blast, but not the millions of New York constituents who needed both economic assistance and health insurance reform. His “constituents” were his Democratic Senate colleagues, angered at losing the majority in the November elections and pointing accusing fingers at President Obama. Schumer’s attack on the President (and by extension, House and Senate leaders who joined in prioritizing the timing of the health care push) may enhance his stature as one willing to watch out for them and their re-election efforts.

There is plenty of blame to go around for the mishandling of the health care strategy, from the bill’s necessarily modest provisions through a quiescent White House messaging strategy to the near-fatal rollout fiasco. On both the messaging and the roll-out, congressional Democrats have been critical of the White House, and justifiably so; warnings were issued and promises made, and yet the Administration walked into mis-step after mis-step. But choosing the wrong timing for advancing the health care debate, after 100 years of failure, was not one of the mistakes; it was the right thing to do, at the essential time, and further time frittered away on doomed economic legislation would have squandered an opportunity to do something historic, which Democrats did, and for which they should be proud, not apologetic.

Senators narrowly elected in the 2008 Democratic sweep (likely due to the large outpouring of Democratic votes for Barack Obama) just paid the penalty that House Democrats paid earlier in 2010 and 2012, as well as 2014. Dozens of Democratic House Members who owed their improbable elections to the 2008 turnout lost their seats following the rise of the Tea Party and the emergence of hyperbolic assaults on the ACA. Most were active supporters of the ACA, the stimulus, the Dodd-Frank Wall Street reform and many other Democratic initiatives that helped make the 111th Congress one of the most productive in recent history. And many were marginal Members who knew at the time that their votes could inflame their constituents and jeopardize their jobs. And yet in many conversations with these defeated House Democrats, not one expressed regret to me about having cast the tough votes or having lost their jobs as a result of doing their job and serving their country.

Which makes Schumer’s condemnation of the President all that more startling, particularly given his strong past support for the ACA. Certainly the senator’s statement was intended to appeal to Senate Democrats who might be looking for a new leader in the next few years. It just wasn’t necessary, in order to prove he has their backs, to put a dagger into the backs of President Obama and Democratic congressional leaders.

Pelosi Proxy Wars

Let me stipulate at the outset I am probably not the most objective person to comment on the actions of House Democratic Leader Nancy Pelosi, having spent eight years as her chief of staff during For this reason, I generally leave the Pelosi analysis to others and respect, as should all staff people, the confidentiality and confidence entrusted by a political employer.

However, from time to time, assertions concerning the former Speaker are made that are so egregious or misinformed that simply raging at the television or iPhone is inadequate. This week was one of those times.

Twice this week, the issue of the “proxy” arose with respect to Mrs. Pelosi, and in both cases, much of the commentary banter has been so inaccurate that I am rising to the bait and offering a counter opinion. I am prepared for the accusations of being an apologist.

One of these “proxy wars” involved the contest between Rep. Frank Pallone (D-NJ) and Rep. Anna Eshoo (D-CA) for the position of Ranking Member on the House Committee on Energy and Commerce. That position, as well as the chairmanship of the panel during the days of the Democratic majority, has been held by Rep. Henry Waxman (D-CA), whose 40 years of congressional service end with the new year. Both Pallone and Eshoo have been reliable, progressive members of the Committee and the Caucus; both have served in the House since 1993; both have substantial expertise in the complex areas of legislation that fall under Commerce’s jurisdiction.

In the long-passed era in which seniority ruled, Pallone would have been the unquestioned choice. He is, despite their equivalence in House service, senior to Eshoo on the Committee. Pallone’s background, expertise and ability to manage the sprawling committee would not have been in question. The only qualification, it has been said, was a pulse. But those days of unchallenged seniority ended forty years ago, when the incoming members of the 94th Congress rejected three sitting chairmen for reasons of both ideology and competence. Since then, there have been numerous instances when the senior most member of a committee has not been selected for the chairmanship or ranking member role. As it has been noted: your constituents choose you to be a Member, but the Caucus chooses you to be a chair or ranking member.

The Pallone-Eshoo contest purportedly became a proxy war because of the public support given Eshoo by her California colleague and close friend, Nancy Pelosi. Allegedly, as numerous news reports asserted this week, there was discontent and grumbling within the Democratic Caucus about Pelosi’s decision to seek another term as Democratic Leader (a position she won by acclamation), and voting against her favorite in the secret balloting for the Commerce slot was a proxy means for expressing that discontent. This interpretation was given greater currency by reports that Democratic Whip, Steny Hoyer (D-MD), whom the press endlessly portrays as dancing a perpetual pas de deux with Pelosi over the leadership of House Democrats, was promoting Pallone’s candidacy. Voting for Pallone, therefore, became a proxy for supporting Hoyer and indirectly rebuking Pelosi.

That’s an intriguing analysis, and makes for good commentary, but it is highly unlikely. Members vote for leaders because they have a vested interest in the outcome of the selection, not to send private messages. Those reasons may include friendship, respect, return of past favors, or how the outcome affects one’s own prospects. It would be surprising if the outcome signaled anything significant about Pelosi’s enduring strength within the Caucus, as some have asserted. After all, Pelosi ‘s candidate for Majority Leader was rejected overwhelmingly by the Caucus in 2006, and she went on to enjoy one of the most successful speakerships in history and another decade as leader of the Party.

Sure, there may have been a vote here or there in which Pelosi or Hoyer’s involvement played a part, and in a close contest, every vote matters. But understanding the actual motivations behind votes requires much more analysis and work than most reporters or so-called “analysts” are prepared to do. Even a New Jersey colleague of Pallone rejected the idea that the decision represented a proxy rejection of Pelosi.

The closeness of the vote, however, raised the issue of the second “proxy” battle that emerged this week involving Pelosi: her decision to reject a request from Rep. Tammy Duckworth (D-IL) to cast an absentee Caucus ballot in the Pallone-Eshoo race. Numerous commentators criticized Pelosi’s refusal to waive House and Caucus rules to allow such a proxy vote to be cast, including Jon Stewart whose anti-Pelosi rant on Tuesday night served to remind us that however entertaining and incisive he is (and I am a faithful and admiring viewer), he is not a substantive analyst of congressional procedure, which is what he was criticizing.

Proxy voting was the fashion in the House for decades, and became widely used after the expansion of subcommittees in the 1970s, which meant that many Members would routinely confront overlapping subcommittee and committee mark-ups on their schedules. Since absences cast doubt over the fate of amendments and bills, and no one wants to be counted as “absent” lest an opponent hint it was due to dereliction of duty, the rules allowed Members to give written proxies to committee members (usually the chairman and ranking member) to cast in their absence. It was not unusual for one of these senior members to have a fistful of proxies that were used to pass or defeat amendments or bills in the absence of most members of the panel.

Proxies were banned in 1995, complicating the mark-up procedure but enhancing the legitimacy of the legislative process. Duckworth sought to circumvent the rules, and for an understandable reason – she is over eight months pregnant and her doctors advised her against traveling to Washington. Duckworth is also a veteran, a double amputee, and a woman, all noted by Stewart and others, but none of which are relevant to the proxy request. Stewart went even further to accuse Pelosi of hypocrisy for effusively advocating the rights of women in the workplace only to rule against Duckworth’s pregnancy-related request, supposedly because the Illinois legislator was a Pallone partisan.

Leaders have to say “no” to members all the time, and the worst mistake a leader can make is to allow an exception to the rule, because doing so ensures that others will also seek waivers, requiring the leader to choose between appropriate and inappropriate excuses – an inherently subjective choice. Yes, Duckworth had a genuine medical excuse, but so do many Members who routinely miss votes. Are waivers to be allowed only for medical excuses? Any medical excuse? Do they require a note from the doctor? What about other demands that require a legislator’s absence from Washington: a funeral, the illness of a spouse or child, a graduation, a wedding, an unspecified “personal problem.” All of these requests, and more, are routinely cited by Members seeking approval to miss floor sessions, and Pelosi has consistently refused to grant her permission. To respond otherwise would open the floodgates and impose on herself the impossible responsibility of separating the justifiable from the frivolous.

So, why single out the Duckworth request? To suggest that her denial of the proxy to Duckworth is at odds with her advocacy of women’s rights in the workplace is without merit. Rights such as paid family leave, equal wages and non-discrimination are unrelated to the Duckworth case. Duckworth’s job security and pay are in no way affected by Pelosi’s decision. There is nothing unique about a medical excuse preventing a Member from attending a meeting or a floor session. When all cases are treated equitably, it is impossible to assert unfairness. If Pelosi had granted Duckworth a waiver but denied one to another Member who required hospitalization or home rest, a charge of inequitable treatment would have been warranted, by the other Member.

So instead Pelosi made the controversial call and, as is so often the case, the press decided to excoriate her without examining the merit of her decision. Give her credit for standing on her principles and being willing to take the heat. Incidentally, that is what leadership is really about.


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