hardline political news and analysis

Trump’s Tirade

As we move into the congressional summer recess, there is less news from Capitol Hill than usual (if that is possible), which provides an opportunity for me to reflect on a few topical issues that relate to my own experiences working in the House.

As with all current political discussions, it seems, let me mention Donald Trump. Yes, I must. His hysterical xenophobia concerning those who emigrated to the United States without being invited by current residents has led me to recall the day he testified in Congress in 1993. Ironically, he was testifying (if you can call it that) about Native Americans, who have had their own concerns about uninvited émigrés.

In 1988, Congress had passed the Indian Gaming Regulatory Act, which established procedures to permit tribes to conduct gaming on their tribal lands. While many in Congress had qualms about encouraging tribes to move into gaming as a source of revenues, the fact is that other efforts to lure investment to tribal lands had failed miserably and gaming offered the prospect for addressing the crushing poverty that impacted (and still does pervade) many reservations.

The October 5, 1993 oversight hearing was intended to look into the implementation of the 1988 law, and witnesses included various officials from the Department of the Interior and the Bureau of Indian Affairs, as well as the Federal Bureau of Investigation and the Department of Justice. As staff director of the Committee on Natural Resources, I was working with the subcommittee staff on the hearing when a special request was forwarded to me.

Donald Trump, who controlled the Taj Mahal and other casinos in Atlantic City, shared the concern of many in the gaming industry that competition from tribal casinos would undercut their business. Trump had requested permission to testify as a public witness, which was granted. But on the morning of the hearing, Trump’s assistant was asking that he not have to wait until all the federal officials had completed their testimony. He wanted to be included in the opening panel of departmental officials.

I did not have the impression that Mr. Trump, or his assistant, were familiar with the regular order of congressional hearings, so I explained that, no, he would have to wait until all of the federal officials had completed their testimony. It will come as no surprise that Mr. Trump’s representatives did not accept that answer cheerfully and made the request a little more emphatically. Thus, I was able to exercise one of the great pleasures of being a staff director with a supportive employer: I told Trump’s person he could testify in his designated place or not at all.

Trump also did not understand seating protocol at the hearing, and arrived very late to find all seats occupied. As a result, he had to stand for over two hours before it was finally his turn to testify. (At least he did not ask to sit on the dais with the Members, an option which I imagine briefly flitted through his orange covered head.)

I suppose the refusal on the order of his appearance and all that time standing in 1324 Longworth unhinged something in Trump’s demeanor that morning, because when his time at the witness table finally arrived, he was filled with invective and insults. “I had a long and boring speech,” Trump began. “It was politically correct and something that would have gotten me into no trouble whatsoever.” Why go there?

Instead of his seven-page script, Trump launched into a blasphemous and unsubstantiated tirade that, quite literally, left Member, staff and other mouths agape for its sheer mendacity and crudity. The essential charge Trump leveled was that Indian gaming (unlike the non-Indian style which is known for its extreme propriety) was riddled with organized crime; and if it wasn’t already, it soon would be. The infiltration of the casinos by “will be the biggest scandal ever, the biggest since Al Capone,” Trump warned. “Organized crime is rampant. People know it. People talk about it,” but no one was doing anything to stop it, certainly not Native Americans who were incapable of policing their casinos. “An Indian chief is going to tell Joey Killer to please get off his reservation?” Trump asked, sounding more like a character from Goodfellas than a real estate developer. “There is no way Indians are going to protect themselves from the mob. This is gonna blow.”

Trump also challenged the legitimacy of many of the tribes setting up casinos through the labyrinthine procedures required by the law and BIA’s regulations. Commenting on Connecticut’s Mashantucket Pequots, who developed the massive Foxwoods Casino, Trump confided to the legislators, “They don’t look like Indians to me. They don’t look like Indians to Indians.” Asked later what Indians look like, he employed the same dismissiveness he now shows reporters who ask tough follow-up questions, “You know,” he said. “You know.”

Lest any critic suggest Trump was more insensitive to Native Americans than he is today to Latinos and immigrants, the future candidate assured the panel, “Nobody likes Indians as much as Donald Trump.” His concern, he professed, was that “the Indians are being had by mobsters” and that the substantial profits earned by the casinos were not being shared with the tribal members. “It’s unbelievable to me,” he asserted, that Congress was unaware of the scandal.

It was also unbelievable to Connecticut State Police Lt. Col. Robert Root who claimed he was unaware of any allegations of criminal activity at Foxwoods. Laurence A. Urgenson, acting deputy assistant attorney general, said there were no data supporting the claim that the mob was infiltrating Native American casinos. And Jim Moody, section chief of the organized crime/drug operation division of the FBI, testified that his office had uncovered “no evidence of skimming, money laundering, theft or any other criminal activity in Indian gaming.”  Moreover, seven years later, additional probes by the FBI, the Justice Department Criminal Division, and the Office of Tribal Justice found no evidence of organized crime in casinos. William Johnson, an official with the Mystic Lake Casino in Minnesota, dismissed Trump’s mob allegations, saying, “It is wrong; it is ludicrous, and it is based on unjustified jealousy.”

I am unaware if there have been subsequent cases of criminal activity in tribal casinos; there may well have been some.   But I do know that between 2003 and 2005, according to papers filed in federal court in March, 2015, the Internal Revenue Service has conducted four examinations of Trump Taj Mahal that identified repeated significant violations” of the Bank Secrecy Act, and that in 1998, the Financial Crimes Enforcement Network “assessed a $477,000 penalty against Trump Taj Mahal for BSA violations.” The recent document concluded that between 2010 and 2012, the Trump Taj Mahal violated numerous recordkeeping and reporting acts, including requirements to report more than $10,000 cashed in or out on one day (shades of Denny Hastert!) and “failed to implement and maintain an effective anti-money laundering program.” The Taj also filed for bankruptcy three times since 2004.

Wow, that sounds like that “big scandal” Trump was warning the Subcommittee about! If the violations had focused on Indians instead of Trump’s organization itself, he would have been right on the money back in 1993. The proposed fine for all this hanky-panky was determined to be $10,000,000 by the Director of the Treasury’s Financial Crimes Enforcement Network.

The six-hour hearing ended with Members and participants incredulous at Trump’s willingness to use a formal government inquiry as a forum to spew his unsubstantiated and prejudiced opinions. “In my 19 years” in Congress, said Rep. George Miller, the committee chairman, “I don’t know that I’ve heard more irresponsible testimony. For his part, Trump professed only that he was not afraid to compete with Indians, but given tribal sovereignty and tax treatment, he wanted “to compete on an equal foot.” His first step should have been to remove his foot from his mouth. Or, considering his current ravings, just leave it there.

The New Deal

Sherlock Holmes, that nearly flawless source of dispassionate logic and reason, provided the proper perspective for consideration of the newly announced deal between Iran and the P5+1 powers that was announced today in Vienna. “When you have eliminated the impossible,” the world’s first consulting detective informed us in 1890, “whatever remains, however improbable, must be the truth.”

Similarly, in the case of the newborn agreement, when you have pushed your way past all the rhetoric and jabbering from critics, analysts and so-called experts, the question remains: how does no deal reduce the risk of Iran’s developing a nuclear weapon, and if it does not, how does no deal promote the prospects for a reduction in the rush to nuclearization of the Middle East?

One response was provided today by Naftali Bennett, the Israeli Minister of Education, who argues that sanctions have been effective and should be continued, not lifted as the agreement would allow. Perhaps the question is what Mr. Bennett views as “effective.” The sanctions have unquestionably imposed economic hardship on the people of Iran and political pressure on Tehran’s government, but they do not appear to have been hugely successful in slowing or discouraging weapons research. Bennett and other opponents of the agreement will need a much stronger argument to explain how allowing Iran’s nuclear program to continue will enhance the prospects of peace.

The most important step for addressing suspicions about the effectiveness and soundness of the new deal will lie in a thorough examination of its provisions. That task is something I will not be doing; I am reasonably confident I could read every word of the 150 page document and still not reliably understand its details. That is one reason I am so impressed that people like Speaker John Boehner, Foreign Relations chairman Ed Royce, and Sen. Lindsay Graham already are so certain the deal is a dog that should be rejected. Of course, that was their opinion before it was finalized as well.

Those details and nuances will be hashed out over the next two months in hearings and floor debates, not to mention op eds, editorials, analyses and stump speeches The real question is: what is going to happen, and on that point, I am prepared to make a prediction.

Congress will not block the deal. Oh, there will be the huffing and puffing that is the ritualistic response to such complex agreements Congress is called upon to review and approve, although they had nothing to do with negotiating (see earlier blog on Trade Promotion Authority). And while some in the Obama Administration (and in any Administration) bristle at the suggestion Congress should review the products of Executive negotiations, we have learned the hard way not to allow presidents to determine foreign and military policy by fiat. Congress fought hard for a role in reviewing that policy and should not abandon it.

But when all is said and done, Congress is not likely to kill the deal, however excruciatingly tempting that is for the Republican irreconcilables.   Certainly, one can go to the bank that the GOP presidential candidates will all vote against the agreement: Cruz, Graham, Rubio and Paul are all nearly certain no’s. It would simply be too painful for them to go to the GOP base after voting to hand President Obama a massive foreign policy victory. But other Republicans in the House and Senate will have to consider the massive culpability that they will bring upon themselves by a “no” vote (although I admit many will happily do so).

If ever there was a Pottery Barn moment, this is it: the one thing you can be certain about is that something will go wrong in the Middle East over the next ten years. Defeat this agreement and you own responsibility for whatever calamity befalls the region, whether is it credibly related to Iran’s nuclear policy or not: “But for the defeat of the Iran agreement in 2015, the tragedy would not have occurred.” Republicans really do not want to have to dig themselves out of that crater for years, if not decades, to come.

One cannot help think about the parallels to the League of Nations fight a hundred years ago when that “little group of willful [Republican] men” in the Senate defeated the agreement negotiated by an outgoing American president. (Wilson’s famous quote was actually made two years earlier with respect to a proposal to arm U.S. merchant ships, but many of the same people helped sink the League agreement.) Rightly or not, for nearly a century, historians have pointed to the Senate action as crippling the League to the point of ineffectuality in preventing German rearmament and its horrific consequences.

Congress now has two months to chew over how to trash the negotiator without rejecting his work product.   I would be truly shocked if Vice President Joe Biden does not take up residence in his Senate side office to work his magic with his former colleagues, as he has so often done on behalf of the Obama Administration. If there is a tough vote required, Biden invariably shows up with his “Aw shuck, guys, I know how tough this is; been here for 34 years; I get it even if those guys down in the White House don’t” shtick. Both he and Secretary of State John Kerry served as chairmen of the Senate Foreign Relations Committee and will be the most powerful and well-connected Administration voices for making the case to House and Senate members.

It is possible, of course, that the House will actually pass a resolution disapproving the agreement, and given its loony record of inaction and mis-steps, as well as Boehner’s total rejection of the deal today, it just might. But there is no chance the Senate will vote against it, and even if it did, the President has already pledged to “veto any legislation that prevents the successful implementation of this deal.” It goes without saying that implementing the agreement through a veto of congressional legislation is not the desired path, and would not send a signal of credibility to our co-signatories, but it is a vastly more likely outcome than the success of any congressional action that kills the agreement. More likely is that no bill makes it to the President’s desk at all.

Opponents have an enormous challenge to overcome. They will not hesitate to argue that Obama is a bumbling yokel who got buffaloed by the Iranians, although it is a lot tougher to argue that case against the real negotiators, Under-secretary of State Wendy Sherman and Kerry. Critics also need to explain how the British, French, Chinese, Russians and Germans got buffaloed, since they shared the negotiating obligations.

A special challenge is presented by U.S. allies who oppose the deal, especially Saudi Arabia and Israel. The Saudis have complex issues at stake, of course, and already are feeling the impact of lower oil prices as a result of the anticipated deal. To suggest the Saudis have some powerful economic self-interest in maintaining the Iranian sanctions seems pretty self-evident.

The Israelis are a different matter, and as the statements from Prime Minister Netanyahu and Bennett have illustrated, they will expend significant energy trying to inflame the Congress and the American Jewish community to rally against the deal. This strategy has real dangers for Israel in terms of diminishing its brand in the U.S., and with many American Jews as well (although portions of the U.S. community help inflame extreme opinions in Israel).  For all the harsh rhetoric and saber-rattling, Israel – the one country in the region that does have nuclear weapons – has failed to present a credible alternative to an enforceable deal other than a military strike at Iran that would be an ineffective disaster on political, strategic and humanitarian grounds. So the blowhards in Jerusalem, like the blowhards in the Congress, will continue to fire off rhetorical missiles against this treaty, but they are only blanks because the alternative – no treaty and continued Iranian weapon development – is untenable for Israel and the world.

As the debate proceeds, we needs to look past the speechifying and posturing and at the bottom line: the chances for this deal being rejected is virtually zero. I wouldn’t necessarily suggest Obama or Kerry pencil in the date for the next Nobel Peace Prize ceremony, but they certainly deserve credit for a major advance that like all negotiations, legislation and agreements, requires clear-eyed vigilance and constant oversight.

Let us keep in mind the words of that other Ivy League, professorial president who confronted a recalcitrant Congress a century ago. “Unless you get the united, concerted purpose and power of the great Governments of the world behind this settlement,” Wilson said in September, 1919, “it will fall down like a house of cards.  There is only one power to put behind the liberation of mankind, and that is the power of mankind.  It is the power of the united moral forces of the world.” Let’s hope this time, the Congress looks beyond the pure politics and venomous dislike of the President and embraces this crucial step towards world peace.

Capital Time for a House Cleaning

Every year on the anniversary of the birth of Confederate Gen. Robert E. Lee, a ceremony was held at his statue in the Capitol’s Statuary Hall. Incantations were uttered to the great general’s glory, and flowers were laid before the marble effigy, recalling his role in our Nation’s history. A few years ago, it was noticed that Lee’s statue was situated so as to peer over the shoulder of anyone speaking at a podium often set up in the Hall for ceremonial occasions. The next day, one of the speakers was to be Martin Luther King III.

A phone call was placed from Speaker Nancy Pelosi’s office and Lee’s statue was relocated from its prestigious place in the Old House Chamber to a site with a lower profile (both figuratively and architecturally) within the Capitol. Whether the annual tributes continue to honor the man who led Confederate forces in rebellion against the flag he was sworn to defend, I am not sure.

The issue of the statues within the Capitol is an inevitable corollary to the current debate about the inappropriateness of flying the flag of the Confederacy over public buildings in the South. Statues in the Capitol, in general, are donated by state legislatures; each state gets two statues to represent the state’s history or the contributions of a favorite son or daughter. The statues range from pre-Independence Native Americans to modern political figures. Some states have chosen to replace dated figures with more recent natives: Presidents Ford and Reagan, Helen Keller and Apollo XIII astronaut Jack Swigert (who was elected to the House but died before being sworn in) have all been newer additions.

Occasionally Congress will decide that an individual deserves to be in the Capitol regardless of a state’s preferences. Martin Luther King, Jr., for example, is represented in the Rotunda, a site usually reserved for presidents; Frederick Douglass is in the Visitor’s Center representing the District of Columbia, which had been denied the statuary privileges granted to the states; Rosa Parks, a former congressional staff member in addition to her historic role in the civil rights movement, was recently added.

From time to time, like Lee, statues are moved in response to changing attitudes and preferences. A marble statue of suffrage leaders Elizabeth Cady Stanton, Susan B. Anthony and Lucretia Mott, long banished to the netherworld of the Capitol’s vault, was moved up to the Rotunda in May 1997 in response to a resolution pushed by women Members.

The decision of where in the Capitol it is appropriate to honor the sculpted images of the men and women of our past is therefore open to discussion. Specifically, it is time to remove the two highest ranking officials of the Confederacy from Statuary Hall.

Confederate President Jefferson Davis’ statue was donated by his home state of Mississippi in 1931. Granted, Davis served as a senator (twice), as well as serving as Secretary of War, and he voiced concerns about secession, as did Lee and many others who went on to mount a 4 year rebellion against the country they had taken an oath to defend. But Davis, like many southerners of that era, was not apologetic about the issue of slavery, or the appropriate role for African-Americans to play in our society. “African slavery, as it exists in the United States,” Davis famously opined, “is a moral, a social, and a political blessing. You cannot transform the negro into anything one-tenth as useful or as good as what slavery enables them to be.”

OK, right there, get out the dolly: that statue has to go. I’m an historian; I understand that attitudes and perspectives change, that we should not base our contemporary attitudes on the mistakes of the past, no matter how deplorable (although it is worth noting that at the time, there were plenty of Americans who were engaged in vigorous activities to end the “peculiar institution,” as slavery was euphemistically described). But just because we understand the errors of the past does not mean we have to honor them, and leaving the statue of a treasonous and racist leader of a rebellion in an honored place in the U.S. Capitol is an insult that should be corrected.

Davis famously requested that the South be allowed to secede without a war, pleading, “All we ask is to be let alone.” I suggest we honor his request and leave him alone somewhere other than in one of the most honored of sites in the Capitol.

While we have the dolly in Stat Hall, it should also pick up Confederate Vice President Alexander Stephens’ statue for relocation. Stephen’s seated statue was presented by his home state of Georgia in 1927. Like Davis, Stephens served in the Congress, and he also was the post-war governor of Georgia. Like Davis and Lee, Stephens had reservations about the wisdom of secession and he even had defended black clients as an attorney.

But Stephens’ legacy is irretrievably damaged by his vigorous defense of slavery. His most famous address, known as the “Cornerstone Speech,” helped to define the entire rationale for the Confederacy not simply as an assertion of states’ rights, but the right to sustain the institution of slavery. The Confederate government was “founded…its cornerstone rest[ed],” Stephens declared a few weeks before the war erupted at Fort Sumter in 1861, “upon the great truth that the negro is not equal to the white man …[S]lavery, subordination to the superior race, is his natural and normal condition … This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.” The fight over slavery, Stephens asserted, “was the immediate cause of the late rupture and present revolution.”

Key word: “revolution.” We should not grant a place of honor to men who fomented, supported, rationalized and conducted “revolution” against the government they had sworn to defend. Americans who are understandably insulted by the views of such bigots should not be asked to acquiesce so that the statues of those who committed treason can continue to reside in the Capitol.

So far, the momentum to remove the Confederate flag from official buildings in the South does not appear to have made it to the halls of the Capitol, where these marble and bronze vestiges of the Confederacy remain ensconced in places of honor. Although Senate Majority Leader Mitch McConnell has called for his home state legislature to remove Davis’ statue from the state Capitol grounds, he has not yet offered up an opinion about the appropriateness of the statue down the Hall from his Capitol office. And senators like Lindsay Graham, Thad Cochran, Jeff Sessions and Tim Scott have all indicated they are not interested in moving, or removing the statues of the secessionists. It’s as though their feet are planted in stone.

Raisin Redux

Nearly two years ago, in one of the earlier blogs on this site, I focused attention on Marvin Horn, a California raisin farmer who had insisted on his God-given (and legally protected) right to grow grapes for raisins in unlimited quantities.

Horn had run afoul of Marketing Order 989 which gave the autocrats of the shriveled grape industry, aka the Raisin Administrative Committee, the extraordinary power to restrict how he could sell his own crop. (“The Raisin Mavens,” Aug. 21, 2013)  Horn, like Carl Pescosolido, an independent orange grower on whose behalf I had worked in Congress decades ago, was fighting back against a 1937 federal law that allows growers of certain agricultural commodities to order growers to limit sales in order to keep prices high (or, laughably, to protect consumers from unwholesome fruit).

In my blog, I noted, “So, over 30 years later, here is Marvin Horn and the raisin revolt.  According to the reports on NPR, the raisin politburo is not taking Marvin’s protest lying down; they’ve gone to war with him, hiring detectives to spy on his activities, and hauled him into federal court.”

Well, they may have hauled Horn into court for defying the raisin bran, uh, ban, but it was all in vine, I mean, in vain. In a remarkably clear and unambiguous decision, the Supreme Court of the United States ruled 8-1 that the flow-to-market restrictions exercised by the raisin regulators is an unconstitutional taking of private property. Chief Justice John Roberts, writing the majority decision, declared that the government must pay “just compensation” when it sanctions the seizure of private property, even if it is little shriveled-up fruit. (He didn’t exactly put it that way, but that was the general thrust of the decision.)

Many of those doing a happy dance over this ruling are conservatives who cheer the limitations imposed on government’s ability to take private property. But it should be remembered that the orange litigation three decades ago was promoted by progressive consumer activists including San Francisco’s Public Advocates. As a result of the battle of the oranges (which included serving the alleged “inferior quality” fruit in the House Members’ Dining Room), the quantity portions of the orange ban were terminated. Now, raisins must live in the free market world as well, unprotected by federal laws that are, in other cases, so roundly condemned by the agriculture industry. However, our nation’s farms are still not free: quantity restrictions still might apply on several remaining products including prunes, dates, and almonds from California (the latter slurping up a gallon of precious water for every nut), as well as tart cherries, walnuts and spearmint oil. We will watch carefully to see if Congress or USDA acts to end these market restrictions based on the Horn case.

Meanwhile, there was one other important feature of the Horn decision. Justice Clarence Thomas, who voted with the majority, took exception to a suggestion by his Brethren, Stephen Breyer, who called for a lower court to review whether money might have been owed to Horn. Thomas, not known for his witty sayings, or any sayings, for that matter, opined that sending the case back to a trial court would be a “fruitless exercise.” Hopefully, when the Court issues its upcoming opinions on marriage equality and the Affordable Care Act, we will all still be inclined to smile.

Trading Insults

There have been no shortages of forced comparisons of Barack Obama to presidents of the past – Lincoln and Kennedy, in particular – but the parallel which has always struck me has been to the Democrat who served in the White House exactly one century ago: Woodrow Wilson.

Like Obama, our 28th President had moved to his new “home state” as an adult, and came to the White House with a slim political resumé (Wilson had served less than two years as governor of New Jersey, his adopted state, before his 1912 election). Like Obama, Wilson conceived of himself, in the words of biographer John Morton Blum, as “an outside force in politics.” The two men share a skeptical attitude towards the Legislative Branch, which is all the more remarkable in Wilson’s case since his Ph.D. dissertation promoted Congressional Government, a concept he hastily abandoned once ensconced in the executive’s chair.

Both men were elected on the promise of peace and found themselves involved in a radically altering international tableau that dragged the country into a war they had opposed entering. Both shared careers as university-based intellectuals and endured criticisms for arrogance and detachment from the messiness of hand-on politics. Wilson, as Blum noted, strongly identified himself with “change, with challenging entrenched corporate interests who sought to dominate the political system, ” and with modernizing the Democratic Party. And like the current occupant of the White House, Wilson viewed America as having “a special moral as well as historical basis … a predestined obligation to bring constitutionalism to the world.”

Wilson famously (and contemptuously) castigated the Senate as a “little band of willful men” after a filibuster against his effort to arm merchant ships on the eve of America’s entry into World War I. That “little band” also scuttled Wilson’s high priority second term initiative, the League of Nations treaty following World War I. We can only imagine Obama’s subliminal assessment of a hostile Congress perennially determined to undo his major legislative achievements and resist his remaining policy goals.

Which brings us to the subject of Friday’s vote in the House on several trade bills that Obama has characterized as crucial to America’s international security and economic competitiveness, as well as his own legacy. There are interesting parallels between the vote on Trade Adjustment Assistance and Trade Promotion Authority last week with the 2008 effort to pass the Troubled Asset Relief Program (TARP) under President George W. Bush. In both cases, a President in the waning months of his presidency had to deal with a Congress in the hands of the other party, and encountered difficulties rallying his own party’s membership to support legislation he considered urgent. In the case of TARP, then-Minority Leader John Boehner, who had been an active participant in the development of the legislation to prevent the collapse of our economic system, faced a petulant, pre-Tea Party Republican Conference that had little taste for legislation promoted by their own President. Despite his pleas (and tears) on the floor on behalf of a bill he famously castigated as a necessary “crap sandwich,” Boehner was unable to produce the Republican votes needed to pass TARP, which failed on its first vote and then passed (after the Dow Jones average dropped 777 points) because the Democratic majority, under Speaker Pelosi, cranked up the necessary additional votes.

But there are a number of important differences between the TARP and TAA/TPA votes. Unlike TARP or the Bush stimulus, the Obama Administration has been negotiating the trade agreement without congressional involvement. The President has been calling upon House Democrats to sanction a complex plan, as yet not even completed, which they had had no role in designing and would have no ability to modify. Moreover, while key Republican constituencies – particularly the business community – strongly endorsed TARP as essential to the nation’s economic security, key Democratic constituencies vigorously oppose the current trade agreement. The AFL-CIO, the longtime supporter of TAA, which provides assistance to trade-displaced workers, was vigorous in its opposition to the extension of the program, which would have facilitated passage of the despised TPA bill.

Unable to persuade more than a couple dozen pro-trade Democrats to support the TPA, despite weeks of staff and personal exertions, Obama made a dubious visit to the Hill on Friday to call upon the members of the Democratic Caucus to reverse position and support the bills. His decision to cast the vote as one of support for him personally, and his unwillingness to take questions after his talk, compounded a sense by many Democrats that Obama was overly personalizing the vote and not responding to concerns about the merits of the issues at hand. The voluble Peter DeFazio pronounced himself “insulted” by the President’s tone, and it seems likely others found the lateness of the personalized message off-putting. Nor, it is likely, that those unhappy with the trade policy, many of whom feel Obama has neglected House Democrats in past campaigns, find much succor in the President’s promise to help them respond to criticism in next year’s election.

There will be, in years to come, a healthy amount written about the nature and effectiveness of Mr. Obama’s rapport with the Congress. Many who have served in the Administration are rankled by the allegations of aloofness or unwillingness to engage as exuberantly as past presidents supposedly have with legislators. If only Obama had invited more Members down for a beer or a movie; if only he had the Boehners over for dinner in the private quarters; if only he had held more frequent leadership meetings or adopted a more consultative relationship with key chairmen and ranking Members.

Maybe, but probably not. Obama is hardly the first President to be accused of a less than cuddly relationship with Congress. But frostiness or not, Democrats have generally loyally supported Obama initiatives about which many were half-hearted (the 2011 budget agreement) and Republican opposition to President Obama has little or nothing to do with the level of White House fraternizing. Many Republicans have gone to social events at the White House, eagerly sought autographs and photographs with the President, and then continued to excoriate him and his policies without surcease. And high-ranking White House aides certainly have been meeting with Democratic leaders and key committee members in recent weeks.

What cannot be doubted, however, is that many Members of both sides feel inadequately consulted by the President, and any White House needs to deal with perceptions as well as realities. There was no hesitation by Democrats, even highly vulnerable ones, when they were called upon by the President and Speaker Pelosi to cast votes on legislation they deeply cared about and had extensive hands in writing such as the 2009 stimulus and the Affordable Care Act. Many knew their votes could jeopardize the extended political careers they had assiduously planned, and many suffered defeat in large part because of those votes (which, incidentally, very few have said they regretted). Of course, that was all in the early glow of the Obama era, and perhaps Members thought the schmoozing and White House ice cream socials would come later.

But there was a different attitude towards the trade bills, not because Mr. Obama is in the 7th year of his presidency or even because he allegedly does not socialize enough with legislators. Democrats did not run embracing free trade agreements that would offend key constituencies, but they did run promising jobs, economic recovery and health care. When those bills came to the floor, they supported them, largely regardless of political consequences.

Moreover, the trade agreements run counter to the longstanding trend of Congress, since the mid-1970s, to look skeptically on presidential initiatives that involve legislative deference to the Executive Branch, even in the area of international affairs. When you mix the periodic need for an re-assertion of congressional equity with a politically unpopular trade policy, as well as an absence of involvement in the development of the policy itself, one can hardly be surprised at the lack of enthusiasm. No clinking of beer steins at the White House was going to impact that decision.

Much has been written about the role of Democratic Leader Nancy Pelosi, who had declined to commit herself on the trade bills over the past several months. Doubtless, she instructed the White House to do what she always tells people seeking her assistance: go get the votes. She can help tweak a tight outcome, but she cannot move mountainous opposition. In the end, the President was unable to persuade Members with either substantive or personal entreaties. No one should have been surprised that Leader Pelosi stuck with the vast majority of her Members and voted “no.” Her vote was not a repudiation of the President, but an act of solidarity with the Caucus that elects her.

Suggestions that Pelosi somehow failed to deliver the votes as she did in the case of TARP or ACA miss the point: those were bills Democrats had fashioned and were invested in seeing enacted. Pelosi spared no effort to ensure passage of such Democratic priorities, and proved herself willing to take unremitting abuse from Republicans, the press and even some of her own obdurate Members to achieve her (and the President’s) goals. But Democrats have no such allegiance to enactment of trade legislation, and absent a more compelling case from the White House or a better vote count, Pelosi had little reason to urge Members to act against their deep-seated beliefs and political self-interest.

Some assert that it was cynical of Democrats, who have long supported the trade assistance program, to vote it down because they knew its passage would ease the way for the TPA, which they opposed. But their opposition was surely no more cynical than was the strategy to link the two votes in the first place, which was designed to make it all that much more difficult for Democrats to oppose TPA. What the White House and House Republicans missed was the willingness of TAA’s perennial supporters both on and off the floor to allow the program to disintegrate rather than extend it in order to ease passage of the hated trade authority bill. It may be difficult to explain the complex floor maneuvers that sunk TAA and TPA on Friday, but whatever it was, it was certainly not the “procedural snafu” described by Obama press secretary Josh Earnest.

However, my guess is that, like Mark Twain’s passing, the death of TPA is greatly exaggerated. Speaker Boehner moved to reconsider the TAA vote and has announced a revote as early as next week. TPA proponents also have the option, although it may be a thin one, to figure a way to move the House-passed clean TPA bill through the Senate, perhaps by offering senators a separate TAA vote that is not linked to TPA. Creative parliamentary minds are surely at work here; it is difficult to see the underlying bill, having been approved by both houses, wither and die because no one could figure out how to structure a rule or floor procedure to achieve the desired outcome. That is how health care ultimately became law: smart strategists figured out how to end-run the implacable opponents.

Even Pelosi hinted on Friday that a defeat of TAA could set in motion forces that might yield a better trade bill down the road, which does not sound like the funeral oration over a moribund bill. Whether an enactable trade bill can be salvaged from the wreckage remains to be seen. But if it is to enjoy greater Democratic support in an era of concern about grotesque wealth disparity, the trade bill will have to reflect not only the interests of the business community, but a greater resemblance to the same goals embodied by Woodrow Wilson’s New Nationalism a century ago, a national policy that “promote[s] the welfare of those groups which ha[ve] not as yet shared adequately in the richness of national life.”

Shortsighted Strategies Promote Polarization

Memo to the House Republican Conference: Summer begins on June 21. Tens of millions of Americans (AKA your constituents) are planning their vacations in the national parks, forests, wilderness areas and monuments. Endangering the ability for Americans to enjoy the natural resources they own is not a clever summer message. And yet, here are, barely past Memorial Day, and the Republican majority is threatening to end funding for the public lands, and maybe deauthorize a few parks as well.

Several years ago, when Republicans actually did shut down the government for a few days, the Number One public protest centered on the inaccessibility of national parks, monuments, etc. The nasty reaction didn’t just come from tourists who discovered the Washington Monument and the Smithsonian were closed: the howls of anger emanated from all across America, yes, even from those conservative bastions whose senators and representatives perorate endlessly about the federal government “stealing” their states’ lands and undermining the tax base. Turns out people in Utah, Arizona, Alaska and Idaho also like to hike, hunt, camp, and park at look-out points.

My experience (as staff director of the House Natural Resources Committee) was that much of the anti-park sentiment voiced by conservatives wasn’t exactly on the level. The rhetoric was terrific – “the war on the West” and all that – and some ideological zealots like Interior Secretary James Watt (who didn’t have to answer to any constituents) might have actually believed it. But Members know that protected public lands promote economic activity and jobs for their constituents. True, when public lands protections conflicted with natural resource development by mining companies, foresters or energy development, there was a genuine battle between preservation and exploitation. But often, conservatives were voicing a reflexive hostility to protection in the name of the detested federal government.

Proposals to “return” federal lands to the states meet with cool reactions from states that are not seeking the management responsibilities and significant costs. I recall when one powerful Western congressman denounced the alleged damage to his district by a parks designation, Democrats offered to deauthorize the park. Of course, we protested that so many hotels, gas stations and restaurants had been developed in proximity to the park that the local economy would be undermined by deauthorization.

The House GOP seems inclined to tamper with the funding pipeline that provides essential money for acquisition and maintenance for hundreds of parks, monuments, wilderness areas, and other public lands, and they run the risk of a furious public reaction for their actions. That funding source is the Land and Water Conservation Fund (LWCF), created half a century ago and funded by (of all things) revenues from outer continental shelf (OCS) oil and gas development. LCWF also provides assistance to states to manage their public lands. But LWCF is due to expire in September, and disagreements within the GOP threaten to push the parks off the proverbial cliff.

There is nothing particularly new about the disagreement over LWCF’s mission, but we will have to wait to see if reason will prevail and save the national parks. At the same time, Congress will have to figure out whether to fund the repair of crumbling bridges and highways, or allow the Highway Trust Fund to wither away as well. Should be an interesting summer as the Republican majority wrestles with the messy business of governing.

But to be fair, conservatives are not the only ones behaving irrationally these days, and a leading candidate for shortsighted strategists of the year must fall to leading environmental organizations (yes, the same people who are looking to their friends in Congress for help in … funding the Land and Water Conservation Fund).   How better to bump up your standing with your allies in Congress – a select group in the case of the environmental community – than by trashing one of the leading environmentalists because he has a difference of opinion with Big Green.

Earl Blumenauer of Oregon is a 19 year veteran of the House, a conservationist so earnest and unimpeachable that he wears a fluorescent plastic bicycle in his lapel instead of the ubiquitous American flag. Blumenauer has been a staunch proponent for increased bicycle usage (he rides one to work) and used his position on the Transportation and Infrastructure Committee to promote inclusion of peddle power in the nation’s transportation plans.

Now, as a member of the Ways and Means Trade Subcommittee, Blumenauer has indicated he might support President Obama’s Pacific trade initiatives, a position endorsed by Oregon’s senior senator (Finance Committee ranking member Ron Wyden) and probably a good number of Blumenauer’s constituents who work in technology-related fields that support expanded trade.

Leaving aside the relative merits of TPP and TPA, on which reasonable people can evidently differ, you might think that Blumenauer has the right to take a position on such a policy without suddenly becoming the Judas-Brutus-Benedict Arnold poster child for political betrayal. But you would be wrong.

Leading environmental organizations, including Friends of the Earth and Greenpeace, have decided that an outstanding use of their time and resources would be to launch a searing attack on Congressman Blumenauer. They do not dispute his 95 percent approval lifetime from the League of Conservation Voters. “Representative Blumenauer has been an important champion on climate change and the environment,” admits Friends of the Earth President Erich Pica. But… “we can’t have ‘environmental champions’ supporting a bad trade deal.”

‘Environmental champions,’ in quotes? Really? Does Blumenauer’s apostasy genuinely raise questions about his environmental credentials? Over the past 19 years?

Well, according to a TV ad the environmentalists are running (in Blumenauer’s district, for maximum damage), the trade deal would “devastate our environment and contribute to climate change.”

Now, it is perfectly legitimate to question the shortcomings of the trade agreements’ environmental provisions; past efforts have been largely ineffectual. And one can certainly cite many reasons, from labor impacts to the ceding of congressional authority to placing U.S. law at risk of international court rulings, for opposing this trade plan. But launching an assault on Blumenauer illustrates one of the major reasons that the environmental community has lost so much of its punch on Capitol Hill in recent years.

When the environmental community was young and lean and battling polluters, energy companies, developers and the like, it matched its assertiveness with grassroots political skills and savvy legislative strategizing. Groups like the Sierra Club and Clean Water Action exerted real influence over the Congress not because of the moral righteousness of their cause (righteous though it may be) but because they went into congressional districts and organized, registered voters, targeted real enemies, and made politicians weigh the consequences of voting against sound environmental policy.

But along the way, a lot of these groups became less membership oriented and more Washington-centric. They lost their ability to influence because they lost their ability to mobilize. They sought to influence through pronouncement instead of through organization. They fell under the domination of well-heeled advocates who funded organizations to promote pie-eyed but unrealistic vanity policies while picking unnecessary turf fights with like-minded organizations.

Running expensive hit pieces is no substitute for the grunt work of sustained political organizing. And the reaction it will generate, from many in Congress, is likely to be anger that a loyal friend and dependable ally is treated so shabbily because he dared to disagree on one issue. Alienating key friends is not a smart lobbying strategy.

Of course, there are many green groups that do terrific work and I certainly do not mean to paint everyone with the same brush. But the thuggish attack on Earl Blumenauer illustrates not only the misdirection of environmental energies, but also reminds us that culpability for political intractability (and therefore, the polarization that supposedly everyone decries) is not the exclusive purview of the Tea Party and other right wing dogmatists.

Coincidentally, it was the Pew Research Center that, in a major study last year, illustrated the depth and seriousness of the partisan divide (Pew also runs some of the most respected environmental efforts in the country these days).

The intolerance for divergent views illustrated by the assault on Rep. Blumenauer demonstrates why unraveling the partisanship skein will prove so challenging. As Pew pointed out, “Today 92% of Republicans are to the right of the median Democrat, and 94% of Democrats are to the left of the median Republican.” With special interests (including the unregulated fat wallets) on both sides attempting to eviscerate anyone who does not demonstrate absolute fealty to their views, it is no wonder that so few legislators are prepared to venture into the political killing zone of pragmatic compromise.

The Passing of a “Public Man”

Former House Speaker Jim Wright of Texas, who died on Wednesday, described himself in the title of the autobiography that sealed his downfall as “a public man.” As one who served in both state and federal government for more than 30 years, he surely was one. But he was also a man of contradictions and surprises whose rise to leadership in the House was a singularly discordant act amid the reform fervor of the 1970s.

Most of the obituaries focused on Wright’s assertiveness in foreign policy, particular his willingness to act largely independent of the pro-war Reagan Administration to negotiate with combatants in Nicaragua during the late 1980s. Some in Congress lacerated him for usurping the presidential role – even suggesting that he violated the 1790s Logan Act which bars private citizens from negotiating with foreign governments.

Wright’s aggressiveness embodied an important era in which Congress, reacting to the Imperial Presidencies of Lyndon Johnson and Richard Nixon, sought to reestablish itself as what the Founders envisioned, a co-equal branch of government. The 1973 War Powers Resolution and the Budget Control and Impoundment Act of 1974 reflected a determination by young, reformist legislators to challenge automatic deference to the White House, regardless of party. The same sentiment was later espoused by Newt Gingrich who asserted, “ One of my goals is to make the House the co-equal of the White House.” The outgrowth of that bipartisan objective over the past 40 years can be witnessed in the current debate over trade and Iran.

Wright was not a product of the reform movement that swept the House in the 1970s. Indeed, as the number of young, progressive, reformist Democrats steadily rose after the 1958 election, Wright was a largely absent figure. He seemed almost out of touch with his times. In an era of expanding attention to equal rights, he voted against the 1964 Civil Rights bill (though he had supported anti-lynching legislation during his brief career in the Texas Legislature). As the country reeled from the Arab oil embargo and energy reform emerged as a powerful issue, Wright remained a loyal defender of his home state’s industry. As the Congress increasingly became critical of the war in Vietnam, Wright sponsored a resolution in 1969 endorsing Nixon’s escalation. During the great fights to challenge the power of the Conservative Coalition of Southern Democrats and Republicans, Wright played no significant role, preferring to dole out pork barrel favors to helpful Members from his senior position on the Public Works Committee.

It was one of the great anomalous moments of the post-Watergate era when Wright, who held only a minor assistant Whip position, won the 1976 race to become Majority Leader, a position vacated by Tip O’Neill as he ascended to the speakership. Wright was not even supposed to be a factor in that election, let alone the winner. The main combatants were the decade’s two leading spokesmen for House reform: Phillip Burton of California and Richard Bolling of Missouri, and they detested each other.

Burton was the tactical genius, the Machiavellian, three-dimensional chess player who could rewrite Caucus rules, devise an amendment strategy, and redesign congressional district lines from his darkened Longworth building lair, a tumbler full of vodka firmly in hand at 5 pm. Burton relished placing expanded autonomy in the hands of younger subcommittees who could defy autocratic chairmen. He had no problem cutting deals with conservatives in pursuit of a larger good, although his willingness to do so raised suspicions among some young liberals. Burton envisioned the Democratic Caucus, which he conveniently chaired, as the legislative and strategic center of the House.

Bolling was a severe, cerebral reformer, author of manifestos of reform like House Out of Order (1965) that advocated a strengthening of the role of leadership and a tighter control by the Rules Committee, on which he conveniently served. If Burton was gratuitously insulting and confrontational, Bolling was universally perceived as arrogant and insufferable. In 1975, he asked Rep. Dave Obey (WI), a supporter, “If I ran for Majority Leader,” which everyone knew he would, “what’s first thing I should do?” Obey replied, “Stop being such a prick,” to which Bolling replied, “I think you are absolutely right.”

Burton and Bolling squared off against Wright, a late entrant (and Whip John McFall who had no chance whatsoever). In a series of votes that remain the subject of debate, accusation, counter-accusation and speculation to this day, McFall and then Bolling were eliminated, and Wright defeated Burton by a single vote on the third ballot. Who cast the decisive vote, who threw votes to whom, whose vote was deemed invalid, who double-crossed whom will be debated as long as there are congressional historians to write the story. Not even all the participants were sure what had happened. One report recalls Dan Rostenkowski, a Wright nominator, expressing amazement at the outcome to Burton and then bursting into tears.

The details of that crucial election were little discussed in Wright’s obituaries, but his victory had profound ramifications for the House. He served as Majority Leader for a decade under O’Neill, during which the New Republic called him the “last of the old-time Democrats.” But to the surprise of many, he largely shed his earlier reputation as a slick, smooth-talking Texan, emerging as a staunch defender of the House’s prerogatives. When he advanced to the Speakership in 1987, he made clear he was not interested in extending the bonhomie that sometimes characterized O’Neill’s relationship with Ronald Reagan. Instead, he acted and sounded like the toughest of the 1970s reformers, challenging the right of a president to again maneuver the nation secretly into a war, and he earned the liberals’ praise. George Miller (CA), one of Burton’s strongest allies, observed that by standing up for his Members, Wright ‘s “risk taking has given the House back some of its pride.”

Wright was also prepared to assert himself within the House itself. As a new generation of aggressive Republicans, their eyes on a future House majority, used the liberal floor rules to offer amendments that exposed vulnerable Democrats to district criticism, Wright began “tightening the screws,” according to his biographer, shutting off many of the legislative opportunities granted Members in the 1970s reforms. Wright’s action reduced the number of politically damaging votes, but gave credence to the Republican charges of autocratic Democratic rule that could only be remedied by ending their nearly 40 year control of the House. To this day, while most Democrats point to Gingrich’s hyperbolic tactics as the source of contemporary hyper-partisanship, many Republicans believe, as one senior GOP Member recently told me, that it was Wright who “really poisoned the well.”

When Wright was brought down in 1989 amid multiple charges of wrongdoing and vicious assault from Newt Gingrich and other Republicans, he gave a poignant farewell speech to the House. Yielding his gavel and his seat, he pleaded for a reduction in the partisanship and bitterness that had crept into House deliberations and interpersonal relations.

“It is grievously hurtful to our society when vilification becomes an accepted form of political debate and negative campaigning becomes a full-time occupation,” Wright said a quarter century ago, before the Koch brothers and Citizens United and screeching cable TV and talk radio obliterated most civil discourse. “In God’s name, that’s not what this institution is supposed to be all about. When vengeance becomes more desirable than vindication and harsh personal attacks upon one another’s motives and one another’s character drown out the quiet logic of serious debate on important issues … that’s unworthy of our institution and unworthy of our American political process. All of us in both political parties must resolve to bring this period of mindless cannibalism to an end!! We’ve done enough of it!”

One can only marvel that, less than a decade later, when Newt Gingrich – facing serious ethics charges of his own – announced his resignation as the first Republican speaker in 40 years, he similarly referenced his distaste for the “cannibals” who preferred defeat, in pursuit of unattainable victory, to compromise.

Wright remains a controversial, contradictory, complex figure in the history of the House, but his role in seeking to regain a co-equal place for the Congress in the crucial decisions of war and peace earn him our respect and admiration. He made mistakes, he admitted, as do we all; but he served his Congress and his nation with distinction.

Separation of Power Anxiety

The ongoing clashes between President Obama and Congress over issues like the pending Iran nuclear agreement or trade promotion authority are the kinds of inter-branch elbowing that historians and political scientists always enjoy immensely.

The uneasy relationship between the Executive and Legislative branches has a long history. In fact, the inevitability of tension is woven deeply into the very design of our system of government which distributes power amongst various branches and then allows each to trip up the others when they appear to exceed their proper role. Living with the results of a governmental system based on “separation of power” may be frustrating to most Americans, but it is downright mystifying to those not steeped in the American political tradition. When I explained the concept of checks and balances to a disbelieving class of embassy staff last year, the unanimous response was, “Well, no wonder nothing ever gets done in Washington!” Why would anyone design a system that virtually ensures chronic suspicion and conflict among segments of government that should work harmoniously?

Well, no time here for a history lesson on what the Founders thought they were doing: let’s just say it was largely intentional, we are living with the results, and the basic design seems unlikely to change. It bears reminding that this situation is anything but new, and especially common among re-elected presidents living with congressional majorities of opposite parties. Quite apart from the Watergate-related crimes, Congress was infuriated in the early 1970s by Richard Nixon’s unilateral actions in Southeast Asia and with his impoundment of appropriated funds. Ronald Reagan decided to unilaterally arm the Nicaraguan Contras without informing Congress following his huge 1984 victory, and George W. Bush hit on the dubious idea of partial privatization of Social Security early in his second term. Nor has the Congress always been the branch that has been surprised. Frustrated by decisions that ruled sweeping portions of the New Deal unconstitutional, FDR struck back by proposing his Court Packing scheme in 1937.

Congressional leaders of both parties, noting that theirs is, after all, the “first branch” of government, often assert a conviction that the power of the White House must be checked. Tip O’Neill, even before his days as Speaker challenging Reagan, noted in response to Nixon’s power grabs that “We have gained power and strength; the Congress has gained; and downtown, the Executive is on the ropes.” And Speaker Newt Gingrich, never one to downplay his appetite for power, famously declared, “The Congress in the long run can change the country more dramatically than the President. I think that’s healthy. One of my goals is to make the House the co-equal of the White House.”

Of course, the presidency has many inherent advantages in seeking to gain leverage over the Congress: there is, after all, only one President as contrasted with 535 individuals who only occasionally can assemble themselves into a unified alternative or message. The President commands access to press and the media, to send a single, clear idea, far superior to the ability of congressional leaders even in this day of constant new coverage. Moreover, the President has constitutional weapons to employ, such as the veto, which he can utilize unilaterally whereas Congress needs two-thirds of its membership to fight back successfully.

Little wonder, then, that Presidents so often try to color outside the lines and expand their power at the expense of the lumbering and often indecisive legislative branch. And that’s fine with people, including many in Congress, when they agree with the President. However, as we are witnessing currently, legislators become much more wary when they do not agree with the President on policy, and only then tend to reassert their constitutional role in certain areas. It is, however, a really bad idea to predicate the exercise of constitutional duties based on agreement or opposition to particular policies.   Power underutilized tends to be power unrecognized, and it is difficult to persuade people of the justification for what may appear to be interference rather than justifiable constitutional intervention.

The Iran negotiation is a good example. Congress cannot negotiate an agreement or a treaty, which is why there is an old saying that America can’t have 535 secretaries of state. But as one who spent many years committed to ensuring a substantive role in foreign policy for Congress, I have to say I am not troubled by Congress’ desire to take a hard look at the agreement and assess whether it makes strategic sense. Fortunately, President Obama decided to cut a quick deal with a unanimous Senate committee on the issue, but it is still worth noting that Congress is well within its rights to review complex agreements that have significant implications. Congress, after all, may have to address a host of issues emanating from this agreement down the road, including the funding of enforcement, revising sanctions, and regional military aid commitments. Better to be in on the take-off if you have responsibility for the landing.

Having won the right to conduct this review, of course, Congress now will be extremely hard pressed not to approve it since a collapse of an agreement would lay culpability for every single future Iranian nuclear overreach squarely on Congress’ doorsteps. Somewhere in the White House, a staffer is already writing the generic speech that declares that if only Congress had not mucked up the Iran agreement, “x” disaster would not have happened. This is the same “Pottery Barn” responsibility (“You break it, you own it”) Congress blundered into, and out of, when unwisely linking Department of Homeland Security funding to Obama’s withdrawal of his immigration orders.

Many of those who have argued one position on the Iran deal are simultaneously arguing the opposite point of view with respect to the trade promotion authority legislation. Trust the President on the Iran negotiations, they seem to say, but demand the right to scrutinize the trade deal that could jeopardize U.S. jobs; or, review the Iran agreement, but don’t interfere with an important trade agreement that is important for diplomatic and economic reasons.

Congress has an important and proper place in creating and reviewing national policy. In response to presidential overreach in the past, Congress enacted the War Powers Resolution and the Budget Control and Impoundment Act, both passed to interject a greater congressional role into areas usurped by the President (and both, incidentally, vetoed by President Nixon but overridden by Congress). Expanded oversight by Congress, also a 1970s post-Watergate reform, is another significant innovation for holding the Executive Branch accountable short of actual legislation.

President Obama is correct to say that if Congress disagrees with any of his many executive actions – including on education, immigration, non-discrimination or climate change – it can use its constitutional authority to pass a restrictive law, which he may veto, and which Congress can then try to override. Or Congress can go to the courts, as it unsuccessfully did in challenging Obama’s opposition to enforcement of the Defense of Marriage Act.

It is all well and good to note that Congress possesses these options to challenge presidential initiatives, but as a practical matter, exercising them is a lengthy and generally unsuccessful strategy. And while presidents can, and do, grievously misinterpret election results and excessively expand their powers, Obama uniquely has had little alternative to acting imperially due to Congress’ chronic inaction on so many areas of urgent national policy.

It goes without saying that the whole process works best when Presidents and Congresses work collaboratively rather than by stretching the limits of their constitutional authority. There are some recent signs that some Republicans in Congress are recognizing the need for using their majority to legislate instead of simply castigate, including the recent deal on Medicare costs and perhaps soon on No Child Left Behind reauthorization and the Iran review.

Congress is more than justified in insisting on an appropriate role in the making of crucial national policy rather than just reviewing the handiwork of the President after the ink is already dry. We have tragic examples of what can happen when Presidents run amok, and there is more than sufficient historic justification for each branch of government to view the other warily. Voters and critics would be wise not to base their view of the appropriateness of the use of presidential power solely on one’s agreement with what any president uses that power to do. As President Kennedy reminded us in his Inaugural Address, history is filled with accounts of “those who foolishly sought power by riding the back of the tiger [and who] ended up inside.”

Reconciled to Hillary

It is sometimes asserted that the shortest moment of measurable time in Washington, DC is between the light turning green and the driver behind you honking the horn. Not today. For today, that distinction belongs to the millisecond between Hillary Clinton’s announcement of her candidacy for president and the unleashing of a torrent of criticism, dismay, and anguish.   And that’s from Democrats.

Many have shared my experience of speaking with Democratic friends who are ambivalent about the Clinton candidacy, yet reconciled to her winning the nomination, and most certainly resolved to voting for her. In fact, I haven’t encountered a single Democrat who has any doubts whatsoever how they will vote should Clinton, as expected, win the nomination.

The Hillary hesitancy is due in equal parts to reservations about her opinions on particular policy matters (especially an inclination in favor of military interventionism and a disinclination towards intervention into Wall Street shenanigans) to concerns that she may have too many battle scars and raise too many ghosts of crises past, to a sense that it is time for a new generation of leaders to step into the national spotlight. Some, recalling the 1990s, also have reservations about the ability of the nation, and their own sanity, to withstand another eight year roller coaster ride on the Clinton-o-rama (although everyone secretly agrees it would be fun to have Bill Clinton around, just to see what happens).

In part because some knowledgeable people know, in their hearts, that Clinton is a prohibitive favorite, at least for nomination, they feel they can voice their innermost cautions without any fear of diminishing her chances of actually winning. Let’s have some competition, they say, so the primary race gets spiced up and Hillary gets honed to a fine edge. Let’s put her up against some impossible liberal decoy like Bernie Sanders or Elizabeth Warren, or a party iconoclast like Jim Webb and expose all her deviations from leftist orthodoxy. The experience will move her to more liberal positions, it is argued, and tune her up for the fall campaign.

No, it won’t!  There is no value to foisting candidates on voters who have no plausible chance of winning and whose only role is to damage the inevitable nominee, divide the party, demoralize the base, and eat up hundreds of millions of dollars in campaign spending that could more productively go to the fall campaign, including to House and Senate candidates. In their wildest dreams, the liberal critics would move Hillary further left and jeopardize her ability to compete for the crucial swing vote that likely will decide the election. At worst, such efforts will squander valuable money and provide her opponents with quotable denunciations of the Democratic nominee by her fellow Democrats.

I am not going waste my breath on those purists who assert that a Clinton who fails to embrace an agenda that is far beyond the palate of American voters is not worth electing. If you are of the opinion that nothing is at risk if Democrats lose the 2016 presidential election, well, you are simply not paying attention.

Everything is at risk, because the Republican Party is deep in the clutches of slightly deranged ideologues who want to can the last 75 years of American history: the social contract, the safety net, Social Security, pre-school education, Medicare, ACA, aid to higher education, gay rights, a woman’s right to choose, student lunches, voting rights — the whole shebang. And a Republican president would doubtless be able to pack the Supreme Court with enough youthful Scalias and Thomases to render any hope for equity a hazy pipe dream.

Now, I am not arguing that one cannot make a coherent argument against Clinton. Many of the standard criticisms are familiar because they have been leveled at other candidates who defied the critics and won the Big Show:

  • at odds with the party base (Eisenhower),
  • been around too long (Nixon),
  • long in the tooth (Reagan),
  • cashing in on a famous name (Kennedy, FDR, Bush II, not to mention Adams and Harrison).

Guilty on all counts!

But here’s the bottom line. To be a successful presidential candidate, you need a lot of what Hillary Clinton does have in buckets:

  • fortitude ✔
  • name recognition ✔
  • a loyal base ✔
  • mega fundraising ability ✔
  • deep familiarity with both domestic and international policy issues ✔
  • smart people around you (including you-know-who)
  • the ability to take a serious punch, get up off the mat and get back into the fight ✔

We do not know if any of the other Democratic wannabes could stand up to a tenth of what’s been hurled at Hillary, and you know the Republicans and Fox News will waste little time digging up something to test their jaw. The two months between the convention and Election Day is a particularly bad time to find out they can’t take a punch.

One thing that is undeniable about Secretary Clinton: she is probably the most punched candidate in history. For nearly a generation, her opponents have poked and probed every aspect of her personal, professional and political lives. One is always hesitant to say so, but … if they can come up with something new at this point, it would be impressive.

Does she run the risk of over-confidence?  Sure. Hopefully she has people on her staff who are up to challenging her (or the big guy) when they go veering off into some weird place they shouldn’t go. And hopefully they will listen to them. Hopefully, also, she will assemble an inner circle without the reliance on some of the arrogant heavies and sycophants who have cluttered up past Hillary campaigns and turned off potential supporters.

Some on the left, in particular, will never warm up to Clinton because, by their standards (which may not, incidentally, be the standards of the mass of voters needed to win the election) she isn’t hostile enough to Wall Street, she’s made too much money, or she voted for the Iraq war (apology apparently never accepted, although it’s curious how forgiving Democrats were of people like George McGovern and Eugene McCarthy who voted for the Gulf of Tonkin resolution, or Jim Wright and Robert Byrd who voted against the Civil Rights Act).

Can one construct an anti-Hillary message; sure, many have and it will become a full time sport of the nay-sayers. My guess is the critiques will have little impact. Even Republican congressional panels have admitted nothing Clinton culpable happened in Benghazi; the revelations about personal emails and private servers had no impact on her approval numbers; and she can easily launch a well-timed broadside to quiet most policy critics with a few chosen words like, “any Wall Street fat cat who tries to repeat what happened in 2008 will find themselves in prison during a Clinton Presidency.” The base will cheer, Walls Street fat cats will yawn, and the rationale for an alternative candidate will evaporate.

Purity is all very well and good for those who launch their missives from the security of editorial offices, tenured chairs or by pressing a “send” button. Governing, making tough decisions that are subjected to immediate scrutiny from critics and foes, assembling coalitions to pass the achievable and plan for the next initiatives, withstanding years of brutal assault and still maintaining broad respect and support: those are a bit tougher commodities to come by.

Americans have to stop voting for people for high office because they like the way a candidate delivers a speech or embraces a raft of gauzy platitudes. Those base-satisfying skills frequently have nothing to do with being a successful president (or legislator, for that matter). Let’s agree that all of the potential Democratic candidates are going to agree on 90% of the major policy issues and come close to agreement on the remaining 10%. Let’s see whether we can ignore all the chaff, chum and sparkly lights thrown up to distract us and instead focus on the issue at hand. I wouldn’t worry about the campaign season becoming too dull; Republicans seem intent on putting together a very entertaining three ring circus. Let’s pick the ringmaster and get on with the show.

Reflections on the Senator from Searchlight

Changes in congressional party leadership do not happen very frequently, and when they do, it is a time for reflecting on that leader and his or her impact on the institution.

Democratic Leader Harry Reid of Searchlight, NV, announced Friday that he would not seek another term in the Senate in 2016. Perhaps it was his fall from the Majority Leader’s office last November, or the fall on his exercise machine on New Year’s Day: both left him battered and doubtless contributed to the decision of this once-fearsome boxer that the time had come to hang up the gloves.

Having known and worked with Reid in a variety of capacities over a couple of decades, especially when I served as Speaker Nancy Pelosi’s chief of staff, I have long felt that the quiet and diminutive Leader often did not receive his due from press and political observers alike. Some of the underestimation of the Nevadan is due not simply to his low key style (which is not altogether unwelcome in the rancorous halls of the Capitol, especially in recent years), but to a misunderstanding of the power that the Senate leader possesses, a handicap of which Reid was all too aware.

Reid and Pelosi would meet frequently – at least weekly – when the both led majorities in their respective chambers. The discussions were focused on legislative strategy for moving key Obama legislation. Reid, who spent three terms in the House before winning a Senate seat in 1986, sometimes expressed feigned awe at the ability of Speaker Pelosi under House rules to schedule a bill for floor action, control the terms of debate, and ensure its passage at a date and time certain.

“There are times,” Reid once remarked, “when I wish I were the Speaker of the House.” (I’m not sure I believed him, but I understood his musing given the procedural need of the Senate majority to assuage the minority.) “The Speaker doesn’t have to worry about the minority. They run over everybody.” Of course, that observation is a gross simplification of the many challenges Pelosi faced in passing bills like the 2009 stimulus and health care reform, but the ability of any Speaker to use the rules to set the parameters and timing of debate is certainly one advantage of running the House.

Reid’s lament was not original; it has been said that the Senate Majority Leader enjoys the most exaggerated reputation for power of any job in Washington since he must regularly cajole 60 senators to even agree to consider debating a bill that requires only 50 votes to pass. Former Leader Mike Mansfield once remarked, “I’m not the leader really. My Democratic colleagues are the leaders. My job is just keeping the party together, smoothing over the differences, keeping tempers [under control], and trying to achieve the possible despite the differences inherent in the party.”

The late Howard Baker sounded similarly resigned to his limited powers when Republicans ran the Senate during the Reagan Administration. “The leader of the Senate relies on two prerogatives, neither of which is constitutionally or statutorily guaranteed,” Baker noted, “the right of prior recognition … and the right to schedule the Senate’s business. These, together with the reliability of his commitment and whatever power of personal persuasion one brings to the job, are all the tools a Senate leader has.”

Reid has understood the inherent limitations in his powers, and has proven a wily and formidable Leader in the majority and the minority. He may not have Lyndon Johnson’s height and personality to employ “The Treatment” – a combination of towering over and onto a recalcitrant colleague, occasionally jabbing him in the chest – but Reid knew his members and his institution, and with strategic patience, he usually found the votes he needed.

Reid’s resourcefulness was operating on full throttle during the latter, and crucial, phases of the passage of health care in 2010. A Senate-passed bill, which had received the necessary 60 votes, contained several provisions that House Democrats found highly objectionable; that bill could not pass the House. Nor could Reid reproduce the 60+ votes margin to pass the companion House bill. Reid and Pelosi constructed a two-step process that would have the House pass the flawed Senate bill, which would have to be signed into law for the strategy to work, after which the Senate would agree to pass a new House bill making numerous corrections to the just-enacted Senate product. The procedural abracadabra of this maneuver rested on writing that second bill as a budget reconciliation measure which only required a simple majority to pass the Senate (not 60), and which could not be filibustered like a regular piece of legislation.

There was one fly in the ointment: if the Senate failed to pass the House’s reconciliation cleanup bill, the original Senate bill would remain the law of the land, flaws and all. House Members were therefore obligated to pass the Senate bill knowing of that possibility, with only the assurance of the Senate that it would, in fact, pass that second, reconciliation measure to correct the Senate flaws (which some in the Senate, naturally, did not view as “flaws.”) Of course, everyone understood the health care two-step, and saboteurs would doubtless be out in force to ensure that the cleanup bill was derailed. How to secure the approval of House Members for a strategy that rested 100% on the trustworthiness of the sly Senate? How to guarantee that House Members were not left holding the bag, and an empty one at that?

This was the dilemma on our agenda when Speaker Pelosi and I journeyed to Sen. Reid’s ornate office for our regular weekly strategy meeting in March, 2010. The details of that discussion will have to await another time and venue, but it was at that meeting that Sen. Reid proposed securing the signatures of 51 Senate Democrats pledging the take up and pass the reconciliation measure if the House would first pass the Senate health bill and send it to the President’s desk. Sen. Reid asked me what I thought of that plan and, as I recall, I let out a short laugh, having spent over 30 years among House Democrats who believed “Republicans are the opposition, but the Senate is the enemy.” I believe I told Sen. Reid that his plan would never be acceptable to a skeptical Democratic Caucus.

And yet only a day or so later, Sen. Reid came before House Democrats to lay out his plan and to assure them he had the 51 signatures he needed to pass that second reconciliation bill. The names, however, would have to remain confidential. “Here it comes,” I thought to myself, waiting for the certain raucous dismissal by the House Members.

Silence. Not one question. No catcalls, laughter, shoes flung at the podium. Reid simply presented his pledge, said “thank you,” and left; the Caucus endorsed the strategy, and I was left wondering how I had so totally misjudged the response of the Caucus that I thought I knew pretty well.

Now it is true, House Democrats were prepared to swallow a lot they didn’t like – no public option, no single payer, abortion restrictions, etc. – because achieving health care reform trumped nearly any objection. Still, I was mystified that Reid had pulled off this legislative legerdemain without a ripple of skepticism or dissent. That told me all I needed to know about his wiliness.

That was the second time Harry Reid flabbergasted me. Nearly two decades earlier, I was staff director of the House Natural Resources Committee and was locked in a nasty battle to raise the highly subsidized rates charged Western ranchers who fed their cattle on federal lands. Like most Western interests who benefitted from the resources of the federal government they denigrated, the ranchers were ballistic about the Clinton Administration proposal to raise fees to market rates, and a good number of them resided in Nevada.

Over in the Senate, I was involved in a staff meeting when the door opened and in walked Sen. Reid, whom I had known during his years in the House. Displaying the confrontational directness for which he is known, Reid accused me – he always referred to me as “Dr. Lawrence” — of promoting proposals that would severely impact his constituents in Nevada, an accusation that was completely inaccurate. I was both embarrassed to be upbraided by a senator in front of my staff colleagues, and incensed by the inaccuracy of the accusations. I fired back, telling Reid he was completely off-base with a directness that was, admittedly, inappropriate in speaking to a United States Senator, certainly during a public meeting. Reid withdrew and the meeting continued; shortly thereafter, Reid re-entered the room and I steeled myself for round two; instead, Reid said that he had checked with his staff, and that his original remonstrance was inaccurate. He apologized and left the room, and we went on and finalized a compromise agreement.

That incident stayed with me for years, both because I could not believe the inapposite tone of my response to his allegations, and especially because Reid had returned after speaking with his advisors and, to an entire room of staff people, admitted he had been wrong. Senators apologizing to staff, let alone to House staff, is – let us say – uncommon.

So it was with some trepidation that I awaited my first meeting with Reid as Pelosi’s chief of staff in 2005. I had had no contact with Reid in the ensuing decade and a half, during which time he had risen to the role of Senate Democratic Leader. I was looking forward to a good working collaboration, but lingering in the back of my head was our last conversation over the grazing fee dispute. As Reid walked into Pelosi’s office and shook hands with her, she motioned over to me and said, “Harry, I want you to meet…” Reid interrupted her to say, “Well, hello Dr. Lawrence, we haven’t seen each other since the grazing fee discussion.” My heart sunk as we shook hands, but it was the last time Reid ever mentioned the dispute. Instead, we had a fruitful and cordial working relationship and when we had a spare moment over the next 5 or 6 years, we would occasionally talk about the role of the Wobblies in the Nevada mining wars of the 1890s.

Postscript: Reid’s departure likely means as contest for his leadership position between New York Sen. Charles Schumer and Sen. Dick Durbin of Illinois. (Reid has endorsed Schumer.) The two aspirants have spent decades together both in the Senate and in the House of Representatives and as lodgers in a D Street SE house owned by mutual friend, recently retired Rep. George Miller.


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