DOMEocracy

hardline political news and analysis

Month: December, 2014

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.

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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.