Congress Needs to Get Involved

Just eleven days into the troubled Trump presidency, a moment of truth has arisen for the Congress, few members of which (of either party) believed that elevating an inexperienced demagogue to the White House was an inspired thought. Republicans have largely fallen in line behind Trump’s vaguely sketched policy goals, although there was reported grumbling at the recent bicameral policy retreat in Philadelphia about insufficient consultation. Democrats, despite some pronouncements about working collaboratively, have largely condemned each action of the new President. Not a harbinger of bipartisanship.

With the stunning upheaval over Trump’s Executive Order on immigration and refugee policy, there is an opportunity – and an obligation — for the parties to unite on the common ground of standing up for the institution they have sworn to defend, and in which they serve. Although coming earlier in the Trump Administration than many had predicted (or thought possible), the crisis has arrived in the form of irrational policy, inadequate consultation with affected government leaders, amateurism at the highest staff levels, inexplicable rebuke to key foreign leaders and international colleagues, and, in all likelihood, a massive insult to the Constitution. In just 11 days. As Rahm Emanuel has advised, “Never let a serious crisis go to waste,” because it allows one to take steps that might have previously been impossible. This is such a moment for the Congress.

Those who care about the integrity of the House and Senate – and there are plenty on both sides of the aisle – have an opportunity to use their constitutional powers now to begin the task of regaining public respect.

Congress needs to find out who makes policy in the non-transparent White House, and how they do it, before more serious damage is done, perhaps involving nuclear weapons. The same diehard Republican inquisitors who set up special committees and spent many months investigating Benghazi and Planned Parenthood should convene oversight hearings and summon White House officials – there aren’t many in other departments of the Executive Branch as yet – to explain the decision-making that resulted in the Executive Order on immigration and refugees. Not only was the initial process cloaked in secrecy, but the aftermath has been chaotic: the White House policy director standing by the Order, the chief of staff reinterpreting it, and the Homeland Security Secretary clarifying (i.e., reversing) its impact on green card holders.

The purpose of such hearings should not be to fix blame – President Trump has been quoted as saying he thought implementation of the Order has been going just fine – but to clarify the lines of authority within the White House. Pulling in these officials and illuminating the decision-making process and players can be done this week, and it should be. One never knows when the next crisis will arise, although it seems safe to say it won’t be in the distant future.

Only the Republican majority can call an official hearing. Only the majority can issue subpoenas to those who decline an invitation to testify. If the Republican majority in the House and Senate decline to use their constitutional powers (not to mention their institutional responsibility) to initiate such oversight, they will have forfeited any legitimate claim to control the Congress, and will share fully in the culpability for the future blundering of an amateurish and insular White House. Oversight always drops precipitously when the White House and Congress are controlled by the same party; this time, however, that pattern needs to be reversed.

Although in the minority, Democrats have an opportunity to send a clarion message to Americans and the world by introducing legislation to reverse Trump’s unwarranted Executive Order. Such legislation could also establish clearer criteria for challenging or prohibiting entry of certain suspect classes of prospective immigrants or refugees, if that is even needed. True, as the minority, Democrats cannot schedule official hearings, compel the attendance of Administration witnesses, or mark-up legislation, but if Republicans refuse to exercise the prerogatives of the Legislative Branch, Democrats can file a discharge petition on their bill, bypassing the normal procedures to force their legislation to the floor. Republicans who refuse to sign onto that petition – it takes 218 signatures and therefore cannot succeed without majority co-signers – will have little basis for denying culpability for the aftermath of the current crisis, and will instantaneously become prime targets in the 2018 election.

The best outcome, of course, would be to pass a comprehensive immigration bill that addresses these and many other unresolved issues instead of continuing to govern by Executive decree and fulminating about a multi-billion dollar wall between the U.S. and Mexico. Such a bipartisan bill did pass the Senate just 4 years ago, but could not even get a subcommittee hearing in the Freedom Caucus-driven House. The atmosphere for a bipartisan solution to immigration may be among the casualties of Trump’s reckless blundering.

This is a test for the Congress, and especially for the Republican majority that alone has its hands on the steering wheel and its foot on the gas pedal. Either they follow the leadership of Republicans like John McCain and Lindsay Graham who dare to challenge the haphazard Commander-in-Chief (and who responded to their criticism by accusing both senators of “always looking to start World War III”) or, by their inaction, they diminish the Legislative Branch of our government and create a huge electoral opportunity for Democrats.  The disorder of the past week should be evidence enough that it is never wise for Congress to blindly defer to the Executive Branch, believing that loyalty is equated with patriotism or public service.

Playing at Being President

Donald Trump’s precise relationship to the Republican Party he putatively leads, and to its majorities in Congress, continues to be very much a work in progress. During his campaign, in his bellicose Inaugural address, and even in Thursday’s speech before the Republican congressional retreat in Philadelphia, Trump pointedly distinguished himself from the “politicians” he castigates.

In Philadelphia, he blamed those “politicians” for the failures of the federal government. He assured his colleagues that he was speaking of “not you here,” a curious dispensation since Republicans have been in charge of one or both houses of a largely somnambulant Congress since 2011, but to “others,” before menacingly adding, “Maybe.”

What Trump has said in his first week in the White House is less significant than what he has done. On a daily basis, Trump has signed Executive Orders to fulfill campaign pledges, ordering all federal agencies, for example, “to the maximum extent permitted by law,” to “waive, defer, grant ­exemptions from or delay” application of any provision of the Affordable Care Act that “imposes a financial or regulatory burden.”  Such a sweeping directive could apply to anyone compelled to buy insurance or to provide health services, it would seem, and likely constitutes an egregious over-reach by seeking to invalidate an existing statute.

With his trademark swagger, Trump has declared he will “reduce regulations big time,” and suspended all new regulations (including those intended to ease or modify earlier regulations on businesses) for months.  Developing replacement regulations will take months due to the laborious publishing and comment requirements, one reason that many companies are not happy with the regulation freeze.

Trump dubiously asserts that his orders will “save thousands of lives, millions of jobs and billions and billions of dollars.” He froze the hiring of new federal employees, which may result in greater reliance on non-unionized contractors who lack protections granted federal employees.  He reversed course on the controversial Keystone and Dakota Access pipelines (although final action will take months of hearings and rules proceedings), limited the admission of refugees based on religious considerations ((interestingly, not in those countries where the Trump Corporation does business), and withdrew from the Trans-Pacific Partnership, which pleased Democratic labor leaders more than pro-trade Republicans and their business allies.  While boasting “our relationship with Mexico is going to get better,” he disinvited President Enrique Peña Nieto of Mexico, a crucial ally on drugs, crime and immigration and one of our largest trading partners.  Such a visit to Washington would be “fruitless,” he asserted, if Peña Nieto refused to accept the responsibility of paying for the Great Wall of Trump. Peña Nieto’s decision to forgo his planned visit to Washington ranks as the most popular one of his troubled administration.

Trump and his supporters justify this torrent of Executive initiatives by pointing to former President Obama’s heavy use of such orders, but there is a difference.  Obama was slow to resort to unilateral action (his pace ran behind many recent presidents for most of his term) until it became evident that Republicans would block his  legislative proposals. Obama was left with little recourse if he wanted to implement the policies on which he had successfully campaigned in 2012.

“This Congress is going to be the busiest Congress we’ve had in decades,” Trump told the Retreat participants, but thus far, he has shown a preference for substituting his solitary judgment for that of the peoples’ representatives.  That circumvention of Congress’ deliberative procedures is particularly disturbing since his initial orders cover highly divisive and incendiary topics that represent a complete reversal of existing policy, a reversal not embraced by a majority of voters.

Had Trump received a genuine electoral mandate to effectuate such changes (as Obama arguably did on such early Executive Orders as the closing of Guantanamo), the precipitous action might be warranted. Instead, he is intent on making policy by spouting wildly fabricated notions, justifying his immigration restrictions on his belief that “if you were a Muslim you could come in, but if you were a Christian, it was almost impossible.” (The numbers were effectively equal last year.)

Congressional Democrats have predictably reacted with anger to Trump’s cascade of executive actions, hardly a surprisingly response. The Republican response is of greater significance. According to one report, Republicans had no idea if Trump’s orders conflicted with the laws Congress has written “because they hadn’t reviewed them.” Neither have the departments that will have to implement them, including the National Security Council, the Departments of State, Homeland Security and Health and Human Services. One man’s flawed impulsive and cartoonish judgment is being substituted for the entire policymaking process.

Only in the case of the military, where civilian presidential control is actually essential, does Trump appear willing to cede decision-making to congressionally approved leaders.  Reiterating his discredited belief in the effectiveness of torture, Trump agreed to bow to the views of Secretary of Defense Mattis, who discounts the value of “enhanced interrogation techniques” like waterboarding.  “I don’t necessarily agree,” said Trump, but “he will override [me] because I’m giving him that power.” Still, the President, asserted, “I happen to feel that it does work. But I’m going with our leaders,” before adding the Trumpian coda, “We are going to win, with or without.”  (Trump ended his musings on torture with the frequent self-editing that marks his pronouncements, “But I do disagree.”)

In the 1960s, the Congress on a bipartisan basis began to push back against the steady accumulation of power in the hands of a more agile presidency.  Legislators and scholars agreed that Congress had withered into what Sen. Joseph Clark of Pennsylvania described as the “sapless branch” of government, helping to produce what James MacGregor Burns of Williams College memorably called a “deadlock of democracy.” Reformers demanded that Congress, created in the first Article of the Constitution, reassert itself as a co-equal branch rather than continue to defer to the Imperial Presidencies of Lyndon Johnson and Richard Nixon.

Much of what Trump wishes to do will require the involvement and assent of the curiously quiet Congress, and securing agreement on issues from health care to energy to immigration and infrastructure will surely require vast stores of policy experience, personal relationships and patience — traits that Trump has not displayed to this point.  He can claim to have followed through on his campaign promises with his early Executive actions, but it is hard to escape the impression he is just sitting at the Resolute desk in the Oval Office, playing at being President. It remains to be seen whether Republicans in Congress have the courage to challenge Trump when he veers towards the irresponsible, or the capacity to move beyond the nay-saying rhetoric of the past 6 years and produce effective legislation themselves.

The Trump Inaugural

As newly sworn President Donald Trump began his Inaugural speech, the dark rainclouds that had gathered all morning began pelting the new Chief Executive. It was, without a doubt, the brightest moment of the 20 minute tirade that followed, a gloomy diatribe that set an ominous tone for a new Administration.

Presidents have often assumed office in the midst of crisis – wars, depressions, scandals – but the incoming leader has always summoned up rhetoric intended to appeal to what Lincoln, in 1861, called “the better angels of our nature.” Trump missed the opportunity to strike a comparable note in an historic era far less dismal for the Nation, avoiding a message of reconciliation and common ground in favor of summoning the devils of division who dominated his campaign perorations.

Trump displayed none of the graciousness, none of the aspirational imagery, none of the optimism one generally hears at the outset of a new administration. While rattling off references to the men on the platform who had preceded him as President, he noticeably failed to acknowledge the former First Lady, senator and secretary of state who won nearly 3 million more votes from her countrymen than did the victor. A brief recognition of her presence, and her civility in accepting the twisted outcome of the election, would have sent a welcome message.

Instead, Trump chose to resurrect the imagery of a nation in crisis, an economy in shambles and a country at risk that he fatuously promoted throughout the campaign. Where Ronald Reagan spoke of a “shining city on a hill,” Trump referenced “American carnage” in the form of empty factories like tombstones and a landscaped scarred by wanton violence. Of course, Reagan’s inaugural rhetoric was theatrical, like much of his rhetoric; a few months later, the one-time union president fired the Nation’s air traffic controllers who dared to defy his invective, but on January 20^th, he understood the importance of sending a message of calm and conciliation.

One can only imagine what foreign leaders will make of Trump’s embrace of the concept of “America First,” a term imbued with nationalism, isolationism and anti-Semitic overtones that politicians have avoided for seven decades even as they promoted their concept of “American exceptionalism.” One can only conclude that neither Trump nor his advisors spent much time consulting historians before preparing a speech that sends worrisome signals to allies and adversaries around the globe.

Trump, the billionaire businessman who salted his Cabinet with a Team of Tycoons committed to undermining the departments they will lead, missed an important – perhaps an irreplaceable – opportunity to send a message of fairness for all Americans and a willingness to consider the opinions and recommendations of those who do not share his own bombastic and distorted portrayal of the nation. From his studiously unbuttoned suit jacket to the thumbs-up signal of self-confidence, he did little to alter the image of the. swaggering, confrontational bully that incredibly persuaded tens of millions of Americans (though far from a plurality) to grant him the enormous power and responsibility he acquired today.

One can only imagine the response had Barack Obama closed his Inaugural eight years ago with campaign style rants and a fist lifted over his head. Instead, in the midst of genuine crisis – an economy in meltdown rather than recovery, unemployment skyrocketing rather than cut in half, two wars growing in intensity instead of radically pared down – Obama sent a very different message. “On this day,” the 44^th President declared in 2009, “we have chosen hope over fear, unity of purpose over conflict and discord.  On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.”

If, in the end, Obama’s vision proved more optimistic than events warranted, it was designed to inspire hope and inclusiveness at a time of national crisis. Trump’s imagery painted a barely recognizable, Gotham City-like portrait of the nation that he now leads. Trump promises to “make America great again,” offered only a grim picture of a prostrate and divided nation that ignored the improvements since 2009. From this point onward, however, he will be judged on more than incendiary sloganeering, but little of what he has said since Election Day, including his remarks today on the Capitol steps, indicates a seriousness of purpose or an achievable agenda.

An Inauspicious Start

With an incoming president compromised by conflict-of-interest business dealings (and still refusing to release his income taxes) and a Cabinet composed of a Team of Tycoons whose financial scandals are waiting to erupt, House Republicans demonstrated impressive timing in their decision to eviscerate the House’s independent ethics office. Speaker Nancy Pelosi had created the Office of Congressional Ethics (OCE) in the wake of the 2006 Abramoff corruption scandal, a key component of her “6 for ‘06” pledge to “drain the swamp” of corrupt influence peddling on the Hill.

The Republicans’ quick decision to reverse course after the widespread negative reaction, including a Twitter-lashing from the President-elect, should not diminish attention to the significance of Republicans’ abortive frolic. Even though the attack on the OCE had a half-life of a half-day, there are important lessons to be learned from this comic misadventure. In politics as in medicine, the first rule is “do no harm,” but with its unprovoked, unwarranted and contradictory actions on opening day, House Republicans self-inflicted an avoidable injury that could well become emblematic of the newborn 115^th Congress.

Not that the short-lived decision to repeal and replace the OCE is the lone example of GOP hubris and folly. Shortly after the election, the chairman of the Social Security Subcommittee proposed legislation to reduce benefits to the elderly, and the party leadership resurrected plans to privatize Medicare. Not to be outdone, a senior Republican in the House proposed eliminating the Appropriations Committee, trasferring its authority to the famously free-spending authorizing committees. (Both the appropriators and the Senate Republicans were astonished at this unworkable and utterly unachievable proposal).

But the OCE misadventure deserves special recognition. Admittedly, the OCE is not the most popular institution in the House; Democrats as well as Republicans have chaffed at its inquiries into potential official misconduct, and the ability of the public to file allegations with the OCE against officeholders has fueled its unpopularity on the Hill. For all the complaints, neither Speaker John Boehner nor Paul Ryan were willing to undo Pelosi’s post-Abramoff reform, recognizing the reluctance of the formal Ethics Committee to take action against colleagues except in the most egregious and indefensible of circumstances.

The attempted coup against the OCE was opposed by Ryan (and Majority Leader Kevin McCarthy), but the GOP Conference members voted 119-74 to ignore their own leadership. This was no symbolic vote of protest, like the insignificant handful cast against Ryan (and Pelosi) in the speakership election, but defiant support for a substantive change to House rules that inadvertently confirmed the fears of many that the House (and perhaps the Senate) majority may be prepared to look the other way with respect not only to their own ethical violations, but to those of the incoming Administration. What does the anti-OCE effort say about the inclination of GOP hotheads to blow past their leadership on policy matters down the road?

The other startling aspect of the Republicans’ rapid retreat was the swift criticism the proposal elicited from President-elect Donald Trump. Those in Congress would seem to have “so many other things of greater importance” to do, Trump Tweeted, “do they really have to make the weakening of the Independent Ethics Watchdog,” which he acknowledged might well be “unfair,” as their “number one act and priority?” The surprise decision by the GOP Conference also drew vigorous opposition from the conservative group Judicial Watch whose president observed it was a “poor way to begin draining the swamp.” What does the swift reversal say about the willingness of Republican stalwarts to defy the unpredictable Trump?

Anti-OCE proponent Bob Goodlatte of Virginia, who chairs the Judiciary Committee, had railed against the OCE’s alleged indifference to the legal rights of Members of Congress, an interesting observation from a chairman who refused to lift a finger to protect the rights of millions of our fellow citizens by repairing the severe damage done to the Voting Rights Act by the Supreme Court. Goodlatte asserted that his proposed amendment “does nothing to impede” the independent office’s operation, an absurd and inaccurate description of the provision’s impact.

The aborted effort to cripple the independent ethics office raises questions about the willingness of key GOP legislators like Goodlatte to defy their own leadership. How will the Republican troops react when Speaker Ryan gives them direction on issues like the budget, tax reform, appropriations or the upcoming debt ceiling confrontation? If chairmen like Goodlatte are prepared to flout the Speaker’s will on a rule change, how will they act when confronted with real policy questions that have substantial policy and political implications? And how significant a role did President-elect Trump’s critical Tweet play in persuading rebellious Republicans to settle down and not ruin the day’s message of unity and strength with an avoidable error like weakening the effort to “drain the swamp?”

The interactions among the Republican leadership, the hard-edged Conference faction, between the GOP majorities in the House and Senate, and with the new Republican President will be carefully scrutinized as Congress settles down and begins addressing a litany of complex issues that may prove as challenging for unified government to resolve as they have proven for divided government over the past 6 years.

 

 

 

 

Rules for Success on Capitol Hill

Today is the opening day of the 115^th Congress, and dozens of new legislators will soon raise their hand to take the oath of office for the first time, along with their more seasoned colleagues. Here is an updated version of my “Rules for Success on Capitol Hill” for freshmen as they adjust to their new responsibilities, based on my own 38 years in senior positions in the House.

1. Assume nothing!   Many embarrassing missteps occur when novices “assume” Congress works like things did back home in city hall, private business, or the state legislature. It doesn’t. Capitol Hill is unique, for good and bad, so learn how Congress operates: it is not likely to prove as malleable as you might expect.
2. Don’t confuse “advocacy” and “politics.” Advocacy is telling people what you want; politics is getting other people to do what you want. These are completely different skills. The campaign is over. Your job in Congress is to get work done, not simply to score rhetorical points with people who already support you. If that is your preferred style, trade in your voting card for a soapbox.
3. Don’t get discouraged.  Legislating is an ongoing exercise; you rarely win or lose entirely. Your opponents are waiting for you to give up. Our political system wasn’t designed to be efficient, and that goes doubly so for the legislative branch. After a few months of the molasses-like pace of legislating, you might agree with historian George Galloway who observed, “Congress is an oxcart in the age of the atom.” Keep in mind: Galloway said that in 1946.
4. Don’t think that just because you changed the world it is going to remain that way.   Don’t be so impressed with a victory that you neglect dogging its implementation. Many statutes gather dust because disapproving bureaucrats simply ignore them. Also, keep in mind: there’s nothing wrong admitting a law needs improvements or updating once it encounters the complex real world outside Washington. That is where the terms “reauthorization” and “technical correction” come from.
5.  Be dissatisfied.  If you aren’t, get dissatisfied; if you can’t, get out of the business.  Politics is about righting wrongs not managing programs or balancing numbers.  There is always something wrong to get angry about. And don’t complain about how hard the job is. No one wants to listen to some disenchanted, $174,000 a year officeholder complain about what’s wrong with being a Member of Congress.
6. Take your work seriously but not your own importance.  As they say, “The graveyard is full of indispensable men.”   And women. An experienced politician once said, “Anytime you think you’re really important, take a ride down the freeway about ten minutes and see who knows your name.” If you work really hard and achieve some legislative victories, you might, might, make it to higher office. But you probably won’t, so enjoy what you are doing.
7. Become the “go to” expert. Members seek out knowledgeable colleagues, so become one. Don’t try to master every issue or speak on every subject. As Speaker Sam Rayburn once said, “You ain’t learnin’ nothin’ when you’re talkin’.” You colleagues do not want to listen to someone who is (a) trying to flaunt their expertise, (b) delaying the adjournment of a meeting, or (c) repeating the key points in a speech that has already been delivered y someone else. As Mo Udall exasperatingly once observed during an interminable meeting, “Everything has been said, but not everyone has said it.”
8. Always have someone on your staff who can tell you that you are wrong. Capitol Hill is full of people who will puff up your ego to serve their own self-interest. Have someone close to you who can challenge one of your dumb ideas (and you will assuredly have a few) without fearing for his or her job. Assemble a skilled staff and use them wisely: let your staff ask a question at a meeting. You pay them lots of money for their expertise and judgment, but too often, they stand silently like ornaments because Members don’t want to appear to be dependent on staff. Your people are your team in pursuit of a common goal, not just a cheering section designed to make you look good.  And don’t fill your Washington office with campaign staff. Select some people who know issues and how the Hill functions. They will make life a lot easier for you.
9. Get to know your colleagues personally.   Congress worked a lot better when Members fraternized outside the legislative mosh pit.  Do some traveling with colleagues (making sure to schedule a stop at military bases or hospitals, and always get a country team briefing from the Embassy folks to prevent emails complaining that you blew off the diplomatic corps to do some site-seeing). Recounting your friendship with your new buddy from the other party helps to dispel constituents’ suspicions you’re rapidly becoming one of those partisan hacks everyone hates. And go meet the President (yes, even this President). As a successful politician once said, “When you begin your sentence with, “Well, yesterday at the White House, I told the President …” people listen, because you have demonstrated that you have access, which is more than 99.9% of the people with whom you are speaking.
10. Don’t live in fear of defeat. Pay attention to your constituents’ needs and opinions, but don’t agonize over every vote. A member once advised a distraught colleague, “You can twist yourself into a pretzel with those kinds of political calculations.”  Few Members regret casting a vote of conscience, but a vote against your own best judgment can haunt you for a career.

Homework: Lastly, incoming Members often asked me to recommend some essential reading. I suggest Barbara Tuchman’s The March of Folly which recounts how well-intentioned leaders ignored evidence even when they knew doing so would yield catastrophic results. If you need advice on procedure, ask the Parliamentarian, but heed Tuchman’s findings about the misuse of power.