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Did the System Actually Work?

There is a lot of snickering – and even more relief – going around in the wake of the failure of the long running Republican “repeal and replace” Obamacare farce. After seven years of pledging instantaneous repeal, Senate Republicans were exposed as clueless gasbags on health (as well as on deficit reduction, tax “reform,” immigration reform, and a host of other grandiose but unfulfilled promises).

The relief may be premature. McConnell could resurrect a health bill at any point up until January, 2019, with the current Senate. And the next Congress could be worse because of the disproportionate exposure of Senate Democrats facing re-election. Drop a couple of those seats without compensating by taking out a few Republicans and Mitch McConnell begins the 116th Congress even stronger than he is today.

Demoralizing as the health care debate has been of late, two observations provide some measure of optimism. In a somewhat perverse, distorted and infuriating way, the failure of Trumpcare illustrates a success for the American political system as it was designed 230 years ago. A multi-layered system with divided powers and checks and balances provided the time needed to expose the flaws and implications of a poorly conceived idea. Moreover, the collapse of the Republican plan illustrated that even in this era of super PACs, 501c3s and hyper-partisanship, enraged and engaged voters were able to rise up and influence (and occasionally intimidate) their elected leaders. It’s not a model of government efficiency, but it actually worked.

Lamentations about the failures of Congress as an institution are nothing new. “Congress,” declared George Galloway, is “an oxcart in the age of the atom,” hopelessly incapable of functioning efficiently within the modern world. It is worth recalling that Galloway’s obituary for the First Branch of government was written in 1946. Political scientists and historians, not to mention columnists and the general public, have generally agreed. Sen. Joseph Clark (D-PA) labeled Congress the “sapless branch” in 1965, and Tom Mann and Norm Ornstein coined the term “the broken branch” nearly a half-century later.

Unquestionably, there is a lot about Congress that doesn’t work, which makes it even more important to make note of when the system functions as intended. To balance a competition of views that they knew would be inevitable (even more so in an 18th century legislature that lacked permanent parties to impose discipline), the Founders created a multi-tiered system of entities with distinct but also overlapping functions to check each other, slowing the process of law-making, ensuring the rights of the minority and in doing so, compelling compromise. At least, that was the general idea.

What happened to the Republican health scare is that it fell prey to the delays, accountability and criticism that the Founders intended would prevent popular but ill-conceived proposals from swiftly becoming law. True, the design of the House may encourage such ill-conceived lawmaking on occasion because its members, due to their two-year terms, are constantly accountable to constituents. That is why the Senate, with terms three times longer, was described by George Washington as the saucer that cools the hot tea of the House, slowing down the momentum, empowering the minority time to compel debates, compromise, and even CBO scores (OK, that arose slightly after Washington’s time.)

Sen. Shelley Moore Capito of black lung-ravaged, opioid-overwhelmed West Virginia heard from constituents who would be devastated by a “yes” vote on McConnell’s travesty. “My position on this issue is driven by its impact on West Virginians,” she declared. “With that in mind, I cannot vote to repeal Obamacare without a replacement plan that addresses my concerns and the needs of West Virginians.” Ditto for Lisa Murkowski in Alaska and Susan Collins in Maine. They also undoubtedly heard from Republican governors who warned them of the cataclysm awaiting their states should expanded Medicaid be rescinded.

The collapse of the Republican strategy also illustrates that despite all the fundraisers and commercials, hit pieces and targeted attacks; the power of the grassroots was again affirmed. Yes, the opposition of the American Medical Association played a role, as well as AARP and other health care organizations. But so did individual citizens, and groups of constituents, who wrote the letters and emails, made the phone calls, signed petitions and attended (or demanded) town halls and public discussion with their elected officials. At their core, representatives and senators are people who need approval (and enjoy admiration); they do not enjoy having to listen to a distraught parent who, in a public setting, castigates them for jeopardizing their child’s access to life-saving care.

Still, Mitch McConnell is not going to go quietly into the darkness with a well-earned besmirched reputation. He will force the Senate to vote on legislation to repeal the entire ACA, a brazen act of political petulance that would deprive 34 million Americans of health care. McConnell will, for no particularly good reason, force his conference members either to vote to rescind health insurance for millions of their constituents or to expose themselves to relentless condemnation by conservative activists who will be enraged by a vote against repeal.

Such heavy-handedness exposes McConnell’s frequent nastiness, though this time, turned against his own party colleagues. In meetings at the White House during the Obama Administration, during which party leaders would at least fake pledges of cooperation, McConnell – who often spoke last – could always be counted on to deliver a pointed and partisan rebuke of the president. One can only imagine his unspoken sentiments towards the three female senators who consigned Trumpcare to the well-deserved dustbin of history, taking with it McConnell’s reputation as a savvy floor leader.

But this is no time for celebration. Almost certainly, McConnell will try again, and the House GOP budget, revealed this week, proposes additional health care (as well as Social Security) cuts. Moreover, Trump has announced his intention to undermine the implementation of the Affordable Care Act, harkening back to Newt Gingrich’s proposal to allow Medicare to “wither on the vine.” All the more reason for health care beneficiaries and proponents to recall John Philpot Curran’s admonition in 1790, “The condition upon which God hath given liberty to man is eternal vigilance.” Public engagement and a complex legislative system served our country well this time; undoubtedly, both will be called upon in the near future.

 

 

 

 

Trump’s Train Wreck

It is perfectly understandable that any sane human being would prefer spending the next two months or so lounging on the beach, hiking in a park, or perfecting their high school foreign language in some international destination. Anything but hanging around and watching the inexorable, slow-moving train wreck that is the U.S. federal government. As a service, therefore, I will once again stick my neck out and make a few predictions about the next few weeks under the hapless Trumpians and their Republican henchmen in Congress.

There is the inevitable drama of September 30th, the end of the fiscal year, which means that either the 12 individual appropriations bills are signed into law or whatever remains without an enacted bill necessitates a Continuing Resolution. One of the stunning examples of Republican legislative ineptitude since regaining the majority in 2010 has been the party’s inability to conduct the basic responsibilities of governing: appropriating money, raising the debt ceiling, preventing the termination of desirable policies including tax cuts.

In each case, the resolute obstructionism of the Tea Party-Freedom Caucus zealots in the House has prevented the GOP majority from writing those bills on the party’s terms. No matter, the ideologues on the Right remain dug into their absolutism and will not vote for essential legislation even if loaded down with conservative trinkets, obstinacy that has forced both John Boehner (who lost his job for such behavior) and the hapless Paul Ryan to seek Democratic votes to reach 218. Those Democratic votes come with a price: no riders, and the resulting clean CRs and debt ceilings cause the Freedom Caucus fringe to explode into even deeper fulminations about their leadership’s collaboration with Nancy Pelosi’s Democrats.

If you feel like you have seen this play before, it is because you have, with regularity, and you will see it again this fall. Ryan inevitably must make concessions to reality that will widen the chasm in his Conference, compounding the challenge in reaching a consensus on health care, immigration, tax policy and infrastructure. It is unlikely anything will happen before midnight on September 30th that will resolve this conundrum, unify Republicans, and strengthen that party going into the end-of-the year fundraising/candidate recruitment season. Indeed, failure on the policy front will encourage stronger Democrats to challenge sitting Republicans and may well lead some in the GOP to opt for retirement, creating alluring open seat pick-up opportunities.

It may not be all smooth sailing for Democrats. Although I had predicted the House would inevitably approve some health care bill and then apologized when it did not, my prognostication eventually came true with approval of the travesty that even Donald Trump – after the sophomoric beer bash on the South Lawn of the White House with gleeful Republicans – deemed “mean.” Similarly, it seems difficult to believe that Senate Republicans will fail to pass something to avoid culpability for failing to address the Affordable Care Act. But with two-thirds of the Senate not up this fall, Republicans in the upper house may not feel the electoral pressure to pass a bill that will prove unpopular in states that are far more diverse than the carefully crafted conservative House districts. Cutting off Medicaid has real consequences in many Republican states where House members didn’t think twice about taking a scalpel to health services for poor children, those with disabilities and the elderly.

A major motivation for dropping health care is that it is getting in the way of Mitch McConnell’s real objective, which are tax cuts for the affluent. True, Republicans need those health “savings” to “pay for” the tax cuts; but don’t think for a moment they won’t find a way around that dilemma. Cutting taxes for rich people, as I have written before, is the reason this circus came to town, and if only one “major” bill passes in the 115th Congress, McConnell will ensure that it is tax cuts – not to be confused with tax reform.

The great unknown remains the toll on the legislative process from multiple investigations of the Trump Administration. Over six months into the term, Trump and his cranky pranksters show no signs of learning the ropes of governing or avoiding weekly missteps that brake any gathering momentum. The country had no sooner recovered from Ivanka’s audaciousness in substituting for her meandering father at the G-20 head of state table than another Trump spawn — Don Jr. – admitted to participating in a mid-campaign meeting with a Russian lawyer who promised damaging information on Hillary Clinton. No less than Richard Painter, a George W. Bush ethics lawyer, observed “We do not get our opposition research from spies, we do not collaborate with Russian spies … This is unacceptable. This borders on treason, if it is not itself treason.”

Making predictions about where we will be two and a half months – or two and a half days from now – is a perilous exercise in an environment where the Trump regime seems to be unraveling like a golf ball at one of the President’s high-end resorts. All the more reason to slap on the suntan oil and go on a hike.

 

A Fraudulent Commission

There are a lot of problems with how elections take place in the United States, not the least being the perverse outcomes that sometimes occur. Fraudulent voting isn’t one of them.

For purely strategic reasons, Donald Trump spent a considerable amount of time last fall excoriating the failures and corruptibility of the voting process and warned that the election outcome would be “rigged.” Although his allegations ceased when he improbably emerged as the winner, his emphasis on rooting out so-called “voter fraud” has now been elevated to official status with the appointment of the Orwellian-sounding Presidential Advisory Commission on Election Integrity. That such a panel could be appointed by President Donald Trump rates very high in the pantheon of bad political jokes.

First of all, there is no consequential “voter fraud,” and certainly none that is altering the outcome of elections. There is something fascinating about Trump’s willingness to embrace allegations that have been so thoroughly discredited while at the same time he and key members of his administration refuse to accept peer-reviewed scientific studies establishing humans’ contributions to climate change. One might almost conclude that facts do not matter to the most powerful person in the world, which would be, of course, a chilling thought.

Serious researchers have examined the allegations of so-called voter fraud in recent years and have concluded such arguments are little more than hyperbolic fairy tales employed to disenfranchise voters. In 2014, Justin Levitt of Loyola Law School in Los Angeles examined every case of voter impersonation fraud going back to 2000 (a memorable year for dubious vote counting procedures). Levitt did find cases of irregularities in over a billion votes cast in federal, state and local elections. He found 31.

Zoltan L. Hajnal, a political scientist at the University of California (San Diego) examined the voter identification laws that have proliferated in many states – especially in the South – coincidental with the expanding minority electorate and concluded that such restrictive policies “double or triple the gap in turnout between whites and nonwhites.” Indeed, 14% of Americans lack the government-issued photo ID cards required for voting in many areas, and a significantly higher number of minorities lack such credentials.

The barriers to voting are created not only by voter ID requirements. As documented in the study “Democracy Diminished,” produced by the N.A.A.C.P. Legal Defense and Educational Fund, there are numerous cases of local officials closing voting locations in minority communities, locating polls in buildings that share law enforcement offices (which can be intimidating to certain populations), and purging voter lists with disproportionate impact on Hispanic surnames. Despite the highly consequential outcomes of these insidious actions, many of which occurred in states once impacted by the suspended provisions of the 1965 Voting Rights Act, neither Judiciary Committee chairman — Bob Goodlatte in the House or Chuck Grassley in the Senate – have deigned to hold hearings on the issue.

Trump has decided, however, to move aggressively to get to the bottom of this non-existent problem, naming an Advisory Commission on Election Integrity and appointing as a member Hans von Spakovsky – a chief proponent of “the voter-fraud myth,” according to The New Yorker. Von Spakovsky, a senior fellow at the conservative Heritage Foundation, has “been accused of masterminding widespread efforts to suppress voting by marginalized populations, particularly African Americans and immigrants,” reports the Washington Post. Von Spakowsky has reportedly devoted his career to fabricating such obstacles, opposing renewal of the Voting Rights Act, trying to block the League of Women Voters from disseminating voter information materials, and challenging the distribution of voter materials in Spanish.

It should come as no surprise that a President who named a climate denier as head of the Environmental Protection Agency would appoint a vote suppression activist to serve on a commission charged with investigating voting fraud. Nor should anyone be shocked that half of the states are refusing a request from the commission to provide some or all of the voting registration data, including names, addresses, party affiliation and voting histories, to this panel. “What are they trying to hide?” Trump tweeted on July 1st, apparently clueless that many state laws prohibit the sharing of such information with anyone, including Trump’s voter suppression commission. Indeed, even the chairman of the Commission, Kansas Secretary of State Kris Kobach, is evidently barred by his own state’s law from turning over data — to himself.

The emerging confrontation between Trump and state officials over access to election data is yet one more example of serious policy discussions being reduced to farce and cynicism. An administration official solemnly assures that the commission requires the information because its “goal is to protect and preserve the principle of one person, one vote.” No, it isn’t. The goal here is to enshrine “voter fraud” and “rigged elections” in the way some embrace creationism as “science.” The objective is pretty clear: creating even more effective ways to obstruct millions of Americans from casting their ballots. Only a fool would provide these treacherous suppression activists with the raw material they require for further disenfranchisement.

If Trump and his acolytes are sincere in wanting to address the problems with voting, they would be aggressively supporting efforts to expand participation by promoting absentee voting, early voting, and an end to discriminatory requirements and polling operations that complicate exercise of the right to vote. Such initiatives would encourage voter turnout among the 40% to 50% who don’t even bother to cast a ballot. If the Commission, or Trump, wants to devote themselves to revitalizing our democracy, start there.

 

The Important Take-Away in Ossoff’s Loss

Democrats and pundits need to be very careful about drawing the wrong conclusions about Jon Ossoff’s defeat in Tuesday’s special election in Georgia. The balloons at Ossoff headquarters have not even deflated and already we are being told he should have run a more left-leaning, progressive campaign (in a traditionally Republican Georgia district), he should have tied his opponent more to Donald Trump, he was weakened by charges he was a toady of Democratic Leader Nancy Pelosi, and his defeat – in what many had presumed would be a welcome victory – foreshadows a grim 2018 election season for Democrats.

All of those conclusions might be correct; but more likely, they are wrong. Elections at their bottom line are a grim, cold business, and people who want to be involved in campaigns need to face facts. So here are a few facts about the George 6th race and what it might say about next year’s off-year election.

The most important piece of news out of Georgia, in my view, was not that Ossoff lost, but that he lost by only 4 points in a district that 8 months ago re-elected a Republican congressman by nearly six times that margin. Less noticed was the similarly close election in South Carolina on Tuesday where last fall’s GOP margin also was shrunken to a few points in a race virtually no one was even watching. These close calls track races earlier this spring in which Democrats came close in Montana and Kansas House races, neither ones that the party had any reason to believe would be competitive.

One of the cruel truths of politics is that you can’t win by losing. But special elections can send significant signals even if they do not produce victories, and this group of four specials in heavily Republican districts are very revealing because each of the districts was so unqualifiedly weighted against a Democratic victory, which is why House strategists resisted pouring money into what they reasonably knew were long shot races.

There are 94 House seats currently held by Republicans where the margin of victory in 2016 was closer than the margin won by Tom Price in Georgia 6 last November. Democrats need to win just 24 of those seats to win the majority (assuming they hang onto their current seats). If you are angling for a House majority, go fishing where the fish are. (Or, as Willie Sutton reportedly replied when asked why he robbed banks, “That’s where the money is.”)

One often overlooked consequence of the gerrymandering practiced so effectively by Republicans is that in order to fashion such manipulated districts, the margins tend to be relatively close. States that look solidly Republican actually are chock-full of seats that the GOP wins by narrow margins. To squeeze 6 Republican seats into a state where registration would suggest 4 or 5 is appropriate, the seats need to have a fewer number of Republicans, making them more vulnerable to Democratic challengers. This is where the GOP could face across-the-board problems in 2018: seats that are not quite Republican enough to insulate incumbents from an anti-Trump wave. And there are a lot of them.

It is always important to remember that House races are largely determined by conditions on the ground, in the district, and less impacted by national trends than many believe.

Yes, it would have been satisfying to win Georgia 6th, but the loss is a reminder of one of the rules House tacticians must live with: some seats are just too tough to win. There is a long litany of races where a Democrat pulls down 47% and comes to party leaders explaining how a tweak here or there will produce 50%+1 in the next election if only the campaign committee can spare a million dollars or so. In many cases, that just isn’t true: yes, in a wave, all bets are off, but those familiar with the rhythm of House campaigns know that some seats can inch agonizingly close to victory without ever quite getting there. My guess is (and was throughout the Ossoff campaign) that Georgia 6 was probably one of those.

Of course, it didn’t help that our candidate was facing an experienced campaigner who had won statewide office and run for governor and senator. True, Clinton lost the district by only a couple of points (NOTE: However, she did lose it, see previous paragraph), but one should not be surprised that women repelled by Trump’s misogyny might come home to an established, Republican, female House candidate who avoided mentioning the president’s name. While the avalanche of money for Ossoff was impressive, it certainly didn’t help that the vast majority of it came from outside Georgia, bolstering Karen Handel’s characterization of Ossoff as a outsider-financed, carpetbagging interloper (who incidentally lived with his girlfriend outside the district).

So, what does this disappointing, if predictable, outcome tell us about 2018? Actually, the closeness of these races leaves me fairly optimistic, although it will still be a grueling path back to 218 for House Democrats. It is still very early in the cycle to assume these four losses spell doom for Democrats, who won a string of special election victories in 2009 only to suffer a massive loss in 2010. Events still unknown will likely shape the outcome 16 months from now, and if congressional Republicans cannot deliver legislative victories that demonstrably benefit independent voters, or if Trump continues his bull-in-the-china-shop approach to governing, the close races in 2018 may well swing towards the Democrats.

 

 

Is the Baseball Shooting a Game Changer?

Today’s dreadful attack on Members of the House, Capitol Hill police, staffers and others is a disheartening reminder of the perils that accompany public service – risks that are incalculably increased by the easy availability of assault weapons like those used by the man who shot Rep. Steve Scalise and several others on an Alexandria baseball field.

For anyone who has served in Congress or worked with Members for any period of time, the dangers are all too familiar. During the years I worked for Congressman George Miller, his personal safety was in danger on several occasions, including threats of a Chilean assassin sent to the United States to target Miller for his condemnation of Pinochet’s role in murdering the former Ambassador to Washington and a young American colleague at Sheridan Circle. On another occasion, Miller was physically attacked by a constituent during a Town Hall meeting. The security that surrounded Speaker and Leader Pelosi was justifiably of a higher, and constant, level, warranted not only by her prominent position but also by the vitriolic abuse directed towards her daily.

These kinds of incidents remind us that, except for very few in the leadership, House and Senate members have no police protection except when they are on Capitol Hill. The expense of providing such coverage for hundreds of legislators would simply be prohibitive. Instead, members make arrangements with local law enforcement officials to safeguard them and their staff during public events like Town Halls; some have moved their district offices into secure facilities like courthouses or federal buildings that provide security screenings. Some level of risk seems unavoidable; Members must advertise their local schedules well in advance of public events which often lack the level of security screening that would be afforded an event on Capitol Hill.

One sensed a serious dissipation of the traditional collegiality with the ramping up of divisive rhetoric during the 1990s, as Washington and its denizens were routinely pilloried as corrupt, evil and worse. Long before September 11, 2001, when the sophistication of security procedures and safeguards on Capitol Hill changed radically, I recall hearing of the alarming number of weapons removed from those seeking to enter the Capitol and the House and Senate office buildings. Following the 9/11 attacks, police training and protective measures for the Hill were dramatically increased to minimize the danger to legislators, staff, visitors and others should Congress come under a similar attack.

Still, the atmosphere continued to deteriorate. No one who worked on the Hill during the debate over the Affordable Care Act in 2009-2010 will forget the hysterical mobs that besieged the House, at one point spitting on Members as they marched to vote on the legislation. Members reported constituents who were attending rallies and Town Halls armed with handguns in states where open and concealed carry laws have proliferated.

And then, there was that truly awful Saturday, January 8, 2011, when I took a call from the Capitol Sergeant at Arms informing me that Rep. Gabby Giffords, a good personal friend, had been shot; I had the terrible duty of calling my boss, Democratic Leader Nancy Pelosi, to relay that news and the radio update – fortunately false – that Gabby had not survived. On Monday morning, I emailed Speaker John Boehner’s chief of staff, Barry Jackson, to suggest we invite all staff members to join us on the East steps of the Capitol to demonstrate our support for Gabby and our hopes for her survival and recovery. In just two hours, dozens of staff from both parties, as well as Members, joined us on the steps for an impromptu service during which all signs of partisan disagreement were instinctively suspended.

Now again, the violence has reached Capitol Hill, as it so tragically did nineteen years ago when a deranged gunman killed Capitol Hill officers John Gibson and Jacob Chestnut. Miraculously, this time, none of the intended victims died, largely because Majority Whip Scalise, as a member of the leadership, had a small security contingent with him that was able to fire back and prevent many more from injury.

Today’s horrifying events will prompt discussions of gun restrictions, the hazards of holding open constituent meetings, political rage and other predictable and reasonable topics. Will any change come from the tragedy and ensuing discussion? Not likely, at least not from Congress which remains in the thrall of the National Rifle Association and the Gun Owners of America.  Nor from the media that thrives on the bloodletting – figurative and otherwise — that has become endemic in the Nation’s political discourse and coverage.

The pressure will have to come from voters who send unmistakable messages to legislators, media leaders and their fellow Americans that the price for the unrestrained availability of guns and hyper-partisan political rhetoric is unacceptable. How many times do we need to be reminded?

 

 

 

Congressional Oversight and the Trump Gag Order

Oversight has long been a crucial, if irregularly utilized, obligation of the Congress. While most people know that subcommittees and full committees hold hearings on policy issues that necessitate examination and on specific pieces of legislation, they also are charged under House and Senate rules with scrutinizing whether the Executive Branch is implementing laws consistent with Congressional intent. “If any realm exists in which [Congress] can be autonomous and consequential, it is in the realm of investigation,” observed political scientist David Mayhew. Between 1947 and 2010, Congress conducted 1,137 investigations, with the House emerging as the more aggressive chamber after 1974.

Not surprisingly, an adversarial relationship often exists between the Legislative Branch that writes the laws and the Executive Branch that administers them. When Congress decides to probe the operations of the Executive Branch departments and agencies, calling officials to testify and subpoenaing documents, the bad blood between the branches can heat up quickly.

The frequency and tenor of oversight is frequently related to the partisan relationship between the White House and the Congress, particularly the House. When government is divided, the partisan probing is particularly aggressive: think Benghazi, Lewinski and Wall Street circa 2008. When the same party controls both branches, congressional interest in performing its oversight function has a way of fading dramatically. Republicans showed little interest in scrutinizing the decisions leading to the Iraq War when George W. Bush was president, and Democrats were unusually quiescent during the first two years of the Obama presidency, when they were in the majority. Only rarely, in the case of inescapable meltdown – Watergate comes to mind, as do the inquiries into the Titanic sinking and the Challenger explosion – is oversight largely bipartisan.

As with so many features of traditional Washington behavior, the rules of the game are changing under President Donald Trump. Not surprisingly, the Republican majority has been loathe to launch inquiries into innumerable peccadillos (and worse) committed by the Trump Administration, any one of which, if committed by the Obama Administration, would have sent GOP inquisitors into paroxysms of sleuthing.

House and Senate Democrats are losing their patience with the Republicans’ meager deployment of oversight, and they are sending their own detailed inquiries to agencies demanding information and answers. Lacking the ability to issue a subpoena (the power to do so rests with the committee’s majority and sometimes, just the chairman), Democrats have to count on the good will of the Executive Branch to honor their request for data.

Fat chance. Now, to be fair, Bill Clinton and Barack Obama slow-walked the informational requests of Republican minorities. Mitch McConnell and other GOP senators often obstructed confirmation votes in response to the unresponsiveness of Obama bureaucrats. But now the Trump Administration has issued explicit instructions to departmental officials to decline to comply with requests for information from Democratic lawmakers. According to recent reports, Uttam Dhillon, a lawyer on the White House staff, directed agencies “not to cooperate with such requests from Democrats.” The source of this revelation: “Republican sources,” who affirmed that the goal is “to choke off the Democratic congressional minorities from gaining new information that could be used to attack the president.”

It probably should not come as a huge surprise that, in response to the criticism this directive has unleashed, the civics-challenged Trump White House sought to assure critics that the Administration would respond to “the requests of chairmen, regardless of their political party.”

Note to Trump White House: there are no Democratic chairmen. Yet.

It is easy to get up on a partisan high horse on this issue, but the truth is that all administrations are loathe to turn over documentation to political adversaries who sometimes are on fishing expeditions. But the Trump clan seems to have elevated common practice to formal White House policy, and the damage done by this unresponsiveness compounds the circle-the-wagons paranoia prevalent in the embattled White House.

Refusing to hold the Administration accountable is far from the only example of the Republican leadership backtracking on pledges in their administration of the House. During their 2010 to regain the majority, House Republicans promised to return to “regular order”: committees, where debate is open and amendments are unrestricted, would develop legislation instead of having it dictated by the leadership. (This promise was a response to a bogus charge about the way Democrats had written the 2009 stimulus, health care and Wall Street reform laws. In fact, all were developed in committees, subjected to extensive hearings and mark-up sessions in which Republicans were fully engaged.) No legislation, John Boehner promised, would come to the floor without having been open for scrutiny for at least 72 hours. No Member would have to vote on a bill they had no had the time to read.

Of course, all these promises have been broken. Committees now are largely inactive; hearings on policy development are few and far between; bills, like the atrocious ACA revision never endured a minute of hearings, testimony, or committee debate or mark-up. In the case of the ACA revision, virtually no one knew what was in the constantly morphing bill, and absolutely no one knew what it would do, or how much it would cost when they voted on it. So much for the promised “regular order” which often is dispensed with when vote margins are tight.

Now Speaker Paul Ryan and his Republican majority must decide whether they will kowtow to an Administration that displays open defiance to their Democratic colleagues’ requests for information. After all, there is more than partisan politics at stake; the interests of the institution of Congress are also on the line.

If the Republicans refuse to stand up for the minority, and the tens of millions of Americans they represent, at least Ryan should clearly affirm the right, and responsibility, of Congress to conduct oversight, a crucial and hard-won power of the Legislative Branch. This week’s Senate hearing with James Comey stands in sharp contrast to the continued stonewalling by House investigators who are protecting Trump and his hapless team. Unfortunately, Ryan and a substantial portion of his Caucus are content to ignore Mayhew’s standards of being “autonomous and consequential” by conducting serious oversight. As with their abysmal record of non-legislating, if this inaction elevates public disdain towards government, they have achieved their goal, and the Congress and the country are the worse for it.

 

“Mr. Tax”

Forty-four years to the day since the Senate’s Watergate Committee began its hearings in the Russell Building’s ornate Caucus Room, friends and relatives of former House and Senate staffer Ed Greelegs gathered in the historic chamber – now named for Ted Kennedy – for his memorial. Once again, the federal government is mired in crisis and disbelief as a presidency appears to crumble before our collective eyes, but in the hearing room where Sam Ervin once presided, the speakers recalled a better time in this history of the Congress and the invaluable role Ed Greelegs played in making the machinery of government work for ordinary Americans.

In a world where most of the memorable characters have “Honorable” before their names, Eddie stood out as a personality you simply could not help but like and certainly could never forget. Funny, wry, knowledgeable, compassionate and well read to an unimaginable degree, Ed Greelegs was unique. With a pompadour of grey hair and a salt and pepper beard (I always thought: “Billy Joel clone”), a raspy voice and expressive hands, Ed stood out in the buttoned down world of Capitol Hill. Speaker after speaker recalled how he would engage with elevator operators, committee chairmen, young staffers trying to figure out the labyrinths of the Hill, and lobbyists whom he rarely hesitated to chastise or support, whichever was more appropriate.

Among the speakers at the memorial service were two of his former employers, Democratic Whip Dick Durbin and former Congressman Marty Russo (he also worked for Reps. Sam Gejdenson and Bob Eckhardt). Both men have represented Illinois ably, but are very different: Durbin the calm voice of reason, Russo the hard-nosed pol. Ed served both well by diligently handling legislative duties, by working collaboratively with staff, and by performing that vital service every legislator needs from a staffer: telling them when they are wrong. Russo recalled how, after casting a controversial vote that left him feeling estranged from his staff and colleagues, Greelegs reminded him that, while they disagreed on the policy call, he – and the rest of the staff – were there to support their boss unquestioningly. Russo said the conversation changed his life.

Ed loved policy – he modestly entitled himself “Mr. Tax” for his work on the Ways and Means Committee. Efforts to recast his career as a downtown lobbyist, like so many of his staff colleagues, just didn’t work for him, and he soon abandoned Gucci Gulf for the more familiar venue of the Congress. Like many of us who worked in an atmosphere fewer and fewer recall (or even believe is possible), Ed regularly reached across party lines to figure out how to serve constituents or for a cause, because that is how you succeed in politics. He was the proverbial go-to guy who got things done, without partisan rhetoric and without drawing attention, or credit, to himself.

I spent less time talking with Ed about tax policy than about history, one of his many academic passions. Friends at the memorial, including his wife Susan and Russo, recalled the unbelievable clutter of books, newspapers and magazines that marked Ed’s desk at work and study at home. It was a rare topic on which Ed could not only hold forth knowledgeably but also offer scholarly citations to back up his viewpoints. It was impossible to leave any conversation with Ed without feeling that you had certainly learned more than you had contributed, and yet Ed never exuded a scintilla of intellectual elitism or arrogance.

Ed became ill some ago and his health suffered periodic setbacks in recent years. He passed away on March 28 at just 66, decades before he should have left us. The wide assemblage of members, former members, staff and ex-staff, lobbyists and others who filled the Kennedy Caucus Room with tears, applause and laughter was a fitting testimonial to the achievements and modesty of a really good guy who will be sorely missed.

Congress Should Summon Trump to Testify

President Trump’s decision to fire FBI director Richard Comey is fueling comparisons to Richard Nixon’s “Saturday Night Massacre” in October 1973. In an act of executive arrogance, Nixon discharged the man heading the investigation into the White House’s involvement in the Watergate scandal. Both Attorney General Elliott Richardson and his deputy, William Ruckelshaus, resigned their positions rather than comply with the order to fire Special Prosecutor Archibald Cox.

Ten months after ordering Cox’ dismissal, Nixon himself resigned and was succeeded by the recently appointed Vice President Gerald Ford, the longtime, popular Republican Leader of the House of Representatives. But relief over the ending of the “long national nightmare,” as Ford had characterized the Watergate saga, quickly evaporated when the new President issued a pardon to his disgraced predecessor in September, 1974. “That son of a bitch pardoned the son of a bitch!” Carl Bernstein of the Washington Post exclaimed to his Watergate collaborator, Bob Woodward. As Ford’s popularity plummeted, Democratic candidates exulted that Ford had clumsily re-injected controversy into the political atmosphere just two months before the election (which yielded a 49-seat gain for House Democrats).

Many in Congress questioned whether Ford had promised Nixon a pardon in return for his resignation, a charge Ford angrily denied. Ford returned to Capitol Hill to give his account of the pardon decision to the same Judiciary Committee members who had voted to impeach his predecessor. Under intense but respectful questioning, Ford steadfastly denied having cut a deal to ease Nixon out so that he might assume the presidency. Subsequent revelations, however, suggest that Ford had considered an offer from White House chief of staff Alexander Haig to issue a pardon in return for Nixon quitting. Ford told Haig he “needed time to think about it,” a statement that left several aides apoplectic. “You can’t do that,” Ford aide John Marsh exclaimed, according to an account by Woodward. “It would look like a quid pro quo for Nixon’s resignation!” Indeed, the following year, Judiciary Committee members narrowly defeated an effort to open an inquiry into Ford’s alleged deal with Haig.

The aftermath of the Ford pardon mirrors the inter-branch conflict that now afflicts the Trump Administration, and one way to resolve the suspicion surrounding the motives for firing Comey would be for Trump, like Ford, to answer the charges publicly before the Congress. Indeed, since the decision to oust Comey was unquestionably made by the President alone, the only way Congress or the public will ever know the basis for the controversial removal is to hear from the President in open testimony.

Comey’s firing is not the only issue on which Congress has an obligation to interrogate President Trump. He also fired acting Attorney General Sally Yates in January after she warned the brand new President that his National Security Advisor Michael Flynn, was “compromised with the Russians.” Five weeks later, Trump also fired the U.S. Attorney Preet Bharara, whose office would likely have prosecuted campaign violations that occurred in New York. The systematic removal of three law enforcement officials looking into the Trump-Russia connection presents a “deeply troubling pattern,” in the words of Senate Minority Leader Charles Schumer. Congress has an obligation to question the President about these dubious decisions.

Sen. Majority Leader Mitch McConnell’s response to the Comey ouster is to, once again, shrug off calls for a special prosecutor, preferring to leave the inquiry with congressional committees. But if McConnell is serious about a Senate investigation, he should join with Democratic leaders and invite the President to come to Capitol Hill, as did President Ford, to clear the air.

Of course, Trump is unlikely to voluntarily subject himself to questions from Congress. It is not as easy to walk away from a congressional committee as it is to abruptly terminate an uncomfortable interview, as Trump recently did with John Dickerson of CBS News. But Trump’s understandable reticence should not influence Congress’ responsibility to conduct reasonable oversight into the Comey firing. No sound inquiry can occur without the person at the center of the storm – Donald Trump – being sworn in and testifying.

 

100 Days to Duck for Cover

Well, first the good news: we made it! One hundred days into the Trump Administration and thus far, we have avoided stumbling into a major war, repealing the Affordable Care Act, or rounding up thousands of “professional anarchists, thugs and paid protesters” – the people Trump accused of resisting his policies – and deporting them to Guantanamo.

That’s about it for the good news, unless you count the energizing of the Trump opposition that, with any luck, will sustain its outrage and engagement until at least the 2018 mid-term election. Otherwise, the first 100 days of the Trump Administration has been an endless succession of lies, stumbles and political screw-ups unprecedented in American history. Back in February, I gave Trump the “William Henry Harrison Award” for the worst first 30 days as a new president (Harrison died 30 days into his term). He has done nothing to cause me to doubt that he richly deserved the honor.

In fact, the New York Times published an account of Trump’s 100 days, highlighting a distortion, lie or juvenile provocation for each day. (https://www.nytimes.com/2017/04/29/us/politics/fact-checking-president-trump-through-his-first-100-days.html) I could only get through a week of the prevaricating, mendacious statements.

Worse than his statements, however, have been the genuinely malicious actions this narcissistic blowhard has unleashed, although many have amounted to little more than directives to review past policies for possible reversal. The source of his imagined mandate remains obscure: did the country really vote for more methane releases that accelerate climate change? Should we really speed up offshore oil leasing when oil prices are low and taxpayers will get shafted by low bids? Are consumers really demanding rollbacks on auto and appliance efficiency standards?

The executive orders that really seemed to put a bounce in Trump’s step have run afoul of the courts, including bans on refugees and sanctions against sanctuary cities. During last year’s campaign, Trump declared that he “did not plan to use too many executive orders,” a practice he erroneously alleged “came about more recently. Nobody ever heard of an executive order, then all of a sudden Obama — because he couldn’t get anybody to agree with him — he starts signing them like they’re butter.” (Actually, Ronald Reagan issued 361, and Bill Clinton 364; Obama came in with a paltry 276, fewer even than W’s 291, but never mind.) Trump pledged to “do away with executive orders for the most part,” which seemed possible given GOP control of the House and Senate. Of course, the difference is that Obama faced a political opposition that blockaded his legislative agenda (although Trump incomprehensibly blamed Democrats for preventing passage of his health care repeal).

Trump has little regard for congressional Republicans whom he views as part of the problem – the problem being not doing whatever he wants. In interviews this week, Trump admitted he was “disappointed” in the performance of Congress for failing to deliver him any legislation beyond repeals of Obama-era regulations. Trump admitted that devising a plan to replace the Affordable Care Act was much harder than he anticipated, but he still declared that he was “disappointed that it didn’t go a lot quicker. It is a very tough system.”

Despite the mis-steps and failures — the allegations of nepotism for placing his preening daughter and unqualified son-in-law in positions for which they lack any qualification whatsoever, the chaos in his White House staff, the investigations into possible inappropriate contact with Russians who were undermining the 2016 election, the juvenile tweets that he substitutes for thoughtful dialogue, the schoolyard taunts of Democrats and the gratuitous insults of international allies – despite all this manufactured chaos, Trump glides on, surrounded by sycophants, supported by 93% of his voters, and unfettered by the norms of presidential behavior.

And he thinks he is doing well. “No administration has accomplished more in the first 90 days,” he fatuously insisted in Wisconsin, one of the states that gave him his stunning victory. He reiterated the point this weekend, demonstrating not only his exaggerated sense of his own significance but also his abysmal knowledge of American history. “I truly believe that the first 100 days of my administration has been just about the most successful in our country’s history,” Trump declared. “Our country is going up, and it’s going up fast.” I presume that “going up fast” is a Trumpian translation of “winning big.” It is difficult to tell whom Trump thinks might actually believe such nonsense, other than acolytes like press secretary Sean Spicer who observed, “When you look at the totality of what we’ve accomplished on job creation, on immigration, on trade, it is unbelievable what he has been able to do.”

He’s certainly right about that.

Now, some may argue it is unfair to judge Trump too harshly for his anemic 100-day performance, an artificial and admittedly brief tenure. Of course, Trump himself made many extravagant pledges about what he would accomplish in the first 100 days, so it isn’t really too unfair. But I can’t help but compare his stunning non-productivity with the burst of legislative success registered in 2007 when Democrats regained control of Congress, not in the first 100 days, but the first 100 legislative hours.

Nancy Pelosi, Harry Reid and congressional Democrats pushed Congress to adopt an agenda they had named “A New Direction for America,” also known as the “6 for ‘06” agenda. The short list of initiatives was winnowed from dozens of suggestions based on several criteria: an ability to unify Democrats, a broad bipartisan appeal, and, importantly, the fact that only the Republican majority’s refusal to allow these consensus policies an up or down vote had prevented their enactment. Pelosi and Reid won approval for many of their initiatives and George Bush signed them into law, including a major energy conservation law, a minimum wage increase, and a toughening of lobbying laws.

Pelosi and Reid didn’t register these successes because they enjoyed majorities – most of these bills won substantial Republican support, too. They succeeded by working with their members, using the political and personal connections that are so integral to the legislative process, providing incentives and cutting members slack when necessary to cobble together an enactable piece of legislation.

By contrast, Donald Trump has no understanding of or respect for the legislative process (or the Congress, for that matter). He has invested little time in getting to know the Republican legislators he barely knew before assuming office, and he has made no effort to collaborate with Democrats, whose votes he needs to achieve major policy objectives.

In 2006, Pelosi (like Trump a decade later) ran a national campaign promising to “drain the swamp” in Washington, but she knew when to put the rhetoric to bed and get serious about bipartisan legislating. Until Trump schools himself on the rules for dealing with an assertive Congress, he will, like a swamp, continue to produce more gas than substance.

(apologies to Paul Simon for the title to this blog!)

 

 

Impeach Trump?

What would be an appropriate response to a decision by the President of the United States to inflict deliberate harm on tens of millions of Americans? The question may seem far-fetched, even extreme, but depending on a decision by President Trump, it might well become one that Democrats in Congress must answer.

Under the Affordable Care Act, the federal government is supposed to make $7 billion available to subsidize health insurance premiums for millions of low-income Americans. While Republicans have sued to prevent the payments – itself a startling decision from a Party that had railed about fictitious “death panels” – the law stands, and under the Constitution, the Executive Branch has a clear responsibility to ensure that the laws are enforced. Even some key Republican lawmakers, like Rep. Tom Cole (R-OK) are demanding that Congress provide the funding for the premium supports.

Officials at the Department of Health and Human Services, which is presided over by Secretary Tom Price (himself a physician and obdurate opponent of ACA), issued a statement that the subsidies would be paid in conformity with the law. An “incensed” Trump reportedly ordered HHS to reverse its position, asserting that he wants to use the subsidies to force Senate and House leaders Charles Schumer and Nancy Pelosi to negotiate weakening the ACA. “I don’t want people to get hurt,” Trump professes, although he acknowledged he was willing to inflict the pain unless Democrats subvert the proudest achievement of their legislative careers.

It is a brutal and startling intimidation unsuited to any President: holding a gun to the heads of millions of low income Americans, threatening to pull the trigger unless Democrats agree to undermine their constituents’ health security.

It also may be unconstitutional. Like all presidents, Trump swore an oath to “preserve, protect and defend the Constitution,” a document which charges the President with enforcing the laws, regardless whether he embraces them. All presidents choose to selectively enforce laws. (Barack Obama, it will be remembered, declined to defend in court the Defense of Marriage Act, a law he believed was unconstitutional, but he did not refuse to enforce it until the Supreme Court agreed with his interpretation of its unsuitability).

Moreover, the 14th amendment requires equal protection of the law, and a decision to “hurt” millions of Americans based on their income (and disproportionately, on their race and ethnicity) surely violates this fundamental guarantee.

I am not one to blithely throw around the idea of filing impeachment resolutions. Richard Nixon richly deserved to be run out of office on a rail for manipulating the FBI and Justice Department to cover up his involvement in Watergate, but other cases have been little more than thinly veiled political retribution. The decision in 1868 to impeach Andrew Johnson was based on his violation of the Tenure of Office Act, one of the lesser of his many political offenses. Bill Clinton pretty clearly lied about his involvement with Monica Lewinsky, but few agreed it merited removal. Public demand for impeachment has wisely been resisted by congressional leaders. George W. Bush invaded Iraq on erroneous data which many observers knew was inconclusive, leading some to demand his removal, but Speaker Nancy Pelosi wisely steered her Caucus away from an ugly and unwinnable constitutional battle and towards a victorious 2006 electoral campaign.

Impeaching Trump became an obsession with some hardline opponents even before he took office based on the sheer ugliness of his campaign rhetoric and cynical strategy, both deplorable but not sufficient grounds for triggering Congress to initiate the removal procedure. The pre-Inaugural passion to remove Trump from the Oval Office reminded me of the “Impeach Reagan” pin a friend wore in his lapel on Election Night, 1980, a remnant from a failed gubernatorial removal effort.

But should he follow through on his threat to willfully impose financial hardship and medical jeopardy in defiance of the law, Trump may cross the line. That he would do so to seek political leverage makes his threat even more vile. Should he follow through and undermine the health security of millions of Americans, Congress would have more than sufficient grounds to debate removing him from office.

Harvard Law School’s constitutional law professor Noah Feldman recently pointed out that presidents need not actually break a law to commit “high crimes and misdemeanors,” the constitutional standard for removal from office. The president’s actions “don’t have to be actual crimes that are on the statute books at all,” Professor Feldman argues. “Abuse of power is anything the president does that he can only do by virtue of being president that threatens the basic freedoms and capacities of other people … actions performed in an official capacity … that violate the basic principles of the government.” Refusal to follow a law, upheld by the Supreme Court, so as to cause ill-health, suffering and death to citizens would, in most peoples’ book, meet the professor’s standard for “abuse of power.”

There is obvious political gain and risk from moving in such a confrontational direction. On the upside, motions of impeachment would energize much of the Democratic base that would just as happily impeach Trump for the ridiculous color of his improbable comb-over. Resolutions would focus attention on the impact of Trump’s heinous action and likely energize portions of the base impacted by such a decision. On the downside, many Republicans would cry foul and the country would be thrown into a furious round of the partisan confrontation that exasperates much of the electorate.

On balance, the fight would be worth strongly considering should Trump withhold the payments. The Affordable Care Act has never been more popular; Congress and Trump tried, and failed, to weaken it within the legislative process. It would therefore be highly presumptuous – perhaps even impeachable – for the President to exercise his Executive powers to subvert the law and endanger the health and welfare of millions of his fellow countrymen. Democrats would be fighting on a matter of constitutional principle and on behalf of Americans whose security has been undermined by the intentional misuse of presidential authority. That much seems unimpeachable.