DOMEocracy

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“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.

 

 

Mini-DOMEocracy: Trump and Truthiness

Donald Trump is simply incapable of telling the truth or accepting responsibility.

Democrats were to blame for the failure of the Republican bill to gut the Affordable Care Act. The press is to blame for the steady leaks on the Trump-Russia connections. And now, a “lousy process” is to blame for the large number of Executive Branch vacancies.

“I am waiting right now for so many people,” Trump says. “Hundreds and hundreds of people. And then they’ll [NOTE: not sure who “they” references] say why isn’t Trump doing this faster?’ You can’t do it faster because they’re [NOTE: see earlier “note”] obstructing. They’re [NOTE: once again…] obstructionists… I have people, hundreds of people, that we’re trying to get through. I mean, you see the backlog. Can’t get them through.”

So, the implication is that the Senate, or those nasty Democrats, are holding up hundreds of appointments to sub-Cabinet posts; you know, like Mitch McConnell actually did to obstruct Obama appointments. Except, according to Politico,

“Contrary to Trump’s claim that he has ‘hundreds and hundreds of people’ awaiting confirmation, the White House had, as of April 7, put forward just 24 nominations for the 533 key posts that require Senate approval. Of those 24 nominees, 22 have been confirmed.”

I guess “they” should do better fact-checking before casting blame.

What a Week This Was!

Syria. Gorsuch. Filibuster. Job report. Nunes. China visit. Russia. Health Care. Bannon and NSC. Kushner diplomat extraordinaire. Unquestionably, the first week in April has been the most consequential for the still struggling Trump Administration. The thrashing about is occurring not only within the troubled White House itself, riven with rivalries, but between the two ends of Pennsylvania Avenue which continue to cautiously define their relationship.

Trump’s decision on Thursday night to launch a missile attack on Syria’s Al Shayrat airfield was the President’s first effort to demonstrate his willingness to flex American military muscle and was significant in a number of ways. The 59 Tomahawk cruise missiles that constituted Trump’s response to President Assad’s despicable chemical weapons attack on the town of Khan Sheikhoun elevated his profile by demonstrating he was willing to shoot off something other than his mouth in response to Syrian (and Russian) provocation. Whether the attack reflects a new policy towards the Syrian civil war, or was merely a one-off retribution strike for Assad’s slaughter of innocents, remains to be seen.

Less uncertain are the impacts in terms of relationships with both Russia and Capitol Hill. Apparently the Russians were informed prior to the missile launchings which allowed them to move their military personnel at Al Shayrat out of harm’s way, although it seems unlikely the early alert will assuage Putin for the assault on Assad, his Syrian ally. One question still to be answered is whether congressional leaders were also given advance notice of the missile attack. Without any knowledge on the subject, I would bet calls went out to the Big Five (Speaker, Majority and Minority Leaders in both the Senate and House), as was the case before President Obama launched the attacks in Libya in 2011, which is one reason why there was a muted response from potential congressional critics.

But it did not take long for Sen. Rand Paul and others to question why the President did not seek congressional approval prior to initiating a major offensive military action, especially since Trump had criticized Obama for not seeking specific authorization before intervening in North Africa. Now ensconced in the West Wing, Trump instead fell back on Obama’s rationale, that the Authorization for the Use of Military Force that Congress approved long ago concerning Afghanistan and Iraq essentially permits presidentially approved offensive military action anywhere in a very wide region that was not contemplated when the AUMF was passed.

Congress approved the War Powers Resolution in 1973 on a bipartisan basis to check the ability of trigger-happy presidents to insinuate the United States into protracted international conflicts without the requisite approval from Congress, which was granted war-making authority by the Constitution. Previously, White Houses of both parties have shot first and alerted Congress later, when it was necessary to seek funds to perpetuate the conflict initiated on a unilateral basis. Unwilling to leave American forces in harm’s way without needed weaponry or pay, compliant Congresses regularly get snookered into ratifying the President’s decision even when they disapproved of the initial commitment of U.S. forces. Frequently, for example, Nancy Pelosi had to cajole her distrustful Democrats to fund George W. Bush’s Iraq war, which she detested, provoking unrelenting criticism from militant demonstrators outside her San Francisco home.

Closer to home, tensions within the White House continued as personnel drama played out at the highest levels. Of greatest interest are reports that the two most powerful Trump aides, Jared Kushner and Steve Bannon, are at loggerheads. Kushner’s secret trip to Iraq, coming on the heels of his elevated role in coordinating government reform, negotiating a Mid-East Peace Agreement, and who knows what else, all are raising eyebrows in Congress and among ethics experts who note the acrid whiff of nepotism drifting through the White House. Many are justifiably alarmed at the power vested in a wholly inexperienced and unvetted neophyte who has never revealed potential conflicts of interest or been the subject of congressional confirmation. There is a reason that individuals who have the weighty portfolio being thrust upon Kushner must first be subjected to careful and public scrutiny, and one would think that Trump would want the same for his son-in-law if, for no other reason, than to diminish the possibility of a huge embarrassment at some crucial time in the future. (Of course, Bannon and National Security Advisor Gen. H.R. McMaster also hold their positions without benefit of congressional approval.)

A third development, with potentially significant long-term consequences, was the decision of Senate Republicans to alter the historic rule requiring 60 votes to take up a Supreme Court nominee, and the subsequent confirmation of Neil Gorsuch with just 54 votes, including two Democrats. Republicans pointed to former Majority Harry Reid’s decision to employ the nuclear option and eliminate the filibuster in 2013, a decision that applied to Cabinet and lower judicial nominees, but not to the Supreme Court or to legislative matters. Reid had long voiced his exasperation during leadership meetings with President Obama over his inability to confirm not only judicial nominees but also lower level Cabinet positions going back to the Clinton Administration because Minority Leader Mitch McConnell employed the 60 vote rule, often for reasons wholly unrelated to the qualifications or ideology of the prospective appointee. (In one case, at least, a senator held up a nomination for many months because he had not received a timely response to a letter to a Cabinet member.)

During those meetings (which I often attended), McConnell was a picture of taciturn indifference to Reid’s fulminations, resting on Senate tradition to justify use of the filibuster. Not surprisingly, upon gaining the majority in 2015, McConnell was happy to keep the Reid rule in place (as did Democrats in 1891 when they preserved the reforms that GOP Speaker Thomas Reed had unilaterally implemented to facilitate the operations of the House). There is a difference, of course: McConnell was holding up hundreds of appointments for reasons unrelated to the nominee, whereas Senate Democrats were objecting to one person’s appointment, based on Gorsuch’s extreme originalism and the Republican majority’s unprecedented refusal to grant Obama nominee Merrick Garland a hearing, let alone a vote. No matter, once a rule is violated, it is very difficult to restore it, and the Senate Democrats could hardly have been surprised. The resulting fury is more likely to affect the few Democrats who voted for GOP rules changes and Gorsuch, even though their votes in each case had no impact on the outcome.

One can hardly conclude a review of the week’s news without mentioning the spectacular flare-out of the bumbling, ham-fisted disaster that is Devin Nunes. His willingness to prostrate himself before the White House on the issue of Russian interference in the 2016 election was embarrassing to Democrats and Republicans alike, and his sharing of classified information about the probe with the President – information Trump could easily have acquired without the clandestine, midnight maneuvers of Nunes – sealed his fate as chairman of the House Intelligence Committee. Not only did he humiliate his fellow Republicans and provide Democrats with a new poster child of obsequiousness to Trump, but he crossed a line in kow-towing to the Executive Branch, a violation of separation of powers that was bound to cause anxiety among anyone concerned about the integrity and independence of the Legislative Branch.

A week of enormous consequence and continued turbulence on the Hill, in the White, and between the branches. And there is little reason to believe things will calm down anytime soon.

The Tax “Reform” Circus Comes to Town

Having placed pennies on the eyes of the stillborn American Health Care Act, Team Trump is now pivoting towards the more promising legislative goal of tax legislation. Not necessarily tax reform, which would imply restructuring tax obligations to ensure the ultra-affluent pay their fair share, but rather tax shifting to let the wealthy and corporations keep more of their money. When you hear Republicans say “tax reform,” there’s one thing you can be certain is coming (although never mentioned), and that is higher deficits.

Health care was a sideshow, needed in order to achieve a massive tax cut for the richest Americans that would help to finance the tax bill. Rest assured however: the circus that is coming to town is all about cutting taxes for the rich, and the deficit be damned.

The preliminary maneuvering suggests that legislating tax policy might be as rocky a road as the demolition derby that was health care “reform.” The key to any tax bill is the distributional curve: who gets more, and at what cost. As with the Reagan and George W. Bush cuts, the huge middle class would certainly secure some mild reductions in their tax bill, which pushes the cost of any such bill into the stratosphere. But the bulk of the benefits would go to the small elite of millionaires and billionaires who populate the world of Trump, Ryan and the Republican majority (as well as the Cabinet and White House staff).

If Democrats can’t figure out how to turn the tax debate into a messaging and electoral coup, they should hang up the spurs. The key is to keep it simple. The disproportionate amount of tax relief going to the wealthy affords Democrats a priceless opportunity to tarnish any claim that Republicans or Trump have (which is admittedly only a cynical one) to being a leader for the “little guy.” If anyone in the white working class missed the message of TrumpCare (“you lose your health guarantees while rich folks get a big tax cut”), the missive from the tax bill should be even clearer: “we are going to shower money on the richest Americans, run up a massive deficit, as Republicans always do, and then use the deficit to justify massive reductions in domestic programs that benefit low-income, job-deprived , undereducated Americans.”

This syndrome has been going on for over 30 years, since Ronald Reagan figured out it was easier to eviscerate domestic programs he disliked by pleading poverty born of tax policy he had perpetrated. Instead of denouncing popular New Deal and Great Society programs, as Barry Goldwater had learned was electorally perilous, Reagan generally sidestepped condemning them but created a deficit that “compelled” him to reduce domestic spending, a strategy later acknowledged by Budget Director David Stockman. There is a reason the biggest deficits are created during Republican presidencies, after all: the so-called fiscal conservatives cut tax and revenues, decline to pay for these cuts through comparable spending reductions or the reform of entitlements, and then wail about the rising deficits that can only be reduced (not really) by slashing tiny domestic discretionary spending (excluding military spending) that has already grievously suffered due to sequestration.

As the highly respected (though admittedly left-leaning) Center for Budget and Policy Priorities reported in 2013, “Bush tax cuts are likely to continue be a major driver of federal budget deficits 20 years after they were first passed” despite efforts by President Obama and congressional Democrats to rein them in. In addition, the nonpartisan Congressional Research Service concluded that Bush cuts “helped widen income inequality in the 2000s.” Nearly three quarters of the Bush tax cuts in the early 2000’s went to the top 10% of taxpayers (and 30% to the top 1%!), while the lower 60% of taxpayers received just 12% of the benefits. Little wonder that the 2009 deficit for fiscal year 2009, that greeted Barack Obama, was $1.4 trillion, the largest deficit relative to the economy since the end of World War II. Add in Bush’s other unpaid-for spending including the wars in Afghanistan and Iraq, the Part D Medicaid Expansion, and the damage caused by a failure to regulate the housing and financial services markets, and the responsibility shifts decisively from Democrats – who opposed all these decisions – to the conservatives fiscal “hawks.”

It certainly does not help that the tax debate will occur in the aftermath of both the health care implosion and the release of President Trump’s budget, which was so appallingly targeted against lower income Americans that even many conservatives have shied away from embracing it. No feature more illuminated the Dickensian motives behind this malevolent blueprint than the decision to zero out funding for the Meals on Wheels program. OK, I get it; you want to get rid of programs that “waste” taxpayer dollars. But really, starving a program that provides hot, nutritious meals to disabled, homebound elderly people, and are typically operated by charities (often churches): where is the message in such mean-spiritedness? Sure, toss in the assaults on the National Endowments for the Arts and Humanities, the Corporation for Public Broadcasting, the National Institute for Health – all that money that doesn’t add up to squat in a nearly $4 trillion budget. (And you can throw in ending heating aid to freezing Trump voters in the upper Mid-West.)

It remains to be seen if the Congress will have much appetite for such proposals that appear to defy the most elementary principles of politics. Sure, conservatives want to cut spending, but even most of them want to remain in office (check out how many have renounced their self-imposed term limits once they got used to their 18 person staffs and being the belle of the ball in their districts). Trump’s bizarre (sorry, there is no other words for it) strategy is to publicly browbeat the Breitbart crowd, growling “The Freedom Caucus will hurt the entire Republican agenda if they don’t get on the team, & fast. We must fight them, & Dems, in 2018!”

With plans, policies and strategies like these, the federal deficit isn’t the only thing that is going to grow like a beanstalk in the years to come. Trump’s deficit in approval ratings is so profound that it may well be only a matter of time before Republicans on the Hill abandon any pretense of being on the Trump team and do what politicians generally do: worry about their own seat before they worry about yours.

Happy to Be Proven Wrong!

Sometimes, when you go out on a limb, you’re going to have a rough landing.  In the last DOMEocracy, I predicted that “the House will pass something [on health care] that the President will define as ‘amazing.’” I have never been as pleased to say: “I was wrong! Mea culpa!” I have never been happier to have been proven a faulty seer.

I should have known better. First, congressional behavior is always tough to predict, and the current band of wayward miscreants who control the House are fixated on defying all historical antecedents. After all, this is the same crowd that gleefully pleaded with John Boehner (who surely is somewhere with an enormous grin on his face and a merlot in his hand) to shut down the government. The same crowd that proclaimed how wonderful it would be to default on the national debt: who refused to vote for continuing resolutions or stimulus bills or any other urgent legislation because they worship at the shrine of chaos, not to mention practice the dark art of ineptitude.

Since the Republicans bulldozed their way to the majority in 2010, I have described their behavior as bizarrely Orwellian. Failure=success: allowing (even encouraging) government to fail is an achievement, because it promotes the broader objective: to destroy peoples’ confidence in government. Now, with the collapse of the “repeal and replace” (snicker) ACA movement, it is they, not government, who look indescribably incompetent, not because they failed to pass a bill, but because their inability to translate 7 years of buffaloing the public into real legislation has exposed them as a bunch of hyperbolic windbags.

I mean, if you can’t kill off the law you’ve spent a solid 7 years trashing, with your governors refusing to create exchanges or accept Medicaid expansion dollars; if you’ve spend billions on political campaigns begging the American people to elect a unified Republican government to end the “abomination of Obamacare”; if you’ve had a narcissistic blowhard waving his Executive wand for two months pretending to be King Donald I – you’ve got all that going for you and you still crash and burn – and I mean, spectacularly crash and burn – on your first serious legislative outing: well, what else can you say except, “You’ve been exposed as frauds.” Not to mention, amateurs.

Give them credit, they did achieve something Barack Obama never could: they made people appreciate the Affordable Care Act. Perversely, their focus on the law’s protections and benefits reversed the public hostility to the law. Now, the public wants ACA left as it is by a 3-1 margin. Even Republican politicians can count those numbers, not that they weren’t tempted to make them even worse. The photograph of a large group of white men sitting around the table in the White House Cabinet Room dissecting the ACA and removing maternity benefits: come on!

Now this little band of wounded warriors can turn their attention to what always was the first goal of Republican politicians: cutting taxes for rich people and bumping up the national debt in order to create a rationale for additional cuts in domestic programs. But they may have done themselves in by exposing their meanspiritedness and mendacity. When they begin writing the budget resolution and appropriations bills, they will have not only the health care fiasco as a burden to carry, but also Trump’s egregiously stupid idea to slash Meals on Wheels, which uses religious charities, among others, to deliver nutritious food to homebound senior citizens. The inclusion of so malevolent an idea can easily obliterate every other message in a multi-trillion dollar budget simply because it gives you the keyhole to look into the values and morality of those composing the plan, and in this case, those values are contemptible. The annual budget to feel a home-bound senior through Meals on Wheels is probably less than a really nice Trumpian feast at Mar-a-Largo.

Perhaps the most serious political fallout will affect the relationship between Trump and Republicans in Congress, who are unlikely to grovel before his golden throne after this week’s demonstration of incompetence. His bluster surely did not help build a trusting relationship, particularly his threat to support primary opponents against those who dared to defy his edict.

The other big loser is Paul Ryan who learned the hard way that nothing has changed since the Freedom Caucus drop-kicked John Boehner out of the Speaker’s chair. Ryan made the mistake of trying to ride the tiger which, as John Kennedy once warned us, often consumes those who take such chances. The Senate Republicans are doubtless delighted with the outcome: Ryan’s stature is lowered, and they do not have to upset the base by tempering the House’s loony legislation (which the House probably wouldn’t have passed when it arrived back on the south side of the Capitol, unrecognizable, in a few months).

All in all, quite a good week. The Republicans can rest up a bit before the forthcoming April recess, which will bring a new round of harrowing town hall meetings with outraged constituents. At least the GOP representatives won’t have to explain why they voted to slash health benefits to women seeking mammograms or pregnant women seeking prenatal care. A silver lining in an otherwise grim forecast.

It’s Showtime for the Health Care Battle

The biggest legislative day for the 115th Congress and President Donald Trump – without much competition – is lining up to be this Thursday, when the House is scheduled to vote on the mutating American Health Care Act, the secretively conceived and widely disparaged “replacement” for the Patient Protection and Affordable Care Act. Written without the input of most of the House Republicans, affected health care industry groups, impacted patient organizations or senators who will have to respond to a House-passed bill, the road forward proves to be rocky. However, when the dust settles (and it may not be on Thursday), I will go out on a limb and predict the House will pass something that the President will define as “amazing.”

My willingness to make a prediction has less to do with the details of the AHCA than the politics. After years of horsing around with make-believe “ACA repeal” bills, the House Republicans have had to put a real legislative plan on the table. Let’s stipulate it is a stinker: there is no more sophisticated term for a bill that throws 26 million people off health care, undermines the economics of the health care industry, and showers hundreds of billions in tax relief on the wealthiest Americans. It wasn’t that long ago (1993 to be precise) that it was Democrats who united groups like the American Medical Association, the pharmaceutical industry and insurance companies to denounce health care legislation. Now, all those groups are condemning RyanCare, or TrumpCare, or whatever name will ultimately be stenciled on this abomination.

A terrible process creates a terrible bill. Not only did Republican leaders hide their cards from their own members and Democrats alike, but they insisted on proceeding without a word of testimony, a day of open hearings or the sina qua non standard for serious policymaking, a score of the cost and impact from the Congressional Budget Office. When CBO delivered the bad news, after two committees had already marked up the bill, the GOP leadership naturally trashed the non-partisan office. That kind of high-handedness doesn’t sit well with serious policy people or many Members, for that matter. There is a reason CBO, not the President’s Office of Management and Budget, has long provided the definitive analysis of the impact of proposed legislation: it is nonpartisan and unusually accurate which aggravates Democratic as well as Republican majorities.

Republican myth makers like to assert that the Democratic health bill was similarly developed in secret and foisted upon an unsuspecting and uninformed Congress in 2009, except that the GOP’s characterization is utterly untrue. Three House Committees spent 100 hours in hearings, listening to 181 witnesses; they held well-publicized mark-ups at which 239 amendments – Democratic and Republican – were offered and 121 were accepted. In the Senate, the bill received 53 hearings and 8 days of mark-up during which they considered 135 amendments. There were bipartisan discussions in Committee and at the White House. There were extensive consultations with medical, patient, hospital, drug and other impacted groups. And there was a CBO score before floor action (which predicted a trillion dollars in budget savings). Any comparison of the ACA process to the stealth AHCA is as phony as the Trump Tower wiretaps.

Republicans, commentators and those who are taken in by them also love to rationalize their secrecy by quoting Speaker Nancy Pelosi’s statement – one line in a long speech about health care – that “we have to pass the bill so that you can find out what is in it,” conveniently leaving out the remainder of the sentence, “away from the fog of controversy.” Pelosi was perhaps overly optimistic to imagine that Republicans would ever allow the ACA to be “away from the fog of controversy,” but she certainly was not suggesting no one knew what was in a bill that had been the subject of such detailed and prolonged discussion and negotiation. Rather, she was admitting the obvious about the legislative process: as legislation undergoes repeated amendments and ping pongs back and forth between the House and Senate, one can never say what the “final” version of a law is until the last stage in its creation. We can’t say what the final score in a baseball game is in the 7th inning either but that doesn’t make the game illegitimate.

Lacking much commitment to sound policy, Speaker Paul Ryan is feverishly offering up amendments to buy much-needed conservative votes. Not surprisingly, some House Republicans are uneasy with a bill that could deprive thousands of constituents of their health insurance – many of them Trump voters who hate ObamaCare but sure love that ACA that covers their unemployed spouse or their special needs kid. And there are the Freedom Caucus zealots, always happy to impose parliamentary chaos with Cat-in-the-Hat irreverence, who are harrumphing they will never support a bill they have denounced as “ObamaCare 2.0.”

Despite these observations, however, Ryan is likely to cobble together the 216 votes he needs to pass whatever concoction the AHCA has morphed into by Thursday, for the simple reason that he does not want ACA repeal to die on his watch. And this argument, more so than the details of the bill, is what will doubtless find resonance among 216 Republicans, though perhaps not many more. House members reflexively gag at arguments that their bills must be tempered to accommodate the whims of senators, who can drag out the filibuster rule or the rulings of the Senate parliamentarian when needed to muscle the House into submission. The House often anticipates such Senate obstinate behavior by passing legislation that satisfies the House’s internal politics, recognizing that a reckoning with reality lies somewhere down the road.

The atmospherics are different in the Senate. Where Ryan can afford to lose a couple of dozen Republicans and still pass a bill, the Senate margin is far tighter, only 2 votes. While a significant number of House members can vote “no” because their particular district demands it (as was the case with Democrats in 2009), a senator has to confront the impact across an entire state — a broader view of reality that causes grief to people like Lisa Murkowski, Susan Collins, Rand Paul and Rob Portman. A “yes” vote from these senators has draconian impacts on hundreds of thousands of constituents who have health insurance for the first time thanks to the ACA. The House hardliners are right: the Senate will alter whatever the House sends over in order to accommodate Senate realities. Then will come the moment of truth: can Paul Ryan cobble together the 216 votes needed to pass a Senate version that, for example, might retain Medicaid until 2020 (when everyone undoubtedly hopes cooler heads will prevail and the phase-out is scrapped)? Unless circumstances change dramatically (and they won’t), Ryan will not be able to count on Democratic votes to pass the Senate bill, so a displeased Freedom Caucus could still sink a more moderate Senate work product.

For the moment, such a scenario is down the road and a far more immediate test awaits Ryan.   President Trump lumbered over to the Hill today for a pep rally in support of the AHCA and predictably put his foot into it, musing that any Republicans who voted against the bill on Thursday might lose their seats in 2018. (The translation of the not very subtle dog whistle, in the words of a Republican inside the room, “If you don’t get behind this … it looks like you’d be ripe for a primary.”) Things may have changed since my departure from the Hill four years ago, but in my experience, presidents secure more votes when they exude charm rather than venom, and that is undoubtedly true for a president who is likely less popular in most districts than the members of Congress he was threatening. Yet Trump, utterly unschooled in Hill deference, not only issued the broad threat but singled out Freedom Caucus Chairman Mark Meadows with a promise, “I’m gonna come after you” if the North Carolinian doesn’t swallow his pride and embrace Ryan’s bill. Meadows has not responded favorably, advising that such warnings “don’t bring us closer to ‘yes.’ If anything, they have an opposite reaction.”

Time will tell how the politics and the policy play out, surrounded by the continuing chaos that is the Trump Administration. It is important to remember that today’s Republican Conference has been unable to enact any complex legislation without Democratic votes since assuming the majority in 2011. Believing they can succeed on something so convoluted as health care, with the entire health industry opposing them, is difficult to fathom. As former Speaker John Boehner noted last month, “Republicans never, ever, one time agreed on what a health care proposal should look like. Not once.” Will they have done so when the fight over AHCA is over? Maybe, but negotiating the policy and political labyrinth is going to be awfully confounding for an unproven and inexperienced majority.

Rewriting History (and the Affordable Care Act!)

 

Deep in the bowels of the Capitol, Republican staff members (and perhaps some Members and outside policy wonks) are furiously fashioning a brand new national health bill that House leaders pledge will be passed by the end of March. It is an unconventional way to draft legislation that, if enacted, would not only unravel health insurance coverage for millions who have gained it under the Affordable Care Act (ACA) of 2010, but would have sweeping impacts on an industry that affects one-sixth of the nation’s economy.

However Republican leaders spin this secretive process over the coming weeks, there is no question that such “legislating in the dark,” as an account of the 2009 stimulus legislation termed the process, is the wrong way to approach so contentious and significant an issue as health policy.

Over the past several days, several legislators of both parties have endeavored to secure a copy of the much-vaunted “replace” component of the Republicans’ “repeal and replace” prescription for ACA. GOP Sen. Rand Paul and Democratic Whip Rep. Steny Hoyer both conducted futile missions to find the furtive bill drafters. Instead, Hoyer was informed by Majority Leader Kevin McCarthy, “You can look it up when we mark it up.”

How’s that? Does McCarthy mean to say that House Democrats will not see a bill that impacts millions of their constituents until the committees “mark it up”? For those who have not spent their lives in and around legislators, “mark up” is the amendatory process conducted by committees on legislation before it is passed (reported) and sent to the full House or Senate membership “on the floor” for amendment (sometimes) and final passage (usually). It is difficult to draft amendments to legislation you have not seen. It is even more difficult to vote on legislation that has never been the subject of scrutiny – not by the minority, by the press, by affected constituents, by the health care industry. Even the basic parameters of the law, let alone how much it would cost and whether it would deprive Americans of affordable care they posses under ACA, are unknown.

Speaker Ryan seems to disagree with his own Majority Leader, pledging that “This bill will go through the committee process. It will go under regular order.” But Ryan was unclear whether “regular order” would include open (or any) hearings, a full vetting of the bill, and unrestricted mark-ups – all processes used en route to passage of the ACA.

In an indication of how Ryan and Republicans are attempting to alter history, the Speaker asserted that regular order was the “opposite of what Democrats did in 2009.” But Ryan has his history wrong, and such assertions are little more than an effort to revise the record to impugn Democrats and sanction secret lawmaking.

House Democrats held hearings on the health care proposal in 2009 in three committees, providing an open forum to hear from an exhaustive list of supporters and critics. In the Senate, the hearings were among the longest on record, causing much consternation among House Members who feared the same kind of effort to run out the clock that had doomed a child health bill in 2008. Mark-ups occurred after a thorough public airing, and contrary to the revisionist versions of the ACA legislative process, many Republican amendments were accepted in an effort to secure bipartisan support that ultimately proved elusive. Republicans might not have liked the outcome – although the ACA, as is widely known, is based more on the Heritage Foundation/Mitt Romney Massachusetts model than the single payer/Medicare expansion many Democrats would have vastly preferred – but they were not denied an ability to review, discuss or amend the underlying bills.

Critics often point to Speaker Nancy Pelosi’s much ballyhooed statement that she could not know the provisions of the ACA until it was passed as evidence of the secret nature of the bill on which Members were compelled to vote. But this history, too, has been cynically misrepresented by those seeking to ridicule Pelosi and taint the ACA. Pelosi’s statement merely acknowledged that the final version of the bill could not be known until the House and Senate had completed their revisions to each other’s versions of the bills. For the uninitiated, it is called “the legislative process,” and Pelosi’s much maligned statement merely acknowledged the back-and-forth inherent in reaching a complex measure’s final provisions.

ACA critics certainly have every right to criticize the law’s impact, although they would do well also to acknowledge how severely their obstructive efforts have complicated implementation. Complex statutes always require amendment in the years following enactment, but instead of a good faith effort to address the inevitable problems in implementing a nationwide health law, Republicans have spent years wasting time on over four dozen futile efforts to repeal it with no idea how to substitute a program that matches ACA’s impressive achievements. Now, with majorities in the House and Senate and a Republican President, they have their chance, not as a symbolic sideshow but as substantive policy, and hopefully in the light of day and using regular order.