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Roberts: The Chief Makes History

There will be days and days of analysis – some of it even important – of today’s historic Supreme Court decision on the Affordable Care Act, or as those who hate the law say – Obamacare. We’ll hear every possible interpretation and then some.

Here is my initial take on one sliver of the story; the fact that Chief Justice John Roberts authored the majority opinion upholding the law, went against four other conservatives on the Court with whom he often finds compatibility and maybe – just maybe – wrote himself firmly into the history books.

I think most Court watchers would say that a Chief Justice – any Chief Justice – always wants to be in the majority. Roberts worked hard to get there even while taking pains to throw a rhetorical political bone to those who will see him as an updated version of former Justice David Souter, an appointee of the first George Bush who served to infuriate many conservatives.

As Roberts famously said during his confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire… I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Today he made good on his umpire statement and admittedly, while it is way too early to make definitive judgments, Roberts has likely also influenced his place in history. In the same way that Chief Justices Charles Evans Hughes in the 1930’s and Earl Warren in the 1950’s ultimately led their Court’s in a series of landmark rulings; rulings that generally supported a more expansive view of federal power, Roberts has parted company with the right wing of the Court and perhaps charted a new course for himself.

Roberts has clearly antagonized conservatives and permitted, at least in one very important case, a more expansive role for the government in health care. He also did it without affirming a more expansive interpretation of the Commerce Clause, which really would have wounded the right.

It’s fun, but ultimately futile, to speculate about the inner dynamics of a Court of such sharp divides and strong personalities, but I can speculate that it would have been interesting to overhear the conference where the Chief told Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy that he would write the majority opinion siding with the Court’s four liberals.

The health care story, with all of its political and policy dimensions, is far from a finished story. There is much more to come. But speculating again, when the history of this decision is ultimately written it may well describe John Roberts as the guy who cast a deciding vote on a law that, with all its faults, was aiming to provide health insurance coverage for every American, a goal of many Americans since at least Teddy Roosevelt. Fifty years from now Roberts’ opinion may well be seen as putting him on the right side of history.

Roberts is obviously a serious man and no one reaches the pinnacle of judicial power in the United States who does not appreciate the unique role in our system played by the Chief Justice of our Supreme Court. Roberts has surely read the history and knows we can count the truly great Chiefs on three fingers – Marshall, Hughes and Warren.

History treats that trio well because each led the Court in new ways during tumultuous times and with a determination to break new ground. Each was a highly political judge and passionately independent. Each evolved over time on the bench and ultimately each rejected the notion that the Constitution is a purely static document that can be applied in 2012 the same way it was in 1787.

If nothing else, Chief Justice Roberts may find – he’s a young and energetic 57 with many years left to lead a Court – that his historic decision in NFIB v. Sebelius is a liberating moment for him. Roberts may now have the liberty to find his own path to history, separate from either the four liberals or four conservatives on his Court, and that journey may have begun today.

P.S. – I predicted in passing earlier this week that the Court would strike down the Affordable Care Act. Like Winston Churchill said, I have often had to eat my words and always find it a wholesome diet!


Guest Post

My Call from No. 15

A guest post today from my Gallatin colleague Randy Simon.

At this point in my life I like and appreciate my morning office routine. I turn on the computer, fix a cup of coffee and check the daily headlines before tackling the day’s tasks. Call me a creature of habit, but I typically don’t like early morning surprises unless of course they involve getting a phone call from Green Bay Packer legend Bart Starr.

Which is exactly what happened today.

Halfway through my coffee and the phone rings showing a 205 area code. Like most people I’m hesitant to answer an unfamiliar number, but this time I’m glad I did.

“This is Randy”

“Hi Randy, its Maggie from Bart Starr’s office. Bart would like to speak with you.”

“Um, err, yeah, I mean yes, that would be great.”

“Hi Randy its Bart Starr, how are you?”

At this point I wanted to say, “Are you kidding me? Bart Starr? The guy who was the MVP of the first two Super Bowls and arguably the most recognizable quarterback in the history of the NFL. I’m great! In fact I’m awesome now that I’m talking to you,” but I managed instead to squeak out, “I’m well Mr. Starr, how are you?”

“Call me Bart. Mr. Starr is too formal.”

What ensued was an incredible 15 minute conversation with an NFL legend and Hall of Famer, who at 78, is still on top of his game.

For the past few months we’ve been working with Alicia Kramer to help her dad, Jerry Kramer, another Packer legend receive what is well over due – induction into the Pro Football Hall of Fame. Marc Johnson, who usually writes in this space, wrote a convincing piece recently about why Kramer is so deserving of Hall of Fame recognition.

As part of our effort to secure support for Jerry, I had recently sent Bart a letter asking for his endorsement. I never expected a phone call, but was happy to hear that Bart has been sending letters to the Hall of Fame voters for several years endorsing Kramer’s nomination. Like us, Bart still can’t believe Kramer has not been inducted – and he should know. Bart had the best seat in the house to watch Kramer leading the way on those famous “Packer Sweeps.”

Bart is still an icon and continues doing things the right way. To this day, if you donate any amount of money, no matter how small the amount to his charity Rawhide Boys Ranch, he will sign the memorabilia you send him and pay the postage to return it to you.

Now, he’s repaying Kramer and backing a teammate who had his back for so many years. It’s a conversation I will never forget.

I wish everyday started this way.

By the way, you can support the Kramer to the Hall effort by sending your own Bart Starr-like endorsement to:

Pro Football Hall of Fame 
Attn: Nominations 
2121 George Halas Drive N.W. 
Canton, OH 44708



Endless Money

Corporations Really Are People

While the nation holds its collective breath over the fate of Obamacare (hint, it’s going down) the conservative judicial activists on the U.S. Supreme Court have affirmed their original controversial decision that its just fine to have unlimited and often undisclosed corporate money flow into our political system.

At issue in the case summarily disposed of Monday was a Montana Supreme Court decision that attempted to uphold the Treasure State’s 100-year plus ban on corporate money in state elections.

The Court’s five man majority reversed the Montana court decision and reminded all of us of the essence of its earlier ruling in the now infamous Citizens United case.  “Political speech does not lose First Amendment protection simply because its source is a corporation,” the majority said in an unsigned, one-page ruling.

Turns out that Mitt Romney was right, corporations are people, at least when it comes to spending political money that the Court equates with free speech protections under the First Amendment.

The Montana Attorney General, among others, had argued that the state’s special, if not unique, history of corporate influence – and in the early 1900’s corporate control – over Montana politics required a special remedy, namely banning corporate money from state races. The law dates back to when Copper King William A. Clark literally bought himself a seat in the United States Senate using the vast wealth he accumulated from his mining interests in Montana. Fast forward a hundred years and Karl Rove and others are using the opening created by Citizens United to use their free, if not inexpensive, speech rights to try and buy a president, a United States Senate and a few governors for good measure.

Remarkable how history has a way of repeating itself.

More interesting than the one-pager from the “conservatives” on the Court who show such respect for precedent that they overturned 100 years of settled law in the Citizens case is the dissent from Justice Stephen Breyer, who apparently has been reading the newspapers.

Breyer wrote: “Montana’s experience, like considerable ex­perience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do

Justice Breyer’s concern about the corrupting influence of money, even if it is only the appearance of corruption, is at the cold heart of this issue and the evidence is everywhere to be seen.

Mitt Romney invited a few hundred of his biggest donors over the weekend to a closed-to-the-press gathering in Park City, Utah. The donors were treated to the kind of face-time with the candidate that Joe and Jill Six-Pack could never hope to get. Also in attendance was the head of the pro-Romney Super PAC Restore Our Future. Our Swiss cheese-like campaign finance laws say Charlie Spies, the Super PAC leader and a D.C. lawyer, can’t legal “coordinate” with the campaign even as the television spots he is paying for mirror the campaign’s messages. But, apparently it is alright for Mr. Spies to camp out in the lobby of the hotel were the Romney event was taking place to see and be seen by those coming and going.

It brings to mind the great line from the movie Casablanca. The Vichy French police official Captain Renault, played by Claud Rains, announces that he is “shocked, shocked” that gambling is going on in Rick’s Cafe just as a croupier hands him his winnings for the night. The Super PAC’s will be the real story of the 2012 election and no one should be shocked that the charade of separation of candidates from PAC’s is as much a fiction as the Easter Bunny.

And, of course, Democrats do it, too. Republicans may just be better at attracting the kind of donors who will spend a few billion on a campaign. Both parties share the guilt for allowing this money in politics situation to spiral completely out of control.

Following the political money scandal that grew from the Watergate break-in just 40 years ago, the Congress, responding to popular outrage, made a stab at reforming campaign finance laws. (It’s worth remembering that Watergate, arguably the greatest political scandal in our history helped reveal the extent to which corporate money was being utilized by Richard Nixon to maintain his hold on the White House.)

The U.S. Supreme Court has sent a clear signal with its refusal to reconsider Citizens United that the sky is the limit when it comes to money in politics. Six billion is the estimate for this cycle and at the rate this trend is expanding it will be $12 billion in four more years.

Ironically, its not really the money that individuals give to candidates that is the major cause of worry in this case. But rather the unregulated, often unreported, no-limits funding of causes and candidates by those with the deepest pockets. That is what casts grave doubt, as Justice Breyer says, on the very essence of a democracy. Do the people chose the leaders or do the most well-to-do individuals and corporations chose?

Nothing succeeds like excess, they say, and by that standard the unregulated, uncontrolled campaign finance system in the United States is succeeding like never before.

As Captain Renault would say, “Round up the usual suspects.”


The Problem Post

Corruption at the Justice Department

When U.S. Attorney General Eric Holder, as now seems likely, is held in contempt of Congress in the next few days he will join a long list of the nation’s chief law enforcement officers who have run afoul of Congress and/or the law.

Whether the fast and furious controversy surrounding Holder is really sufficient to warrant finding him in contempt of Congress is a subject for another day. I will note that in most cases were an Attorney General has gotten seriously crosswise with Congress have been decidedly more bi-partisan affairs than Holder’s. History remembers when the AG offends both parties, not so much when the alleged offense seems more political than pernicious.

At that other extreme, consider the case of Attorney General Harry P. Daugherty. That’s him in the photo. Daugherty was an Ohio pol, campaign manager for Warren G. Harding and up until John Mitchell, Nixon’s AG who went to jail over Watergate, arguably the most corrupt head of the Justice Department in our history.

Harding, of course, is often at or near the bottom of those surveys of the country’s worst presidents. He can thank his friend Harry Daugherty for a good deal of that reputation.

Daugherty was forced to resign as Attorney General in 1923 after a bi-partisan Senate committee conducted a free-wheeling investigation into his leadership at the Justice Department.  Progressive Democratic Sen. Burton K. Wheeler of Montana led the Senate probe even though the Senate was controlled by Republicans. The nominal chair of the Senate Select Committee, a figure now lost to history, but worth remembering, was Iowa Sen. Smith Brookhart, a liberal Republican in the Teddy Roosevelt tradition. Brookhart and Wheeler knew each other, trusted each other and were pretty sure Daugherty was oily or worse. He was.

Wheeler’s investigation was sensational in the full tabloid meaning of the word, including testimony about gambling, girls and bootleg gin. The fact that the investigation of Attorney General Daugherty came in the wake of the equally sensational, and ultimately more important, Teapot Dome investigation, guaranteed that Wheeler and his motley cast of witnesses – a gumshoe, a call girl and various small-time confidence men – would get front page coverage. Daugherty resigned just ahead of an impeachment effort, but went out with his verbal guns blazing. The former Attorney General convinced himself Wheeler was a Communist agent – the foremost commie in the Senate, he said – and a seriously dangerous man. He wasn’t.

In the annuls of Senate history the Daugherty investigation helped establish an enduring principle that ironically allows California Rep. Darryl Issa to put Eric Holder through the wringer today. As part of the Senate investigation of Harding’s attorney general, Daugherty’s brother Malachi or Mal, a small-town, small-time corrupt Ohio banker, was called to testify before Wheeler’s committee. Mal Daugherty refused and was held in contempt. (He eventually went to jail for stealing from his own bank.)

Mal challenged the constitutionality of a Senate committee being able to compel his testimony, the case went all the way to the Supreme Court and the Court held in a unanimous ruling that the power of Congress to investigate and compel appearance by witness was an essential part of the legislative process. Thank a crook and a crooked Attorney General for the enduring principle of the Congressional investigation.

The job of Attorney General is arguably the most controversial in the Cabinet. Harry Daugherty was a small-time pol, likely profoundly corrupt, who should never have had the job. John Mitchell, Nixon’s finance guy, was similar with no particularly distinguished legal career and seeing the job as more about politics than policy or justice. Robert Kennedy, one of the most famous and powerful AG’s, was his brother’s political enforcer and chief confidante. (Can you imagine a president being able to get away today with having his brother at the Justice Department?)

Franklin Roosevelt’s first AG, Homer Cummings, was a political operative first and a not very skillful administrator second. Woodrow Wilson had three AG’s, including the infamous A. Mitchell Palmer, architect of the Palmer Raids that rounded up, mostly under highly dubious circumstances, various alleged radicals in 1919 and 1920 and set off the Red Scare.

The list of truly great Attorneys General is a good deal smaller than those who failed to distinguish themselves in the job. Judge Griffin Bell in the Carter years comes to mind as well as Nicholas Katzenbach in the Johnson Administration and Edward Levi, who distinguished himself in the Ford Administration.

Eric Holder may or may not be the target of an unfair and purely partisan election year attack, laced with just enough gun background noise to really appeal to the GOP base, but if he has studied the history of the Justice Department he should know that being AG almost always entitled the holder of the job to be vilified and hauled before Congress to account for all sorts of misdeeds both real and imagined. Perhaps the current Attorney General can take some comfort in knowing he’s not the first.


Action This Day

The (Almost) Case for Unilateral Action

In September 1940, just in front of the election that would make Franklin Roosevelt the first and only third-term president, FDR engineered an audacious deal with British Prime Minister Winston Churchill.

In exchange for gifting 50 aging, World War I vintage U.S. destroyers to the besieged British, Churchill granted the American president 99 year leases on a number of military bases in the Western Hemisphere. The destroyers for bases deal was loudly condemned by FDR’s critics who called it a raw presidential power play. As critics correctly pointed out, Roosevelt acted on his own motion, going behind the back of Congress to cut his deal with Churchill. History has for the most part vindicated FDR’s power play and many historians think the U.S. actually got the better of the deal.

The 1940 action by Roosevelt may be one of the greatest examples of a president acting unilaterally, but our history is replete with similar examples of presidential action on a unilateral basis. One of Theodore Roosevelt’s gutsy unilateral moves as he was nearing the end of his term created millions of acres of forest preserves – today’s National Forests – and protected the Grand Canyon. Lincoln’s Emancipation Proclamation was an act of presidential leadership that is almost universally praised today, but at the time the Great Emancipator cut Congress out of the loop and acted alone.

Now come criticism of Barack Obama’s unilateral action to order the end of deportations for certain young people who might otherwise be sent packing for being in the country illegally even as they have gone on to get an education, or work in order to become contributing members of our society. Critics charge the president acted for the most transparent political reasons or that he acted unconstitutionally or that he has now made legislative action on immigration more difficult. That last charge seems a particularly hard sell given the inability of Congress to act at all regarding immigration, but the real beef with Obama is that he acted alone.

Jimmy Carter used presidential action to protect the environmental crown jewels of Alaska, an action that ultimately forced Congress to get off the dime on that issue. Harry Truman informed Congress, but did not seek its approval regarding his 1948 decision to desegregate the U.S. military.

Of course all presidents overreach, but most do so by acting unilaterally in the foreign policy field, and that a place were unilateral action is often decidedly more problematic, at least in my view. It may turn out that Obama’s immigration action will be successfully challenged in a court of law or the court of public opinion, but don’t bet on it. I’m struck by how often in our history when a president has taken a big, bold step on an issue were Congress can’t or won’t act that the bold step has been vindicated by history.

The American people have always tended to reward action over inaction. Ronald Reagan’s unilateral decision to fire striking air traffic controllers near the beginning of his presidency in 1981 is a good example. Now celebrated, by conservatives at least, as a sterling example of a president acting decisively in the public interest, the decision was enormously contentious at the time it was made. Now its mostly seen as an effective use of unilateral action by a strong president.

The early polling seems to show that Obama’s recent “dream act-like” action on immigration is widely accepted by the American public. The lesson for the current occupant of the Oval Office, a politician who has displayed little skill in getting Congress to act on many issues, might be that a little unilateral action on important issues is not only good politics, but good government.

George W. Bush got this much right about the power of the presidency: the Chief Executive can be, when he wants to be, the decider on many things. The great Churchill frequently demanded “action this day” in his memos to subordinates. The great wartime leader knew that power not used isn’t worth much; but action properly applied is indeed real power.



Steroid Era

Not Guilty as Sin

So the Rocket walks and baseball’s long twilight struggle with performance enhancing drugs slips slowly, slowly away, while the real guilty parties are still very much at large.

As Mike Barnicle, one of the few people who will actually admit to liking Roger Clemens suggested this morning that the government failed to convict the big right-hander of lying to Congress because the line-up for those guilty of that offense is just too long.

Of course most everyone thinks Clemens did use the stuff, but 12 jurors obviously thought lying about it was the sports equivalent of “I didn’t have sexual relations with that woman.” And besides, why nail the Rocket when everyone else it seems was juiced, too? There is even a website devoted to the steroid era. You can look up your favorite abuser.

It’s time, in the view of this baseball fan, to call a halt to more federal government efforts to prosecute these cheaters. They deserve – Clemens, Bonds, McGuire, Palmeiro and all the rest – the judgment of history more than the judgment of courtroom and I say that as one who believes the cornerstone of our justice system is the simple act of telling the truth.

So now the discussion turns to whether Clemens, Bonds and others will get the hallowed pass to Cooperstown. I’m of two minds on the Hall of Fame question. On the one hand, these guys cheated and sullied their own and the reputation of the greatest game. On the other hand, if Roger Clemens was pitching with an unfair advantage then guys were hitting against him with the same unfair advantage and perhaps we should leave it at that. Call it the baseball law of all things even out.

And there is this: like most revered American institutions, baseball hasn’t exactly displayed a historic level of purity that would compare the locker room or the area between the lines to a convent. The game has been dirty in one way or another since African-Americans couldn’t play it at the ultimate level, since the Black Sox threw a World Series and before Curt Flood broke the no-free-agency strangle hold of the owners.

One reason we love this game is that baseball is a window into the larger American experience. Our history is full of scoundrels, cheats and nasty, greedy owners. Ty Cobb, just to name one scoundrel, is in the Hall and my mother wouldn’t have let him in the house. And maybe the steroid era is just the unavoidable late 20th Century response to the larger society’s fixation with the notion that a pill – or an injection – is available that will fix everything from your erectile dysfunction to your depression.

Want to hit a few more home runs? While there may be a few nasty side effects, the fences are reachable. You half expect to see the commercials during the network evening news. “I’m Roger Clemens and when I need a little something extra…”

Sport has imitated life.

The real villains of the steroid era, of course, really aren’t the Rocket or Bonds or McGuire, but the owners and traffic cops of baseball who looked the other way or elected to bury their heads. Remember the juice-stoked McGuire-Sosa home run competition in 1998? Most of us ate it up. So did Bud Selig.

“I think what Mark McGwire has accomplished is so remarkable, and he has handled it all so beautifully, we want to do everything we can to enjoy a great moment in baseball history,” said the Mr. Tough-on-Drugs Commissioner.

The fans – yours truly included – loved those big bashers. The fault, dear Brutus, is not in our stars, but in our lust for strikeouts and the long ball. We all share some responsibility for celebrating accomplishments that we can now so clearly see really were too good to be true.

I don’t vote for the Hall of Fame, but if I did I’d mark a ballot for Clemens and the arrogant Bonds, too. They were dirty, but so was so much of the game. Here’s hoping the owners and their lackey commissioner really have taken the steps necessary to clean the game. But as for wiping the slate clean in the steroid era, well that’s for the fans of baseball to reckon with.

Twenty-five or 50 years from now when we look at the record book we won’t need an asterisk to tell us that for a few juiced up years the game was played by players with skills enhanced beyond all reason and unfairly so. Such a realization is now a part of the game that we still love.

Baseball is bigger than Roger the Rocket or Barry the Jerk. Always has been. A bunch of pumped up, big ego players and greedy owners can’t kill it even though they have tried over and over again. Baseball is like the country. With all its faults, it carries on and on.


It’s the Money, Stupid

A Hundred Years of History

On the presidential campaign trail in 2008, Arizona Sen. John McCain regularly invoked Theodore Roosevelt as his role model. “I count myself as a conservative Republican, yet I view it to a large degree in the Theodore Roosevelt mold,” McCain told the New York Times in 2008.

Channeling T.R. certainly has appeal for both Republicans and Democrats. Who other than perhaps a small-government Libertarian wouldn’t want to associate with the memory of one of the four presidents on Mt. Rushmore, a man arguably one of the greatest of the great presidents?

But by invoking Roosevelt as a model, McCain, in very many ways an exemplary individual and once upon a time a true maverick, is guilty of historical malpractice. The politics of our nation’s capitol today, and the distinguished senator from Arizona is part of it all, are as removed from the democracy Teddy Roosevelt embraced as Phoenix is removed from an ice flow. One need only look at this week’s news to understand the difference.

JPMorgan Chase CEO Jamie Dimon waltzed into and out of a Senate Banking Committee hearing Wednesday suffering hardly a PR scratch despite the $2 billion plus his bank lost recently in risky financial bets. Washington’s favorite big banker did comment that some of his current and former underlings at the nation’s biggest (or maybe second biggest) financial institution might have to return some of their compensation and Dimon smoothly quoted Harry Truman on where the buck stops. (No commitment from the buck stops here guy as to whether any of his paycheck might be in jeopardy.)

In the big picture, as Congressional hearings go, Jamie Dimon before the Senate Banking Committee was a Beltway cake walk.  South Carolina Sen. Jim DeMint helped set the tone when he said to the banker, “The intent here is really not to sit in judgment.” Got it.

It is substantially easier, I guess, for members of Congress to ask tough questions of former baseball players who might have used certain banned substances than to ask a really tough question of the biggest banker on Wall Street in the wake of the biggest financial crisis in 75 years. I wonder if Rafael Palmeiro, the steroid-abusing, once-a sure-thing Hall of Fame baseball player, who testified under oath before Congress about his transgressions was glued to C-Span for Dimon’s questioning? Palmerio a small-time drug abuser got the wire brush treatment. Jamie Dimon a big-time player who has opposed many regulations of the banking industry got an air kiss.

The other big money news this week was that Las Vegas casino mogul Sheldon Adelson has decided to further exercise his free speech rights and start spending millions on the Super PAC backing Mitt Romney. The numbers are stunning. So far, Adelson has written checks for $35 million and his minions tell Forbes he may be in the campaign for “unlimited” amounts.

There seems to be little doubt now that the 2012 election will involve billions – billions with a B – of dollars in unregulated, often unreported money from literally a handful of high rollers who, because of their personal financial balance sheets, are able to lavish dollars on the candidates and causes they support – or oppose.

In terms of the presidential election the United States has become, or is dangerously close to becoming, a Banana Republic where the biggest checkbook wins the day. Oligarchs spend money, control the media and determine the course of Russian politics. Can we seriously be that far away? Even the campaigns that benefit from all this lavish spending must be wondering if they can control the essential messages of their own campaigns when some kazillionaire has decided to fund a political action committee and own a few television stations.

All of this has happened thanks to the U.S. Supreme Court’s ruling in the now infamous Citizens United case and that bring us full circle back to Teddy Roosevelt. The Supreme Court, by a 5-4 margin, opened the floodgates to all the unregulated, independent and corporate spending by overturning a century of established law, a law dating back to – that’s right – the Old Rough Rider.

Roosevelt, of course, famously spoke of the threat imposed upon a democratic society by what he called “malefactors of great wealth,” but he also said, “The death-knell of the republic had rung as soon as the active power became lodged in the hands of those who sought, not to do justice to all citizens, rich and poor alike, but to stand for one special class and for its interests as opposed to the interests of others.”

As to the big banks, Roosevelt – he was the Trust Buster after all – would not have stopped at bemoaning their enormous influence over our economy and public policy. JPMorgan and the other top four biggest banks essentially control 56% of the entire U.S. economy. Roosevelt would have acted, he would have broken up the biggest banks in the interest of a capitalist system that resists giving so much control of the economy to so few people.

But that approach is not an option in these times, even given the continuing danger to the U.S. and world economy presented by JPMorgan-like risk taking. Mention breaking up the big banks or re-regulating them as T.R.’s distant relative did in the 1930s and you won’t be invited back to a Georgetown cocktail party.

In his justly famous New Nationalism speech in 1910 – President Obama tried and mostly failed to capture some of the same Rooseveltian quality in his own recent economic speech – the 26th president said:

“At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth. That is nothing new.”

It is nothing new. Just over a hundred years ago, the United States had a political leader summoning the country to a higher standard of accountability and behavior. T.R. was a trust buster and an advocate for reducing the enormous reach of money in our politics. There is no one sounding his clarion call today, or if they are their voices are lost in background noise that only money can buy.

Ask yourself, “What would T.R. do?” The great president’s record from 100 years ago tells us and the answer has almost nothing to do with what is happening in our politics in 2012.




Obama: Not Doing Fine

Skillful politicians, it is often said, make their own luck. They have – or develop – the instincts to act, speak or hold their tongue at the right moment. The best of the best use language and symbols to connect over and over again with their constituents, or at least with most of them.

Politics is many things: policy, determination, intelligence and timing, including being able to read the other side and know how and when to push back from the clinch and land an effective counter punch. Politics is handling adversity, taking a punch and bouncing back. Politics is also performance and performance is the ability to convey a story, a story that connects both intellectually and emotionally.

Last week was the week when, I suspect, Barack Obama went from a presumptive favorite to be re-elected in November to, at best, an even bet. To say that the Obama campaign has a bad week is to say the Queen had a nice little party recently. It remains to be seen whether it was the defining week of this campaign that seems to last forever.

Obama’s no good, horrible, very bad week began with jobless numbers that showed a modest increase in unemployment and ended with the president, looking more petulant that presidential, making one of the worst rhetorical stumbles he’s made since the 2008 campaign. In between those two black Fridays came news that Republicans substantially outperformed Democrats in fundraising in the most recent reporting period.

If a gaffe in politics is defined as a politician speaking the truth, then Mitt Romney’s “I like firing people” and Obama’s “the private sector is doing fine” probably are gaffes. I’m guessing both men meant exactly what they said. Romney’s private equity experience, by its very nature, involved a lot of layoffs and Obama, in real danger of losing re-election due to a struggling economy, must be chaffing when he sees that corporate profits are screaming along and the wealthiest among us truly are “doing fine.”

The Romney camp is no doubt rejoicing that Obama’s well-oiled political machine seems to be seizing up. The president’s mighty oratorical skills don’t seem to have quite the magic they once did and unforced errors, the bane of soccer players and politicians, seem to descend on the Obama campaign like a host of locusts.

Strip away all the obvious political problems the president is dealing with; the persistently sluggish economy, congressional Republicans who refuse to deal with dramatically serious issues like the coming fiscal cliff of auto pilot budget cuts and tax increases and a euro crisis that seems to worsen by the day. All of those problems, serious as they are, might be minimized, particularly in a race against a lackluster campaigner like Romney, if Obama could begin to tell a coherent story about his first term and what a second term might look like. So far he hasn’t and as a result a stumble like the private sector is doing “just fine” sucks the air out of his efforts.

The two presidential campaigns that most resemble 2012 were Franklin Roosevelt’s race in 1936 during the Great Depression – unemployment was more than 16% on Election Day – and Jimmy Carter’s contest with Ronald Reagan in 1980. Carter’s campaign stumbled under the weight of the Arab oil boycott, high inflation and the kidnapping of U.S. hostages by Iranian militants.

Roosevelt won despite his economic challenges. Carter didn’t. The reason, I think, was Roosevelt’s ability (and Carter’s inability) to weave a coherent story about what the country had been through and what could happen in the future. Roosevelt also understood the importance in politics of selecting your enemy. In 1936, FDR defined his real opponents as the conservative, big business leaders of the country who resisted his New Deal reforms. He called them “economic royalists.”

If you wonder whether history has a tendency to repeat itself, read the words Roosevelt used when he accepted his party’s nomination for a second term in 1936.

“These economic royalists complain that we seek to overthrow the institutions of America,” Roosevelt said. “What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for. Now, as always, they stand for democracy, not tyranny; for freedom, not subjection; and against a dictatorship by mob rule and the over-privileged alike.”

Talk about class warfare. Roosevelt defined his opponents as opponents of freedom and the Constitution and as “over-privileged.” Obama, on the other hand, has been unable to shake the accusation that he is attempting to fundamentally alter the American system. Roosevelt was fundamentally reshaping that system and he made the effort the centerpiece of his campaign for re-election.

Near the end of his acceptance speech in 1936, Roosevelt uttered some of the most riveting words you could hope to hear from the podium of a political convention.

“Governments can err, presidents do make mistakes,” he said, “but the immortal Dante tells us that Divine justice weighs the sins of the cold-blooded and the sins of the warm-hearted on different scales.

“Better the occasional faults of a government that lives in a spirit of charity than the consistent omissions of a government frozen in the ice of its own indifference.

“There is a mysterious cycle in human events. To some generations much is given. Of other generations much is expected. This generation of Americans has a rendezvous with destiny.”

Roosevelt went on to win 46 of the then-48 states, even as millions of Americans remained out of work. He won, in small part, because of a lackluster opponent – Kansas Gov. Alfred Landon – but more so because he summoned a hurting nation to join him in realizing a bright, new day. The current incumbent in the White House has dealt with many of the same issues Roosevelt confronted in the 1930’s. If he is to be re-elected he’ll need to tap into the mysterious cycle of human events and call forth for Americans a new meeting with destiny.

In short, Obama needs to tell a compelling, aspirational story about the future and why the country will be better off with him in charge. If he can’t – he’s looking more like Carter than FDR. Re-elections are always a referendum on the incumbent – what he’s done and what he says he will do. That was certainly the case in 1936 and 1980.

If the president continues to run his 2012 re-election campaign based on getting the better of Romney with an ever changing soundbite of the day, rather than explaining from where he has brought the country and where he plans to take it, he’ll lose in November.


One of a Kind

Perry Swisher – 1923 to 2012

It was nearly impossible to have a neutral feeling about Perry Swisher. If you expressed admiration for one of his ideas or newspaper columns he would find a way to say or write something the next time that he knew would be highly contrary, bitingly caustic or searingly funny. He was truly one of a kind.

What can you expect after all from a guy who had been elected as both a Republican and a Democrat and ran for governor of Idaho in 1966 as an independent; with the last label perhaps being the most accurate. Swisher, who died Tuesday in Boise at 88, was truly a one of a kind independent – candid, brilliant, opinionated, humorous, not an easy sufferer of fools. The old line “not always right, but never in doubt” fit Swish like a glove.

I have a personal recollection of Swisher as an independent that perhaps summarizes his life of intelligent, not always gentle, commentary on the world and the hapless mortals who inhabit the place. In 1979, then-Democratic Gov. John V. Evans, who had ascended to the governorship when Cecil D. Andrus went off to serve as Interior Secretary in the Carter Administration, appointed Swisher to fill a vacancy on the Idaho Public Utilities Commission.

It was a bit of a surprise appointment and one sure to ruffle feathers down at Idaho Power corporate offices. Swisher was, shall we say, not a champion of big business. He was the kind to make sure that the “regulated” in regulated utility received his full attention.

I interviewed Swisher the day of his appointment to the Commission and, knowing I would get colorful, candid responses, devoted the last few minutes of the interview to asking him for quick comments on various political people he had know as allies and adversaries over so many years. I asked him about Evans, the man who had just given Swisher a new career and a new platform from which to influence public policy in Idaho. I remember the quote verbatim.

“John Evans,” Swisher said, “is the Mayor of Malad who by a quirk of political fate has become governor of Idaho.” Now that is candid.

He might have said Evans is a nice guy, as he is. Or that his benefactor was fast learning the ropes of the governorship, which he was. But Swish, never one to mince words, essentially said the governor who had just given him a plum appointment was a small town mayor who had risen to high office by being in the right place at the right time. Interviewers seldom get such answers. You always got them from Swisher. Politically correct he was not. He once showed up a post game rock concert at Boise’s Memorial Stadium in his bathrobe – he lived nearby – waving a hatchet and threatening to hack the power cables if the noise didn’t abate. He made waves.

The obituaries will chronicle Swisher’s accomplishments, which are not insignificant as a legislator – he championed the establishment of the sales tax – or as a utility regulator – he helped transition us from the old Ma Bell days to fiber optics and cell phones.

Swisher once said of the decision by federal Judge Harold Greene that caused the Bell System divestiture and heralded the deregulation of telecommunications, “Judge Greene took the only perfect thing in the world and screwed it up.” As I said, no lack of opinions from this old newspaper guy.

Swisher would have been a force in Idaho political and economic life had he never served in the legislature or presided at the PUC. He was, and this is not hyperbole, a true public intellectual. The guy had ideas, lot of them. Not everyone in public life thinks enough to actually have ideas about big issues. He did.

If you want to know what a newspaper looked like 25 years ago go back and look at the Lewiston Morning Tribune when Swisher ran the night desk. The paper was breaking news – real news – almost every day. He paid attention to institutions, like the State Board of Education, the PUC and House Business Committee. He’d been on the inside and knew were the public might get shafted and as an editor he was comfortable pulling back the veil.

Former Gov. Andrus told Idaho Statesman reporter Rocky Barker that Swisher was “an Idaho icon,” although he probably cost Andrus the governorship in 1966 with his independent run. Swisher polled almost 31,000 votes in a four-way race and Andrus lost to Republican Don Samuelson by just over 10,000. Both Andrus and Swisher supported the newly enacted Idaho sales tax that year, the issue that dominated the race, and Samuelson didn’t. It doesn’t require a political science degree to conclude that Swisher took pro-sales tax votes from the Democrat Andrus, particularly in Democratic leaning counties like Bannock and Nez Perce.

Another former governor, Phil Batt, told Barker that Swisher was an outstanding legislator, which I took to mean Swish knew how to get to “yes” and it didn’t often require a heavy dose of partisanship.

Perry Swisher was old school. He liked a drink and a good story. He read everything and applied his knowledge. I never had a sense he cared what anyone thought of him or his ideas. He was comfortable being what he was – smart, opinionated, candid and funny. Not always right, but never in doubt.

I’m glad I knew him. Idaho should be glad he flashed across our political and journalism sky. He lived a full life and left a mark, a measure for anyone to aspire to. When people remember Swish I’m betting they bemoan that there aren’t more like him; more true, intelligent, candid independents.



Perils of the Nanny State

Why is the state of Idaho in the liquor business and why does the Mayor of New York want to ban super-sized sugary drinks?  It’s a matter of history, tradition, politics and the fact that all politics is local. Both jurisdictions are responding to the direction of long prevailing political winds, but Idaho’s dust up over a sexy vodka label and New York’s determination to do something about obesity is also a telling tale that offers proof that neither conservatives or liberals can resist the temptation to invoke the power of government regulation in an attempt to direct human behavior.

Michael Bloomberg, the adroit and successful mayor of New York City, and Jeff Anderson, the adroit and successful Idahoan who runs the Idaho State Liquor Dispensary, normally might not have much in common. But as Hizzoner tries to crack down on sugary drinks that help fuel the American proclivity for, well, overweight citizens and Anderson polices the shelves of Idaho’s state run liquor stores to make sure state government stays on the right side of the line that defines politically correct behavior for a state-owned monopoly, both men find themselves uncomfortably straddling the fence of what my conservative friends like to call “the nanny state.”

And both men, undoubtedly well intentioned in their intentions, find themselves the subject of national media coverage for using the power of the state to regulate personal behavior. There was a pointed and funny full-page ad in the New York Times on Saturday, paid for by restaurants and food service interests and featuring a screaming headline – The Nanny – that depicted Bloomberg is a not very flattering blue dress. The Mayor, looking like an unkindly, hectoring Mrs. Doubtfire, was looming King Kong-like over the Big Apple directing the Big Government drink police.

In the Northwest, Idaho’s decision not to carry Five Wives vodka in state stores went viral. The suggestive brand is ironically distilled and sold in the Land of Zion, but won’t be sold in Idaho due to worries about the distiller’s marketing approach. The stated reason for the ban was that the product could be both offensive to women and Mormons, while doing little to drive sales because, as state officials explained, the Five Wives would be  joining dozens of other not terribly quality brands of vodka on the state’s shelves. The national press, of course, played up the Mormon angle. The vodka may never sell legally in Idaho, but the PR windfall for the Ogden, Utah booze maker has been substantial. Not so much for the Idaho liquor dispensary.

When Prohibition ended in 1933 one of the grand compromises made by Congress was to reserve to the individual states the responsibility of controlling distilled spirits. Deciding where, when, how and whether to sell hard liquor would be left to state legislators, which explains why we have 50 different approaches to liquor law in the country and why Idaho, arguably the most libertarian state in the nation, still maintains a state monopoly on the sale and distribution of  the hard stuff.

Post-prohibition Idaho opted for a high level of state control over booze. Hard liquor would be sold in state owned and operated stores during hours that, originally at least, were designed to limit sales and provide a politically sensitive nod to the state’s large LDS population. Relatively steep tax rates on distilled spirits would further help drive down consumption. Other states, Arizona for instance, opted for as little state regulation as possible. In Phoenix you can buy your hooch at Costco or at Big Bill’s Bargain Booze. (I made that up, but there are liquor warehouse stores that merchandise booze the way Home Depot sells toilet fixtures.) Some of the latest “big box” stores offer a vast selection of liquor at what often seems like discount prices compared to a “controlled” state like Idaho or, until very recently, Washington.

Because of Idaho’s historic controls over liquor, it falls ultimately to Jeff Anderson and his staff to play the role of middle man in the marketplace and make many of the decisions about the product mix and pricing available to Idahoans who are in the market for a cocktail. In Arizona and other non-controlled states that job belongs to the free market.

Mayor Mike Bloomberg’s nanny-isms are of a little different texture. His proposal to ban many extra large, sugary, calorie heavy soft drinks is of a piece with the Big City’s long effort at rent control and the ban on smoking in Central Park. (Wait, Boise and many other cities have the same smoking bans, but that’s another story). Bloomberg’s well-intentioned effort to do something about the epidemic of obseity in the culture – the statistics are striking – has received decidedly mixed reviews. I’m guessing the big soda ban is instinctively understood by most New Yorkers. They get the idea that too much human weight is the canary in the emergency room when it comes to diabetes, heart diesease, stroke and other bad stuff, but they just don’t want the government nanny telling them they can only chug 16 ounces at a time. It’s a freedom thing. The right to be silly and fat without the government sticking its nose into the size of your Big Glup.

You actually need to have some limited sympathy with both of these situations. In libertarian Idaho the state liquor monopoly has been, as they might say at the Supreme Court, settled law since the 1930’s. We change slowly here, if at all. Wine couldn’t be sold in grocery stores until the 1970’s and the practice of other vices – slot machines were smashed up in the 1950’s, for example – get little sympathy in the state where Hemingway once wasted his evenings at a gaming/drink joint in Ketchum called the Casino Club. Jeff Anderson does double duty for Idaho and also runs the state lottery, which only came to be because voters demanded it at the ballot box in 1986.

In libertarian Idaho few legislators have ever lost an election by voting to deny the citizens a easier path to drink or gambling. Some folks apparently just can’t be trusted with too much freedom.

And as for New Yorkers, they seem accustomed to the occasional lecture from the nanny in office who tells them you must do this for your own good because you simply can’t be trusted to police your own behavior. Conservatives do it, liberals do it, even educated…well, you get the idea.

The nanny state is far removed from notions of political consistency. A libertarian in deep red Idaho can champion the state’s tight control of booze and a liberal in deep blue Manhattan can lead a crack down on a 7-11’s soda aisle.

Emerson said that consistency is the hobgoblin of small minds and politically speaking one man’s sexy vodka label is another man’s fat generating soft drink. I don’t drink vodka or Big Gulps, but I do enjoy the sweet, contradictory taste of a public policy that can only explain itself by wagging a finger in your face.

So, some suggestions: how about a Five Wives/Five Guys Burgers promotion. “Eat and drink politically incorrect.” Or, MacDonald’s could offer half off the big drinks for anyone who can prove their body mass index is within the safe range. Think of the possibilities for the free market.