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A Celebration of Politics Working…

It would be easy – even inevitable – given the dysfunctional state of American politics to just say the heck with it – nothing works any longer and nothing much gets done. I’ve been in that funk and may well slip back soon enough, but today I take heart that politics can still work.

The Boulder-White Clouds in Idaho

The Boulder-White Clouds in Idaho

The United States Senate this week completed action on a piece of legislation to protect more than a quarter million acres of some of the most spectacular landscape on the North American continent as Wilderness – with a capital W. The action, eventually coming as the result of a unanimous consent request in the Senate, follows similar approval in the House of Representatives. President Obama’s signature will come next.

The Politics of Effort…

The legislation is largely the result of determined, persistent effort by Idaho Republican Congressman Mike Simpson, a legislator of the old school who actually serves in Congress in order to get things accomplished and not merely to build his resume and court the fringe elements of his own party. Simpson is not the type of lawmaker that many in his party might wish him to be – one of those nameless, faceless members who vote NO, do as little as possible, get re-elected every two years and blame Washington’s shortcomings on “bureaucrats” and “Democrats.”

Rep. Mike Simpson

Rep. Mike Simpson

For the better part of fifteen years Simpson has, often single-handedly, championed greater environmental protections for the high peaks, lush meadows and gin-clear lakes of the Boulder-White Clouds area in his sprawling Congressional district in eastern Idaho. Rather than churn headlines denouncing the environmental movement, Simpson invited them to the table along with ranchers, county commissioners and a host of other interests to find a way to resolve controversies in the Idaho back country that date back decades. None of the parties trusted the others, but Simpson made them reason together with the quiet hard work that is the essence of real politics.

Blessed with a fine staff and the instincts of a patient dealmaker, Simpson worked the problem, understood the perspectives of the various interests and pushed, cajoled, humored, debated, smiled, and worked and waited and never gave up. At any number of points along the way a lesser legislator might well have lost patience, gotten discouraged or just said the hell with it, but Simpson never did, even when blindsided by members of his own party who once unceremoniously knifed his legislation after publicly indicating their support.

I wasn’t alone in concluding that the political process in Washington and the “Hell No Caucus” in Mike Simpson’s own party would never permit passage of another wilderness bill in Idaho. Over time the discouraged and disgruntled placed what little of their faith remained with President Obama. Obama, who has only gotten grief from Idaho Republicans the last seven years and owes the state nothing except maybe a thank you to a handful of Democrats who give him a 2008 caucus victory over Hillary Clinton, hinted that he would use “executive action” to declare the Boulder-White Clouds a National Monument. That potential provided the grease needed to lubricate Simpson’s legislative handiwork and the stalemate was broken.

There is an old maxim that dictates that you can keep your opponents off balance and disadvantaged in politics by displaying just enough unpredictability – even recklessness – that they think you just might be crazy enough to do what they most fear. Idaho Republicans, who had mostly not lifted a finger to help Mike Simpson over the years, came to believe that Obama just might be crazy enough to stick his proclamation pen in their faces and create a monument twice the size of the wilderness Simpson’s proposed.

Make no mistake, whatever they might say now, the determined congressman would not have received the support he ultimately did from other Idaho Republicans had they not feared – really feared – action by the president that would have created an Idaho national monument. It also didn’t hurt that Simpson and conservation-minded Idahoans in both political parties demonstrated broad public support for action on the Boulder-White Clouds.

Victory has a thousand fathers…and mothers…

While it is tempting to gloat about the late comers to the grand cause of environmental protection finally having to cave, it is more important to remember that political victory always has a thousand fathers and mothers. This is a moment to celebrate. Mike Simpson deserves – really deserves – to savor what will be a big part of his political legacy. Idaho conservationists, particularly the Idaho Conservation League and its leadership, deserve to celebrate the role that Idaho’s oldest conservation organization played in creating what some of us thought we would never see again – a wilderness bill in Idaho.

Cece Andrus in the shadow of the White Clouds

Cece Andrus in the shadow of the White Clouds – Idaho PTV photo 

There must be praise for visionaries who came before, particularly including former Governor Cecil D. Andrus who campaigned against an open pit mine in the area in 1970 and later attempted to do what has now been done. The late Idaho Senators Frank Church and Jim McClure deserve a big acknowledgement. Both knew the value of protecting the area and never flagged in their determination to see it accomplished. Countless other Idaho hikers, hunters, fishermen and outdoor recreationists played their indispensable roles as well.

Best of all, unborn generations of Americans will now have a chance to experience one the most remarkable, pristine, and beautiful areas in the entire country, if not the world. American wilderness is landscape and habitat and majesty and solitude, but it is also a state of mind. Knowing we have conserved something so special and so valuable not just for ourselves, but also for the future is truly a priceless gift.

On this one occasion and after decades of work, the good that politics can do reigns supreme. A piece of heaven right here on earth has been saved and we are all the richer for it.

The Loudest Voice…

“Imagine a NASCAR driver mentally preparing for a race knowing one of the drivers will be drunk. That’s what prepping for this debate is like.”

It is hard to find a parallel in American political history when one news organization – perhaps I should put that word “news” in quotes – has played such an outsized role in determining who gets covered and ultimately who gets nominated by one of the major political parties.

Roger Ailes, the Big Boss at Fox News

Roger Ailes, the Big Boss at Fox News

For good or bad much of the Republican presidential primary process is now largely in the hands of Fox News boss Roger Ailes, a profoundly partisan fellow who displays a deft touch for marketing the outlandish and who has built a brand and banked a bundle by zealously appealing to the shrinking band of very conservative older white voters who will decide who wins the Republican nomination in 2016. Ailes will ultimately determine which of the GOP candidates crowd on to the debate stage in Ohio on Thursday just as he will decree who watches from the wings.

There have been occasions in American political history when one media big foot or another have wielded disproportionate sway over a nomination or a candidate, but there has never been anything like Fox News.

William Loeb made his Manchester, N.H. paper both feared and hated

William Loeb made his Manchester, N.H. paper both feared and hated

Crusty old William Loeb ran his hard right Manchester Union Leader newspaper in New Hampshire like the tyrant he was and often shaped the outcome of his states first in the nation primary. Loeb used his front-page editorials to call Democrats ”left-wing kooks,” John Kennedy ”the No. 1 liar in the United States,” Nelson A. Rockefeller a ”wife-swapper” and Dwight Eisenhower a ”stinking hypocrite.” Loeb wasn’t above publicizing a phony letter designed to diminish Maine Senator Edmund Muskie’s 1972 candidacy. The letter was later shown to be part of a “dirty trick” effort promulgated by Richard Nixon’s campaign, which not incidentally employed Roger Ailes to help Nixon win in 1968. Loeb, a bully with barrels of ink, even attacked Muskie’s wife. It was one of the great smears in American political history and it worked.

In earlier decades press barons like McCormick and Hearst controlled their home state delegations and fancied themselves kingmakers, but none had the national reach of Fox and the personal sway of Roger Ailes.

Fox and Republicans Captives of Each Other…

Fox has become the Republican brand and vice versa, which seems to delight the most passionate and most conservative voters, but also means the network and those favored with its air time are mostly preaching to the Tea Party choir – 30 or so percent of the American electorate that thinks the last great president was Barry Goldwater. As if to underscore the tangled lines among Republicans and Fox News, Governor John Kasich over the weekend “walked back,” as they say, which is to disavow the pithy tweet from his strategist that begins this piece. John Weaver’s comment was funny, aimed it would seem at both Donald Trump and Fox and had the added benefit of being true. You won’t be surprised to know that Kasich did his walking back during an interview on Fox.

Meanwhile, a fascinating new report from the Shorenstein Center for the Media, Politics and Public Policy explains in vivid detail how conservative media in general and Fox in particular, “shapes the agenda of the [Republican] party, pushing it to the far right – at the expense of its ability to govern and pick presidential nominees.”

Geoffrey Kabaservice

Geoffrey Kabaservice

Fox fans will instantly dismiss the informed critique as the work of eastern elites – the Shorenstein Center is at Harvard, after all – but it’s difficult to dismiss comments like this from academic Geoffrey Kabaservice: “These people,” Kabaservice says in speaking of right wing media in all its forms, “practically speaking, are preventing the Republican Party from governing, which means they’re really preventing it from becoming a presidential party as well.

[Kabaservice is the author of Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, from Eisenhower to the Tea Party. He is a Republican.]

The Shorenstein report was authored by one of the better “old media” political reporters Jackie Calmes, a New York Times national correspondent, who did a stint as a fellow at the Center.

No Incentive to Bother With Reality…

Here’s one quick take from her report where she quotes a Republican staffer on Capitol Hill, “who has worked in the top ranks of congressional and presidential politics, but, like some others, asked to remain unidentified lest he provoke the far-right messengers against his current boss: ‘It’s so easy these days to go out there and become an Internet celebrity by saying some things, and who cares if it’s true or makes any sense. It’s a new frontier: How far to the right can you get? And there’s no incentive to ever really bother with reality.’ Or to compromise: ‘There’s no money, ratings or clicks in everyone going along to get along.’”

sean_hannity_024In other words, the Fox approach, exemplified by the self righteous bomb-thrower Sean Hannity, as well as dozens of others on right wing talk radio and in the blogosphere, is to crank up the outrage meter, pour ideological gasoline on any smoldering fire – immigration, Benghazi, Obamacare, shutdown the government, Iranian nuclear deals, etc. – and stand back and watch the flames scorch anyone left of Ted Cruz who might offer a sane, moderate, middle ground approach. The influence of right wing media on hard right and more moderate Republicans has served to substitute indignation and anger for anything like a real political agenda. Real policy that involves anything other than saying “NO” in a very loud voice is as foreign to Fox and friends as are real facts.

Calmes asked one Capitol Hill Republican if he could offer examples of legislative outcomes affected by conservative media. His response: “Sure. All of ‘em…the loudest voices drown out the sensible ones and there’s no real space to have serious discussions.”

Export-Import Bank: the Latest Litmus Test…

Take, for example, the current controversy involving re-authorization of the Export-Import Bank, a little known government agency that provides loan guarantees for foreign purchases of American goods. Tea Party-types – read Fox News viewers – see the program as a prime example of “crony capitalism” even though as New York Times columnist Joe Nocera points out the bank “generated enough in fees and interest to turn over $675 million to the Treasury. Why would anyone in their right mind want to put such a useful agency out of business?”

Why indeed, but you need look no farther than the right wing media to see the issue is perfect for the politics of outrage that are the staples of Fox, Rush Limbaugh and a hundred others who have made it difficult – if not impossible – for a Republican Congress to actually make sensible decisions, embrace the occasional compromise and, well, govern.

Sen. Ted Cruz (R-TX) gestures as the key speaker at the annual Reagan Republican Dinner in Des Moines, Iowa, Friday, October 25, 2013. (David Peterson/MCT via Getty Images)

Sen. Ted Cruz (R-TX) gestures as the key speaker at the annual Reagan Republican Dinner in Des Moines, Iowa, Friday, October 25, 2013. (David Peterson/MCT via Getty Images)

“This is a battle,” Ted Cruz proclaims, as he attempts to elevate his presidential candidacy with a constant stream of attention getting hyperbole. “Do you stand for the rich and powerful who corrupt Washington,” the senator asks, “and use this institution against the American taxpayer, or do you stand with the taxpayer?”

Don’t debate the facts, the hell with nuance, Cruz knows “there’s no incentive to ever really bother with reality.”

In the Import-Export Bank issue Cruz is, by the way, standing with the no taxes, ever Club for Growth, the billionaire Koch Brothers, the Tea Party Patriots, the Senate Conservatives Fund and Heritage Action for America. All are fervent practitioners of the politics of outrage and a governing strategy based on “NO.” The “corrupt Washington” Cruz attacks includes such obviously rotten Americans as Boeing, GE, the United States Chamber of Commerce and a small business guy by name of Michael Hess in little Malad, Idaho.

Hess wrote recently in the Idaho Statesman that the demise of the Export-Import Bank will damage his and other Idaho small businesses. “We’ve been mining, processing and distributing pumice in Idaho for almost 60 years,” Hess wrote. “And with the bank’s insurance, we’ve been expanding our business abroad. Our products are now distributed in 23 countries across six continents. Since 2009 alone, the bank has helped Hess Pumice generate more than $16 million in sales. That new revenue enabled us to hire more employees and further support the local economy.”

And Hess correctly nails the ideologues in his own Congressional delegation, elected officials more and more afraid or unwilling to stand up to the outrage caucus, which more and more takes its marching orders from conservative media. “Despite the bank’s obvious benefits,” Hess pointed out, “some critics want to keep it shut down. Senators Jim Risch and Mike Crapo, along with Representative Raul Labrador, are in this camp, contending that Ex-Im represents an unnecessary government intrusion into the private sector.”

It is worthy noting that Idaho’s other federal office holder, Congressman Mike Simpson, has not be part of the effort to stop the Ex-Im Bank. Simpson, the one Idaho Republicans to actually face a Tea Party-inspired opponent, who he beat handily, has often stood up against the most far out elements in his own party and attempted to be a legislator who governs. For that Simpson deserves bi-partisan praise.

Right wing media, particularly Fox, have created a political environment on the far right that disdains the type of reality that small businessman Michael Hess represents. Otherwise sensible people like Mike Crapo, who must know better, embrace the extremist line afraid to buck the hard, hard right and not surprisingly the wheels of government crank to a halt.

The Loudest Voice in the Room…

Reviewing Gabriel Sherman’s book on Fox and Boss Ailes last year in the New York Review – the book is appropriately entitled The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News – and Divided a Country – Steve Coll connected the dots this way: “Fox owes its degree of profitability in part to its most passionate, even extremist, audience segment. To win national elections, the Grand Old Party, on the other hand, must win over moderate, racially diverse, and independent voters. By their very diversity and middling views, swing voters are not easy to target on television. The sort of news-talk programming most likely to attract a broad and moderate audience—hard news, weather news, crime news, sports, and perhaps a smattering of left–right debate formats—is essentially the CNN formula, which Fox has already rejected triumphantly.”

When you tune into Thursday’s debate – how can you not tune in – in order to monitor the vitriol from Trump and Cruz and Walker and the rest, Roger Ailes, the majordomo of the outrage wing of the Republican Party, will be nowhere to be seen. But he’ll be there determining who plays and under what rules. He’ll be calling the shots, pouring the gasoline and fanning the fire. Like a good ventriloquist, Ailes no longer needs to move his lips in order to get the words to leave the mouth of an outraged Republican.

“Even inside Fox,” as New York Magazine reported last week, “some are awed that a presidential race is being influenced by a television channel. ‘Crazy stuff,’ another personality told reporter Gabriel Sherman, ‘you have a TV executive deciding who is in — and out — of a debate!’”

Who is the Dummy Here?

Edgar Bergen and his dummy Charlie McCarthy

Edgar Bergen and his dummy Charlie McCarthy

Crazy stuff? Of course it’s crazy, but it’s also the reality Republicans have bought into by handing policy development and candidate vetting to Roger Ailes and a handful of other outraged voices who make a living trying to blow things up. Jackie Calmes’ Shorenstein report quotes another exasperated Republican as saying of the right wing media, “they don’t give a damn about governing.”

Edgar Bergen, the brilliant and elegant ventriloquist of my youth, had his Charlie McCarthy, a wisecracking dummy sitting on his knee. We all knew Charlie was just a wooden prop given life and opinions by the man with the hand in his back, but it was still an entertaining act. Roger Ailes now has his Republican Party in pretty much the same position. I leave it to you to complete the analogy as to who plays the dummy.

Advise and Consent…

Years ago I enjoyed a delightful series of conversations with John Corlett, a true old-school newspaper reporter in Idaho who could recall political anecdotes with the sharpness that a gambler brings to counting cards in a Las Vegas casino. John’s career spanned a good part of the last century, from Franklin Roosevelt’s presidency to Ronald Reagan’s. He covered political conventions, wrote about statesmen and scalawags and he relished sharing his storehouse of memories every bit as much as I enjoyed hearing those memories.

Judge Chase Clark

Judge Chase Clark

One of many stories I remember involved former Idaho Governor and U.S. District Judge Chase Clark, the father-in-law of Senator Frank Church. Clark was part of a genuine Idaho political dynasty that featured two governors and a congressman who later became a U.S. Senator. Church married into the dynasty when he wed Bethine, the politically astute daughter of Chase Clark. The Clarks were mostly Democrats, but for bipartisan flavor the family also includes the remarkable Nancy Clark Reynolds, the Congressman’s daughter, and a Ronald Reagan confidante and D.C. power player.

Chase Clark ran for re-election as Idaho governor in 1942 and narrowly lost a re-match election with former Governor C.A. Bottolfson, the man Clark defeated in 1940. But 1942 was a Republican year, the country was at war, Roosevelt was in the second year of his third term and voters everywhere seemed to hanker for change. Corlett remembered that Democrat Clark considered his re-election chances to be less than stellar under those circumstances; so much so that Clark seems to have taken steps to create for himself a soft landing should the election turn out badly from his point of view.

As returns trickled in on election night 1942 it soon became clear that the governor’s race in Idaho would be a cliffhanger. Bottolfson eventually won by 434 votes out of more than 144,000 cast.

The Governor Who Wanted to Lose…

Late on election night as Corlett monitored the vote counting and tried to determine who was winning the very tight contest his phone rang. Governor Clark was on the other end of the line. “John,” he said, “it’s time for you to call the election for Bottolfson.”

Corlett could hardly believe what he was hearing. The incumbent Democrat was effectively conceding the election and doing so hours before it would become clear who the real winner might be. The curious phone call only made sense a few weeks later when Roosevelt announced Clark’s appointment to fill a vacancy on the federal bench in Idaho. A little over a month after leaving office in January 1943, Clark was nominated for the judgeship. He was confirmed by the Senate fifteen days later and served on the federal bench until his death in 1966.

Franklin Roosevelt

Franklin Roosevelt

Corlett was convinced that Clark had made a deal with Roosevelt before the election in 1942, a deal to have the president appoint him to the court should he lose, and John believed Clark actually wanted to lose, maybe even planned to lose. For Corlett, Clark’s election night telephone call concession was a political smoking gun. The governor wanted to be a federal judge a good deal more than he wanted to be a governor.

The life tenure of a federal judicial position (assuming good behavior) is just one attractive aspect of the job. The pay isn’t shabby, the working conditions are typically first rate and the retirement benefits quite nice thank you. As they say, “it’s indoor work with no heavy lifting,” unless you consider hours of sitting, listening, reading and writing strenuous. Done correctly, however, the job really should be demanding. It requires a certain temperament and a scholarly demeanor, experience, perspective, learning in the law and an abiding sense of fairness. It helps, as well, to be a real person with an ego in check, someone who is not overly impressed when everyone refers to you as “your honor.”

Idaho’s Next Judge…

I remembered the old John Corlett tale recently as I read the news of the unfolding and very secret process being managed by Idaho’s two Republican United States senators to fill the vacant judgeship on the federal district court in Idaho. As the Spokesman-Review’s Betsy Russell first reported, Senators Mike Crapo and Jim Risch have been quietly – very quietly – interviewing prospective candidates for the federal court position, but, as Russell also reported, two of the most obvious women candidates have not been interviewed, at least not yet.

The senators subsequently released a short statement to the effect that the confidential process was in everyone’s best interest and that men as well as women would be considered. Russell also reported that the current process is a dramatic departure from that used the last time Idaho had a federal court vacancy. In 1995, with Democrat Bill Clinton in the White House, Republican Senators Larry Craig and Dirk Kempthorne created a nine-member bipartisan panel made up of five Democrats and four Republicans. The partisan split was in deference to fact that Democrat Clinton would make the appointment. That process ultimately produced three stellar candidates, including current federal District Judge Lynn Winmill, who was nominated and confirmed and continues to serve with great distinction.

Judge Edward Lodge

Judge Edward Lodge

Crapo and Risch could have adopted a similar approach when respected Judge Edward Lodge announced his decision to move to “senior status” in September of last year. That they did not, and that only in the last few days has there been any news about the judicial position, might indicate that the senators aren’t really much focused on producing a candidate that will be both acceptable to them and to the person who under the Constitution actually makes the appointment, Barack Obama.

While its clear under the Constitution that the president “shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint” federal judges, it is an unwritten fact of life in the United States Senate that no nominee gets approved by the Senate unless the senators of the state involved green light the appointment. This is particularly true when the Senate is controlled, as it now is, by one party while the other party holds the White House.

This political reality cries out, if indeed Idaho’s senators really want to see a judicial appointment while Barack Obama is still in office, for something like the bipartisan approach Craig and Kempthorne employed twenty years ago. It is entirely conceivable that the process now being used will produce a candidate that will turn out to be unacceptable to the White House and that may be what the senators truly desire. In the hardball of Senate politics the Idaho Republicans may have decided, as an Arizona Congressman actually said recently, that Obama should have not more appointments approved – period.

Idaho’s senators may have simply made the political calculation that they will “run out the clock,” while betting that a Republican wins the White House in 2016. Under this scenario Crapo and Risch will have teed up the candidate they want for early consideration by President Jeb Bush, Scott Walker or someone else.

With no more than seventy working days remaining on this year’s Senate calendar and with the Senate surely going into paralysis mode next year with a presidential election looming time will soon dictate whether an Idaho appointment is even possible. Even if Crapo and Risch were to produce a candidate relatively soon the White House and FBI vetting process could take months and extend into next year’s presidential morass. For the two senators this approach could neatly, if unfairly, place the blame for failing to fill the vacancy on the president’s desk.

The statement from Crapo and Risch last week made much of the need for an “entirely confidential” process. But it’s worth asking why? At least two widely mentioned, not particularly political and eminently qualified female candidates – U.S. Attorney Wendy Olson and federal Magistrate Candy Dale – have publicly acknowledge their interest in the appointment. Idaho, of course, is unique in that the state has never had a woman federal district judge. One suspects it is the senators insisting on the confidentially, since applying to become a federal judge, even if you are not selected, is hardly something most Idaho lawyers would hide under a bushel. Merely applying puts one in rare company.

One can certainly understand senatorial prerogatives and the Constitution wisely provides for “advice and consent” from the Senate, but a vacant federal judgeship that comes around maybe once in a generation really doesn’t belong exclusively to two U.S. senators or even to a president. The important job belongs to Idaho and given the nature of Idaho and national politics shouts out for a high degree of transparency.

Advise and Consent…Not So Much…

As this process stumbles forward the White House might consider these political facts:

Attorney General Loretta Lynch

Attorney General Loretta Lynch

Idaho’s two senators recently voted against the confirmation of a highly qualified African-American woman to become the first ever attorney general. They based their votes on the fact that Loretta Lynch, a seasoned federal prosecutor, merely said that she agreed with her boss, the president, on his immigration actions; actions admittedly controversial, but also currently under judicial review. Such conservative Senate stalwarts as Mitch McConnell, Orrin Hatch and Jeff Flake voted to confirm Lynch as attorney general, but not Crapo and Risch.

Additionally, from health care to Iran, Idaho’s senators have opposed virtually all of Obama’s policy actions. They regularly lambast the administration for everything from underfunding the Idaho National Laboratory to over regulating Main Street businesses. Obama’s budgets, they have said repeatedly, are awful, his foreign policy a disaster and the president regularly engages in extra-constitutional behavior. Little wonder then that Idaho’s senators, as reliably opposed to anything the White House proposes as any two senators in the nation, have shown so little interest in actually working with the president on the rare Idaho judicial appointment.

What Would FDR Do…

As the old story about Judge Clark in the 1940’s proves, being appointed a federal judge is a highly desirable job. Franklin Roosevelt placed the just defeated Chase Clark on the federal bench in 1942 without, near as I can tell, much if any involvement by Idaho’s two senators at the time.

Senator D. Worth Clark

Senator D. Worth Clark

In fact it’s very likely that Roosevelt could have cared less about the opinion of Senator D. Worth Clark, Chase’s nephew and Nancy Clark Reynold’s father, since Worth Clark was an outspoken opponent of FDR’s foreign policy. Coming as it did from a member of his own party, Roosevelt bitterly resented Clark’s harsh isolationist critique and let it be known that he did.

Senator John W. Thomas, a Republican, who was appointed to replace William Borah when he died in 1940, was, with the exception of foreign policy, philosophically far removed from the man he replaced. Roosevelt both liked and respected Borah even though the two men clashed on many things and had Borah, a long-time member of the Judiciary Committee, lived he certainly would have had a say in filling the Idaho judgeship. With a war to run it’s not hard to speculate that the opinions of Clark and Thomas counted for next to nothing in Roosevelt’s White House. While the Senate did “advise and consent” on Judge Clark, it can safely be said that Idaho’s two senators had very little to say about his appointment.

Perhaps in the current case Mr. Obama ought to engage in some of that dictatorial activity he is so often accused of and go ahead and appoint one of the highly qualified and non-political women candidates to the federal bench. Let Idaho’s senators explain why a sitting U.S. attorney already confirmed by the Senate, or a federal magistrate vetted by her peers, or any number of other qualified women aren’t acceptable. The way things look today President Obama has nothing too lose as the clock winds down on his term and he confronts a judicial selection in Idaho vetted and suggested by two senators who can hardly mention his name without a sneer.

Barack Obama might enjoy, just as Franklin Roosevelt often did, seeing some of his greatest opponents in the Senate squirm just a little. At the very least, Mr. Obama could go down in history as the first president who tried to appoint the first women to the federal bench in Idaho.


So Goes Indiana…

Indiana Religious Freedom Law OppositionSomewhere, maybe, there is a political operative for one of the Republican presidential candidates who is sitting at a desk, hunched over a computer smiling at the viral news that the Grand Old Party has taken a another hard right turn into the war zone of culture, but some how I doubt it.

The #indiana has, at least for a few more days, reshaped and shuffled the pre-primary primary season for the Republican Party and I’m betting no one from Jeb Bush to Ted Cruz was really looking to be defined by the actions of the Indiana state legislature. But, you try to go to the White House with the issues you have, as Donald Rumsfeld might say.

Indiana, home to great basketball, fast motor racing and St. Elmo’s Steakhouse (one of the greatest I’ve ever visited), has discovered the power of social media this week. When Indiana Governor Mike Pence signed a “religious freedom” law into effect a few days ago he set off a national debate vastly beyond anything the Hoosier state has seen in a long, long time. The time that 30t-mushnick-300x3001former Indiana basketball coach Bobby Knight threw a chair hardly registers compared to the shock of Pence and Indiana Republicans touching a new third rail of American politics – discrimination couched as expressions of religious belief.

But first, let’s consider the politics. According to the Gallup polling organization, the level of acceptance of homosexuality in the country is at an all-time high – more than 60 percent – and even higher among younger Americans. Support for same sex marriage has crossed the same threshold of acceptance. According to Pew Research, opposition to same sex marriage stood at 65 percent in 1996, but by last year public opinion had shifted dramatically with 54 percent of Americans now approving of the idea.

It is not necessary to be an MIT math whiz to see that the world has changed and the pace of change is only likely to accelerate as younger Americans, vastly more accepting of all types of diversity, assert themselves in the economy and politics. The modern Republican Party is on the wrong side of this divide.

Second, in the wake of the still unfolding Indiana firestorm, Republicans find themselves in the almost always uncomfortable political position of debating the technical, legal aspects of a law. When a politician is forced, as Pence was, to say that a law he signed is not a license to discriminate against gay and lesbian Americans and then forced to explain legally how that is possible, you have the political equivalent of explaining how a watch is made when the public just wants to know what time it is.

Whether it has been completely fair or not, the Indiana legislation has been forever defined as at a minimum, opening the door to discrimination based on sexual orientation. Republican candidates have been reduced to explaining what the law doesn’t do rather than what it was reported to accomplish. So far they have mostly botched the task.

The backlash, both politically and otherwise, has been intense. One of the best Tweets I’ve seen was from the Indianapolis Motor CBcAf8RUQAEEr0q.jpg-largeSpeedway, home of the legendary 500 mile race. The Speedway’s famous sign simply spelled out: “We Welcome Everyone.”

A lengthening parade of some of the biggest business brands in the country – Nike, Walmart, Apple, Twitter, Yelp, Levi Strauss, Eli Lilly and Accenture, among others – have publicly opposed the Indiana law. The NCAA has essentially said it will not allow future big-time college athletic events in Indiana. (When the NCAA looks good in comparison, #indiana, you have a problem). All this, too, creates political fallout, as Bush will undoubtedly find when he goes calling for campaign cash in Silicon Valley this week. More importantly, business is signaling that discrimination is bad for, well, business.

So, if the politics of discrimination against gay and lesbian Americans – or even the appearance of discrimination – doesn’t make political sense, and with many of the usual business allies of the Republican Party in revolt against an Indiana-type law, why do it? [Arkansas Republican Governor Asa Hutchison apparently asked that question when presented with a similar proposal in his state. Hutchison, after first indicating he would, now says he’ll not sign the legislation.]

I think Amy Davidson, writing in The New Yorker, has the answer to the why question.

“The Indiana law is the product of a G.O.P. search for a respectable way to oppose same-sex marriage and to rally the base around it. There are two problems with this plan, however. First, not everyone in the party, even in its most conservative precincts, wants to make gay marriage an issue, even a stealth one—or opposes gay marriage to begin with. As the unhappy reaction in Indiana shows, plenty of Republicans find the anti-marriage position embarrassing, as do some business interests that are normally aligned with the party. Second, the law is not an empty rhetorical device but one that has been made strangely powerful, in ways that haven’t yet been fully tested, by the Supreme Court decision last year in Burwell v. Hobby Lobby. That ruling allowed the Christian owners of a chain of craft stores to use the federal version of the RFRA (the Religious Freedom Restoration Act) to ignore parts of the Affordable Care Act. Ruth Bader Ginsburg, in her dissent, argued strongly that the majority was turning that RFRA into a protean tool for all sorts of evasions.” She was correct.

In short, the efforts in Indiana and Arkansas involve crafting laws sufficiently vague and open to wide interpretation expecting that the new statutes can serve as a vehicle to get a case in front of a judge who might rule in a way that creates an eventual avenue to the Supreme Court. The Indiana law is not so much about making public policy that can be debated and clearly understood, as it is about teeing up a legal argument that leaves the dirty work of defining the line between religion and discrimination to five conservative justices. Any bets on how that comes down?

Indiana’s governor, in denying the discriminatory intent of the law in his state, said the new statute, “only provides a mechanism Penceto address claims, not a license for private parties to deny services.” Or perhaps more correctly, as Davidson writes, the Indiana law provides “a mechanism to discriminate, rather than a license. What it certainly will do is give some people more confidence to discriminate. But is that what Indiana really wants? And is that what the G.O.P.’s 2016 candidates should be looking for?”

Interestingly, in a debate that mirrors the on-going debate in Idaho (and elsewhere) over creating specific state-level prohibitions against discrimination directed toward gays and lesbians, the perfect fix for the Indiana dilemma is merely for the legislature to create such protections in law. So far that remedy, a specific statement of public policy opposed to discrimination, hasn’t been a serious part of the discussion in Indiana. Of course, Idaho continues to dance around that clear choice, as well. As this debate continues to unfold, Idaho policy makers might want to listen closely. It is not completely farfetched to think that Idaho could become Indiana.

But here is the ultimate political, indeed moral, bottom line: If you are reduced to arguing that something you have done in the name of “freedom” isn’t really designed to create an ability for some people to deny freedom – that’s what discrimination is – against some other people, while couching it all in the smoke of “restoring religion” you are likely on the wrong side of a very dubious argument, not to mention history.


Third Act for a Bomb Thrower

He was one of the most polarizing political figures of the last half-century in Idaho, a union and gay rights basher who was part of the Tea Party before we called it that and before the Republican Party came to be too dominated by, well, guys like Gary Glenn.

GlennLong-time observers of Idaho’s politics – and now Michigan politics – will recognize his name and his tactics, including the brash one-liner, the scorched earth approach to every issue, the politics that reduce your opponent to a beast determined to ruin the culture. Those who long for a politics where opponents aren’t routinely demonized will not be surprised that Glenn, the one-time Idaho bomb thrower, is these days lobbing his grenades as a duly elected state representative in Michigan. You can be forgiven for thinking Idaho’s gain has become Michigan’s loss.

Wearing his religion on his sleeve, Glenn is in the forefront of efforts to deny marriage rights to gay couples in Michigan. Glenn’s American Family Association Michigan chapter – he’s the president – is widely described by human rights organizations as a “hate group.” As a legislator, Glenn is still advocating low taxes – or perhaps no taxes – and opposing a Republican governor’s plan to invest in Michigan infrastructure. And, of course, Glenn has ridden his “right-to-work” hobbyhorse for thirty years, all the way to Midland, Michigan, while preaching “freedom” for everyone but those unfortunate souls who happen to disagree with him.

At a state university in Saginaw, Michigan recently two dozen students showed up to protest an appearance by the former Idaho firebrand. According to the local newspaper the students, taking exception to Glenn’s harsh anti-gay rhetoric, chanted, “Hey, ho, Gary Glenn has got to go” and “2, 4, 6, 8, Gary Glenn is full of hate.” The Southern Poverty Law Center, the civil rights group Saginawthat once had a hand in driving the Aryan Nations out of Idaho, reports on its website that Glenn offered these helpful comments about gays in 2001: “As with smoking, homosexual behavior’s ‘second hand’ effects threaten public health….Thus, individuals who choose to engage in homosexual behavior threaten not only their own lives, but the lives of the general population.” Some things never change.

The Hired Gun…

If you want to mark a date on the calendar when Idaho politics truly began to change for the worse you could start with the day in 1985, when the Idaho legislature, after a bruising political battle, passed anti-labor “right-to-work” legislation over the veto on then-Governor John V. Evans. When unions succeeded in getting the issue on the ballot in 1986 the resulting campaign was particularly ugly. Glenn, a fresh-faced newcomer to Idaho – some called him not incorrectly a “carpetbagger” – orchestrated that nasty battle utilizing the kind of over-the-top tactics of intimidation and exaggeration – union “thugs” where threatening western civilization – that have become the norm in politics.

Before Glenn and the National Right-to-Work Committee targeted Idaho with bundles of outside money and deployed the politics of “if you’re not for us, you are against us,” Idaho was an organized labor backwater. In modern times the state had little history of labor unrest, but the unionized miners, timber workers and electricians tended to support Democrats who advocated for better schools and better paying jobs. Labor’s foot soldiers and campaign money never – at least not since the early 1950’s – gave Democrats a majority in the Idaho Legislature, but they did help keep the party competitive and helped elect guys like Evans, Frank Church and my old boss Cecil Andrus.

There are endless debates about the economic impacts of right-to-work on wages, job creation and the quality of employment opportunities and you can find studies and experts to support almost any point of view, but it’s beyond denial that the passage of the law in Idaho dealt a big blow to the Democratic Party. This was, one suspects, a big factor in Wisconsin Governor Scott Walker’s recent push to make that once labor friendly state the latest to put the state between union members and management.

It is also clear that Idaho’s ranking in one important economic category – personal income – is hardly an advertisement for the wonders of anti-labor public policy. According to Department of Labor statistics, “Idaho ranked dead last in 2013 with individual median income at $27,932 — likely aided by the fact it was at the bottom of all the states for the median income for women, $21,908. The Idaho median income for men was $33,623 — good for 48th place.”

If you like one-party government populated by a crop of legislators who now pass resolutions calling for the “impeachment” of federal judges who rule “incorrectly” on same sex marriage, oppose a Hindu prayer to open a legislative session, continue to defund education and deny basic human rights protections to the LGBT community then Gary Glenn deserves honorary Idaho citizenship. The do-almost-nothing Idaho legislature (remember, it wasn’t always so), is a monument to the lack of a political middle in the state and that too has roots in the long ago battles that Glenn and like minded allies stoked for maximum partisan mileage.

As an historical footnote, I remember some Idaho Republican legislators in the 1980’s who were dubious about right-to-work potatoes_0asking why it was OK to mandate that every Idaho hop or potato farmer pay an assessment to support a state-mandated commodity commission, but the principle of every union member paying dues to support has bargaining organization was “coercion” and “a denial of freedom.” One man’s freedom is another’s “compulsory” union dues or, if you prefer, mandatory, state-sanctioned assessments on pea and lentil growers. I’m still waiting for the Idaho “freedom” movement to outlaw mandatory assessments on farmers, which exist, of course, in order to market products and advocate political causes for a special interest group. Journeymen plumbers are obviously in a different class. Talk about a closed shop.

Right-to-work legislation has never about “freedom,” as Glenn peddled the concept, but rather represented a cynical two-pronged strategy to weaken collective bargaining and erode support for Idaho Democrats. It worked like gangbusters and had the additional benefitunion of depressing wages.

After steamrolling the right-to-work effort in Idaho, Glenn was hired as the political operative for the state’s cattle ranchers and tried, with some success, to use that platform to create his own path to political power. The cattle lobby was a “voluntary” organization were members paid “dues,” but you won’t find many cowboys who don’t volunteer and ante up. More freedom, I guess.

Cece Andrus famously refused Glenn admission to the governor’s office in those days and did not, as Glenn’s partisans incorrectly claimed, “throw him out” of the big office on the second floor of the Idaho Statehouse. Andrus, with no use for completely partisan hired guns like Glenn, loved to say that he most certain did not “throw” Glenn out, which would have been impossible since the hired gun never got his brand new Tony Lamas across the door jamb.

Glenn next brought his polarizing brand of partisanship to the Ada County Commission and spent two contentious terms mostly preening for television cameras and fighting with other elected officials. Before long he lost a Republican primary for Congress and decamped for Michigan and, one might hope, obscurity. But not so fast. In 2012 Glenn unsuccessfully sought the Republican U.S. Senate nomination in Michigan, but that run merely served to open his third act and he captured a seat in the state legislature in 2014. You have to give the guy credit; he is a political survivor.

The Third Act…

I believe Glenn when he says, as he did in an Idaho Statesman piece marking the 25th anniversary of right-to-work coming to Idaho, that he is a “true believer” in his brand of ultra-conservative politics, the kind of politics that gains him regular attention from civil liberties groups who monitor the hateful drivel of Glenn and other divisive personalities like Glenn Beck and the radio preacher Bryan Fisher, two more professional agitators with Idaho antecedents.

Glenn is a true believer, but also a first-class opportunist, one of those people in politics who live to divide and chide. He’s made a living pumping out his anti-gay, anti-union, anti-tax mumbo jumbo, but beyond being against people not like him you have to wonder what he has to show for a lifetime of agitation?

Gary Glenn reminds me all these years later of the great question Lyndon Johnson asked of another fear and hate monger, George Wallace, during the darkest days of the voting rights struggle in 1965. “George,” LBJ said to the blustering Alabama governor, “what do you want left after you when you die? Do you want a Great…Big…Marble monument that reads ‘George Wallace – He Built?’…or do you want a scrawny pine board laying across that harsh, caliche soil, that reads, ‘George Wallace – He Hated?’”

Glenn left a questionable and negative mark on Idaho and now builds a dubious mark, as successful opportunists tend to do, in a new venue where, one suspects, all his nasty history is little understood. Still, his long “career” begs the question of just what has he built and what has his disdain for those who think differently really accomplished? He has certainly succeeded in keeping himself in the public eye and, ironically for someone who has so consistently preached the anti-government gospel, Glenn has once again landed on the public payroll, a perfect place from which to lament all the evils of government. As the same time, and in the name of “liberty” and “freedom” he has long championed causes that deny rights to others, while helping breed the absurd levels of animosity that are at the center of what passes for politics these days.

Michigan must be proud. Hate has a new lease on life. Mr. Glenn has opened his third act.


Study History

“Study history, study history,” Winston Churchill said long ago . “In history lies all the secrets of statecraft.”

I was reminded of those wise words from the 06n25churchill-382089great man recently during the latest dust up concerning the state of Idaho, the U.S. Department of Energy (DOE) and two former Idaho governors.

I’ll leave it to the former governors, Phil Batt and Cecil D. Andrus, to press their case as to why top Idaho officials are mistaken in granting DOE a second “waiver” permitting shipments of commercial spent nuclear fuel (SNF) to the Idaho National Laboratory (INL). My perspective, as Churchill  would suggest, is to remind us of the “history” behind the current and historical controversies. The two former governors share a lot of history with the Department of Energy.

Full disclosure requires that I mention for anyone who doesn’t know that I worked for Cece Andrus years ago, covered both men as a reporter, admire them greatly and consider both among the very best public officials Idaho has ever produced. Rather than a defense of their recent objections I offer some history that helps explain, I think, why Batt and Andrus feel as they do.

Begin at the beginning…

Senator-Harry-S.-TrumanTruman’s initial effort to find out what was going on in great secrecy at Hanford was politely rebuffed by Secretary of War Henry Stimson. Truman persisted, going so far as to send a committee investigator to the Hanford site. His investigator was turned away. As Truman biographer David McCullough has written in his extraordinary book Truman, the feisty Missourian grew annoyed at the stonewalling and became determined to press hard for answers about what his government was doing. Stimson, now annoyed himself, refused to tell the senator anything while writing in his diary, “Truman is a nuisance and a petty and untrustworthy man. He talks smoothly but acts meanly.” Truman would not learn about the Manhattan Project and the development of the atomic bomb until he had been President of the United States for twenty days.

As McCullough writes regarding the development of an atomic weapon, “In less than three years the United States has spent $2 billion, which was not the least of the hidden truths, and, one way or the other, 200,000 people had been involved, only a few having more than a vague idea of what it was about. That the diligent chairman of the Truman Committee had known so little was a clear measure of how extremely effective security had been.” McCullough notes that neither General Douglas MacArthur or Admiral Chester A. Nimitz “or a host of others in high command” knew what was going on.

As I said, the nuclear age was born in secrecy without even the most basic degree of oversight. War time security certainly demanded a high degree of secrecy around the Manhattan Project, but in hindsight it seems impossible to justify that such a massive undertaking with such world-changing consequences should have been conducted completely in the dark. A bomb was born along the Hanford Reach of the Columbia in the 1940’s, but so too was a culture. Remnants of that old culture of secrecy, fueled by a belief that only a handful of highly trained people can know what’s best for the country and that pesky oversight is a “nuisance,” survived long into the Cold War.

For decades as the U.S. nuclear weapons program developed, the arid high desert in eastern Idaho became the home for much of the detritus of wipp01the nuclear age. Much of the weapons production was done at the Rocky Flats DOE site just north of Denver, Colorado. Tools, protective clothing and other materials contaminated during the weapons production process was routinely sent to Idaho for “disposal.” In the early days, the
disposal was something less than “state of the art” with flimsy boxes dumped in ditches scratched out of the desert soil and covered over. Later the material was packed in 55 gallon drums and stacked more safely on pads. The nuclear junk, often referred to as transuranic or TRU waste, piled up in Idaho for years.

Seeking Answers…

When then-Governor Andrus started asking questions in the 1970’s about why any waste was being “stored” in Idaho above the vast Snake River Aquifer he was told that the “storage” was “interim” pending the development of a suitable permanent repository. Andrus exchanged correspondence with the director of what was then called the Atomic Energy Commission (AEC), a forerunner of the current Dix Lee RayDepartment of Energy. The AEC was run at the time by a pugnacious, opinionated woman named Dixie Lee Ray, a marine biologist by training and an unabashed champion of nuclear energy. Ms. Ray, whose personality and to be truthful physical appearance, resembled a bulldog, later served one contentious term as governor of Washington. Her toxic spats with the Olympia press corps were legendary in those days. She named the pigs she kept at her Fox Island farm after individual Statehouse reporters. You get the idea. Dixie Lee Ray was one of those smart people who knew what was best for the country.

Shortly before Andrus went off to Washington to serve as Secretary of the Interior in Jimmy Carter’s Cabinet, Dixie Lee Ray wrote the governor that the AEC had a plan to dispose of the waste material stored in Idaho and it would be “removed by the end of the decade.” Usually public officials don’t make such certain claims unless they are sure they can follow through, or they are merely dissembling. Andrus assumed the best regarding the assurances from the head of the AEC even though he had crossed swords with federal officials in the early 1970’s when Idaho turned up on a short list of states being considered as national waste disposal sites. Andrus convened a “blue ribbon commission” at the time, which not surprisingly made the case that eastern Idaho – in large part because of the aquifer and active seismic activity – was a horrible place to dispose of waste. Seeds of distrust were deeply planted.

It’s worth a short digression here to note that the historical lack of oversight of DOE and its predecessor agencies has been a completely bi-partisan failing. Democrats and Republicans in Congress and in Idaho, as well as presidents of both parties, largely let the nation’s nuclear policy, including what to do with all the waste material, basically become an issue that was out of sight and therefore out of mind. It has long been an article of faith in Idaho politics that any statewide candidate had to embrace the state’s DOE site and welcome virtually any decision DOE made regarding the facility. Idaho is far from unique in this regard. The same dynamic exists in other states like Washington or South Carolina were a big DOE influence is felt in the economy. To use Tip O’Neill’s famous phrase, the DOE jobs and budgets make all politics local. That is both understandable as politics and regrettable as public policy. It’s far easier, of course, to praise the economics and avoid the oversight. As an historical matter this really only started to change in the 1980’s.

Creating a New Agency…

One of Jimmy Carter’s lasting legacies was to propose and sign into law the legislation creating of the U.S. Department of Energy which took place in August 1977 early in Carter’s administration. As DOE notes on its website, “The Department of Energy Organization Act of 1977 created one the most james-schlesinger-dies-665x385interesting and diverse agencies in the Federal government.” The scope of the DOE mission from weapons to waste, from research to reactor safety is about as “diverse” as any in the federal government. Carter made the new expansive agency even more interesting by putting the arrogant, pugnacious empire builder James Schlesinger in charge as the first secretary. It wasn’t one of Carter’s better personnel decisions.

Schlesinger, an economist by training, cut his political teeth in the Nixon Administration as a budget official and for a brief time as director of the Central Intelligence Agency before Nixon moved him to the Department of Defense. When Gerald Ford became president Schlesinger stayed on, but Ford – a better judge of character than Nixon – quickly came to dislike him.

As the Washington Post noted in Schlesinger’s obituary last year: “His aloof, arrogant manner,” as Ford described it, was off putting to the president. “I never could be sure he was leveling with me,” Ford told historian Walter Isaacson, and soon he was gone.

Schlesinger, a Republican, then supported Ronald Reagan against Ford in james-r-schlesinger-1976 and when Reagan lost the nomination Schlesinger switched sides to support Carter and become his energy adviser. On such turns of history are historically bad appointments made. The pipe smoking Schlesinger, a man steeped in the petty intrigues of Washington and the culture of secrecy at the CIA and the Pentagon, was just the man not to take a fledging Department of Energy into a new era of transparency and public accountability.

Andrus, I should note, observed a good deal of the creation of the new agency from a front row seat in the Carter Cabinet. The Interior Department had to assist with the birthing of DOE by transferring personnel and programs, including the northwest’s great legacy of the New Deal the Bonneville Power Administration, to the new Department of Energy.

Fast forward to 1987 and Andrus’ return to the Idaho Statehouse. During his first visit after returning to the  governorship to what was then called the Idaho National Engineering Laboratory, Andrus began asking questions, the same kind of questions he had asked in the 1970’s about that old Rocky Flats waste. Recall that he had been promised by Dixie Lee Ray that the TRU waste would be leaving Idaho “by the end of the decade” – the decade of the 1970’s – and now it was a good ten years later. In fact, the waste wasn’t leaving, but was continuing to accumulate due primarily to DOE’s inability to jump the regulatory hurdles required to open a permanent disposal site in New Mexico. The delays in opening the so called WIPP site in New Mexico involved both mismanagement and a lack of national will. DOE couldn’t get on the same page with the Environmental Protection Agency (EPA) and the project faltered for years and years.

Andrus went to New Mexico to see for himself and understand the delays. It’s fair to say he came away frustrated and feeling deceived by old promises not kept. Upon returning to Idaho he wrote a famous letter to then Energy Secretary James Watkins, a imperious four-star Navy Admiral accustomed to giving orders but out of his depth when it came to pulling and hauling the vast DOE bureaucracy into action. Andrus informed the admiral’s DOE that he was stopping shipments of Rocky Flats waste pending progress on the New Mexico site and later took similar action to halt shipment to Idaho of spent reactor fuel from the U.S Navy’s nuclear fleet. DOE had the responsibility of permanently disposing of that material, as well. Spent commercial waste from a nuclear power plant in Colorado was next and eventually action in federal court in Idaho.

The Andrus actions were both unprecedented and politically controversial. When Navy spent fuel started piling up at the Bremerton Navy Yard, Democratic Congressman Norm Dicks, a burly former football player who represented the area in Congress, howled and threatened. Virginia Senator John Warner said the governor a tiny western state was impacted national security by causing the undesirable spent fuel to sit in a port in Warner’s home state. Idaho Senator Larry Craig blasted the actions as damaging to INEL and some predicted the demise of the facility.

The national failures of nuclear waste policy rather suddenly became a issue no longer out of sight, but on the pages of the New York Times. The politicians, like Dicks and Warner, who wanted waste out of their states and in remote Idaho had to confront troubling and thorny issues. Those who blasted Andrus for threatening the Idaho facility soon found that sensible approaches to waste management trumped political bombast.

And apparently Idahoans understood what Andrus was doing, as well as what was at stake for Idaho and the nation. He was overwhelming re-elected in 1990. Shortly thereafter he was appointed to head, along with Minnesota Attorney General Skip Humphrey, a joint effort of the nation’s governors and attorneys generals to create a better regulatory scheme for federal facilities, including those operated by DOE and the Defense Department. Congress passed the Federal Facilities Compliance Act in 1992 as a direct result of the Andrus-Humphrey work and thanks to the personal interest of then-Senate Majority Leader George Mitchell.

rocky-flats-2As the Environmental Protection Agency notes on its website the federal facilities law required federal agencies to do something they had not been compelled to do before – observe federal, state and local laws related to hazardous materials. The law also waived federal “sovereign immunity” allowing the government to be taken to court over compliance issues.

 Andrus continued to shadow box DOE throughout his final term as governor, all the while maintaining that the agency born in secrecy and charged with such an expansive mandate could only be compelled to keep commitments through legally binding agreements. He persisted in making the case that Idaho was not a suitable place to store, even temporarily, nuclear materials. Promises, he had learned, were not enough.

Governor Batt, who succeeded Andrus in the Governor’s Office in 1995, took up the cause where his predecessor left off. Through hard work that featured several showdowns with DOE and the brass hats who ran the nuclear navy, Batt fashioned a legally binding settlement agreement with DOE. The agreement specified deadlines for waste disposal and treatment and detailed fines that might be levied on DOE. Like Andrus’ earlier actions the Batt Agreement was controversial and eventually became a ballot issue in 1996. Some thought Batt had given way too much, others thought his demands on DOE would harm the Idaho lab. But the governor had skillfully negotiated a unique deal for Idaho – deadlines and penalties – and once the issues were debated Idaho voters backed their governor and his agreement, which has now been in effect for nearly 20 years.

As the state Department of Environmental Quality notes on its website, when the Batt Agreement was signed: “there were 261 metric tons of heavy metal from spent fuel, 65,000 cubic meters of stored transuranic wastes, another 62,000 cubic meters of buried transuranic waste, approximately 2 million gallons of high-level liquid waste and 3,700 cubic meters of calcined (dried liquid) waste already stored at the INL when Governor Batt took office. Until the Settlement Agreement there was no legally binding commitment to remove any of this waste from Idaho until Governor Batt reached his agreement with federal officials.”

The current Idaho controversy has been sparked by a second “waiver” to this agreement. The waiver allows commercial spent nuclear fuel to come to Idaho for research purposes and, one assumes, storage for some period. The state says the “waiver” will only go into effect when DOE comes up with a new plan to meet milestones spelled out in the Batt Agreement, but, of course, those are milestones the agency has already missed. 

It is only right and fair to acknowledge that the Department of Energy has made great progress over the last decade or so on many waste issues in Idaho and elsewhere in the DOE complex. Thousands of dedicated people are working diligently to deal with environmental problems that literally date back to Harry Truman. Not surprisingly the massive effort is far from completed and remains both complex and extraordinarily expensive. The New Mexico site that had accepted significant amounts of the old Rocky Flats waste, for example, has been forced to indefinitely suspended shipments following an accident involving a breech of a waste drum. The Santa Fe New Mexican newspaper reported last week that the re-opening of the facility is “months behind schedule.” Obviously this impacts some of the material still in Idaho.

Additionally, the national plan to dispose of commercial reactor spent fuel, some of which will likely come again to Idaho under the agreed to yucca_tunnel0901waiver, has been stuck in neutral since the Obama Administration stopped work on the proposed Yucca Mountain disposal site in Nevada. Republicans in Congress are hoping to put the site back on the table, but for political reasons alone this seems unlikely any time soon.

The current Idaho controversy over waiving provisions of an agreement mandated by a federal court has been easily dismissed by some as simply not a big deal. Considered in isolation it might not be a big deal. But when you study the history and understand that the terms of Phil Batt’s agreement with DOE extend for 20 more years, and that Idaho meanwhile remains host to very significant amounts of material that should be disposed of some place else, the current controversy is more easily seen as part of a storyline that goes back a long, long way. This story will also continue long after many of us are gone.

The nation’s nuclear history is riddled with controversy and certainly a historic lack of planning for waste disposal. The history is also unfortunately wrapped in the legacy of an entire industry born in secrecy, which until relatively recently was unburdened by anything resembling vigorous oversight. It is a simple fact that Republican and Democratic administrations in Washington have been confounded by nuclear waste problems for generations and policy makers remain confounded today.

Churchill was right – in the study of history are all the secrets of statecraft. In the current case, one secret might be to clutch a hard fought and legally binding agreement close to the vest against all efforts to modify it, even a little. Given the long history and the timelines that extend far into the future the integrity of Idaho’s agreement with the Department of Energy will prove to be mighty important over the next 20 years. The state’s decades of experience with the DOE and the waste that hardly anyone believes should be in Idaho also helps explain why the two former governors – a Republican and a Democrat – so adamantly oppose modifications to the 1995 agreement.

DOE Secretaries come and go. Governors do, too. Legal agreements, as long as they are enforced, don’t.