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Calling out the False Prophets…

    “The Bible says beware of false prophets. And there are people out there spreading noise about how much can get done…We have got groups here in town, members of the House and Senate here in town who whip people into a frenzy believing they can accomplish things that they know, they know are never going to happen.”

                                                                           John Boehner on Face the Nation.

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It’s hard not to feel some sympathy for John Boehner who served notice last week that he’ll step down in a few weeks from what used to be the second most powerful job in Washington.

John Boeher on Face the Nation. CBS photo

John Boeher on Face the Nation. CBS photo

Boehner always seemed ill cast in the role of shrill partisan. By most accounts Boehner actually thought, unlike the 40 or 50 ultra-right wingers in his caucus that members of Congress are sent to Washington legislate.

You remember legislating? Stuff like passing an annual budget – the fundamental business of the legislative branch – to actually fund the government. Rather Boehner’s House has lurched from one “continuing resolution” to another, from one government shutdown over the latest nutty cause or the latest spiteful desire to put the president in his place.

Boehner’s House, with the largest Republican majority since Herbert Hoover was in the White House, can’t pass a budget, but did vote, unsuccessfully of course, to repeal Obamacare more than 50 times. You get the feeling that Boehner’s tenure as Speaker of the House has been akin to the frisky dog that chased the car and caught it. Once Boehner grabbed the gavel from Nancy Pelosi he was mostly focused on trying to keep it by placating the reactionaries in his own party. But placating is not leading and Boehner will ultimately be remembered, I suspect, as a political non-entity from Ohio who somehow became an ineffective, indeed disastrous non-leader.

The American Enterprise Institute’s Norm Ornstein has it right that Boehner and other Republicans who might actually like to engaging in using their majority to govern have been caught between the angry forces of the grassroots and political reality.

“It was inevitable that these two forces—radicals flexing their muscles, demanding war against Obama from their congressional foxholes, and leaders realizing that a hard line was a fool’s errand—would collide violently,” Ornstein writes in The Atlantic.

“The party outside Congress, including at the grass roots, has itself become more radical, and angrier at the party establishment for breaking promises and betraying its ideals. When polls consistently show that two-thirds of Republicans favor outsiders for their presidential nomination, it is not surprising that Ted Cruz would call his own Senate leader, Mitch McConnell, a liar on the Senate floor. Even insiders like Marco Rubio and Chris Christie have been eager to treat McConnell and Boehner like piñatas.”

Senator Ted Cruz

Senator Ted Cruz

In other words, Boehner’s demise has been building steadily since the day he first gripped the big gavel and, while a certain sympathy for the soon-to-be former Speaker is in order, it’s also worth nothing that he – and other Republicans who know better – generally went along with the increasingly strident agenda of their most angry brethren.

The silliness of Donald Trump completely nonsensical agenda – read the transcript of his recent ’60 Minutes’ interview or try to make sense of his crazy tax plan – didn’t spring, Zeus-like, from his orange head.

Like Trump, Ted Cruz, who Boehner now calls “a jackass,” is a product of the anger and irrationality that many Republican “leaders” allowed to fester among the grassroots, the modern descendants of the “Movement Conservatives,” the Goldwaterites and John Birchers who 50 years ago steered the Grand Old Party off a grand old cliff.

The process that led to John Boehner’s decision to quit was actually set in motion on the evening of January 20, 2009 – Barack Obama’s first day in office – when a core group of radical Republicans met in the back room of a D.C. steakhouse and decided that their guiding principle would be implacable opposition to everything that the new president proposed.

“The room was filled. It was a who’s who of ranking members who had at one point been committee chairmen, or in the majority, who now wondered out loud whether they were in the permanent minority,” Republican pollster Frank Luntz, who organized the event, told the PBS documentary series FRONTLINE.

Among those in attendance at this pivotal meeting: Senate power brokers and Tea Party darlings Jim DeMint, Jon Kyl and Tom Coburn, and conservative congressmen Eric Cantor, Kevin McCarthy and Paul Ryan.

Even Frank Underwood would pass on this one

Even Frank Underwood would pass on this one

McCarthy, of course, is the odds on favorite to replace Boehner as speaker and Ryan, the only other member of that group still in Congress, perhaps very wisely decided not to seek the top job in the House. The liberal writer David Corn quips that even Frank Underwood, Kevin Spacey’s fictional, nasty and scheming congressman in the series “House of Cards,” would take a pass on the job of succeeding John Boehner.

The slash and burn strategy hatched by the Republican anti-Obama caucus in January 2009 worked like a charm to create Republican majorities in both houses of Congress, but at what cost? Well, for starters it cost Boehner his job and helped fuel the anger that has given the Republican Party a clownish real estate developer as its front runner and –  I can’t believe I’m writing this – quite possibly its presidential candidate.

One wonders how the fortunes of the country and the GOP might be different had Speaker Boehner back in January 2009 asserted himself against the “no on everything all the time” caucus in his own party. What if Boehner, the golfer who likes to make a deal, had sought a politics of substance and collaboration with the new president? What might have been different if Boehner, the insider who had once worked with Ted Kennedy to pass “No Child Left Behind” had called out the “false prophets” in his own party from day one?

We’ll never know how things might have been different had Congressional Republicans decided to legislate around substance rather than agitate the grassroots through anger. What might have happened if Boehner had reached for a middle ground on health care, the stimulus and so much else rather than buying into the Tea Party mantra that the only way to deal with Obama was to consider him an unworthy pretender?

This much is certain: despite the hard right’s best efforts Obama’s agenda has mostly survived and Boehner and other “responsible” Republicans are tossing and turning at night thinking about a substance free demagogue like Trump or Cruz, both products of the GOP base that loathes Boehner and his Senate counterpart McConnell nearly as much as it hates Obama, leading their party into the next presidential election.

Leadership requires, after all, setting real expectations and occasionally calling a halt to the politics of constantly whipping up a fact free frenzy.

In the end John Boehner will take his permanent tan, his cigarettes, his Merlot and his golf clubs off to a K Street lobby shop and Kevin McCarthy or some other poor soul will be left to try and clean up the mess he has left behind. In order to get the job now, of course, McCarthy must promise to give the radicals in his caucus even more deference. Ironically, Boehner’s finest moment of leadership may have been his decision to quit and at least temporarily end the threat of yet another government shutdown.

But every sixth grader knows you can’t endlessly appease unreasonable bullies. You have to beat them. The political reality of John Boehner is that he couldn’t figure out how to win – and ultimately how to govern. His only answer, and even then short term, was to quit.

As Norm Ornstein say, “In the new tribal world of radical politics, the first constitutional office has lost its luster” and that, unfortunately, will be Speaker Boehner’s legacy.

It is said that without leadership the people perish. John Boehner has now given that old notion a new twist: Without leadership the leaders perish, too.


The Speaker of the Whole House

1382122553000-AP-Obit-Tom-Foley-001Thomas P. Foley of Spokane, Washington was the first and still the only Speaker of the U.S. House of Representatives from west of Texas. He was also the last real “Speaker of the House” as opposed to every speaker since who has really been the Speaker of the Majority Party.

Tom Foley’s death this week at 84 reminds us that the leader of the House of Representatives was once a courtly, civil, decent guy who, as Politico noted, was “a man too gentle for modern Washington.” Stories about Tom Foley more often contain words like compromise and civility rather than adversary and attack.

We can mark the serious decline in the quality of public life to Foley’s defeat in the 1994 Republican sweep that brought Newt Gingrich and his swelled head and bitter partisanship to the center of Washington and American politics. The Gingrich-inspired style – hyper-partisanship, win at any cost, destroy your opponent – is now the norm and those of us who remember Foley can only wonder what might have been had the inconsequential George Nettercutt not defeated Foley in the Fifth District of Washington at a pivotal moment in recent American political history. Nettercutt’s entire legacy in five terms in Congress – he campaigned on serving only three, but changed his mind – is that he defeated Tom Foley. The Gentleman from Spokane will be and is better remembered.

Foley’s defeat was a function of tough votes he made on the budget and taxes, the North American Free Trade Agreement and, after a mass shooting at Spokane’s Fairchild Air Force Base, a ban on assault weapons. It also didn’t help, as Adam Clymer recalled, that Gingrich authorized a smear campaign that scurrilously suggested the married Foley was homosexual.

As Clymer wrote in the New York Times obit of the former Speaker, just days before the 1994 election the Republican National Committee (RNC) and a Gingrich aide “put out a memo labeled ‘Tom Foley: Out of the Liberal Closet,’ equating his voting record with that of Barney Frank, the gay representative from Massachusetts, and the Gingrich aide urged reporters to investigate Mr. Foley’s sexuality. Mr. Foley denied he was gay.

“President George Bush said he was ‘disgusted at the memo,’ but he also said he believed the R.N.C. chairman, Lee Atwater, who had been Mr. Bush’s presidential campaign strategist, when Mr. Atwater said he did not know where the memo had originated. Because of Mr. Atwater’s own reputation for attack-dog politics, the president’s belief was not widely shared.”

Foley’s career touched and influenced national agricultural policy, foreign relations, regional energy issues and tax and budget policy. While Congressional conservatives rail against an out of control federal budget today it is worth remembering that Tom Foley rounded up the votes in the House in 1993 – against unanimous GOP opposition – that made Bill Clinton’s budget and tax policies law. How soon we have forgotten that the Clinton-era yielded a balanced budget, a surplus and a decade of economic growth before George W. Bush’s tax cuts and endless wars left the federal budget in a shambles.

The great Montana Senator and Majority Leader Mike Mansfield wrote the foreward to the book – Honor in the House – that Foley and one of his long-time aides Jeff Biggs wrote in 1999. “Tom and I came from Irish immigrant stock,” Mansfield wrote, “which probably meant we were destined to be Democrats. But the legacy also meant we had to see more than one side in any argument. I could feel right at home with former Speaker Tip O’Neill’s comment that Tom Foley could always see ‘three sides in any argument.'”

“He never put politics ahead of country. Never, never, never,” said Tom O’Donnell, a former Democratic leadership aide during Foley’s time. “We would never have seen what we’ve seen in the past few weeks” with Foley in the House.

Asked following his defeat in 1994 what advice he would give the incoming Speaker, Foley responded in typical Foley style – civil, thoughtful and correct. “When one becomes Speaker of the House, you are Speaker of the whole House and not just one party. You have responsibility to be fair and impartial to all members, to enforce the rules without regard to party, and to uphold the traditions and honor of the institution.” Unfortunately no Speaker since has behaved that way.

We should mourn the passing of a good and decent man, a power in the life of the Northwest for many years, and a man who wore the title politician without sullying the word. But at Tom Foley’s passing let us also hope for more of his kind in public life. They cannot come on the stage too soon.


Congress Investigates

You could be forgiven for coming to the conclusion that the only thing Congress really seems to do these days is launch investigation after investigation of the Executive Branch. The chief House investigator, California Republican Darrell Issa, is a southern California multi-millionaire and a tough partisan who made his fortunate in the car alarm business. His voice – “Step away from the car” – was once more famous than his power to issue a subpoena. Not anymore.

Darrell Issa is the latest of a long, long line of Congressional investigators, politicians who have frequently overplayed their powerful hands. Occasionally and thankfully throughout our history a few investigators have brought real credit to the important role of the Congressional investigation, a Washington institution with a long and checkered past.

The chairman of the Republican National Committee gleefully suggested the other day that Issa will have a busy summer.  “I’ve got a good feeling that Darrell Issa is going to be having quite a summer in reviewing what’s been going on here in the White House as far as this scandal is concerned,” said Reince Priebus and he was only referring to the Congressional review of the IRS scandal. Since Priebus spoke Issa has issued additional subpoenas for more White House records on Benghazi. All signs indicate he has hardly begun.

A Brief History of the Congressional Investigation

What is widely acknowledged to have been the first Congressional investigation took place during the presidency of George Washington in 1792 and centered on an inquiry into a disastrous military expedition led by Major General Arthur St. Clair against native tribes in the then-Northwest Territories. St. Clair lost more than half of his 1,400 man command – a defeat substantially greater than Custer’s at the Little Big Horn – and Congress, trying to understand what happened and why, eventually requested documents and records pertaining to the expedition from Secretary of War Henry Knox. After some days of consideration, Washington ordered Knox, as well as Secretary of the Treasury Alexander Hamilton, to turn over the documents to Congress.

Feeling its way into the virgin territory of a Congressional investigation of the Executive branch, Congress, much as it still does, moved in fits and starts over the next year. Witnesses were called, reports examined, politics reared its unruly head and eventually in 1793 nothing much happened. General St. Clair was more-or-less vindicated, but he felt his good name had still been damaged badly. It is true that St. Clair, a significant Revolutionary War figure, has largely been forgotten, one of the earliest examples perhaps of the power of Congress to ruin a reputation. In an essay on this very first Congressional investigation, George C. Chalou notes that General St. Clair “emerged neither victor nor victim.” It was not a particularly auspicious beginning.

Every president, including the greatest ones like Jackson and Lincoln, have had to navigate the politics and public relations of the Congressional investigation. The great historian Arthur Schlesinger, Jr. has written that Jackson complained in 1820, while subject of a Congressional investigation, that “he was deprived of the privilege of confronting his accusers, and of interrogating and cross-examining witnesses summoned for his conviction.”

Lincoln’s every executive decision and his strategy as Commander-in-Chief during the Civil War were poured over and second guessed by The Joint Select Committee on the Conduct of the Present War, an all-powerful Congressional committee dominated by Radical Republicans often a odds with Lincoln. Historian Elizabeth Joan Doyle has written about the notorious committee and its imperious chairman Sen. Benjamin Wade of Ohio. “So flagrant were the abuses of the civil rights of the objects of the committee’s wrath (selective vendettas were carried on against a number of military officers) that one can only conclude that in the mid-nineteenth century most of the Republican majority in Congress agreed with Wade and Congressman Thaddeus Stevens that, in wartime, there could be neither a Constitution nor a Bill of Rights.” Ironically most of the members of the Civil War-era Committee on the Conduct of the War were lawyers.

The Congressional investigation, often marked by raw partisanship and fueled by ambitious political players, had fallen into such disrepute in the early 20th Century that the great columnist Walter Lippmann wrote of “that legalized atrocity, the Congressional investigation, in which congressmen, starved of their legitimate food for thought, go on a wild and feverish manhunt, and do not stop at cannibalism.”

Montana Sen. Thomas J. Walsh substantially rehabilitated the image of the Congressional investigation in 1922 with his calm, through and ultimately brilliant investigation into the Teapot Dome scandal. Teapot Dome, along with Watergate in the Nixon-era, is now generally considered to have established the gold standard for one branch of government investigating another. Walsh’s findings sent a Cabinet member, Interior Secretary Albert Fall, to jail and his handling of the investigation was so widely praised, after the fact, that the New York Sun said that the Montana senator was nothing less than a “Statue of Civic Virtue.”

In 1924, Walsh’s Montana colleague Burton K. Wheeler led a headline grabbing investigation that forced Warren Harding’s attorney general, Harry Daugherty, to resign and exposed widespread corruption in the Justice Department. (Daugherty has recently gotten a new lease on life, if you can call it that, as a shady character is the popular television series Boardwalk Empire.) Hard to believe now but both Senate investigations were widely condemned at the time, even by the New York Times, as nothing more than Congressional “poking into political garbage cans.”

One reason the Walsh and Wheeler probes were so powerful, and ultimately so effective, was the completely bi-partisan nature of the investigations. Republicans had the majority in the Senate in the 1920’s, but Democrats Walsh and Wheeler, both lawyers trained at assembling evidence and questioning witnesses, were given authority by GOP chairmen to run the high profile investigations. Imagine such a thing today. I can’t, it’s impossible. Wheeler’s investigation also ultimately played a key role in an important Supreme Court decision of lasting significance – McGrain v. Daugherty – that validated the power of the Congress to compel testimony as a critical component of its Constitutional responsibility to legislate.

Few today would defend the fairness or bi-partisanship of investigations in the 1940’s and 1950’s by the House Un-American Activities Committee or Joseph McCarthy’s reputation ruining, made-for-TV events that eventually claimed the Wisconsin senator as a victim of his own excess. By the same token Harry Truman’s exemplary investigation of the defense industry in the 1940’s shines as a beacon for the way Congress should, but doesn’t always, exercise its awesome responsibility to check and balance the executive.

Here’s what Truman said in 1944. “The power to investigate is one of the most important powers of Congress. The manner in which that power is exercised will largely determine the position and the prestige of the Congress in the future.” Truman was correct. The power to investigate is essential to our system and it can be used for many purposes, to illuminate and legislate or to damage and destroy.

Here’s hoping Darrell Issa has read his history. He might consider just what kind of investigator he wants to be – a Ben Wade or a Harry Truman, conducting a”wild and feverish manhunt” or a sober investigator remembered as a “statue of civic virtue?”

The power and prestige of the Congress are on the line as Mr. Issa heads into his busy summer.

Mr. Speaker

It is said in politics that if you are attempting to kill the king you had better kill the king. But when it comes to “kings of the House of Representatives” even a serious wound may prove fatal.

John Boehner survived his re-election as Speaker of the U.S. House of Representatives yesterday – barely – but if history is any guide Boehner’s grip on power is now truly tenuous and his time swinging the big gavel may be short.

New York Times numbers guru Nate Silver makes the case that Boehner’s near repudiation by the disenchanted in his own party, including Idaho’s Raul Labrador, may well be unprecedented in modern times. According to Silver, no Speaker dating back to the tenure of Washington’s Tom Foley in the 102 Congress has had as many defectors in his own party as Boehner did yesterday. Not even the GOP revolt against Newt Gingrich in 1997 matches the level of party disenchantment with Boehner.

Gingrich’s troubles – personal and political – lead to disastrous mid-term election results for Republicans in 1998 and he resigned. Prior to Newt you have to go all the way back to Speaker Joseph Gurney Cannon in 1910 to find a Speaker that endured a similar revolt and again the precedent for Boehner isn’t all that good.

Up until 1910 Cannon was arguably the most powerful Speaker of the House ever. Uncle Joe, as he was not so affectionately known, had his power broken by a revolt of progressive Republicans in his own party and Democrats. In those days the Speaker also chaired the House Rules Committee and made committee assignments. Cannon – one of the House office buildings bears his name – was ruthless in exercising all that power. The anti-Cannon revolt changed the rules and, while Cannon survived as Speaker, he influence diminished rapidly and his autocratic ways helped contribute to a Democratic takeover of the House in the next election.

Eventually even the Wall Street Journal had enough of Joe Cannon saying in an editorial, “He is out of date, not because he is no longer young, but because he has ceased to be representative. He has stood between the people and too many things that they wanted and ought to have, and the fact that he has stood off some things they ought not to have won’t save him.”

Incidentally, the revolt against Cannon was was plotted by then-Rep. George W. Norris of Nebraska. The political courage and independence Norris displayed – he was later a distinguished U.S. Senator –  caused John F. Kennedy to feature the Nebraskan as one of his “Profiles in Courage.”

But back to the current Speaker. What does Boehner do now? Does he attempt to placate the faction that nearly showed him the door and fight to death with Barack Obama over a debt ceiling increase? Or, does Boehner look at the history of Speakers who have sparked a revolt and conclude that his days are numbered?

If Boehner studies the history of the House, particularly the Gingrich and Cannon revolts, he might decide to thumb his nose at the dissidents and conclude that he has a very narrow window in which to try to do a really big and historic budget, tax reform and entitlement deal with Obama. With the short term deal to avoid the “fiscal cliff,” Boehner has shown that he’s willing to discard the idea that only legislation that can pass with GOP votes will make it to the House floor. Ironically his weakened position within his own party may make it more possible for Boehner to do a big deal with Democrats.

The ghost of Uncle Joe Cannon must be watching all this with interest.



Leaking Oil and Credibility – Part II

obamaThe President as Crisis Manager

As a result of the BP oil spill in the Gulf, Barack Obama has learned – let’s hope he’s learned – some lessons about leadership in a crisis.

Some of the criticism leveled at the President, such as the BP mess being “Obama’s Katrina,” seem a little off base and the media driven storyline about Obama needing to show a little temper was mostly just a made for cable controversy. Still the facts are that with the oil company clearly not acting quickly enough and ultimately not having a real plan to contain the damage from the big blow out, residents of the Gulf region and the county looked to Obama to lead. His record is, in my view, at best spotty.

Many Americans embraced the Sarah Palin “drill, baby, drill” notion during the last campaign, but at the same time those same folks are no fans of Big Oil. In a new USA Today poll, 71% of those surveyed say Obama should get tougher with BP. His speech from the Oval Office tonight seems likely to take a harder line, but that’s only part of the lesson from this crisis and its comes late in the crisis management game.

Most executives learn – sooner or later – that the most difficult thing to uncover in a crisis is quality information upon which to act. It became pretty clear pretty fast that the information deficit in the Gulf would be a major problem. While BP tried one Rube Goldberg fix after another, the President and his people came late to the realization that BP was making it up as they went. In short, there was little reliable information about the best strategy to contain the growing spill and all the ideas seemed to be coming from the less than credible company that caused the crisis in the first place. Everyone involved also seemed to lack good intelligence on what the moving oil slick would likely mean to the Gulf coast.

Obama needed better information earlier and faster. Lesson number one.

Most executives also learn – eventually – that you can’t delegate responsibility when you’re the top guy. For days after the explosion on the Deepwater Horizon, Interior Secretary Ken Salazar was the administration’s face on the scene. Nothing against Salazar, but we all know where the buck stops. The President and his advisers should have realized that this was his crisis to manage, and manage aggressively almost from day one.

So, lesson number two. Obama should have taken charge much sooner and more forcefully. I think, and again hindsight is easy, that he should have insisted on face-to-face meetings with BP leadership in the Gulf and in DC. Realizing that the government doesn’t possess the expertise to plug a blown out oil well a mile deep in the ocean, he should have raided major oil companies, universities, the national labs, private industry and foreign sources for the best available talent to manage the containment. I think the most profound criticism to level at the President is his failure to take the containment job away from BP early on. If he can fire the CEO of GM, he certainly has the moral authority to take over in this case. He should have.

Who is to say whether better solutions would have been forthcoming, but such a move would have clearly signalled that he was in charge and not relying on the company to address its own obvious failures.

Another lesson: when all is said and done this disaster will largely be about who pays and how much. Apparently the President is now insisting on a BP escrow account to be available to finance the clean up, pay claims, etc. Better late than never, but still very late. Money won’t fix all that will need to be fixed in the Gulf, but money will certainly do until something better comes along. Obama could have displayed real toughness by both taking control of the containment effort and forcing BP to put real money on the table a lot earlier.

Finally, I expect the President has learned another valuable, but painful lesson from this long ordeal: its hard to mobilize the government to effectively deal with a crisis that is both big and unpredictable. Katrina not withstanding, we generally have pretty effective national response to natural disasters – flood, hurricanes and the like – we struggle when the crisis is outside the usual box. Hard as it is to believe, federal agencies – state agencies for that matter – are rarely or routinely called upon to work together and coordinate an overall approach to a problem. They tend to be isolated, siloed organizations where even top managers, in say, the Transportation Department don’t know their counterparts over at Interior. It is a problem endemic to any large organization, but it can be particularly acute in government.

As John Kennedy famously said when the right hand of his government didn’t know what the left hand was doing – “there is always some dumb SOB who doesn’t get the word.”

That’s why any President – or Governor or CEO – needs to be able to reach down in the bureaucracy and crack heads in the interest of action. Action in government, where most folks practice survival skills full time and are horribly risk averse, even during a crisis, requires aggressive, demanding leadership.

A final lesson from history. When the great (and flawed) Winston Churchill took over as British Prime Minister in the dark days of 1940, he insisted, against almost unanimous advice, on reserving to himself the portfolio as Defense Minister as well as Prime Minister. Critics said it was too much for any one man, particularly one pushing 70 years of age. Winston was told he needed to delegate the day-to-day running of the war and focus instead on the big picture strategy.

But Churchill, who knew a few things about human nature and leadership, understood that he would get the credit or blame for every military success or failure regardless of whether some other figure had the official title. Churchill insisted on being in the middle of every decision, pushing, prodding, selecting personnel and reading reports and issuing demanding memos. He craved the responsibility and, while he certainly didn’t get every call correct, he inspired great confidence and dogged determination just when both were needed the most.

In a crisis – the Battle of Britain or a oil spill in the Gulf – the top guy is the responsible party. Might as well make the most of it, a lesson President Obama now seems to be embracing, finally.

Leaking Oil and Credibility

oil+spillLessons to Learn

I’ve been asked a dozen times since the BP oil spill developed in the Gulf of Mexico what I would have advised the company’s executives as they face what may prove to be – or already is – a truly catastrophic environmental disaster. Alas, BP hasn’t called, but of course I have some ideas about what they might have done differently.

The general consensus has now developed that BP has irreversibly lost the PR battle, with some now comparing the lackluster response to Exxon’s handling of the Alaska spill years ago, and has yet to win the battle to stop the oil flow.

Could it have been different? Hard to tell, but maybe.

Rule number one of a real crisis, I think, is simply that it is almost impossible for any entity – corporate, governmental, etc. – to move fast enough. The first hours in responding to a disaster, particularly such a public disaster, almost always establish the public perception of how well the crisis is being handled. The first hours and days of the Gulf spill now seem like a blur. What was happening, who was in charge, was this really bad, could it be quickly contained? Instinctively, I think, most people watched the television pictures of the burning oil rig and concluded that this would be a real mess. Meanwhile, BP and the government seemed slow out of the blocks.

So, BP – and the government – failed the first test of crisis. They couldn’t or wouldn’t move fast enough. In the early hours of a major crisis, action is always better than talk.

What might BP have done differently? I have five suggestions for what could have been done and one guess about why none of it happened.

First, how might it have changed public perception had BP’s CEO, the much-beleaguered Tony Hayward, immediately gone on television – from the Gulf – and announced that he was asking the state of Louisiana to establish an account, that the state would control, in which BP would immediately deposit – pick the number – $250 million as a down payment on the clean up? Real cash, not a promise to pay all “legitmate claims” might have made a powerful statement that the big oil company was really serious.

Additionally, BP might have announced that it was immediately suspending al offshore drilling every where in the world while it conducted, with the help of outside experts, its own assessment of safety and emergency response.

Hayward could also have humbly asked for an immediate meeting – in the Gulf – with President Obama, the Secretary of the Interior, the top Coast Guard officials, the heads of Exxon-Mobil, Royal Dutch Shell and the governors of the Gulf states. The purpose of the meeting: establish an immediate crisis response team, seek the best possible industry help to determine the best way to stop the leak and contain the oil and, most importantly, get all the responsible folks in the same room and on the same page.

It might have also helped BP’s credibility from the first moment had Hayward admitted what almost all the rest of us suspected – the company did not know the extent of the leak, did not fully understand the cause, didn’t have a sure fire solution to contain the oil and fully expected the worst with regard to the environmental consequences. It is remarkable what a humble admission of “we don’t know and we need help” will do to retain credibility and, frankly, buy time to get organized and really figure out what to do.

Hayward should also have become the sole face of the company’s response. He should have camped out in the Gulf, constantly meeting with local officials, business people, environmentalists and fishermen, and working the media. He should have aggressively engaged the President and his administration rather than appear to be a reluctant participant in the whole process by suggesting he wanted “his life back.”

Here is a bet as to why BP seemed to do nothing in the first days except to say it took responsibility while seeming to downplay what was really happening. I’m betting the company’s lawyers took charge of the response and the overriding objective became to contain the financial and legal liability for BP and its shareholders. I can almost hear a smart, articulate attorney telling the CEO that he must do nothing that would eventually be used to shape the inevitable legal cases that will drive BP’s liability.

Don’t get me wrong, the lawyers must be in the room when a crisis is unfolding, but in a career of helping manage various kinds of crisis – nothing admittedly this big – I have concluded that the “right thing to do” is almost immediately in conflict with what constitutes the best legal strategy for the entity responsible for the crisis. It’s hard for any CEO – even the most well intentioned – to ignore the legal advice he will receive, but doing the right thing – and fast – is almost always the better long-term option than to craft a response that is driven largely by legal considerations.

Now, as the President heads back to the Gulf today, the New York Times reports that he will demand a BP escrow account, summon the company’s executives to the White House and generally ramp up the public pressure on the company. Some might argue it’s a little late.

It is easy to second guess while looking in the rear view mirror, but I think, had BP acted faster and more decisively by putting real money on the table and seeking help and buy in from the industry and government, it could have taken charge of the unfolding narrative in the first hours and saved itself some major and long-lasting PR heartburn.

Tomorrow, some thoughts on lessons for the President in the government’s response to the spill.