Campaign Finance

2014 Election, 2016 Election, American Presidents, Andrus, Borah, Campaign Finance, FDR, Health Care, Obama, Supreme Court

2012 Wildcard

Posted on by christian

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

 

2016 Election, Campaign Finance, Health Care, Supreme Court

The Judges Decide

Posted on by christian

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.

American Presidents, Campaign Finance, Dallek, Election of 1944, Health Care, Obama

Dallek on Obama

Posted on by christian

dallekHealth Care Reform: A Lasting Legacy or Not

Robert Dallek, biographer of Kennedy and LBJ and skilled analyst of White House leadership, is, I believe, the best of the “presidential historians.” Dallek is evenhanded, accomplished and always engaging in making the historical connections between, say Barack Obama’s push this year for health care reform and Franklin Roosevelt’s advocacy of Social Security in the 1930’s.

Dallek’s op-ed piece this week in the Wall Street Journal is a fitting wrap-up of this year in presidential politics and a must read.

Here is a key section: “If the reform works as intended by expanding health insurance to an additional 30 million Americans and reducing the national debt, the Democrats will pillory the Republicans for the indefinite future. The GOP’s uniform opposition—only one congressman and no Republican senators supported the bill—will make it vulnerable to charges of wrong-minded thinking about the suffering of fellow citizens on a scale with Herbert Hoover’s failed response to the Great Depression. That cost his party five presidential elections.

“Should the bill fall short of promised gains, it will reinforce national prejudices against big government and facilitate another round of conservative Republican dominance of national politics.”

That pretty well sums it up.

Watch for Bob Dallek’s new book in the new year: The Lost Peace – Leadership in a Time of Horror and Hope. HarperCollins is the publisher.

Basques, Campaign Finance, Cold War, Health Care

Good News for Thanksgiving

Posted on by christian

basque wineLeave it to the Basques…

Been wondering if there is any good news in the world? Wonder no more.

Just in time for the Thanksgiving dinner comes new evidence – from the Basque region of Spain – that alcohol, wine, beer, whatever, in moderate daily amounts is good for the heart.

As the Independent reported: “The results showed that those who drank a little – a glass of wine or a bottle of beer every other day – had a 35 per cent lower risk of a heart attack than those who never drank. Moderate drinkers, consuming up to a couple of glasses of wine a day or a couple of pints of ordinary bitter, had a 54 per cent lower risk.”

As anyone knows who has traveled in the Basque region straddling the Spanish and French border along the Pyrenees, the Basques are great cooks and informed imbibers. The hospitality is legendary.

British scientists, of course, discounted the study, but what do they know. A glass of good red wine and a few tasty tapas in a bar in San Sebastian or Bilbao may just be one of the most civilized and stress reducing activities I can think of. Talk about good for the heart.

Toast the Basques. They know how to live. I personally think the study is brilliant.

Happy Thanksgiving.

Campaign Finance, Health Care

Health Care Reform

Posted on by christian

hospitalStates May Still Call the Shots

Here is the opening graph of a Washington Post piece that ran on November 1st:

“The debate over whether to let states opt out of any government-run health insurance plan overlooks a key facet of the health-care measures being assembled in Congress: When Washington is done, the shape of any new health-care system is likely to be finalized in Lansing and Boise and Baton Rouge.”

The full Post story is here.

Will states be up to the challenge? Indianapolis may be an example of what local initiative can accomplish. Emergency responders in the Indiana capitol city now have wireless access to medical records.

According to the publication, Federal Computer Week, “The goal is to help the medics provide more effective emergency care to patients by having real-time access to a digital record of the patients’ pre-existing medical conditions, previous treatments, allergies, current medications and other information.”

Like almost all big changes in American public policy, much of the detail and implementation in health care and insurance reform- regardless of the overheated rhetoric out of Washington, D.C. – will take place under the eyes of part-time, citizen legislators. Depending upon your point of view, that could be a very good thing or not. We will find out, piece by piece, state by state.

Baucus, Campaign Finance, Health Care, U.S. Senate

A Montanan at the Gates of Reform – Again

Posted on by christian
WheelerMBaucusax Baucus and B.K. Wheeler

Max Baucus (right), the current chairman of the powerful Senate Finance Committee, is on the verge of making history by writing (and perhaps passing) a sweeping reform of the nation’s health care system.

The Montana Senator – he was elected to the Senate in 1978 – is walking a path that one of his progressive Montana political forefathers – Burton K. Wheeler (on the left, above) -blazed nearly 75 years ago.

Baucus has been catching some grief in Montana – the Great Falls Tribune rounded up some of the opposition – and from those farther to the left on the political spectrum for not pushing harder for the so called “public option” provision in his health care bill. Baucus says, with some political logic, that he is trying to produce a bill that will actually pass the Senate.

 

Reforming Utility Law in 1935

 

Wheeler, a New Deal-era Senator, faced some of the same criticism in 1935 when he was attempting to push a sweeping piece of regulatory reform legislation – the Public Utilities Holding Company Act – through the Senate. The legislation was designed to address a variety of abuses by the handful of major utility holding companies that dominated the industry at the time.

Wheeler’s major decision was whether to include in the bill – also know as the Wheeler-Rayburn Act (future House Speaker Sam Rayburn was the House sponsor) – a so called “death sentence” provision that would mandate the dissolution of most of the nation’s powerful utility holding companies. Wheeler chaired what was then called the Senate Interstate Commerce Committee.

No doubt, like Max Baucus dealing with health care, Wheeler received thousands of letters, hundreds from Montana, opposed to his utility legislation. Montana Power Co. organized a letter writing campaign among its shareholders to press the case that Wheeler’s proposed legislation would “destroy” utility company investors.

At the height of the debate, Wheeler went on nationwide radio to defend the legislation and attack the lobbying effort. He began his half hour talk by saying that as the Senate sponsor of the holding company legislation he had received more mail from Philadelphia in the last month than he had received from Montana in the last two years.

“Nice chummy letters, too,” Wheeler said. “They call me everything from such high-class terms as ‘rogue’ and ‘rascal’ on down the scale. Most of them show the fine hand of the United Gas Improvement Company. The best of them must have come from Gertrude Stein. It consists of this: ‘It makes me sick to think how sick I get when I think about you.'”

Like Barack Obama’s support for health care reform, Wheeler knew that Franklin Roosevelt supported the broad sweep of utility reform, but on the core issue of the “death sentence” (or in Baucus’ case, the “public option”) no one knew for sure how far the president would go to fight for the provision.

Wheeler eventually succeeding a getting a letter from FDR voicing his support for the “death sentence” provision and the Montanan waited for exactly the right moment to make the letter public.

The president wrote that “while clarifying or minor amendments to section 11 [the death sentence] cannot be objected to nevertheless any amendment which goes to the heart of major objective of section 11 would strike at the bill itself and is wholly contrary” to what he would support.

To wavering Senate Democrats, the President’s message was blunt: Burt Wheeler is doing the White House’s bidding in pushing hard for the “death sentence.” A vote against the provision would be vote against Roosevelt. Wheeler added his own reminder that the real advocates of deleting the death sentence from the holding company legislation where the holding companies themselves, who had fought so hard from the beginning to weaken his bill.

“When they vote for this amendment [to eliminate the ‘death sentence’] they vote to kill the bill,” Wheeler said. “When they vote for this amendment they are voting as the lobbyist up in the galleries; representing the Power Trust, want them to vote, because the lobbyists want them to vote to kill the bill.”

The amendment to strike the “death sentence” from the Public Utilities Holding Company Act failed – by a single vote. For a moment it looked as though the vote would end in a 44-44 tie, but then Senator Peter Norbeck, a once-in-a-while progressive Republican from South Dakota, broke the tie and voted with Wheeler to keep the “death sentence” in the bill.

Wheeler had won, but the bitter fight highlighted the deep fractures among Senate Democrats. The holding company legislation passed the House – “death sentence” in place – and was signed into law by Roosevelt. In different times and under different circumstances, the Congress in 2005 repealed the remaining elements of the law that Wheeler (and FDR) fought to put in place nearly 75 years ago, but in the 1940’s and beyond the Public Utilities Holding Company Act remade an American industry.

 

Legislative Parallels – and Now

 

The historic parallels in these two reform efforts are numerous. Beyond the fact that Baucus and Wheeler share some obvious political history – Montanans, self styled independent Democrats, not infrequently at odds with their national party leadership – the two pieces of legislation have interesting similarities.

In 1935, Wheeler, like Baucus today, was dealing with a president who wanted legislation passed, but until pretty late in the game declined to be completely engaged or say exactly what he would settle for. Democrats in both cases were divided with conservative to moderate Democrats being slow to embrace reform. In 1935, presidential action pushed enough of the wavering Democrats to get a sweeping bill passed.

The charges and counter-charges flew then as now. Proponents were accused – you guessed it – of wanting to usher in socialism. The utilities were labeled as greedy, with no regard for the little guy. The lobbying – then as now – was fierce. (The 1935 lobbying practices actually prompted a congressional inquiry chaired by Alabama Senator – later Supreme Court Justice – Hugo Black.)

One thing that was very different in Wheeler’s day. Several progressive Senate Republicans – Norbeck, George Norris of Nebraska and William Borah of Idaho, among others – supported the utility reforms. Baucus, by contrast, appears to have a chance to get Maine Senator Olympia Snowe’s support for a Senate bill, but additional GOP votes appear mighty hard to come by.

Reforming utility practices in the 1930’s was a huge undertaking that reshaped a major piece of the American economy. A tough Montanan pulled it off. Another Senator from Big Sky County, three-quarters of a century later, is knocking at the gate of health care reform.

Stay tuned. If the utility regulation battle of 1935 is any historic guide, we will see many more twists and turns before any health care legislation is on the president’s desk. Then as now, a Montana Senator is calling many of the plays.