Obama

2012 Election, American Presidents, Andrus, Baseball, FDR, Hoover, Minnick, Obama, Politics, Polling

Where’s George?

Posted on by christian

The Delicate Dance of a Former President

For 20 of the last 31 years a Republican president has occupied the Oval Office. Two of those presidents – the first and second George Bush – served for a combined 12 years, yet in the current political environment they seem as distant from the partisan hubbub as, well, Republicans of an earlier day wished Herbert Hoover would have been in 1936. More on that in a moment.

George H.W. Bush – Bush 41 – has offered an “unofficial” endorsement, whatever that means, to Mitt Romney, but Bush 43 is virtually invisible in Republican politics or public life. While Romney and Newt Gingrich fight to inherit the mantle of Ronald Reagan, no candidate makes the trek to the Texas ranch to seek George W.’s advice or endorsement. It’s almost as though his presidency, at least for GOP candidates, has been erased from the blackboard of the current campaign. It will be interesting to see if Bush the Younger has any role at this summer’s GOP convention.

Meanwhile, former Florida Gov. Jeb Bush has refused to endorse a candidate in today’s Florida primary and that decision has been the subject of much tea leaf reading. By most accounts a few words from the third Bush would have been very helpful to any candidate, but beyond jabbing the candidates for their anti-immigration rhetoric, the next Bush in line has stayed above the fray.

Writing for the Weekly Standard, Fred Barnes suggests that Jeb Bush may be playing his cards so close because he can foresee a role for himself as a compromise and unifying GOP candidate in the unlikely event the Republican nominating process becomes deadlocked. Or, Barnes says, Bush could be a unifying choice as vice president on a Romney or Gingrich ticket. I say don’t count on it.

With no Kennedy now in significant public office, the Bush family is the closest thing we have to a dynasty in American politics. Still the elder Bush, now 87, is clearly in declining health and George W. is so politically radioactive after two controversial terms that no current candidate wants to be close to him. Many Republicans long for a Jeb Bush candidacy, but he demurs. He recently provided a glimpse into his thinking when he told an interviewer that 2012, given his age and the state of the country, was probably his year, but for whatever reason he has taken a pass, which takes us back to W.

If many Democrats see Bush 43 as the modern day equivalent of the Great Depression scarred Herbert Hoover, he is certainly behaving much differently than the discredited Hoover did four years after his defeat at the hands of Franklin Roosevelt.

Perhaps the difference can be explained by the fact that Hoover still hungered for another term in the White House. George W. had his eight years. In any event, the two men – tremendously unpopular when they left the White House – played their post-presidential years very differently.

In February 1936, just as FDR’s re-election campaign was beginning to take shape, Hoover gave a Lincoln Day speech in Portland, Oregon. By many accounts the former president, who had lost in a landslide to Roosevelt in 1932, saw himself as the best possible candidate for the Republicans in 1936. Hoover used the occasion of his Portland speech to rip into Roosevelt’s program and he sounded like a man eager for a rematch.

“The issue [facing the nation in 1936],” Hoover said, “is the attempt to fasten upon the American people some sort of a system of personal government for a government of laws; a system of centralization under a political bureaucracy; a system of debt; a system of inflation; a system which would stifle the freedom and liberty of men.  And it can be examined in the cold light of three years’ experience.”

Hoover was referring, of course, to the first three years of FDR’s term during which the Great Depression continued to create extremely high unemployment, a high rate of home and farm foreclosures and a general lack of confidence in the economy. At the same time, Roosevelt was assembling an unprecedented amount of personal power in the Executive Branch, or at least Republicans said he was.

In his Oregon speech 76 years ago, Hoover used some language that might have been ripped from today’s headlines. Critiquing FDR’s State of the Union speech, Hoover lambasted FDR’s references to “dishonest speculators” and “entrenched greed.” He said Roosevelt was issuing a call to “class war” and, of course, he criticized Roosevelt for deficit spending.

Despite his interest and availability, Hoover was never again considered a serious presidential contender after losing so badly in 1932. Tainted by the stock market crash of 1929 and what has widely be seen, then as now, as his less than effective response to the economic crisis of the early 1930’s, Hoover nevertheless continued to speak out on public issues. He was invited to the 1936 GOP convention and he gave the New Deal and FDR hell in a speech that featured language strikingly similar to what we hear from GOP candidates today.

Hoover lamented that the “New Deal is a definite attempt to replace the American system of freedom with some sort of European planned existence.” Sound familiar? Romney has repeated said that Barack Obama wants to create “a European style welfare state.”

“Billions have been spent to prime the economic pump,” Hoover said to the 1936 GOP convention.  “It did employ a horde of paid officials upon the pump handle.  We have seen the frantic attempts to find new taxes on the rich…Freedom to work for himself is changed into a slavery of work for the follies of government.”

Two things are worth noting about Hoover’s aggressive long ago critique of the man who beat him. The former president certainly didn’t help Republicans in 1936 and many Republicans simply wished the former president would have just pulled a George W. and disappeared.

Secondly there are really very few new attack lines in American politics. Republicans have long been accusing Democrats of “socialism” and Democrats have forever labeled the GOP the party of Wall Street.

In 1936, Roosevelt used tough language and a great deal of humor to carefully weave the Hoover legacy, if not the former president’s name, into his stump speeches. He was most effective with his mocking references to what the Republicans and their candidate Kansas Gov. Alfred Landon would do to his New Deal.

Obama has been regularly criticized for invoking Bush’s record and as of last fall he had stopped making references to “Bush’s failed economic policies” or “Bush style foreign policy.”

If history is any guide to what to expect in politics, and it often is with Hoover’s 1936 speeches being a good example, then expect the references to George W. to creep back into Democratic campaign rhetoric as we get closer to November. If Obama is as skillful as the Democratic president all Democrats love to invoke – Franklin Roosevelt – he’ll use a mixture of tough talk and dismissive humor to connect the eventual Republican nominee to the silent, but hardly forgotten George W. Bush.

 

2012 Election, 2016 Election, Al Gore, American Presidents, Campaign Finance, Gingrich, Minnick, Obama, Pete Seeger, Poetry, Politics, Romney, Supreme Court, Theodore Roosevelt

A New Gilded Age

Posted on by christian

A System Awash in Money

If Mitt Romney wins the Florida primary Tuesday, as now seems likely, the media scrum following his every move will no doubt credit his win to his new-found aggressiveness in taking on Newt Gingrich, including his clearly superior debate performances during the week leading up to the vote. But that explanation will only be part of the story.

Additional credit for Romney’s rebound from what looked like near disaster in South Carolina must go to the faceless, if not altogether nameless, pro-Romney Super PAC – Restore Our Future. The Super PAC has lavished millions on the Sunshine State to help restore the future of Mitt’s campaign. Of course, Romney is not alone in enjoying the largess of a well-heeled Super PAC. Gingrich has come to depend for television exposure in the dispersed and expensive Florida market on the Super PAC that supports him – Winning Our Future. Other less well financed Supers are supporting Rick Santorum and Ron Paul and a Super PAC supporting Barack Obama is waiting patiently in the wings.

There are so many sleazy angles to the Super PAC story it is difficult to create a priority list of all the real and potential outrages. We are now into the second year of this new 21st Century reality of unlimited, corporate, and often secret money perverting what were our already money drunk campaigns.

Still in fact what seems like a new reality is really an old American tradition; a tradition of unlimited corporate money in campaigns that dates back more than 100 years to what came to be called the Gilded Age. So, remembering the old admonition that those who cannot remember the past are doomed to repeat it, we have effectively arrived at a new Gilded Age in the year 2012. It’s not necessary to be a good government, goody two shoes to worry that the very nature of our democracy is changing in ways that are profound and deeply troubling in this new age.

As the American Enterprise Institutes’ Norm Ornstein wrote recently in The Hill, the 2010 U.S. Supreme Court decision in the Citizens United case – that’s the now infamous ruling were the Court’s majority overturned a century of settled campaign finance law, allowed unlimited corporate and labor union money to flow to Super PAC’s and equated money with free speech – has put our politics more and more into the hands of the 21st Century captains of the new Gilded Age.

“By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy,” Ornstein wrote. “Candidates no longer can focus simply on raising money for their campaigns against other candidates. Because corporations have almost unlimited sums they can put in with no notice, candidates have to raise protection money in advance just in case such a campaign is waged against them.”

The website OpenSecrets.org reports that the Romney aligned Super PAC has spent more than $17 million so far, most of it to attack Gingrich. Here’s where the perversion begins. Big money donors give unlimited amounts to the Super PAC’s, often attempting to conceal the real source of the cash, but nonetheless maintaining the ability to curry favor with the candidate supported by the big PAC. One has to be awfully naive to believe that a $1 million donation doesn’t buy more than a thank you note.

One example: Utah news organizations have reported that two Provo, Utah companies listed as $1 million contributors to Restore Our Future don’t really seem to be companies at all.

“Companies called Eli Publishing and F8 LLC contributed $1 million each to Restore Our Future,” Utah television station KSTU reported last August. “The companies share an address in downtown Provo and the super-PAC received the money from both on the same day.” The address listed for the companies, according to the TV report, was an accounting firm where employees said they had no knowledge of the businesses.

Other Romney Super PAC donors aren’t so obscure. John Paulson a New York hedge fund manager is in for $1 million. Forbes magazine lists Paulson as the 17th wealthiest guy in the world, worth $15.5 billion, which begs the question: why only a million bucks?

J.W. and Richard Marriott, the hotel guys, are into the Romney PAC for a half million each. Until a year ago, Romney served on the Marriott board. The CEO of New Balance athletic shoes is a half million dollar contributor, as is the managing partner at Romney’s old Bain Capital firm. That fellow’s wife shelled out her own $500,000.

Clearly the Romney-aligned Super PAC hasn’t had to look under many rocks to turn up millions. These dollars aren’t falling far from the tree, which is one reason all this Super PAC business has the real potential to be so sinister. The candidates all regularly proclaim that they have no connection to the Super PAC’s who are raising and spending so freely on their behalf. Federal law prohibits coordination between the campaigns and the PAC’s they say, but the line that separates the campaigns from the big corporate money certainly isn’t a very bright line.

USA Today reported over the weekend about the remarkable “coincidence” of the message in Romney’s speeches on the stump matching up with the anti-Gingrich television ads Restore Our Future is putting on the air. Of course, the two organizations don’t need to really coordinate since the PAC’s are run, in every case, by former close aides and associates of the candidates. But the no coordination mandate helps maintain the fiction that all this is happening at arm’s length and that there is no quid pro quo involved for the millionaire and billionaire contributors.

Gingrich’s Super PAC is, of course, mostly funded by an extraordinarily wealthy Las Vegas casino owner Sheldon Adelson and his wife Marion. Adelson says his support for Gingrich is easy to explain. He is a long-time friend of Newts and values the former Speaker’s vocal support for Israel, a cause near and dear to the Adelsons. But, of course, nothing is that simple in politics. Adelson’s international casino empire has vast interests in public policy and since early last year Adelson’s company has been under investigation by the Securities and Exchange Commission, which is reportedly looking into violations of the Foreign Corrupt Practices Act.

So, you might ask: what does the fact that all these very rich, very well connected, very politically interested corporate leaders have to do with a new Gilded Age? Isn’t this just the way politics has always worked? Maybe the only thing different is the amount of money involved.

Maybe the only thing different is the amount of money involved and the fact that thanks to the Supreme Court’s ruling in Citizens United these vast amounts of corporate dollars can flow unregulated into the political process. We have gone back to the future, back to the first Gilded Age at the end of the 19th Century.

University of Texas historian H. W. Brands wrote his book Reckless Decade: America in the 1890’s in 1995. In an interview with C-SPAN’s Brian Lamb, Brands nailed the essence of why corporate money in politics has such a potentially corrosive effect.

“Any capitalist economy,” Brands said in the C-SPAN interview, ” is based on the notion of economic self-interest. And, you know, if you put it another way, you can — if you’re not being too complimentary, you can call it greed. And our economy runs as much on those lines as it did back then [the 1890’s] – maybe not quite as much. There’s a government safety net now to deal with those people who were falling out the bottom of the economy during the 1890s. But, certainly, I mean, the idea of profits, and I’m certainly not going to criticize profit. But, nonetheless, the idea of economic self-interest is definitely as much a motive.”

The question to ask of our democracy in this new Gilded Age is how any candidate, no matter how well-intentioned, no matter how honest, can escape the human impact of a well-heeled friend donating a few million to help get him elected?

And granting that the casino owners, the hotel operators, the unions and the guy running the non-business businesses in Utah may truly value the particular approach and policies of a particular candidate, we also can’t deny that each has a self-interest. We all have a self-interest, but not all of us can buy so much free speech or so much access.

Justice Anthony Kennedy rather unbelievably wrote in his opinion in the Citizens case,  “[The Court majority] now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

You wonder if Mr. Justice Kennedy has been following the campaign so far.

At a time when growing concerns about income distribution in America collide with a mounting distrust of most of our national institutions, including corporations, the Congress and the Presidency, the Supreme Court has, by opening the flood gates to unlimited corporate money in our elections, given us even more cause to doubt the fairness and sustainability of our democratic system.

As H.W. Brands noted in his history of the first reckless decade in the 1890’s, the greed and corruption that seemed to seep into every facet of America life in the first Gilded Age became so serious that only two political alternatives seemed possible – revolution or reform. Thankfully, the country took the path of reform and Theodore Roosevelt and Woodrow Wilson ushered in a Progressive Era in response to the Gilded Age.

One of T.R.’s Progressive Era reforms was to ban corporate money from political campaigns. That ban lasted for 100 years. That ban ended, and a new Gilded Age began, with a breathtakingly impactful Supreme Court decision two years ago.

As one of the beneficiaries of the excesses of the Gilded Age, Tammany political boss George Washington Plunkett, famously said, there is dishonest graft and honest graft. Plunkett went in for the honest variety. As he said, “I might sum up the whole thing by sayin: I seen my opportunities and I took ’em.”

 

2012 Election, American Presidents, Baseball, Campaign Finance, Clinton, Minnick, Montana, Obama, Pete Seeger, Poetry, Politics, Romney

Following More Money

Posted on by christian

Are Corporations People, My Friend?

It is rare – very rare – that a state Supreme Court rises up on its hind legs and says to the United States Supreme Court we think you blew it.

Yet, that is pretty much what the seven member Montana Supreme Court said just before the New Year with a decision that seems sure to get the ultra-controversial Citizens United corporate campaign finance case back before John Roberts and Company very soon.

Citizens United is the case, you will recall, that President Obama denounced in his State of the Union speech. The U.S. Supreme Court’s January 2010 decision, decided 5-4, not only overturned a century of settled campaign finance law, but served to midwife the unprecedented level of unregulated and mostly undisclosed spendingof the so called Super PAC’s in the current Republican presidential primary process.

According to recent news reports, Newt Gingrich was on the blunt end of more than $4 million in such spending by a group with close ties to Mitt Romney that certainly contributed, if not caused, Gingrich’s dramatic shellacking in the Iowa caucuses. This political nuclear warfare has now moved on to South Carolinawhere Super PAC’s aligned with Gingrich, Rick Santorum and other candidates are going after Romney.

As Romney might say, “politics ain’t bean bags,” so what’s the problem here? The Montana Supreme Court tried to answer that question in its recent ruling involving similar, shadowy, state-level, secret groups intent on influencing election outcomes in a state that historically knows a thing or two about political corruption.

The Montana Court, in a 5-2 decision, upheld the constitutionality of the state’s 99 year old ban on corporate contributions in state races. In doing so, Chief Justice Mike McGrath delved deeply into the history of political corruption in Big Sky Country citing historical works by the great Montana historians K. Ross Toole and Mike Malone. The Judge referenced the notorious Montana “war of the cooper kings,” the extraordinary corporate influence that the Anaconda Mining Company once held over Montana, and the notorious case of William Andrews Clarkwho used his vast corporate wealth to bribe his way into the United States Senate. Here’s one section of McGrath’s opinion:

“W.A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the United States Senate. In 1899, in the wake of a large number of suddenly affluent members, the Montana Legislature elected Clark to the U.S. Senate. Clark admitted to spending $272,000 in the effort and the estimated expense was over $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an investigation by the U.S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him. The Senate committee ‘expressed horror at the amount of money which had been poured into politics in Montana elections…and expressed its concern with respect to the general aura of corruption in Montana.'”

Chief Justice McGrath then continued his fascinating history lesson, “In a demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to leave the state on a ruse and, with the assistance of the supportive Lt. Governor, won appointment to the very U.S. Senate seat that had just been denied him. When the Senate threatened to investigate and unseat Clark a second time, he resigned. Clark eventually won his Senate seat after spending enough on political campaigns to seat a Montana Legislature favorable to his candidacy.”

You have to wonder if John Roberts or Samuel Alito has ever read that little bit of American history. The Montana law upheld in the state court’s decision was passed in the wake of the Clark scandal and has been on the books for nearly a century, a detail with wicked similarity to the Teddy Roosevelt-era federal law banning corporate money that was overturned in Citizens United.

In his opinion in the Montana case, McGrath asks the obvious question that applies at both the state and federal levels. “The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?”

The group that sought to skirt the Montana corporate ban wasn’t very subtle about its aims. “As you know,” the group called American Traditions Partnership said in its appeal for money, “Montana has very strict limits on contributions to candidates, but there is no limit to how much you can give to this program. No politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”

American Traditions has said it will appeal the Montana decision.

Two Montana Supreme Court judges dissented and made the case, as indeed may be all too correct, that a state level court is bound to live with a U.S. Supreme Court decision, even as it tries to reason its way around why a state has a compelling interest in regulating its own elections with laws based on its own unique history.

But even in dissent, Montana Justice James C. Nelson expressed outrage at the U.S. Supreme Court’s 2010 decision. “Corporations are not persons,” Nelson wrote. “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people — human beings — to share fundamental, natural rights with soulless creatures of government.”

Incidentally, Nelson was born in Moscow, Idaho and graduated from the University of Idaho.

The faux talk show host Stephen Colbert has created his own Super PAC to poke serious fun at this supremely serious business. Even the name of Colbert’s PAC, – “Making a Better Tomorrow, Tomorrow” PAC – is an effort to show how the uplifting sounding names of these entities usually hide real motives. They might better be called “The Committee to Assault Mitt Romney” or “The Barack Obama Walks on Water PAC.”

The whole point here – re-enforced by the U.S. Supreme Court in Citizens United – is secrecy and unlimited money.

Colbert’s PAC, to make a point with absurdity, recently put up television ads supporting the owner’s side in their dispute with the N.B.A. players association. As the New York Times reported in a fascinating magazine cover story on Colbert last Sunday:

“These [ads] were also sponsored by Americans for a Better Tomorrow, Tomorrow, but they were “made possible,” according to the voice-over, by Colbert Super PAC SHH Institute. Super PAC SHH (as in “hush”) is Colbert’s 501(c)(4). He has one of those too — an organization that can accept unlimited amounts of money from corporations without disclosing their names and can then give that money to a regular PAC, which would otherwise be required to report corporate donations. ‘What’s the difference between that and money laundering?'” Colbert delightedly told the Times.

“In the case of Colbert’s N.B.A. ads, the secret sugar daddy might, or might not, have been Mark Cuban, the owner of the Dallas Mavericks, who has appeared on the show and whom the ads call a ‘hero.’ We’ll never know, and that of course is the point. Referring to the Supreme Court ruling that money is speech, and therefore corporations can contribute large sums to political campaigns, Colbert said, ‘Citizens United said that transparency would be the disinfectant, but (c)(4)’s are warm, wet, moist incubators. There is no disinfectant.'”

Exactly. Montana knows something about the need for political disinfectant. Stay tuned and, if you want to understand Citizens United in actual practice, read the reasoned, informed, context rich, real world opinions of the Montana justices on both sides of this fundamentally important issue.

 

2012 Election, American Presidents, Campaign Finance, Minnick, Obama, Paul, Pete Seeger, Poetry, Political Correctness, Romney

$$$$$

Posted on by christian

Following the Money

With two wins in a row in the hip pocket of his blue jeans, Republican presidential hopeful Mitt Romney heads to South Carolina today to try and wrap up the GOP contest. Gauging by the most recent information from the Federal Elections Commission (FEC), Romney already has won the Republican money race in the Pacific Northwest.

The Republican nominee-in-waiting far outpaces his GOP rivals when it comes to raising money in Idaho, Montana, Oregon and Washington.

Idaho is clearly Romney country. As of the end of September last year, Romney had raised more than $336,000 in Idaho with more than a third of that total coming from heavily Mormon eastern Idaho. Romney, who hails from a pioneer LDS family in Utah, has raised about $130,000 in the Idaho Falls and Pocatello media markets and nearly $60,000 more in south central Idaho’s Magic Valley.

[I’m not always sure what the FEC really does, but the Commission has created a spiffy website where you can track contributions by zip code and find the names of individual contributors. At the site, you can click on a map of any state, select the drop down menu for the candidate you want to check and see details of the candidate’s haul in that state.]

Romney is doing almost as well raising money in Idaho as he is in much more populous, but much more Democratic Washington State. Romney leads all the GOP candidates there with $346,000 raised through the end of September, even though the Washingtonians for Mitt Romney blog hasn’t been updated since 2007. Romney’s total in Oregon is $176,000, with a not terribly impressive $41,000 collected in Montana.

[The Romney website has a state-by-state list of endorsements – Gov. Butch Otter in Idaho and former Sen. Gordon Smith in Oregon, for example – but the Idaho section carries a strange reference to former Sen. Larry Craig, a 2008 endorser of Romney. The site says Craig “was caught in a sex scandal and forced to resign from office and the campaign.” That quote requires a  Rick Perry “oops” response. Craig, of course, initially said he would resign in the wake of his 2007 “scandal,” but then went on an served out his term in the Senate which ended in early 2009.]

Proof that the so called GOP establishment is lining up behind Romney can be found inside the FEC numbers. Former Oregon Sen. Bob Packwood is in for Romney to the max – $2,500 – as is Idaho’s premier funder of conservative causes Frank VanderSloot of Idaho Falls.

Barack Obama remains, of course, the fundraiser-in-chief. The president has raised $1.4 million in Washington, nearly $390,000 in Oregon, nearly $98,000 in Montana and $49,000 in Idaho. That last number – $49,000 in Idaho – means Obama has raised more in the reddest of the red states than any of the rest of the GOP field, including Ron Paul. Paul’s total in Idaho is just north of $40,000. The Texas Congressman has raised $174,000 in Washington, $84,000 in Oregon and $32,000 in Montana.

The New York Times today reports that Romney pulled in $24 million more in the fourth quarter of 2011. He’ll likey need to spend a good deal of that in South Carolina where Super PAC’s supporters of his now on life support opponents will spend big to try and keep the GOP race going.

 The FEC site contains other nuggets of political trivia that reveal a good deal. One Paul contributor Harmut A. Leuschner of Hayden, Idaho, who is listed in the reports as a mechanic at Alpine Motors, had written 13 checks totally $425 to Paul’s campaign through September 2011. The largest check was for $100. That, my friends, is a committed supporter.

 

2012 Election, American Presidents, Baseball, Baucus, Minnick, Obama, Politics, U.S. Senate

Assessing the Recess

Posted on by christian

Constitutional Crisis or Political Gamesmanship?

Republicans and many conservative legal authorities are outraged by President Obama’s recent recess appointments to install Richard Cordray at the new Consumer Financial Protection Bureau and fill three vacancies on the National Labor Relations Board. Congressional Republicans and their allies say Obama has acted unconstitutionally with the appointments since the Senate, which constitutionally has the power to advise and consent on presidential appoinments, has now suffered an Obama end run.

Conservative legal expert John Yoo, author of the legal analysis allowing President George W. Bush to employ “advanced interrogation methods,” and now a University of California law professor, speaks for most Republicans when he says, “Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers” by making the Cordray appointment. 

Congressional Democrats and the White House contend the president acted within his Constitutional powers since the Senate was “functionally” in recess and only meeting on the most perfunctory basis – sessions every three days that often last for less than a minute – and therefore unable to consider and pass judgment on his nominees. The issue seems certain to end up being decided by the third branch, the judiciary, in a legal battle that could take years.

Around such obscure details constitutional governments determine how the often sticky gears of governance turn. Both sides in this dispute have good talking points. The administration argues, in essence, that Congress is using a legal gimmick to limit the president’s power to fill vacancies or, put another way, impeding his ability to carry out his sworn duties to execute the laws passed by Congress. Congressional Republicans counter that it is a fundamental power of the Congress to determine when it is in session and when it is not in session. It’s a good constitutional law seminar subject, but the back story is also important.

The recess appointment process was analyzed in the Federalist Papers and is included in the Constitution in the section dealing with presidential power. Here is the language: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Presidents since George Washington have used the recess appointment power, sometimes controversially, such as when Bush 43 appointed the conservative firebrand and United Nation’s critic John Bolton to be the U.N Ambassador. Bush made 171 recess appointment and Ronald Reagan more than 240. Bill Clinton was no slouch during recess. He made 140 such appointments during his eight years in the White House.

So while Republican National Committee Chairman Rance Preibus can bluster that Obama’s recess appointments are proof of the president’s wanton disregard of the Constitution – “one more chapter in Barack Obama’s trampling of the Constitution” – the real issue a court will likely decide is whether the president has been hampered by Congress from carrying out his duties. Can Congress, in effect, prevent the executive branch from functioning by refusing to act on the appointment of key individuals?

No serious person, including a dyed-in-the-wool Constitutional originalist, would argue that the Founders – Alexander Hamiliton wrote the relevant Federalist Paper – envisioned a Senate that would perpetually stay in session by having one member show up ever three days, gavel the session to order, announce that there was no business and be off to lunch in under 60 seconds.

The Founders clearly established a process that contemplated that any president would have the right – indeed the responsibility – to appoint officers to carry out the work of the government. The balance of power would be ensured by giving the Senate the right – indeed the responsibility – to advise and consent to those appointments.

A key part of the breakdown of the basic workings of our government – proven in many ways, including the abysmal Congressional approval ratings – has been the exercise of raw partisan power in the Senate, and both parties are guilty of this, that prevents even consideration of an appointment when a minority object to the appointee, or in the case of Cordray, objects to the very existence of the agency that he has now been appointed to lead.

It is well documented that Richard Cordray, the former Attorney General of Ohio, is not the real issue with Senate Republicans. They oppose the very idea of a Consumer Financial Protection Bureau or at least many of the details about how the bureau will operate. Still, the agency was created by the passage of legislation that was legally signed into law by the president. The real issue then is the operation of a duly constituted agency of the federal government, not a recess appointment. Smell a whiff of politics in the air?

As Richard H. Thaler, a professor of economics and behavioral science at the University of Chicago, notes in a New York Times essay, the real problem here, and it does threaten if not immediately then eventually a genuine Constitutional crisis, is the inability of our political institutions to make a responsible bargain.

Professor Thaler reminds us that Senate Minority Leader Mitch McConnell said a few months back that his overriding objective running up to the 2012 election was to make Barack Obama a one-term president. A part of that strategy, it seems pretty clear, is to deny the president some of the key personnel he needs to run the government.

Senate Republicans have refused to consider confirmation, for example, of a Nobel Prize winning economist to serve on the Council of Economic Advisers. Donald Berwick, a nationally recognized expert on health care, particularly Medicare and Medicaid, did get a recess appointment from Obama to run the Center for Medicare and Medicaid Services, but recently left when it was clear that he would never get confirmed by the Senate.

Thaler says refusing to make use of such expertise is like saying “no” when Phil Jackson wants to coach your kid’s grade school basketball team.

And the professor has a question for McConnell and, for that matter, Sen. Harry Reid of Nevada who first hatched the “gimmick” of keeping the Senate perpetually in session. Reid’s motive was partisan, too. He intended to thwart George W. Bush’s recess appointments.

“I have a question for Senator McConnell,” Thaler wrote. “If you achieve your goal and a Republican is elected president. what will happen then? Won’t Senate Democrats take it up a notch? If they don’t like the new president’s foreign policy, for example, they could refuse to confirm a secretary of defense, citing the Cordray case as a precedent, and leading to either more recess appointments or 24/7 sessions for the Senate.”

This is no way to run a government. Senate Democrats and Republicans are set on a path of what can only be called a political form of MAD – mutually assured destruction – the nuclear war fighting strategy that assumes no sane person will use the ultimate weapons because they face certain destruction from the other side.

But MADness is precisely what is going on here. Neither side trusts the other, both are willing to stretch and abuse the rules of the Senate (including the filibuster) in order to thwart the other side and, of course, practical government based upon trust and mutual respect breaks down and is replaced by overheated political rhetoric, more dysfunction and gridlock. Little wonder Congressional approval ratings are in the ditch.

Here is a strict reading of the U.S. Constitution: any president is entitled to select his nominees for important governmental posts and the Senate is entitled to “advise and consent” to those nominees. The Constitution is, in essence, the rulebook for running the government and the rulebook does not contemplate that either side will game the system. The Constitution must be implemented in an environment of trust and mutual respect and, if things are to work, one side is not entitled to use gimmicks to thwart the other.

When it comes to recess appointments, both sides are wrong. The responsible path is to give the president – any president – an up or down vote on his nominees unless, in those extremely rare cases, a president appoints a total loser to a government job. Only then will presidents do what they should do, which is to consult widely on important appointments before they are made. The point ought to be bipartisan support for an important nominee.

At the same time, the Senate should seriously re-examine its “advise and consent” role, which requires that individual senators – acting in the broad public interest, not merely partisan political interest – look deeply into the qualifications of nominees and give these folks who put themselves through a public and political ringer in order to serve their country a fair and honest hearing.

 

Air Travel, American Presidents, Andrus, Baseball, Books, FDR, Obama, Politics

Confidence Men

Posted on by christian

No Passion for Anonymity Here

So many things we associate with the modern American presidency, including its imperial nature, where created by Franklin D. Roosevelt nearly 80 years ago. Roosevelt perfected the presidential news conference, used the mass media skillfully and repeatedly, polished the symbols of the office to a new sheen and he invented the modern White House staff and Cabinet machinery.

After reading Ron Suskind’s book Confidence Men over the holidays, a sharply critical assessment of Barack Obama’s first two years in office often fueled by the mistakes of his dysfunctional economic team, I’m betting that the president has quietly cursed FDR for that last invention – the White House staff and Cabinet operation.

The overarching theme of Suskind’s book – a president who can’t or won’t control his own staff is going to have a tough time running the country – is, at its core, an indictment of the modern way of politics in our nation’s capitol. Big egos, retained minds, power for power’s sake and a supreme level of confidence in one’s own view of the world are, in Suskind’s telling, at the heart of the original Obama economic team and its response to the Great Recession.

The two principle (and bad) actors in Suskind’s tale are Treasury Secretary Timothy Geithner and former Clinton Treasury official Lawrence Summers. Now-Chicago Mayor Rahm Emanuel, who was then White House chief of staff, plays a less central role, but still comes off like the opinionated, profane bully that everyone – admirer and not – seems to agree he is. For whatever reasons those unsvaory traits endeared him to the cool, no drama president.

Suskind’s book has had its detractors, including Geithner and the White House press office. Reviewing the 515 page tome in the New York Times, columnist Joe Nocera, a guy who almost always writes with insight and balance about the economy and politics, called the book “bloated” and “reeking of self-importance.” I agree. But Nocera also says the book “is an important addition to the growing library of books about this president. It tells you things — lots of things — that you didn’t know before. Very few of those things reflect well on Obama and his initial team.” I also agree.

Suskind’s book came out last fall at almost the exact time that Joe McGinniss’s much maligned hit piece on Sarah Palin arrived in book stores. Five months later no one is talking about The Rogue, but Confidence Men has lasted, perhaps because the subject is so much more important.

The history of the modern presidency dating back to FDR provides a guide to some of Obama’s missteps. He made two fundamental mistakes in staffing his White House; mistakes of inexperience committed by a rookie perhaps. First, he failed to appreciate that past behavior almost always forecasts future behavior. Summers, a man who had accumulated enemies during his tenure in the Clinton Administration, went from there to Harvard to serve as president and bombed. Summers’ comments about and inability to work with women cost him his job in the Ivy League and he brought, if you believe Suskind, all that baggage to the West Wing of the White House. A sub-theme in Suskind’s book is that the White House is a “boys” domain where Summers and others systematically kept senior women advisers, including current Massachusetts U.S. Senate candidate Elizabeth Warren, out of the loop as they struggled to right the economy. 

As for Geithner, it’s difficult to think of a more inappropriate choice to help steer the economy out of a housing-inspired collapse fueled by Wall Street greed than the guy who presided over the New York Federal Reserve Bank during the meltdown. There is a chilling account in Suskind’s book of Geithner socially and comfortably rubbing shoulders with his Wall Street friends, while being almost completely uncomfortable with reporters, members of Congress and most of his administration colleagues. You can’t help but wonder what Obama was thinking with this appointment, particularly since he had the full support of people like the tough and independent former Fed Chairman Paul Volcker, who would have made a perfect Treasury Secretary in Obama’s early days.

Instead Obama went for big egos, big resumes and big Wall Street connections and Summers and Geithner brought big problems with them.

The second lesson of Obama’s initial years is the importance of discipline and loyalty and by that I don’t mean the blind loyalty of an H.R. Haldeman, but rather the kind of loyalty that requires you, as a White House staffer or Cabinet member, to carry out the boss’s orders or leave. By Suskind’s account, the Obama White House was endlessly “re-litigating” decisions that should have been made and implemented, apparently because guys like Summers and Geithner were convinced they knew more than the president. In short: no discipline, little loyalty.

One of the hotly disputed stories in Confidence Men is Suskind’s detailed reporting on Geithner’s failure to carry out Obama’s ordersto implement an orderly take down of Citibank. Geithner”slow walked” the Treasury process for weeks, according to Suskind, to avoid carrying out a decision that his boss had made. Suskind properly points out that such behavior is a firing offense everywhere but Washington, D.C.

Imagine how Obama’s fortunes might have changed had he called in his Treasury Secretary and told him of his disappointment in Geithner’s failure to carry out a direct order and that the price for that insubordination would be public humiliation and dismissal. A president with steel in his spine – Harry Truman say – would have called a news conference, laid out the story and said as of this moment we have a new acting Treasury Secretary. A public firing is a thing of the past in national politics. It shouldn’t be. In the hands of a young, inexperienced president it was a valuable tool that Obama apparently chose not to wield.

Roosevelt, of course, assembled a White House staff and Cabinet that was far from harmonious. Harold Ickes, the imperious Interior Secretary, warred openly with Henry Wallace the brainy and unconventional Agriculture Secretary. Both of them fought with FDR’s trusted insider Harry Hopkins, but none of these guys ever overshadowed the president. Roosevelt saw too that. Insubordination was not a subtext of Roosevelt’s presidency.

For his White House aides, Roosevelt sought, as it has been famously said, men with “a passion for anonymity.” They were there to serve the president – and the country. The young president seems to have selected men, at least on his economic team, with their own agendas and no passion for serving in his shadow. Obama has now re-shuffled his White House staff to get ready for the re-election battle and a hoped for second term. We’ll see if he’s learned any management lessons from his ragged first term.

Again a Roosevelt comparison is apt. Roosevelt clearly learned on the job in the 1930’s. Repeatedly throughout his presidency, FDR shuffled and re-shuffled his Cabinet and personal staff. Some, like Ickes became indispensable and stayed for the duration, but others like Gen. Hugh Johnson, who controversially headed the National Recovery Administration, and Joe Kennedy, the first SEC chief and Ambassador to Great Britain, were sent packing when their judgment or usefulness came to question. Twice, in 1940 and again in 1944, Roosevelt dumped incumbent vice presidents from the ticket he headed.

FDR managed and led his staff and Cabinet even as he remade the modern presidency. Every president since – including the inexperienced Obama – could learn from his approach that insisted on discipline, loyalty and a firm understanding of just who was in charge.

 

American Presidents, Baseball, Britain, Dallek, Election of 1944, John Kennedy, Johnson, Obama, Politics, Reagan

Kennedy

Posted on by christian

Enduring Legacy and Debate

The abbreviated presidency and unfinished life of John Fitzgerald Kennedy is, 48 years after his murder in Dallas, one enduring subject in our politics that can launch a thousand debates.

Was Kennedy a mediocre, adequate or great president?  Is the “myth” of Camelot or the “substance” of a star crossed and tragic tenure just so much rosy memory or was Kennedy’s short presidency a grand testament to a simpler, elegant, even better time?

Would Kennedy have avoided Vietnam or would his hawkish anti-Communism have taken us precisely where Lyndon Johnson eventually did? And just who was Kennedy? Was he the pampered, womanizing son of vast wealth who floated through his 1,000 days with little to show for it or was he the tough, demanding, even brutally efficient Irish-Catholic intellectual who overcame debilitating health problems to be the cool head in the room handling the Cuban Missile Crisis?

Since everyone seems to have a Kennedy opinion these days, I’ll offer my own: Kennedy was all of the above and, curiously, the complexity of the man, the inability to fit him neatly into a liberal box, the roguish charm masking a unrelenting ambition make him all the more interesting. Like all truly fascinating people, Jack Kennedy was many men – all touched by unthinkable tragedy – and that, I believe, is why the fascination with him never seems to diminish.

The Kennedy Cult

Ross Douthat, the young conservative columnist for the New York Times set off the most recent round of Kennedy introspection with a piece entitled “The Enduring Cult of Kennedy.” Douthat set out to debunk three of what he sees as the most offensive Kennedy “myths” – that JFK was a good president who, had he lived, might have been a great one; that he would have kept us from the awful Vietnam disaster and that Kennedy governed during a time of vitriolic right wing hatred of everything he did and stood for.

Summing up, Douthat wrote of Kennedy: “We confuse charisma with competence, rhetoric with results, celebrity with genuine achievement. We find convenient scapegoats for national tragedies, and let our personal icons escape the blame.”

Kennedy’s best and most even handed biographer, Robert Dallek, felt compelled to respond to Douthat’s “anti-Kennedy overkill” with a letter to the editor.  Dallek’s book – An Unfinished Life – was the first to report in detail on Kennedy’s health problems and remains the best and most comprehensive story of the man.

“No serious historian,” Dallek wrote to the Times, “would suggest that John F. Kennedy’s unfinished presidency deserves to be ranked with those of Washington, Lincoln or Franklin D. Roosevelt. But he deserves better than Mr. Douthat gives him.”

Dallek has written elegantly and convincingly about why it is that Kennedy’s reputation still soars and Ronald Reagan’s, as well. Dallek argues it has less to do with bills passed or wars won than with the sense of hope and possibility both men brought to the bully pulpit of the White House.

“What gives Kennedy and Reagan such a strong hold on American imaginations is not what they did but what they said and still stand for,” Dallek wrote recently. “Both presidents are remembered as optimists promising better futures. Kennedy had the New Frontier; for Reagan, it was Morning in America. Both remain inspirational voices that in a time of doubt give people hope. And when you put either man alongside Richard Nixon, Gerald Ford, Jimmy Carter and George W. Bush, they seem especially appealing.”

“The national embrace of Kennedy and Reagan is at one with the attraction to nostrums,” Dallek wrote. “All we need is the right man with the right formula and all will be well again. If only it were that easy.”

Vietnam

For as long as we debate the legacy of Vietnam there will questions of whether Kennedy, had he lived to be re-elected in 1964, would have been smart enough to keep the U.S. commitment to southeast Asia in check. The late Idaho Sen. Frank Church was convinced, as he told me in the late 1970’s, that Kennedy would never have committed U.S. ground troops in the way Johnson did. Church’s opinion was also held by Robert McNamara and Theodore Sorensen, among many others.

Truth be told there is no way of knowing what he would have done, but the lessons he learned from both the Bay of Pigs fiasco and the missile crisis surely had an impact on Kennedy who may have been, in terms of American and world history, the best read president since Teddy Roosevelt.

Best Sellers

Kennedy is also the subject of two current best sellers by Stephen King and Chris Matthews. King’s massive new book titled simply 11/22/63 imagines what might have been – the Kennedy assassination foiled by a time traveler. Matthews’ book – Jack Kennedy: Elusive Hero – is an unabashed valentine to a kind of political leader that Matthews argues no longer seems to exist.

As to the times when Kennedy governed, Frank Rich’s recent piece in New York Magazine draws parallels between 1963 and 2011. “What defines the Kennedy legacy today,” Rich writes, “is less the fallen president’s short, often admirable life than the particular strain of virulent hatred that helped bring him down. After JFK was killed, that hate went into only temporary hiding. It has been a growth industry ever since and has been flourishing in the Obama years. There are plenty of comparisons to be made between the two men, but the most telling is the vitriol that engulfed both their presidencies.”

Rich has been defending his piece against, among others Ross Douthat. Rich’s “delusional” piece, in the view of another conservative commentator, uses “tortured logic” to show that “President Kennedy was a victim of hatred coming from the far right.” Lee Harvey Oswald was, of course, to the extent he had a political philosophy, more a Communist sympathizer than a John Bircher.

Still what really struck me in reading Rich’s take on 1963 were the selection of letters to the editor of the Dallas Morning News printed over the weeks before Kennedy made his fateful trip to Texas 48 Novembers ago.

A letter writer from Wichita Falls wrote in 1963: “The Kennedy regime tends to lead toward socialism, as shown in its soft policies regarding the Cuban situation and its constant concessions to the Soviet Union in nuclear-test-ban-treaty negotiations. The many failures of the administration are clearly shown to the public. The inefficiency of its policies has lost America prestige and has weakened our bonds with the major European countries.

“Any person who supports John Kennedy in 1964 not only is illiterate of the means of democracy but is supporting a truly socialistic regime.”

And this from a Kennedy opponent from Waco, who referred to the president as “One-Term John,” a politician so unpopular in “Central Texas that in the past three weeks I have had only one customer threaten to cease doing business with me because of remarks made concerning the dynasty and its accomplishments.

“In fact, I now expect business to pick up as the full impact of the truth finally makes its impression upon the party faithful who heretofore could neither see, hear, nor speak of the evils in a socialistic dictatorship until the confrontation by Gov. Wallace of naked federal power and encroachment upon state and individual rights at Tuscaloosa, Ala.”

The last reference, of course, was to Kennedy’s efforts to enforce federal law and permit two black students to enroll – over the schoolhouse door protests of Gov. George Wallace – at the University of Alabama.

(Kennedy’s role – some would say Kennedy’s reluctance – to push harder on civil rights is still regularly debated, as Ross Douthat and others have noted. Yet, appreciating Kennedy’s well-developed sense of humor, it’s easy to believe that he would appreciate the irony of the Crimson Tide’s quest for a national football title riding on the broad shoulders of team that in 2011 starts only five white players.)

The letters make a striking point. The hatred for John Kennedy, like Obama, was real and the misrepresentation of his views – JFK was no more a socialist than Obama – was palpable. A moderately dispassionate conservative today, one who dislikes everything Obama has done, would have to admit that those letters to a Dallas newspaper nearly a half century ago bares an eerie resemblance to today’s doings on FOX News.

The Kennedy Cult, or whatever you care to call it, persists because his presidency – both style and substance – still matters. It’s impact survives through generations. We don’t have great debates about the Cult of Warren Harding or William Henry Harrison because they did not help define a generation or bring a particular power of personality and passion to our politics. Few presidents have. Kennedy did.

We will be debating the importance of Kennedy – or Reagan for that matter – for as long as we care about what can occasionally be the uplifting quality of our politics. As Bob Dallek says, and this is particularly true at a time when our politics seem so polarized and unproductive, we hanker for the “right man (or woman) with the right formula.” If only it were that easy.

Leadership

Perhaps the true enduring legacy of a John Kennedy is really much less complicated than it might appear. At his core Kennedy was serious and incredibly ambitious. He had an approach to the job of being a senator and a president. He was a genuine and talented student of history. He wrote and spoke well. He was curious and tough as a politician and demanding as a boss. Matthews relates the story of Kennedy firing a long-time friend who he came to believe wasn’t doing his job well enough. At the same time he inspired tremendous loyalty and great affection and still does.

In short, the Kennedy legacy is one of leadership lifted by inspiration. The guy had it and we still gravitate to it and that is the real Cult of Kennedy.

 

American Presidents, Obama, Oil Spill, Terrorism

Slippery Slope

Posted on by christian

The Ultimate Act of the Imperial Presidency

At least since 1933, when Franklin D. Roosevelt actually suggested in his first inaugural address that he might need to ask Congress for what he termed “broad Executive power to wage a war”  in order to respond to the economic ravages of the Great Depression, every president – every president – has sought to expand, and has expanded, the authority of the nation’s Chief Magistrate. FDR’s critics suggested he really wanted dictatorial powers or, seemingly more benignly, a vast concentration of power in the hands of the president.

In terms of threats to the Republic and erosion of the basic strengths of the founding document, the steady, unchecked expansion of presidential power dwarfs any other complaint the Tea Party or anyone else has about the country slipping from its Constitutional moorings.

While the impact of Roosevelt’s accumulation of presidential power is still widely debated – it’s clear FDR stopped short of becoming a dictator – there is no doubt the modern presidency vastly expanded in scope from what the founders envisioned during his presidency. FDR set the country, and the White House, on the course to what Arthur Schlesinger, Jr. came to call “the imperial presidency.” There has been little let up since.

Harry Truman in 1952 nationalized the steel industry, or tried to, and Dwight Eisenhower planned and John Kennedy implemented, in perfect hindsight, a crazy plan to invade Cuba.

Lyndon Johnson put the patina of legality on the Tonkin Gulf Resolution in 1964 that gave him license to expand the American war in Indochina with a formal declaration of war. As we now know the resolution provided the Executive Branch with a “legal” fig leaf to expand the war on LBJ’s own motion, which, of course, he did. It’s worth noting that this particular expansion of presidential power took place during an election campaign.

Later in the 1960’s, Richard Nixon expanded that awful war into Cambodia and attempted to do it secretly. Ronald Reagan traded arms for hostages, secretly in the 1980’s. George W. Bush, history will record, used the full and always expanding power of the Executive Branch – including cherry-picking intelligence – to make the case for the invasion of Iraq. The march goes on.

Mostly lost in the daily drama of the Republican presidential campaign, the Occupy Wall Street demonstrations and the on-going economic slump is what may turn out to be one of the most profound expansions of presidential power ever.

On October 14, 2011, the President of the United States of America authorized an unmanned drone strike designed to kill an American citizen living in Yemen. It worked. New Mexico-born Anwar al-Awlaki, usually described as a radical Muslim cleric, died in the strike in a remote corner of the Middle East along with several other alleged Al Quada operatives. Killed along with the cleric was his Denver-born teenage son, 16-year-old Abdulrahman bin Anwar Al Awlaki.

The Obama Administration has justified the killing of U.S. citizens – the real target was the elder al-Awlaki – by producing a still secret legal memorandum that was detailed, to some degree, in a New York Times article on October 8.

The Times reporting noted: “The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

Narrowly drawn. Just broad enough to justify, with no formal legal process, no second opinion, no public accounting and in apparent violation of exisitng law, the killing of an American citizen.

The Times noted in a subsequent editorial that the Obama Administration has refused to release the legal analysis or even admit on the record that the analysis exists. There is no information available on how the administration chose the target or why.

OK, I hear you: this guy Awlaki was holed up on Yemen plotting attacks against the United States. Apparently he couldn’t be captured. What are supposed to do – let him wander around presenting a danger to us?

Legitimate questions all that the administration should be answering, but as we prepare to grant the benefit of the doubt to the president in this dangerous times, consider this one chilling line from the Timeseditorial: “The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.”

It’s been said that hard cases make bad law and this is a hard case. Awlaki was a bad guy and maybe the country is safer without him. Still the plain and honored language of the Fifth Amendment to the United States Constitution helps define the American system of justice from so many others in the world that we rightly and regularly condemn. Amanda Knox’s experience in Italy comes immediately to mind. America, it is said, is a nation of laws. The rule of law matters. The Constitution matters.

Just to refresh your memory, the 5th says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’

Due process of law is a fundamental tenant of American jurisprudence. It can’t under any circumstances be simply dismissed,  and secretly so, by two lawyers writing a memo somewhere in the Executive Branch.

Gerald Ford was the first American president to explicitly say our country would not engage in assassinations. American involvement – make that leadership of – efforts to kill Fidel Castro, in part, prompted Ford’s Executive Order. The logic is pretty simple. We target someone for death and the bad guy’s friends are likely to retaliate, which is, of course, exactly what is being threatened.

Without some mechanism, outside the hands of a secret group inside the Executive Branch of the federal government, able to judge the wisdom, necessity and legality of such drastic action, we are left to entirely take the word of the president.

The framers wrote the founding document knowing that the sainted George Washington would be atop the Executive Branch of the federal government. They wrote in protections like the Fifth Amendment precisely because the American system was built on laws, not men. Even Washington’s rectitude wasn’t adequate for those founders to give too much power to any one man.

Congress is, at least in theory, a co-equal branch and should have been since the 1930’s pushing back against more and more power in the hands of the president – every president. Does anyone there care to even ask the question: can a President of the United States really order a killing without so much as even asking around?

Every expansion of presidential power beyond what the Constitution provides is another foot down on the slippery slope. That slope is steeper by the day.

 

 

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.”

 

2012 Election, American Presidents, Andrus, Baseball, Biden, Britain, Christie, Economy, FDR, Lincoln, Minnick, Obama, Politics, Reagan

Trying Times

Posted on by christian

Leadership? Not So Much

At pivotal moments in American history it has often been the case that the right leader somehow emerged from the chaos of the moment and the nation was able to pass through trying times and set course for a better future.

Presidents Franklin Pierce and James Buchanan lacked the vision and courage to head off the steady drift in the direction of sectional strife in the 1850’s and, while there is a good argument to be made that Abraham Lincoln’s election in 1860 was the tipping point toward civil war, there is hardly any disputing that Lincoln brought to the presidency the powers of leadership that ultimately saved the country.

Likewise Franklin D. Roosevelt proved to be the right leader at the worse time in the 20th Century. FDR restored confidence and, I’m convinced, reformed American capitalism enough to save it. He was a leader made for his times.

There are a handful of other examples in our history. Andrew Jackson, with all his flaws, may qualify for a leadership award. More recently Ronald Reagan, invoked by every current GOP candidate for president as the leadership gold standard, had some of the FDR in him. He was a confidence builder when the nation needed a big dose. Washington stands, of course, in a special class of right leader at a trying time.

It’s hard to escape the reality that the nation is at another such crossroads and our politics and politicians hardly seem up to the task. The litany of problems is almost too big to fathom: stagnant economy, double-dip recession looming, crippling unemployment, increasing poverty and income gap, a national and international debt crisis, declining quality of public education, the need for entitlement reform, the European fiscal crisis, the uncertainty and unpredictability of the Arab Spring, climate change, terrorism, even the Red Sox have melted down.

The thinking man’s conservative, David Brooks, identified the heart of the problem in his New York Times column yesterday: “the ideologues who dominate the political conversation are unable to think in holistic, emergent ways. They pick out the one factor that best conforms to their preformed prejudices and, like blind men grabbing a piece of the elephant, they persuade themselves they understand the whole thing.”

The Democrats are all about tax increases on the most wealthy and increased spending to stimulate consumer demand. The Republicans can’t shake the gospel of tax cuts, controlling the deficit and whacking at regulation. What both sides miss is that we need to do all of that and more.

It may well be recorded at the supreme moment of missed opportunity in the Obama Administration was the president’s failure to grasp and champion the most important political and policy work to come out of Washington in a long, long time – the recommendations of Simpson-Bowles Commission. In the end, the discarding of the work of the former Wyoming Senator, Alan Simpson, and the Clinton-era White House Chief of Staff, Erskine Bowles, will be recorded as a failure of leadership. The bi-partisan commission called for doing it all – tax and entitlement reform, spending cuts, deficit reduction. The Commission prescribed exactly what every thinking American knows in their partisan heart must be done. Obama punted and Congressional Republicans did as well.

And meanwhile the country is hungry – desperate even – for real leadership. Many Republicans salivate over the prospect that New Jersey Gov. Chris Christie will turn his consistent “no” into an announcement that he’ll enter the GOP battle and it’s easy to see why. Christie delivered an inspirational speech last night at Republican hallowed ground, the Reagan Library in Simi Valley. His indictment of Washington leadership will surely resonate with Democrats and Republicans who long for leadership from someone.

“In Washington,” Christie said, “we have watched as we drift from conflict to conflict, with little or no resolution.

“We watch a president who once talked about the courage of his convictions, but still has yet to find the courage to lead.

“We watch a Congress at war with itself because they are unwilling to leave campaign style politics at the Capitol’s door.  The result is a debt ceiling limitation debate that made our democracy appear as if we could no longer effectively govern ourselves.”

Christie specifically jabbed President Obama for failing to embrace the Simpson-Bowles work noting pointedly that it was “a report the president asked for himself.”

I’m not at all convinced Chris Christie is the Lincoln or FDR we need, but I am convinced that genuinely honest talk about the enormous problems facing the country, with an unstinting focus on big solutions to big problems rather than what David Brooks calls “proposals that are incommensurate with the problem at hand,” would be the beginning of the leadership the country needs and hungers for.

The electorate is deeply unsettled. The evidence floats about everywhere you look. A new CNN survey says only 15% of Americans have confidence in their government; an all-time low. The Coca-Cola chief says China is a better business bet than the USA. There is an unmistakable sense that American power and influence is in decline.

Is anyone up to the task? Can anyone see beyond the next election? I’m betting if someone could look that far ahead – see ahead to real leadership – it would be the best possible strategy to win.