Archive for February 2010

Whither Populism?

Throughout its flirtation with relevance, the “tea party movement” has attempted to lay claim to the mantle of “populism” — that uniquely American philosophy premised on juxtaposing the moneyed and the powerful against the ideal of the Noble Commoner. Wherever you look, the populist thread pervades the tea party movement, at least in form, from their ill-understood adoption of the Gadsden Flag (“Don’t Tread On Me”), to the strategic alteration of pronouns in sixteen-year old Republican platforms (“Contract with From America”). And we largely seem willing to concede the label to them — but we probably shouldn’t.

When we’ve previously talked about populism, we’ve referred to an attempt to defend the Common Man from all enemies, both corporate and governmental. For example, Thomas Jefferson, the first true American populist, opposed the creation of a federal Bank out of a fear for “swindling futurity on a large scale” — a concern that today’s tea partiers would probably share — but Jefferson’s distrust of federal corporations stemmed from a wider distrust of all corporations.

I hope we shall take warning from the example and crush in it’s birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.

Even in to the modern era, distrust of corporations has, in fact, been the defining hallmark of American populism. William Jennings Bryan, arguably both a conservative and a populist, embraced Glenn Beck’s hated progressivism as a necessary restraint on corporate greed, and campaigned for the presidency on a pledge to regulate railroads and “robber barons.”

And yet it’s precisely this belief in the importance of regulation, for the good of the Common Man, that tea party “theory” (such as it is) explicitly rejects out of a purported fear of government power, instead embracing the very notion of the fundamental rights of economic actors and corporations against which politicians like Bryan fought for their entire lives. To Glenn Beck, Bryan, the model populist, is closer to a “socialist” than a freedom-loving tea party populist.

What to make of this then? It may be best to approach it as an indication of just how masterfully corporate interests have manipulated social conservatives, through the fragile alliance that is the Republican Party, to sell corporatism to the lower class. Old-time populists stood against elites of all types: today, thanks to the pervasive nature of “culture war” themes, the only elites we talk about are defined by social movements. The meanest, poorest Berkeley hippie is, to conservative America, more of an “elite,” and thereby a greater threat to the Common Man, than the CEO of Anthem Blue Cross/Blue Shield. The social/fiscal conservative alliance split the old populist bloc, and it can never be rebuilt until that alliance breaks down. And in the meantime, the Common Man will worry more about whether dudes can get married than how much they’re paying for healthcare. That’s too bad: the populist instinct is something uniquely American, and if we Democrats still fight for it, we’re just terrible at talking about it.

Reconciliation and Majority Rule

In the wake of movement among Congressional Democrats towards passing healthcare reform through reconciliation, Republicans are already lining up their talking points, chief among them a video purporting to show key Democrats, including then-Senator Obama, railing against Republican attempts to use reconciliation.

First, don’t buy it. The “nuclear option” against which Obama and company argue in the video isn’t a single usage of reconciliation — it was a Republican plan in 2005 to flat-out remove the filibuster, permanently. Expect Republicans to continue to confuse the two “nuclear options” where it helps them. We saw this coming a few months ago.

Second, the video proves too much by half. No matter what it shows about Democrats, it also shows Republicans ready to pull the trigger on an even more drastic attempt to cure the filibuster. By using reconciliation, Democrats seek to surmount it once, and for a narrow portion of a narrow issue.  The Republicans in 2005 would’ve removed it altogether. If our plan is a tactical nuclear strategy, the Republican’s 2005 plan amounts to all-out nuclear war.

Further, whether it comes from Obama or from Republicans, it’s wrong to frame attempts to overcome the filibuster as un-American, anti-democratic, or contrary to the Founders’ desire. Whatever merit the de facto 60-vote majority may have — and we should emphasize that it’s only really become such in the previous year — it was emphatically not a part of the Founders’ plan. The filibuster only came into being properly a generation after the framing of the Constitution; and, more importantly, the Founding generation created a government premised on a simple legislative majority.

Although the Constitution does not explicitly set out the threshold for passing a bill on first review through the Senate or the House, that number is properly assumed to be 50%. The clause setting out the Vice President’s powers assumes as much (U.S. Const., Art. I, § 3, cl. 4), and the Founders knew how to deviate from majority rule, but did not except in isolated, enumerated cases (see, e.g., U.S. Const., Art. I, § 7, ¶ 2). Federal bills were designed to be sent to the President on a simple majority vote by both houses.

Persuasive authority helps make the point plain. The Federalist Papers set out a fairly convincing case for simple majority rule. In describing the Senate’s role in ratifying treaties, admittedly by two-thirds vote, “Publius” (here Alexander Hamilton) explains the consequences of heightened requirements for lawmaking:

If two thirds of the whole number of members [As opposed to two thirds of those present. -- Ed.] had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

Thus, the men who first build the Senate understood the consequences of persistent gridlock, and would’ve sought to avoid it. Publius (here his identity is unknown) later makes the point explicitly. Majority rule serves to equalize the states in a federal, bicameral republic, and is thus indispensable:

[Federal acts] will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy: in the same manner as the votes individually given in a State legislature, by the representatives of unequal counties or other districts, have each a precise equality of value and effect; or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes.”

Like I said, there are reasons to like the filibuster, as a halt on runaway legislating, but a misguided allegiance to constitutional values isn’t among them. And the filibuster was never designed as anything but a surgical tool. When it becomes a day-to-day part of lawmaking, it’s properly time to re-evaluate.

The Scozzafava-ing of Kay Bailey Hutchinson

In Texas’ Republican gubernatorial primary, as expected, Debra Medina’s earthward crash inured directly to the benefit of Rick Perry, the still-unstable but slightly more serious sitting governor, and has, in fact, utterly tanked Kay Bailey Hutchinson’s chances of becoming the next Republican gubernatorial nominee, and almost certainly the next governor. Her words, on Perry’s successful resort to the “outsider” meme:

It definitely has made it more difficult for me. I didn’t think that people would buy that because I’ve been so effective for Texas. I didn’t think that anyone could turn my success in producing results for Texas into a negative, but I think that he has attempted to do that and that is what I’ve been having to fight against.

It’s not a concession, but an acknowledgment of reality: Kay Bailey Hutchinson will not win her primary. Rick Perry will, thereby almost guaranteeing victory for Houston Democrat Bill White in the general.

When Senator Hutchinson loses, it will be the second time in a year that an ideologically “pure” but otherwise unimpressive male Republican displaces a more experienced, objectively superior female candidate by questioning her Republican bona fides. And it’ll also likely be the second time the GOP squandered a “safe” seat by prizing disastrous radicals over functional moderates. Lesson learned? I won’t bet on it.

Weapons-Grade Separation of Powers: Was John Yoo Right?

Scientifically speaking it’s surely probable. There must exist some parallel quantum universe where John Yoo is right at least once. Or, alternately, he’s been wrong so much, so surely he’s due!

Actually, both of those arguments are flawed. But in spite of that John Yoo may, in fact, be right on at least one issue of consequence. Here we go: can the President of the United States order a nuclear strike without Congressional approval? John Yoo says yes; ThinkProgress and Crooks & Liars both say no. John Yoo is right.

To make this question meaningful, we should first break it down further. By virtue of Youngstown Tube & Sheet Co. v. Sawyer, 343 U.S. 579 (1952), we should really ask three questions, of which only one is actually complicated:

1. In the presence of Congressional approval, can the President order a nuclear strike?
2. In the absence of Congressional action, can the president order a nuclear strike?
3. In the presence of express Congressional disapproval, can the President order a nuclear strike?

Only by answering all three can we come to a real answer. On questions #1 & 2, Congressional permission only ever arises in the context of authorizations for military force (AUMFs). These documents are generally construed broadly — a principle for which, ThinkProgress’ analysis notwithstanding, Hamdi itself stands (“Congress has in fact authorized Hamdi’s detention, through the AUMF”). Especially because any authorization for the use of military force is generally itself broad (e.g., “the President is authorized to use all necessary and appropriate force”), such generalist documents would necessarily be construed to include the authority to deploy nuclear weapons. Thus we can immediately answer questions #1 & 2 in the affirmative.

That brings us to question #3 — in the presence of express Congressional disapproval, can the President order a nuclear strike?

To answer this, again, we have to give some context to what we mean by Congressional disapproval. As Yoo properly notes, Congress could “starve the beast” — slash all defense appropriations — to halt any presidential action in the military sphere. But our question refers to specific policy constraints, so we must invent such specific constraints, and then analyze them.

ThinkProgress seems to assume that some express constraint on the President’s nuclear authority already exists, but no such statute has ever been drafted, much less signed in to law. In fact, there are no significant statutory limitations placed on the President’s decisions regarding how to deploy military force. True, in 1973, Congress passed a joint resolution, the War Powers Resolution, which seems to require Congressional authorization for any war or projection of American military power that lasts beyond a set period of days. But the constitutionality of this provision is in no sense clear, and even assuming its perfect validity, it only limits when the President can go to war, not how and using what weapons.

Nor could it go farther. Congress can declare war (U.S. Const., Art. I, § 8, cl. 11) and “make rules for the government and regulation of the land and naval forces” (U.S. Const., Art. I, § 8, cl. 14) (think UCMJ), but the Constitution commits decisions about the specific waging of specific wars to the President, and no-one else (“The President shall be commander in chief of the Army and Navy of the United States”) (U.S. Const., Art. II, § 2, cl. 1). No decisionmaking authority more closely typifies the commander-in-chief power than the right to determine appropriate military responses to identified crises; accordingly, the question of when to use nuclear weapons is, necessarily, textually committed explicitly and solely to the discretion of the American President.

This reading is neither liberal nor conservative; it’s just accurate, the way the commander-in-chief was meant to function (read over Federalist #70), and perfectly in line with our history. As the Founders recognized, wars are not to be waged by committee. Every significant post-federal military activity in our history — from the Gettysburg campaign, through the Normandy invasion & Hiroshima, and even to the Cuban Missile Crisis — has been debated, decided, and implemented exclusively at the Cabinet level or above. How could it be otherwise?

It’s true that this line of argumentation leads to the conclusion that, in and probably out of war too, a single man or woman sitting behind a single desk could initiate Armageddon, with no legal check or balance. This needn’t be too scary, though: given the speed at which wartime decisions must be made, especially when the decisions involve nuclear weapons, any legal limit would be purely illusory anyways. No federal court would convene to litigate a preliminary injunction restraining the President’s use of weapons (who would have standing, anyways?), and no Congress would sit in emergency session to decide how to respond to plausible reports of an impending nuclear first strike against the United States. In some isolated cases, democracy implies a complete and perfect trust in the man or woman we’ve chosen to act in all of our names. The President’s authority to use nuclear weapons is one of those cases.

Plouffe’s Way Forward on “Citizens United”

Apologies for the very late post.

Let’s set aside the legal questions raised by Citizens United v. Federal Elections Commission, last month’s Supreme Court ruling that permits corporations to spend for political advertising  out of their general treasury, on the theory that such expenses somehow qualify as an analogue to personal speech. Whatever we think of this ruling, the public doesn’t seem to like it at all:

Eighty-five percent of the Democrats polled were opposed to the ruling, while 76% percent of Republicans and 81% of independents also said they were opposed. The nearly unanimous opposition crosses more than just party lines.

Despite this, Republican leadership has been uniformly positive on the issue. One example:

Mitch McConnel (R-KY): Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance.

This is an issue, interestingly, that threatens to ripsaw Congressional Republicans between their burgeoning (?) populist (??) base, and their vested corporate interests. Thankfully, and for once, it’s an opportunity Democrats don’t seem likely to let slide. At a fundraiser for Senator Kirsten Gillibrand (R-NY) yesterday morning in midtown Manhattan, David Plouffe, newly re-appointed to Obama’s political team, noted poll numbers on Citizens United, and underscored to the audience the importance of the fact that almost as many independents as Democrats oppose the decision. Pushing the issue could highlight the difference between true “populism” — premised on distrust of big actors, be they government or industrial — and mere grassroots conservatism, winning back right-leaning independents in the process.

These possibilities for recouping or winning political capital aright are increased by the likely method of Congressional attack. From OpenCongress, a draft bill designed to limit the holding’s imact would forbid, outright, certain entites from spending money on federal elections, including:

companies with at least 20 percent foreign ownership

government contractors

companies that received and have not paid back TARP funds

The bill also:

requires CEOs to appear on camera and say they approve the ad their company is funding

requires more disclosure of political spending from corporations, unions and 527s

provides a reduced ad cost and equal airtime for candidates facing a corporate ad buy

prevents corporations from coordinating ad spending with candidates and political parties

Without getting in to the law, such restrictions are likely to be sustained as either (1) reasonable time/place/manner restrictions on the exercise of free speech, or (2) limitations reflecting increased or exaggerated federal interests, thus permitting regulation where it would otherwise be foreclosed. And the requirement that CEO’s personally endorse their corporate ad buys is just immensely politically satisfying, expressing a truly populist desire for accountability and truth in messaging. Will it work? We’ll see. But that Democrats are for once thinking about grand strategy can’t hurt.

In CPAC, Past or Future?

This year’s Conservative Political Action Committee (CPAC) meeting shows a conservative movement in transition — or, at least, that’s what they want you to see. True: faux intellectual/full-blooded libertarian Ron Paul displaced Mitt Romney as the victor of the annual “straw poll”, perhaps signaling a move to “real” small government conservatism in this low-stakes, poorly-predictive measurement of an angry base. But for his victory, he drew boos, which conference organizers eagerly highlighted to watching media, as if to suggest this was a hiccup, and an undesired one at that. Meanwhile, Mike Huckabee took offense at even this smattering of libertarianism –

– and Politico struggled to characterize “grassroots” groups like RedState as voices of a new, populist, economics-centered conservatism, despite the site’s firm grounding in homophobia, old-style paleoconservative hate, anti-feminism, and Beck-style senseless vitriol.

If CPAC is a vision of conservatism’s next year, I humbly suggest that we have little to fear, at least for now. By all accounts, attempts to fuse tea party “populism” with big-government conservatism have failed, or are in the process of failing. Republicans will be able to field a sizable protest vote in near-term elections, but an angry base has never been enough to rebuild a national majority. We can’t get complacent, but we needn’t run scared, either.

Climate Change: “Facts are Stubborn Things…”

With the recent rash of climate change “scandals” — none of which actually altered the overwhelming scientific consensus in favor of anthropogenic global warming’s existence — conservatives have been, lately, chipping away at the public perception of this issue’s fierce immediacy. Texas Governor Rick Perry’s attempt to litigate the matter, however — a quixotic quest shared by several other states — could switch the momentum back in our favor. Here’s why.

Perry and his fellow travelers seek to use these recent “scandals” to question and then displace, by means of a “petition of review” to the Environmental Protection Agency, the Agency’s decision to regulate greenhouse gases as pollutants. Agencies enjoy wide discretion in these matters — no citation necessary — so this is, at least, an uphill battle for Perry. In fact, it’s probably impossible. The issue of greenhouse gases’ danger, and thus the EPA’s discretion on the matter, has already been litigated and decided in our favor — by the U.S. Supreme Court, in Massachussets v. E.P.A.,  549 U.S. 497 (2007). If a greenhouse gas contributes to global warming, the EPA must control the substance:

Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.

Further, scientific uncertainty is no excuse, unless the uncertainty is profound, and verifiably so:

Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether green- house gases contribute to global warming, EPA must say so.

Much mischief could be worked, politically, with the phrase “uncertainty.” A renegade head of the EPA could, much like Congress did when banning D&X abortions, cherry-pick the scientific record, emphasizing some facts while ignoring others, to fabricate the uncertainty necessary to confer some discretion on the matter. Because our current EPA is not willing to do so, however, Perry and his friends can only displace the EPA’s scientific judgment judicially, by proving, in court, that anthropogenic climate change is simply false.

This they cannot do — but we should let them try. American law provides a vast body of law for weighing conflicting scientific testimony, keyed to the very indicia that the scientific community itself uses when evaluating theories, like peer review. Accordingly, American courts will, with proper lawyering, reach the same conclusion as the scientific community nine times out of ten. Perry’s action will take some time to wend its way to the federal courts, if it ever does (I expect Bill White to win the Texas governor’s seat).  But when it does, we can count on the climate change denial crowd being swiftly, and visibly, laughed out of court. As Democrats, we can’t always manage our spin. But, when the facts are at issue, we can expect to win. Game on, Perry.

Another Brief Note on the Mount Vernon Statement

In revealing their “Mount Vernon Statement,” “tea party” conservatives attempted yesterday to set out “A Statement for the 21st Century,” arguing for conservative truths from foundational documents and “first principles.”

First, when we talk about arguments from first principles, we refer an attempt to derive rather than assume our beliefs. Query whether a conclusory document makes any real attempt to grapple with “first principles.” Second, take note of a real internal tension even in this very superficial document (emphasis ours):

A Constitutional conservatism unites all conservatives through the natural fusion provided by American principles. It reminds economic conservatives that morality is essential to limited government, social conservatives that unlimited government is a threat to moral self-government, and national security conservatives that energetic but responsible government is the key to America’s safety and leadership role in the world.

A Constitutional conservatism based on first principles provides the framework for a consistent and meaningful policy agenda.

• It applies the principle of limited government based on the
  rule of law to every proposal.
• It honors the central place of individual liberty in American
  politics and life. [. . . .]
• It informs conservatism’s firm defense of family, neighborhood,
  community, and faith.

Despite a feint towards forging one, this “natural fusion” between economic (“limited government”) conservatives and social conservatives is in fact nowhere self evident. Ensuring that fusion is however vital. The Republican Party in the United States succeeds to the extent that it can broker an alliance between limited government conservatives, who shouldn’t properly care about things like gay marriage, and social conservatives, whose active, morally invasive brand of government smacks of the very “nanny state” that limited government types purport to deride. Culture war themes like “anti-elitism” work so well for Republicans because they elide the differences between the types of conservatives through reference to a common foe. Such themes are necessary to maintain that alliance; hence their popularity, and increasing dominance, in Republican circles.

Bearing this in mind, look at the signatories to the Mount Vernon Statement:

• Edwin Meese, former U.S. Attorney General under President Reagan
• Wendy Wright, president of Concerned Women for America
• Edwin Feulner, Jr., president of the Heritage Foundation
• Lee Edwards, Distinguished Fellow in Conservative Thought at the Heritage Foundation, was present at the Sharon Statement signing.
• Tony Perkins, president of the Family Research Council
• Becky Norton Dunlop, president of the Council for National Policy
• Brent Bozell, president of the Media Research Center
• Alfred Regnery, publisher of the American Spectator
• David Keene, president of the American Conservative Union
• David McIntosh, co-founder of the Federalist Society
• T. Kenneth Cribb, former domestic policy adviser to President Reagan
• Grover Norquist, president of Americans for Tax Reform
• William Wilson, President, Americans for Limited Government
• Elaine Donnelly, Center for Military Readiness
• Richard Viguerie, Chairman, ConservativeHQ.com
• Kenneth Blackwell, Coalition for a Conservative Majority
• Colin Hanna, President, Let Freedom Ring
• Kathryn J. Lopez, National Review

Social conservatives (bolded) completely overwhelm mixed/economic-centered conservatives — and those economic conservatives that remain are largely those who, like Norquist, have completely mortgaged their commitment to true limited government in order to gain greater influence in the movement. Might we view the Mount Vernon Statement, then, as not a statement of ideological unity, but a plea for common cause, despite carefully omitted differences? If that’s the case, then, despite the media narrative, monolithic, organized “conservatism” has yet to win back small government conservatives after the fiasco of the Bush years. Good.

Say What You Will About Tony Scalia…

But the man has a sense of humor. Responding to a screenwriter’s letter asking how the Supreme Court would respond to Maine’s theoretical secession:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.

Awesome. But I think Scalia might actually be wrong on the last point: sovereign immunity need not bar a suit against the government to enjoin an illegal war, when phrased as a suit by a seceded state against, say, the Secretary of Defense or the Army. See Ex parte Young, 209 U.S. 123 (1908). Of course, to maintain the suit, the plaintiff seceded state would have to concede its rights under American law, thus instantly revoking its secession. But then again, wouldn’t that concession also terminate the war? Of course this all assumes the state could surmount the political question doctrine. Huh.

It’s best not to think about it. Maybe the answer is just that secession isn’t a good idea.

Another plus to come out of this letter: if there was any question, we now know how Scalia, and thus the Supreme Court, would resolve any controversy over secession, that fevered dream of tea party “patriots.”

Multiple Narratives in the Founders’ Legacies

Although incapable of articulating (much less defending) a single policy position, the conservative movement and the tea party groups that together pass for its intellectual core seem brilliantly capable of making sweeping appeals to (putatively) originalist values. The latest is a “Mount Vernon Declaration” — named for and dedicated to President Washington’s ideals, but signed fairly far away from the actual presidential residence. Mount Vernon wouldn’t have them.

The humor is obvious, but tea party “patriots” should take the hint. Any attempt to ground “Constitutional conservatism” (what is that?) in pathos-infused appeals to history must fail at the threshold, because on most subsidiary issues of consequence, the Founders never spoke with a unified voice.

I don’t mean to dispense with the idea that the Founders’ example should serve as a political and moral guide — it should, and does, speak a great deal about the importance of service, sacrifice, and the rule of law. But beyond these and other abstract values, the theory of a unified narrative decays. Members of the Founding generation, during and after the Constitutional Convention, disagreed sharply on what manner of government they’d created. Thomas Jefferson regarded Adams’ presidency — and, to a lesser extent, Washington’s — as imperial, almost monarchical. On some points he was even right: Adams’ conception of the freedom of speech leaves, ah, something to be desired by modern standards. Hamilton fought for (and won, briefly) a national bank, as a clearinghouse for state debt and a necessary tool to build American credit. Whole swaths of the country saw this, in turn, as the death of sovereign states.  Relatedly, John Calhoun, in living memory of the Founders, thought the Tenth Amendment permitted nullification of federal acts. Every President of the era, and most signatories to the Constitution, disagreed.

This should not be surprising. The drafting of the Constitution was a political act. We can attempt to discern the compromise on which the Founders settled — as we must, when determining legal controversies — but that’s a damn sight harder than looking at a complicated era of history and terming it “conservative,” especially when that word, as it’s used today, didn’t even exist at the time. Superficial answers to complicated questions will always fail: for example, “we’re a government of enumerated powers” is no answer to the question, “is healthcare reform constitutional?” Not, at least, with full knowledge of the fierce debate over the “necessary and proper” clause, and the context of its necessity after the Articles of Confederation — we rejected a form of government limited to enumerated powers. Questions like “what powers are ‘necessary and proper?’” are worth asking, but rarely asked, and notably avoided by appealing emotionally and exclusively to abstracted, simplistic theories of history.

Turning to Revolutionary War symbols to argue against discrete and identified policies is off point at best — an act of appropriation, not reverence — and insulting at worst. Our national symbols should remind us of who we are vis-à-vis the world, not each other. Put down the Gadsden flags; pick up a book.