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Saturday, September 28, 2013

The Role of a Representative

As Tea Party congressional Republicans reflect the will of their gerrymandered districts, or stick to principle, while senior Republicans are mindful of national public opinion and pragmatic about reality, it's worth asking again: what is the proper role of a representative? 

(LEFT: PHOTO from Scranton Times-Tribune - U.S. Congressman Matt Cartwright, D-Pennsylvania, leaves his office on Capitol Hill in Washington, D.C. on January 3, 2013.)

In our storied history as a republic and the world's oldest democracy, one of the most central, definitive, and perpetual debates regarding our structure of government has to do with what the proper role of a representative in Congress is. The question has been of great interest and discussion for political scientists, historians, and even members of Congress themselves. To tackle this vexing question, it is necessary to examine our founding documents, the intentions of the Founders, the literature and political history since then that has defined our nation, and the present reality of our country.

On the one hand, the Declaration of Independence is clear in its language that "governments are instituted among men." Further, the document plainly states that such governments can only "deriv[e] their just powers from the consent of the governed." The republican language contained in Jefferson's crown jewel made clear that the new nation would be one where the people had a fundamental role in forging the new government. As such, the government of the United States would be one whose legitimacy came from the people and, in the document's echoing of John Locke, its representatives would retain the right to abolish the government if it became too abusive. The Founders understood the importance of government reflecting and carrying out the will of the people. It is for this reason that they crafted in the Constitution a people's body: the House of Representatives. In An Introduction to the American Legal System, the case is made that that the nation is most clearly a "representative democracy," as envisioned by James Madison. A nation in which, while "minority rights" are taken into account, "majority rule" does ultimately win the day.

On the other hand, the Founders also feared what Alexander Hamilton dubbed the overheated "passions of men." They understood and embraced the need to constrain the excess of special interests, potential mob rule, and what James Madison deemed the "tyranny of the majority" in The Federalist Papers. It is one of several reasons why the Founders created the Electoral College and a Senate in which Senators would be chosen by state legislators (both, by the way, in my opinion, wrong decisions) and why they ensured that there would be sufficient checks and balances in our system to prevent one party from becoming too powerful. It is for this reason that the United States is an indirect democracy. In the Founders' view, a republic in which the people, while electing their representatives and playing a role in  forging their government, democratically granted legislators the power and privilege to make decisions on their behalf. Indeed, it would be the primary role of the legislator to remember they, though the representative of the people, should use good judgment, wisdom, research, and careful thought to make the best decision for the people -- even if the people disagreed with that choice. It is the kind of government that Edmund Burke advocated when he wrote that though constituents' concerns and desires "ought to have great weight with" a representative, they must ultimately use "his unbiased opinion, his mature judgment, [and] his enlightened conscience" to make decisions when voting or crafting bills.

Beyond the questions of whether a representative should directly reflect the will of their constituents or whether they should lead them in the "right" direction - however the representative sees it - there are considerations as well. A representative must grapple with whether to take into greater consideration the interests and will of the people of their district or state or the interests and will of the entire country. Often, these may be in contention. For instance, a member of Congress from a district or state with a history of proud manufacturing may oppose a free trade agreement because they believe it would be against their district's interests even if they believe it may be, on whole, a net plus for the country. This issue causes some consternation for members of Congress because it is true that you are elected by the people of your district but, when you are sworn in, you take an oath for your country. Therefore, it is a delicate balancing act, to say the least, to perform the duties of your office if these interests were ever in contention.

Outside of this specific debate, there are also moral, ethical, constitutional, and pragmatic considerations to take into consideration as a representative. With regards to moral and ethical matters, these issues may arise when votes for military action are on the floor. War is ugly and horrific and members of Congress loathe the day that they hear a service member from their districts died in combat. If violence is ever justified, you won't hear it in the speeches of Gandhi or Martin Luther King, Jr. that members of Congress sometimes quote and, in their hearts, most representatives do prefer peaceful or diplomatic solutions. However, they must also take into account the "necessary evil" of war at times when negotiation is not possible and Thomas Aquinas' writings on "just war" have sometimes guided conflicted representatives on the eve of these votes.

Further, representatives must determine whether an action they are taking is consistent with the letter and spirit of the Constitution. Ultimately, the Constitution is the supreme law of the land and members of Congress are sworn in on a sacred vow to "support and defend the Constitution of the United States." However, in passing legislation that stretched legal bounds in the aftermath of 9/11, Congress, in its desire to strengthen federal national security powers, passed legislation which constitutional law professors like GWU's own Orin Kerr believe have run afoul of the Fourth Amendment. Some members of Congress, like Republican Rep. Jim Sensenbrenner, and President Obama himself have openly expressed the difficulty of balancing the desire to protect the country against terrorist threats with the necessity of abiding by the Constitution. It is crucial to find a proper balance and it is a task Congress is tackling right now as senators like Patrick Leahy seek to reform NSA surveillance so the agency can still search for threats while protecting basic privacy rights. Lastly, pragmatic considerations have to play a role as well. Representatives cannot always get what they want or everything they want in a piece of legislation. They must be willing to compromise when necessary to secure the votes for passage of a bill but it is also important that they not capitulate or abandon their core principles. Forging such a path can be difficult for some members but even the most ideologically rigid find a way, such as former Rep. Dennis Kucinich. A stalwart liberal, Kucinich considered voting against Obamacare in March 2010 because it was insufficiently liberal. After much persuasion (on Air Force One and at a campaign-style rally with him) from Obama, Kucinich chose to vote for the bill. It did not include some progressive provisions he fought for but, after careful thought, he chose (rightly so) to vote for the bill because it got the country one step closer to affordable, universal health insurance coverage.

Perhaps nobody better articulated and explained the most important of these aforementioned conflicts than President John F. Kennedy. In his Pulitzer Prize-winning Profiles in Courage, JFK tackles this question of the role of a representative head on and comprehensively so. Ultimately, Kennedy argues for representatives making "hard and unpopular decisions," if they are the right decisions for the country, and displaying "political courage" for the betterment of the country. The entire book outlines stories of senators Kennedy rightfully believes bravely displayed this courage, such as Senator Daniel Webster who backed the Compromise of 1850. JFK excellently summarizes what the proper balance ought to be in terms of representing the will of the people vs. fighting for what is right, even if it's unpopular. "Most people assume," Kennedy writes, "the primary responsibility of a Senator is to represent the views of his state." However, JFK asserts that it is "difficult to accept such a narrow view of the role of United States Senator -- a view that assumes the people...sent me to Washington to serve merely as a seismograph to record shifts in popular opinion." Indeed, Kennedy argues that the "voters selected us, in short, because they had confidence in our judgment and our ability to exercise that judgment from a position where we could determine what were their own best interests, as part of the nation's interest."

Some voters and pundits may find JFK's view harsh and politically poisonous but that isn't necessarily the case; voters actually reward politicians who fight for their principles over navigators of public opinion. One need not look further than the last election when Elizabeth Warren defeated Scott Brown in Massachusetts on a platform of strong regulation of the financial industry vs. someone who carefully tried to gauge the public attitude just to win reelection. Even at the national level, the voters registered a judgment of preferring principle over sticking your finger in the wind when they reelected Obama, who stuck with policies like health care reform despite public uneasiness about the Affordable Care Act, over Romney, Mr. "Etch-a-Sketch," in the words of his own senior advisor. In the end, Kennedy is exactly right that representatives and senators must "on occasion lead, inform, correct, and sometimes even ignore constituent opinion" if it means "exercis[ing] fully that judgment for which we were elected." At the same time though, he is not dismissive of the people and he does embrace the necessity of compromise. The absolute best quotes from his thesis on these matters are contained in the following link and I highly recommend reading them:

President Kennedy was right. This country is and ought to remain an indirect democracy. Yes, it should be a nation in which the voters must have the right to elect their leaders - including the President and U.S. Senators, hence my opposition to the Electoral College and support for the 17th Amendment guarantee of direct election of U.S. Senators. However, just as important, it ought to always be a country in which it is the responsibility of those leaders to make informed decisions for the interests of the country they were elected to serve. For a representative to claim otherwise would be an abdication of their responsibility to the country. It is wrong to chastise or totally disregard the concerns and voices of constituents but it would be a greater disrespect to them if a representative voted in a way that ultimately hurt their interests even if it was temporarily unpopular. Maybe not immediately, or even in the next election, but the people will then ultimately respect you more as a representative as well.

Saturday, September 21, 2013

The Politics of the Debt Limit

(LEFT: President Barack Obama shakes hands with Speaker of the House John Boehner before the start of Obama's 2012 State of the Union address).

President Obama has repeatedly said in the last several days that he will not compromise on funding for Obamacare in the battle over keeping the government open and he will not compromise again over raising the debt ceiling. Great. He shouldn't. Threatening to shut down the government unless a three-year old law, upheld by the Supreme Court and which the GOP has unsuccessfully tried to repeal through 42 congressional votes and one presidential election, is weakened and threatening to default on our debt are both kinda crazy. A government shutdown would actually cost American taxpayers more money per day that the government is closed, as NBC's Chuck Todd pointed out on Twitter yesterday, than if the government was kept open. Further, the GOP's tactics here are a bit weird too since the "defunding" of Obamacare their House caucus included in the CR actually would not affect the central elements of the law (i.e. the Medicaid expansion and the subsidies for uninsured Americans). Needless to say, not paying our nation's bills by raising the debt ceiling would also be very, very bad. The White House has even employed the head of the Chamber of Commerce - not someone who sees eye to eye with them on most issues - to make the case to the congressional GOP.

However, these developments beg the question: why did the President then compromise on the debt ceiling at all in 2011? If he believes, rightly so, that negotiating over the debt limit is perilous and can have horrible effects on the economy - as it already did in 2011 when S&P downgraded the U.S. credit rating, markets tanks, and employment stalled after an OK start that year - then why did he seek compromise in 2011? The answers are varied and of course they include the fact that Obama was seeking a "grand bargain," partly for his legacy and partly because it's clear he genuinely believes in a "balanced approach" to cutting the deficit. He emphasized that language again and again in 2012 and has sought a mixture of spending cuts and tax increases since he was freed from the burdens of reelection. It is also true that a grand bargain, though it would've included awful ideas like chained CPI (Social Security benefit reductions), would've had some pretty good ideas in it too such as closing tax loopholes that benefit the wealthy and means-testing entitlement programs. In the end though, it really was not worth it for Obama to pursue so vigorously an effort to reach such a bargain in exchange for raising the debt ceiling. As we know now, the White House meetings with Speaker John Boehner in the summer of 2011 accomplished basically nothing thanks to the intransigence of the far-right GOP House caucus which refused to accept meaningful tax reform. In the end, the negotiations led to the the downgrading of the credit and it temporarily damaged an already slow economic recovery and it created the toxic mess that was the Budget Control Act of 2011. Some important savings were made in that law but the worst part of it was the inclusion of sequestration. Despite the President's efforts in early 2013 to urge Congress to repeal the sequester, the repeal of these arbitrary and dangerous cuts never came to fruition.

Consequently, the Democrats in Congress have already essentially ceded the sequester cuts as part of a CR because the Republicans will not give in on Obamacare thus far. Therefore, the Democrats have concluded that if they at least give up on repealing the sequester (for now), they could get a "clean" CR that doesn't include defunding of the Affordable Care Act, the President's signature domestic policy achievement. It is great that the White House is now saying Obama will not negotiate on the debt ceiling (or on Obamacare as it relates to a government shutdown). He should've said that two years ago as well though. In fact, two years ago, he would've had more political leverage if he made that case too. Currently, the President's job approval rating is at 44 percent, according to the polling average, but in late May 2011, when his administration was heading into the debt ceiling negotiations, his job approval rating was at 51 percent (thanks to the boost from the killing of Osama bin Laden). At that time, he could've taken advantage of the public goodwill towards him to stand firm against the congressional Republicans on the debt ceiling, refuse to negotiate, and thus we would have avoided the sequester, probably ultimately would get a clean raise of the debt limit once Republicans inevitably realized the catastrophe of a default, and would've avoided the economic harm the country was inflicted in August 2011. This time, my guess is that a government shutdown will happen but a "clean" CR (with sequester-level funding but no defunding of Obamacare) will pass as the public blames Republicans for the shutdown - as they did in 1995 - and the GOP will also cave on the debt limit because they'll realize we can't afford default. The next few weeks will be pretty interesting.

Saturday, September 14, 2013

The World Changed Since 9/11. Just Look at the 2000 Debates.

(PHOTO: George W. Bush and Al Gore debate each other in the town hall presidential debate in October 2000).

If you want a good indication on the anniversary of 9/11 of just how much our world has changed since that day, just watch a few minutes of the 2000 presidential debates. My friend Rio Hart reminded me of this last night at dinner I had with him and other friends. The principal national political conversation actually surrounded around how the next president should spend the $200 billion federal budget surplus left to us by President Clinton. Of course, the next president left office with an over $1 trillion deficit. Other matters of debate included school uniforms and TV ratings; since then, social and cultural issues have since shifted to the advantage of progressives. In the sit down debate, President Bush actually said we should have a "humble foreign policy" in which we don't act like "the ugly American" telling other nations "we do it this way, so should you." Needless to say, 9/11 - and Dick Cheney - changed his mind. Take a look here for yourself:

Saturday, September 7, 2013

Do or Should Presidents Get Credit for Trying?

As President Obama fights for congressional approval of action in Syria, it's worth asking: should presidents get credit for at least putting up a fight even if they fail? 

(PHOTO courtesy Pete Souza of The White House: Presidents Carter, Clinton, Obama, and Bush share a laugh at the dedication of the George W. Bush Presidential Library and Museum in Texas on April 25, 2013).

In the annals of American presidential history, U.S. presidents inevitably get credit for policy achievements that occurred on their watch. Jimmy Carter will be remembered for securing the Camp David Accords, creating the Department of Education, and establishing a national energy policy. Central aspects of Bill Clinton's presidential legacy include comprehensive welfare reform, the creation of the State Children's Health Insurance Program (SCHIP), and the Family Medical Leave Act. George W. Bush left behind a legacy that includes the Medicare prescription drug benefit, AIDS relief to Africa, and the creation of the Department of Homeland Security. Thus far, Barack Obama's most notable accomplishments include the Affordable Care Act ("Obamacare"), the Dodd-Frank Wall Street reform law, and the repeal of the military's Don't Ask/Don't Tell policy. 

However, presidents' legacies also include significant legislative failures that are not usually highlighted in their libraries and the fights these presidents put up for causes they believed in are, at times, not heralded by historians if they failed. Each of the aforementioned presidents have suffered devastating legislative defeats. For Carter, it was the failure to pass his economic stimulus bill, consumer protection legislation, and welfare reform. For Clinton, it was the failure to pass health care reform and middle class tax cuts he promised in his 1992 campaign. Bush barnstormed the country vigorously for partial privatization of Social Security and for immigration reform in his second term but neither came to fruition. So far, Obama has failed to secure repeal of the sequester, in effect since March, and his passionate months-long campaign for gun control legislation ended in a stinging Senate defeat of background checks. 

Interestingly though, despite these failures, most of these presidents also saw the items they fought for so intensely go on to become the law of the land in future administrations. Carter's vision for large federal economic stimulus and a consumer protection agency came to fruition under Obama, who signed into law the $826 billion American Reinvestment and Recovery Act in 2009 and created the Consumer Financial Protection Bureau (CFPB) as part of Dodd-Frank in 2010. Carter's support of welfare reform was later championed by Clinton, who signed into law welfare-to-work legislation in 1996. Clinton's campaign promises of middle-class tax cuts and health care reform were accomplished by Obama - who signed into law "making work pay" tax credits, a two-year payroll tax holiday, and Obamacare. Bush's signing of sweeping federal national security powers were akin to proposals first backed by Clinton after the 1995 Oklahoma City bombing. Bush's vision for immigration reform still has a solid chance of becoming law in the next year; it passed the Senate last June and has the votes to pass the GOP-controlled House. Some of Obama's gun control proposals could still pass before he leaves office but his predecessor, Clinton, actually secured a now-expired assault weapons ban and the Brady Bill -- and it is entirely possible a future Democratic president will achieve gun safety reforms. 

Therefore, this dilemma raises the question: do the presidents who fought for but ultimately lost battles to change public policy deserve any credit for at least putting up the fight? Should they get credit?

On the one hand, there is a school of thought that says yes, they should get credit. Presidents who failed to enact proposals they fought for do sometimes lay the groundwork for those policy initiatives to gain traction in the future. They set a precedent, help convince more of the public of their rightness (in their view), bring that idea into the mainstream, insert it into the national political debate, coral their party and its apparatus around a cause, and allow for future presidents to learn from their mistakes or draw inspiration from their fights. Further, as Sen. Elizabeth Warren said, you would have less of a chance of something becoming law if you never fought for it than if you at least tried. 

Carter may have never seen his push for economic stimulus, welfare reform and consumer protections become reality but these ideas outlived his presidency. The public came to support welfare reform. The Democratic Party, a decades-long defender of FDR's New Deal including Aid to Families with Dependent Children, embraced welfare-to-work legislation that eliminated AFDC and created Temporary Assistance to Needy Families (TANF) despite many of its most liberal members in Congress chastising Carter for his initial effort. This change was part of its late 1980s/1990s effort, led by the Democratic Leadership Council (DLC) to remodel itself as a new, centrist party. Bill Clinton explicitly ran on not being a "tax-and-spend Democrat," repeatedly said in 1992 that "welfare should be a second chance, not a way of life," and, to the chagrin of the Congressional liberals, signed welfare reform into law. With regards to consumer protection, a public that is weary of big banks and the excesses of private corporations rallied around stronger government efforts to help Americans fend off scams and abuses. A federal agency devoted to this cause finally became law under Barack Obama, who championed this idea in 2008 and signed it into law in 2010. Economic stimulus, as aforementioned, also became law under Obama, who signed the Recovery Act. 

Bill Clinton's push for health care reform failed both in the court of public opinion and in Congress but the lessons learned from his failed effort were picked up by the Obama administration. It is widely believed among studiers of the 1993-94 fight that Clinton's core mistake was sending an extremely detailed proposal to Congress without allowing them to mend it into something that could pass. Obama's team did exactly the opposite - and though they may have over-learned, Obamacare did pass: they sent broader outlines for what they wanted, allowed Congress to work out the details, and crafted something that passed. Further, Obama repeatedly said he drew inspiration from previous presidents' efforts to push for health care reform - they laid the groundwork for him to make his case to the public and the Congress. By the time Obama fought for what became the Affordable Care Act, more of the public was on board with specific elements of health care reform than they were in 1993. 

When it comes to immigration reform, it should be noted that Obama himself said at the Bush library that if that legislation passes, Bush will deserve credit for being the president who initially fought for it despite misgiving in his party and for providing the impetus for Obama to take up the cause. The Daily Beast's Peter Beinart has already said that despite Obama's failure to get gun control done, "a future president will look back at [early 2013] as the moment when Barack Obama began" to make the "arc bend" in the long struggle to prevent gun violence. Indeed, despite the Senate's defeat of the Manchin/Toomey amendment, a majority of the public supports Obama's proposals for an assault weapons ban (the first time in decades), universal background checks, and banning high-capacity magazines. 

There is another school of thought that says no, these presidents do not deserve credit if they failed, even if they fought so strongly for what they believed in during their tenures. These presidents often fought in the wrong way for their proposals, either refusing to compromise or comprising too much or choosing the wrong fight for the wrong time or misinterpreting the legislature and the public. In the case of Carter, one could easily say that his failure to understand Congress, a body then controlled by his own party, and his unwillingness to go along with proposals his party's members wanted in terms of water and bridge projects, defeated his chances of getting a consumer protection agency, economic stimulus or welfare reform done. Clinton underestimated public opposition to health care reform at a time when the country was still largely conservative in its mindset and his team misinterpreted how Congress would react to a very detailed proposal. Bush underestimated the extent of opposition within his own party to immigration reform thus causing a comprehensive bill to be defeated. Obama overestimated red-state Democrats' willingness to fight for nationally popular causes that these Senators thought would be unpopular in their Republican states. In this school of thought, what is important is the bottom line: did the president get what he wanted to get done achieved or not. 

In truth, both of these schools of thought have legitimacy to them. Neither is entirely in the right. However, certainly the bottom line is what is crucial in terms of legacy. President Obama will always be remembered for Obamacare and there will be no asterisk in summaries of his presidency saying how President Clinton fought for it and laid the groundwork for Obama. President Clinton will always get credit for getting welfare reform done and there is no asterisk in summaries of his tenure saying how President Carter tried and failed in that fight. Perhaps that is not fair but in politics, much like professional sports, winning is often the only thing that matters in the end.