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What if We Abolish the Electoral College (concluded)

Principled and historical reasons can be lodged for and against the Electoral College, but the present partisan divide indicates that both Democrats and Republicans believe that if the national popular vote had been determinative, Al Gore would have won the presidency in 2000 and Hillary Clinton in 2016. However, that should not be assumed because if the popular vote had controlled, the vote totals for the candidates would have been different.

With a direct election, all voters throughout the country would have had an equal incentive to vote because all votes would have mattered equally, which, of course, does not exist now. An additional 50,000 votes for Trump or Clinton in New York or California or Texas would have changed nothing under our present system. With the direct election of the president, voters in safe states would have more incentive to go to the polls than now, and we would probably have more voters. My guess is that the minority candidate in a “safe” district would especially benefit. Where I vote, Democratic candidates are almost assured of winning not only the presidential vote, but also for all the other ballot spots. For many people, it is more satisfying to vote for winners than losers. If I had supported Trump, it would have taken some unusual strength to do the dispiriting thing of walking the block to the local junior high to fill in the bubble in front of Trump’s name because he was going to lose New York overwhelmingly. But, of course, the comparable dispirited Clinton supporter also existed in Alabama and Mississippi. I don’t know how the totals would have changed, but if the Electoral College had not existed in 2016, I am confident the totals would have been different from what got tallied as the total popular vote.

The direct election of the president would probably increase the number of voters. It would definitely change the nature of the campaigns. With hindsight, Hillary Clinton was criticized for not campaigning in Wisconsin. That criticism is understandable. She polled 27,000 fewer votes than Trump there giving Trump won the Badger State’s ten electoral votes. The critics’ assumption is that if Clinton had campaigned harder in the Dairy State (should a state be allowed two nicknames?), she might have switched some Trump voters to her or, more likely, convinced some who voted Libertarian or Green to vote for her. And perhaps more campaigning would have meant that some of those who sat on their hands would have come out to vote for her. If her campaign had brought one percent more to the polls to vote for her, she would have won Wisconsin.

That one percent, however, would have been about thirty thousand more votes. With a direct election, this extra targeting might not make sense, and Clinton probably would have spent more time in several other states where she, and Trump, did little campaigning—California and New York. Candidates do visit these states, but usually for fundraising, not traditional campaigning. The assumption under our present system is that both these states are safe for the Democrats and campaigning there by both sides is a waste of time. If the national popular vote controlled, however, both Hillary and Donald would have made campaign efforts in these states since an increase of a one percent turnout for the candidates in those places could mean 100,000 or more votes to the national total.

The abolition of the Electoral College would not just mean a change in the location of campaign efforts, it would also make a difference in campaign promises. Think about Iowa and the primaries. Don’t all candidates swear to defend ethanol because they think defending the corn crop is high on the list of Iowa voters? If Michigan is viewed as a swing state, candidates appearing in Lansing or Battle Creek can be expected to make promises that especially appeal to Michigan voters. In safe states, such as Alabama, Mississippi, and Louisiana, candidates do not have to make the kind of pandering promises they make in swing states. If, however, each vote truly mattered as much in Mississippi as in Michigan, candidates might have the same incentive to pander in both places.

But under the system we have, and I expect that we will continue to have, each vote for president is not equal. The swing states count more and get more from the candidates.

As a result, however we view the structure of our government, we should not refer to it as a democracy.

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What if We Abolish the Electoral College?

Prominent Democrats have called for the end of the Electoral College, that unusual device through which we select our president. A Representative from Hawaii has introduced a constitutional amendment to abolish it and use the national popular vote to choose our chief executive. Conservatives now defend the Electoral College. You might think this indicates some sort of principled split over basic constitutional principles; you might think that if you were ill-informed. The defenders of the present system, of course, want the status quo because they believe it favors Republicans while the reformers believe Democrats would benefit from a national popular vote. These inclinations are fueled by recent history. Twice in the last generation we have inaugurated presidents who did not get the most votes, and both of them were Republicans.

We did not always have this partisan divide over the Electoral College. The 1968 election produced a close national popular vote but a much wider margin in the Electoral College. Six months before that election, 66 percent of Republicans and 64 percent of Democrats stated that the Electoral College should be replaced with a national popular vote. After the election, 80 percent of Americans supported changing the electoral system. In 1969, the House, by 339 to 70, passed a constitutional amendment to select the president by popular vote. The proposal, however, was filibustered to death in the other chamber by Senators from small states.

If such an amendment could not make it through the Senate when the populace overwhelmingly favored it, a similar amendment has no chance in the Senate today. However, reforms of the Electoral College are possible without a constitutional amendment. Most states now have a winner-takes-all approach to the allocation of their electoral votes. Whoever garners the most votes receives all the electoral votes. This method of allocating a state’s electoral votes is a prime reason it is possible for a candidate to get the most votes nationally but lose in the Electoral College. The winner-takes-all rule is not constitutionally required, and some states have modified it by giving an electoral vote to the candidate who wins the most votes in each congressional district with the state’s two other electoral votes going to the candidate who wins the state. Other states have signed onto a national popular vote bill that would give each state’s electoral votes to the candidate who receives the most nationwide votes. The bill would take effect in those states when jurisdictions with a combined 270 electoral votes have enacted it. (Fifteen states with a total of 189 electoral votes have already passed it.)

I think that in a land that likes to tout a government of “We, the People,” the direct election of the president would probably be a good thing. Surely, “We, the People” can be an aspirational concept under our present system where a candidate who does not get the most votes can become president. But in the unlikely event that we get to some system where the president is elected by the national popular vote, we will deepen current controversies about who gets to vote.

We don’t have national voter standards, and this is a problem if the national popular vote is to determine who will be president. For example, states have different laws concerning the disenfranchisement of convicted felons. A few states allow all to vote. Some states permanently bar convicts from voting. Some states prohibit those in prison from voting. And so on. As a result, a higher percentage of the population can be eligible to vote in State A than in State B. And of course, identification laws for voting and provisions for early voting mean some states make it easier or harder to vote. A true national popular vote should have uniform standards on voting eligibility and procedures, but we now leave that to the states. Getting to the needed uniformity seems unlikely even if we managed to implement the direct election of the president.

While states disenfranchise differing portions of its citizenry make a true national popular vote impossible, the direct election of the president would at least lessen the fact that some votes count a lot more than others in our present system. I vote in New York, but my vote for president is, in a practical sense, meaningless. Last election, I could be confident that no matter whether I voted or not, all of New York’s electoral votes would go to Hillary Clinton because she was certain to get a majority of the state’s vote. In any “safe” state, be it California, Texas, Alabama, Mississippi, or elsewhere, it is clear who will get the electoral votes, and it does not matter whether the winning or losing candidate gets more or fewer votes.

The truly important voters throughout the country are in the “swing” states. In 2016, the votes in Wisconsin, Michigan, and Pennsylvania mattered much more than in other places.  Each swing-state voter, and non-voter counts much more than those in the safe states. That may not seem American, but it is the American way.

(concluded April 12)

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Back to the Future? Really?

My parents rained on parades. This was partly because although we had enough money to get by, we did not have more than that. The family would not have the latest model car, a second home, or exotic vacations.  There would be a used Oldsmobile (my father’s invariable choice) and a week on a nearby lake if some friend or boss made a cottage available. There would be adequate clothing, but no one would be a fashion plate. And who needs to go to restaurants? This was not a terrible hardship perhaps because things like smartphones and Air shoes and overly expensive dolls and other toys did not exist. On the other hand, I remain frugal today–perhaps excessively so–as a result of my upbringing.

The dampening, however, was not just about material expectations; it was about life in general. Some typical interchanges: “It’s a beautiful day today.” “Yes, but it’s supposed to rain tomorrow.” Or: “We won the ballgame!” “Yes, but you play the (powerhouse) next time.” And: “The Halloween party is going to be great.” “Well, it is probably going to be much like the one last year, and I am sure you remember that.”

The point, I guess, was to avoid disappointment. If you did not expect much, you would not be dashed, crushed, or frustrated by what happened. And if good things did happen, then you could feel good. But, of course, only for a brief time because disappointments were always just around the corner. By spritzing on expectations, my mom and dad no doubt thought they were being good parents by shielding us from disappointment.

My non-binary progeny, like many young children, often had great enthusiasm for some coming event. Often I knew that the occasion would not live up to the NBP’s excitement. My instinct was to act like my parents. I needed to protect that precious little one by referring to my experiences to show the NBP how it was unlikely to meet such high expectations. Then the prog (pronounced as if it were “proj”) would not be disappointed. In the beginning I may have done that, but then I realized that such a speech only deprived the NBP of pre-event excitement. If the event truly were a bust, then there was no enjoyment whatsoever. My NBP taught me what had been drilled out of me in childhood: enjoy the buildup to something. Get that enjoyment no matter what happens later.

This practice was put to a severe test at Orlando’s Universal Studios when the progeny spotted the Back to the Future ride. The prog had loved the movie and was eager to go on the attraction. But I knew some things about the NBP and one of them was that thrill rides were not just undesired, they were to be avoided at all costs. (Another reason to love that kid. If the NBP had liked roller coasters, I might have had to endure them also. But the last time I had been on such a thing, admittedly quite some time ago, I felt sick for hours afterwards.)  I have no idea what the prog thought this ride was going to be, but I knew it was going to be awful for both of us. As we endured the long line, the NBP’s excitement grew and grew, and I kept debating with myself whether to abandon ship, or in this case, abandon the DeLorean. The more time I internally waffled, the more excited the prog became.

We did it.  It was not a ride that plunges and twists. It was worse. It was one of those virtual reality things where you do not get sick from real motion, but through the trickery of projections. You know it is a trick, but still it makes you scream. You feel scared and stupid.

We came out, and it was clear the progeny had been terrified and was not a happy person. I am sure that it lasted but a few minutes, and the wait for the ride with the building excitement had been much longer—in other words, the period of enjoyment had been much longer than the period of disappointment (and terror)–but this time in not taking away the NBP’s expectations I was not sure that I had done right. I feared that the terror, even if brief, outweighed everything that had come before.

What should a good parent have done?

Recently the now grown-up child and I had dinner, and the Back to the Future ride came up.  Although it happened decades ago, the NGC remembers it vividly.  I asked if I had been a bad parent not to have announced a warning. The NBP shook the head no. But then again, the progeny was expecting me to pick up the restaurant bill. (If you meet the NBP, ask about the Disney ride, It’s a Small World, and you will be convinced that, at least some of the time, I was one terrific father.)

[And the world needs to invent new pronouns.]

 

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My Sky and Telescope Limit

The newspaper article (https://www.nytimes.com/2019/03/26/science/astronomy-magazine-telescope.html) said that Sky and Telescope, a magazine for the armchair and more serious astronomer and the amateur telescope builder, was for sale. The magazine’s corporate parent was in bankruptcy and, thus, the sale. Sky and Telescope’s editor maintained, however, that the magazine itself was financially strong and expressed confidence that the publication would survive without missing an issue. The article taught me something I did not know. I had never thought much about the magazine’s name, which just seemed natural considering its content, but the newspaper story said that the magazine was founded in 1941 by Charles Federer, Jr. and his wife, Helen Spence Federer, by combining two publications: The Sky, published by the American Museum of Natural History, and Telescope, produced by the Harvard College Observatory. Mostly, however, the article made me think back to when I subscribed to Sky and Telescope in the aftermath of Sputnik.

October 4, 1957, felt like a date that would live in infamy. The Soviet Union launched Sputnik, later to become Sputnik I, the first artificial satellite, and the United States had an existential crisis. Mr. Cutting, my sixth-grade social studies teacher, whom I admired, said to the class the next day, “America is no longer the leader of the civilized world.” The 180-pound sphere with a two-foot diameter a couple hundred miles above us provoked many similar panicked responses. Russia was ahead of us into space. That must mean they are ahead of us in many areas. Other countries will see that we are second-rate and will not want to follow our democratic ways. The world will soon be dominated by commies. But it may not matter because the Soviet Union could launch orbiting weapons that we can’t defend against.

Within a few days after Sputnik’s radio signals were heard by many earthlings, President Eisenhower addressed the nation to calm the public. He conceded that the United States had to be better at science and technology, and the coming years would see the federal government sharply increase its spending on education. But for me the effect was more immediate. My teachers regarded me as bright (on this I agreed with them), and if I was going to be a patriotic American, I needed to be even better in science.

Science, however, did not mean botany or biology or geology. As far as we knew, our communist enemies weren’t ahead of us in these areas, and in any event, they didn’t matter much. Fission and fusion and thrust and telemetry mattered. Perhaps study chemistry, but better yet, be a physicist, and even better yet, be an astrophysicist. “Reach for the stars, young man” was more than a generalized aspirational slogan. No, really, reach for the actual stars or at least the moon and planets.

I joined school science clubs and participated in school science fairs. I went a step further. An astronomy club met at the public library. I was the only kid. I don’t know how much the other people actually knew about the stars and planets, galaxies and novas because I understood little of what they said. The library, however, had copies of Sky and Telescope on its magazine rack. I thumbed through the issues and decided if I were going to help save America from the red menace, I should subscribe, which I did from saved lawn-mowing and dog-walking money.

I would go through the magazine shortly after its monthly arrival, and I would have said the opposite of what so many Playboy purchasers said: “I got Sky and Telescope for the pictures, not the articles.” Those articles were written by professional astronomers and were way beyond my comprehension, and perhaps for the first time I may have realized I was not always as smart as I wanted to think I was. The pictures of spiral galaxies, Saturn’s rings, double stars, eclipses, however, were simply beautiful. They mesmerized me.

I wanted to understand what was written in Sky and Telescope but never enough to try to work at obtaining that understanding. I was content to have the magazine as a different kind of picture book from the ones I had grown up with. (However, I insist–absolutely insist–that I did read, and understand, articles in Playboy.)

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Snippets

I get emails telling me about dangerous and unusual situations on or near the campus where I am teaching a seminar this spring. The headline for one caught my eye because I would have thought it was more than common among college students. It said, “Crime Alert: Fondling.”

 

Pleasuring yourself.  Self-abuse.  How can these mean the same thing?

 

During my first spring in New York, I spotted in a deli a tray of triangular cookies or pastries that had a prune or poppyseed or apricot jam filling. I liked them, but after a few weeks they disappeared only to reappear again the following spring. I heard them called hamantaschen. (The spellings vary. And although hamantaschen is actually a plural, it is often used as the singular—thus, “I ate a hamantaschen.”) I learned that these delights were part of the celebration of Purim, which honors a story in the Book of Esther where Haman is the bad guy. (Purim is also celebrated in Orthodox Jewish neighborhoods by children wearing costumes and masks—something like Halloween.) Hamantaschen like crocuses became for me a sign of spring, but soon many bakeries abandoned their seasonality and had them throughout the year. Although they tasted the same, they seemed less special now that I could have them at all times. Even so, each spring I seek them out. Besides their yearroundedness, they have changed in another way. Recently I went into a bakery in a desirable, but not particularly Jewish, Manhattan neighborhood for my springtime fix. I found many, many varieties of hamantaschen. They were filled with the likes of brownies and coconut cream and red velvet cake, and they were very expensive. Somehow this offended me, and I almost said aloud, “Jesus F. Christ! These are not traditional!”

 

“Obscenity is the distinguished hallmark of a sadly limited vocabulary.” Gail Honeyman, Eleanor Oliphant Is Completely Fine.

 

The handwritten sign in the bar’s window said:

Here’s to Strong Women

May we know them

May we be them

May we raise them

When inside, I said to a favorite server that the sign was offensive. She asked if that was because there was no reference to men, and I replied, “No. Because there should be another line: ‘May we love them.’ ” She gave me a thumbs up and a fist bump. When a bit later I saw the at-least-once-burned owner and said the same thing, she snapped back, “No one believes in love anymore.”

 

“To experience it stoned, in the company of a charming, totally delighted schizophrenic girl—that’s the only way to see Disneyland.” Jean Stein, West of Eden: An American Place.

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Principles and Partisanship (concluded)

The National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. The act had a laudable and limited purpose. When a national emergency suddenly arises, action might be needed before Congress, which might not even be in session, could act. The president was given authority to address the emergency.

Normally when the president wants to take action that requires money, he must convince Congress to allocate the money. He cannot just take the action without congressional authority. President Eisenhower wanted an interstate highway system in part because he thought it would aid our national defense. These roads required money. Eisenhower had to persuade Congress to authorize the construction. If he had been unable to convince the legislature, he could not have built the roads. A constitutional branch, co-equal to the executive, would have properly exercised its discretion against the highway system.

Congress has considered the problems at our southern border. No emergency has arisen which the legislature has not had time to examine. Congress has exercised its constitutional power and decided how much should be spent on a border wall. Through the national emergency declaration, Trump seeks to disregard or overrule that congressional decision and usurp the constitutional power of the purse given to Congress.

As far as I know, this is an unprecedented use of the national emergency authorization. No president before has sought to use the National Emergencies Act to do what Congress has expressly decided against. (Trump’s action in a broader sense, however, is not unprecedented. In what we call the Iran-Contra affair, Reagan sought to do what Congress had expressly forbidden, and, unlike Trump’s action, tried to do it in secret and without a fig leaf of a law supposedly allowing the president’s actions.)

The defenders of the president say that even if his action is unprecedented, it is authorized by the National Emergencies Act, in which Congress gave him legislative powers. This reading of the National Emergencies Act raises an important constitutional question. The Constitution’s Section 1 of Article I states, “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress legislates; the president executes. That was the design of the Constitution. Can Congress change that and cede its powers to the president so that the president can both legislate and execute?

Congress, in fact, put unusual provisions into the National Emergencies Act to constrain a president’s power. That law originally said that a presidentially-declared national emergency ceased if “Congress terminates the emergency by concurrent resolution. . . .” That Act put strict time limits on the consideration of an emergency-termination resolution. That proposed resolution had to be reported out of committee within fifteen calendar (not business) days and voted on within three calendar days. If it passed in one House, the other House had to report it out of committee within fifteen calendar days and voted on by the second House within three calendar days. The requirement for a vote meant that Senators could not filibuster the resolution. If the provision passed by the Senate did not match the one passed by the House, the Act required a conference committee report within six calendar days and the Senate and House action on the conference committee report within another six calendar days.

These provisions worked together so that a congressional minority could not block the rescission of a president’s emergency declaration. A minority could not bottle it up in a committee, and Senate or House leadership or a minority could not prevent a vote. If a majority in each body wanted the termination of the declaration, it would be terminated. And because the concurrent resolution did not require the president’s signature to take effect, the president could not veto it. President Trump, however, has vetoed the present congressional rescission of Trump’s “emergency.” If thirty-four percent of only one house does not vote to override the veto, a national emergency stays in place, as this one has because the House did not override the president’s veto. The National Emergencies Act was structured to prevent such minority power. How did that change?

Time to bring in that third branch of government and the Supreme Court’s 1983 decision of Immigration and Naturalization Service v. Chadha. The Immigration and Nationality Act allowed the Attorney General under certain circumstances to suspend deportation of an individual if the deportation would cause “extreme hardship.” Under that Act, however, either house of Congress could veto the AG’s determination and then the deportation would have to occur.

In Chadha, the Supreme Court held this veto unconstitutional. The Court decided that the veto was legislation, and a proposed law must be passed by both Houses and presented to the president for a possible veto. With the Chadha case in mind, Congress in 1985 amended the National Emergencies Act, leaving all the congressional termination provisions intact so a congressional minority still can’t prevent a vote on a termination resolution, but changing “concurrent resolution” in the original law to “joint resolution.” This joint resolution is the equivalent of a law and has to be presented to the president who can veto it. If it is vetoed, as Trump has done, a minority in one house can thwart the majority in both houses. The president will have legislative authority and power over the purse that the Constitution gives to Congress. Can the Constitution be changed in such fashion without an amendment?

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Principles and Partisanship

 

When Congress abandons legislating, power flows to the president, upsetting the separation of powers the founders sought to constitutionalize. Kaiser notes, “The preeminence of presidents had been a widely accepted proposition for half a century, despite the founders’ clear expectation that Congress would be the most influential branch of government.” We now expect that the president will set the agenda, legislative and otherwise, and the executive branch, not Congress, primarily drafts the legislation.

This accretion of presidential power has occurred no matter who occupies the White House, but this shift has also been pushed by a brand of conservativism. These ideologues speak of the “unitary executive.” On one level this is a constitutional truism. Our constitution does vest the executive power in a president, not in a group.  Section 1 of Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” But when these conservatives support the “unitary executive” they promote their theory that presidential power is expansive, perhaps unlimited, when it comes to national security and that Congress cannot interfere with what these conservatives consider to be executive power. This is not the place to explore these concepts and their apparent contradiction with constitutional originalism except to note that the president, who now has powers never dreamed of by the founders of our country, should have even more under the “unitary executive” theory.

Power has also flowed from Congress to the president because Congress has expressly ceded power to the president. An example came after 9/11 when Congress authorized the president to use force against anyone person or entity the president “determines planned, authorized, committed, or aided” the terrorist attacks. The president was granted the power to take warlike actions if the president found certain facts to be true—in this case that a country, organization, or a person was involved in 9/11. Congress placed no restriction on this presidential factfinding and provided for no review of the decision. Congress washed its hands of determining who or what is our enemy and left it to the president to tell us who we will try to kill and subvert. Instead of checks and balances, instead of separation of powers, Congress decided to honor Ricky Nelson: “I will follow you/Follow you wherever you may go. . . .”

We see a similar pattern in one of the significant present controversies—the setting of tariffs. Tariffs have been a recurrent issue in this country’s history, but these were congressional battles because the Constitution gives Congress the authority, and no other body, the power to set tariffs. Section 8 of Article I states, “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. . . .”

However, today we have the president unilaterally determining the existence and level of tariffs. This is because Congress passed a law that grants the president tariff-setting power when it is necessary for “national security.” Congress neither told the president how to determine when the national security was at stake nor set up a review mechanism for that determination. The president apparently was granted total discretion. Congress may have assumed that a president would only exercise this power in good faith, but it did nothing to insure good faith. Instead, simply by invoking national security, the president can take over the legislative tariff authority. If, as apparently was determined by the president, Canadian pine boards and two by fours are a national security concern, then anything that we might levy a tariff on must be a national security issue. Congress may have thought that it made a limited grant of power to the president by including the national security limitation, but in fact, the way President Trump has used the authority, Congress has ceded its legislative power over tariffs to the president. In essence, Congress amended the Constitution with the act.

The Constitution gives Congress the power of the purse. Section 9 of Article I states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .” The border wall dispute raises the issue whether Congress has ceded this fundamental power to the president, too.

(concluded April 1)

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Principles and Partisanship (continued)

Following Ronald Reagan’s footsteps, Newt Gingrich also did much damage to an effective government. The House changed fundamentally after the 1994 election when Gingrich became Speaker. He believed in and practiced all-out political warfare. While he demonized the Democratic party as much as possible, his important battles were often against Republicans. Gingrich put a premium on party loyalty and purity as he and his cohort defined it. A Republican who cooperated with Democrats, who even socialized with them, was an anathema to be driven from the party. A compromise with the Democrats, even if it might advance important legislation, was to be prevented or punished as consorting with the devil. Coalitions across party lines increasingly became an act of tremendous political courage.

Newt Gingrich not only increased partisan rhetoric and imposed strict party discipline, he, in effect, abolished what had always been an important congressional device, the conference committee. Seldom do the House and Senate pass precisely the same version of a bill. If they don’t, those differences need to be ironed out and the uniform bills returned for a vote in each house. The conference committee served that function for two hundred years, but the traditional conference committee was composed of members of both parties from each house. Gingrich was not going to have that because it gave minority Democrats, whom he had demonized to get a Republican majority, a role in the process. Instead, Gingrich insisted that the Senate negotiate differences in any bills not in a conference committee but with him and the House leadership. And in the tit-for-tat world of the modern Congress, when Democrats regained control of Congress, they continued Gingrich’s practices that threw out the conference-committee tradition. Now only a few bills that become law are vetted in a conference committee.

Thee disappearance of conference committees means more party discipline, less outreach across the aisle, and more partisanship. If Senators or Representatives no longer negotiate with members of the other party but only with the leadership of their own party, members of Congress become more and more trained to follow what the leadership wants. Political independence wanes. The legislation that is enacted becomes more political and less the product of thoughtfulness and expertise.

Few in Congress today leave their imprint on any important legislation. Their chief goal is to get reelected, and they have been taught by political consultants that substantive achievements are not the path to another term. Think back to the last congressional election in your state and district. How often did incumbents tout legislative successes? If anything, the connection to important legislation can often be detrimental, for the passage of a bill almost always requires compromise. In safe districts and states, the main obstacle to a return to Washington is a primary challenge where a compromised ideological purity can be a detriment. It’s better to remain “pure” than have produced imperfect but still valuable legislation.

As a result of these many reasons and trends, Kaiser notes that in today’s Congress, “Legislating is no longer the principal preoccupation of our legislators. Most commonly, it is politics by sound bite.” And snippets for the media seldom require any deep understanding of the issues. There is little incentive to do the hard work of mastering substance. Congress has become dominated by people with political skills but limited expertise, and this makes thoughtful legislation unlikely. Conference committees used to bring some expertise to bear on the final legislation. Conference committee members participated in hearings, and their staffs developed knowledge about the issues. Conference committee negotiations did have a concern with the legislation’s substance. Now, however, the negotiations are with the leaders of the Senate and House, and they and their staffs have not developed expertise about the substance of the proposed law. Instead, the overriding goal of the leaders of the Senate and House is to keep their party’s majority. They will be primarily care about the political impact of the legislation. When the leaders supplant conference committees, the quality of legislation suffers.

(concluded March 29)

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Principles and Partisanship

Ronald Reagan also changed the Republican party by proclaiming that government was the enemy. Following Reagan, Republicans did not promise to govern more efficiently or more wisely than Democrats. Instead they denounced government as the problem and promised to oppose government. When the GOP was primarily a party of big business, Republicans may have supported measures to improve capital markets or certain sorts of infrastructure spending that could help businesses. At one time, they might have been concerned about climate change because of the harm it could do to the economy. But no longer. Government is the enemy except, perhaps, for defense spending and building a border wall. It is bad or evil if it accomplishes anything else. And what better way to lessen government than by reducing taxes, especially on those who support me, the rich and the corporations. If you proclaim government is the enemy, then creating a dysfunctional Congress is a godsend.

It followed, then, if lack of government and dysfunctionality are desirble, Republicans increasingly used cloture. Cloture is the procedure that requires sixty votes for a Senate action. It was once the method of ending a filibuster. Even though the Senate no longer has those throat-draining, sleep-depriving filibusters of yore, the threat of a filibuster can still require cloture, or a three-fifths vote, for the Senate to move on. In 1970, there were fifteen cloture motions. In the 1980s, for a two-year Congress, the Senate never had more than eighty cloture motions, but when the Democrats gained the Senate majority after the 2006 elections, the Republicans seeking to block the majority filed 139 and 137 cloture motions in the 2007-08 and 2009-10 Congresses. Mitch McConnell, the Republican Senate leader, had adopted the threat of a filibuster as a basic tactic.

By preventing the majority from acting, cloture conforms to the idea that government is the enemy, but it also fits the new conservatism in another way. Traditional conservatives pledged to support traditional values and practices. The new conservative Senate Republicans led by McConnell changed that. Traditionally, cloture was rare. Under McConnell, those Senatorial values were abandoned to the greater partisan good of denying Democrats the ability to act. Tradition be damned.

McConnell’s famous statement that his priority was to make sure that Barack Obama was not reelected elevates partisanship over country.  McConnell was not interested in whether an Obama proposal was good for the country, only in denying Obama victories that might get that president reelected.  Something similar was at work with the Dodd-Frank act, Kaiser indicates. Connecticut Senator Christopher Dodd, who was vulnerable to electoral defeat the following November, decided not to seek reelection. Kaiser concludes that Dodd’s decision greatly aided passage of the act that sought to prevent future 2008-like financial crises. McConnell did not do everything within his power to defeat the act. However, Kaiser maintains that if Dodd had sought to return to the Senate, McConnell would have spared no effort to defeat the bill. He would have wanted to deny Dodd a victory that Dodd could have touted in his reelection campaign. Partisanship before the good of the country.

The Dodd-Frank history also shows that partisanship came before honest debate. Republicans opposing the bill simply made up stuff about what was in the proposed legislation. It didn’t matter if what they said was true as long as it sounded like it was true to partisans. Distorting the truth kills serious discussion, for, Kaiser points out, “Without an agreed set of facts, meaningful debate is impossible.” The make-stuff-up crowd has only increased since then. It hardly matters if it is demonstrated a conservative’s facts are fantasy. (We are not just talking about the president here. The fact-checking sites have found that conservatives make “misstatements” more frequently than non-conservatives.) The fantastical just keeps coming. What Christopher Dodd found out a decade ago has even wider application today. He tried to shame Mitch McConnell about his indifference to the truth. Kaiser wryly remarks that shaming McConnell was “not an easy task.”

(continued March 27)

Posted on by rjonakait · 1 Comment

Principles and Partisanship

The congressional vote to rescind the president’s declaration of a national emergency at the southern border fascinates. It lines up partisanship against principle and will probably indicate how little principles matter. Although many Republicans claim constitutional ideals that should lead them to vote against the declaration, few will.

On March 1, 2019, I posted an essay about the 1977 controversy over the Panama Canal Treaties. Proponent of the treaties thought them desirable because they gave America the right to ensure the canal’s neutrality while removing a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal.  The treaty advocates maintained that the treaties would increase the security of the canal by helping to remove the threat of guerrilla attacks, which were almost impossible to defend against.

While prominent conservatives, including Henry Kissinger and William Buckley, backed the treaties, other conservatives in near-hysterical terms attacked ratification.  The treaties, they argued, were a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist.  Communists would control the canal and Panama, and the subsequent harm to the US would be incalculable. The anti-treaties conservatives made the vote on the Panama Canal a litmus test for a new conservatism. Senators supporting adoption of the treaties drew the ire of a newly mobilized conservative mass. Some Republican Senators, however, did recognize that the treaties were good for this country and voted to ratify. These principled politicians were not rewarded with profile in courage badges. Instead, almost all those Republicans voting yes paid a price imposed on them by the booboosie conservatives. On the other hand, history has shown that those who opposed the treaties were not only wrong but often quite stupid in their opposition. Even so, the opponents of the treaty often benefited from their opposition.

Although the actual controversy over the Panama Canal Treaties may be largely forgotten (which is not surprising since many in Congress show the most superficial knowledge of our history), the political consequences of the treaties battle have been absorbed into the conservative DNA. Don’t vote your principles if that goes against what the right-wing rabble wants. You may lose your office as the conservatives whip up conservative opposition to you.

Even back in 1977, only a few conservatives could bring themselves to vote for the treaties, either because they were not bright enough to understand it was the right choice or they felt more partisan than principled. Since then Congress has become even more partisan and elected Republican conservatives even less principled so the needed Republican votes against the “national emergency” are not likely to be there. (This is not to suggest that all the Democratic votes against the national emergency are principled. There are many reasons for a vote against the president’s declaration: there is no emergency at the southern border; there is an emergency, but a border wall does not meaningfully address it; the president’s declaration contravenes our constitutional separation of powers. And, of course, partisanship.)

The changed nature of Congress was driven home to me by reading Act of Congress: How America’s Essential Institution Works, and How It Doesn’t by Robert G. Kaiser, published in 2013. The book chronicles the passage of the Dodd-Frank act. In doing so, Kaiser explains how Congress starting in the last third of the twentieth century became increasingly partisan.

Perhaps surprisingly, part of the reason for the partisanship is social. No longer do congresspeople live in Washington. At one time, it was common for Senators and Representatives to move to Washington and raise their families there. That led to socializing across party lines. The demonization of opponents was less likely if the politicians frequently shared bourbon, veal cutlets, or a deck of cards together. But representatives now seldom get to know each other. Instead, conservatives increasingly made “Washington” an epithet. Anyone who spent excessive time there was suspect. Then Congressional rules increased reimbursements for travel to home districts. The Washington work week is now generally three, and at most four, days, and representatives go back “home” nearly every week. With lesser contact across party lines, there was a diminished need for politeness.

The demonization of political opponents also increased as safe seats multiplied. Gerrymandering started in the early 1800s, but it changed in 1982 when California drew House districts across the state to increase Democratic representation. Republicans took the hint and became even more proficient at creating safe seats for their party. Kaiser reports that by 2000, 300 of the 435 House seats were secure, and that number has increased since then. Representatives who do not have to seek votes across party lines or even from the center can indulge their political ideology and demonizing rhetoric without fear of retribution.

The cost of elections also increased and fundraising by politicians is now constant. This not only means less time for legislating, it has also led to an era of permanent campaigning. At one time representatives between elections concentrated on the business of governing. They sought respect from their colleagues because this standing made them more effective legislators. Now, always in campaign mode, our representatives are not as concerned with legislative accomplishments as with media attention, which is often garnered with extreme partisanship. We all, apparently, love a good fight and colorful epithets.

(continued March 25)