Sunday, August 30, 2009

When Justice and Politics Part Company

Attorney General Eric Holder's decision to conduct investigations on the CIA presents a serious dilemma for the Obama White House, which was at pains to point out that Holder's decision was independently made. I think the White House is being honest here, because these investigations will only be a distraction from health-care reform. The bigger problem thrown into sharp relief here, however, is that democracies' commitments to justice and the politics ncessary to deliver electoral and governing solutions do not always sit happily together.

The pursuit of justice (which is state-sanctioned retribution) is inherently a backward looking process. It most look to the past in order to establish that a wrong was committed. And to put things bluntly, even when properly meted out, justice often offers only cold comfort to whom injury was inflicted. Epecially in politics, such returns are slow in the coming, if they come at all.

If the pursuit of justice pulls us back in time, the conduct of politics pulls us into the future. Power today is a derivative of the anticipated store of power tomorrow, which is itself a function of whether today's promises are fulfilled tomorrow. Politicians (in active service) don't have time for the past, for they must protect their future. President Obama is looking ahead to the health-care battles to come in the Fall, and he does not want (nor does he need) to be pulled back to rehash a contest with the last administration in which voters already declared him a winner in 2008. Justice and Politics do not go well in this moment, and Obama knows full well that he has more to lose than he has to gain in Holder's investigation. To stay in office, he must offer a politics of solutions, and not the politics of redemption that his liberal base wants.

Strangely enough, Dick Cheney is on the side of liberal Democrats on this one, at least in the sense that he understands that democractic countries are bad war-makers. The difference of course, is that Cheney believes that war is OK, but democratic ends must be met with undemocratic means (while some liberals believe that war - the sport of kings, not democracies - is not OK). In Cheney's own words on Meet the Press in 2001: "We have to work the dark side, if you will. Spend time in the shadows of the intelligence world." Cheney's thorough-going ends-justifies-means philosophy is revealed in his interview with Chris Wallace. "They looked at this question of whether or not somebody had an electric drill in an interrogation session — it was never used on the individual," Cheney said of the inspector general's report. "Or that they had brought in a weapon — never used on the individual." This cavalier attitude towards undemocratic means stems largely from a very sharp line differentiating "us" and "them" in the neoconservative world-view, a line that takes off from a commitment to protecting the demos in a democracy and a characterization of all others as outsiders to our social contract. This line is inperceptible to the liberal eye fixated on universal justice, which presumes the basic humanity of even a terrorist suspect.

Democrats really want to go for Cheney, but they will have to settle for the CIA; Cheney wants to protect his legacy, but he will have to settle for a proxy war. The politicization of justice and the justiciation of politics are reifiying the turf battles between CIA and FBI, the very cause of the intelligence failures that led to September 11 in the first place. The mere fact that we are airing our dirty laundry in public is already having a "chilling" effect on CIA agents and both Cheney and Holder are complicit in this. Justice and Politics are friends to democracy individually, but we are better off without one of them in this case.

Monday, August 24, 2009

Why the President Needs to Re-frame Health-care Reform: What's in it for us?

The only times when words don’t matter is when events speak for themselves, especially in rare crisis moments. In such moments we are not. As a result, many Americans, who already have health insurance, feel no especial need to take a shot in the dark with President Obama on health-care reform. That is why the correct framing of the health-care reform issue is critical. By “framing,” I mean the rhetorical strategy of setting an argument out in a specific way that predisposes a listener to a preferred conclusion.

But on this crucial pre-battle of words, the Obama administration has failed. The president has told 80 percent of Americans that "if you are happy with your present insurance, nothing will change." This is a fatal error. Not only is his message lacking even the slightest hint of a call to collective social responsibility that may help influence Democrats and foot-dragging Blue Dogs, there isn’t even a concomitant sell to unconvinced Republicans about what could be in it for them. The latter error is more egregious than the former, because most citizens are not crusading social workers but consumers of public policy.

The president made a mistake by starting the debate on the defensive. Instead of making a positive case for health-care, he has focused too much on the need to keep the costs of health-care reform down. Accepting and perpetuating the metaphor of the imperative to "bend the cost curve" of federal outlays was foolish, because it accepts the metaphorical entailment that if the trajectory is untouched, the costs of a public option will automatically go up. This leaves unsaid that the costs for health-care without reform is also on an exponentially upward trend. Where is the talk of "bending the cost curve" on the consumer’s end? A public policy cannot be sold by a promise of what it will not be (expensive), but what it will be. For the grand majority of Americans who are privileged to be in possession of health-insurance, they need to know why the president wants to rock the boat. And we are only willing to share our privileges (to the involuntarily uninsured) only if those of us who are already privileged get yet some more (in terms of more affordable, quality health care.) The only way to get over an atavistic distrust of the state is to speak in the currency of consumerism - what's in it for us?

Without a positive case for health-care reform, there has only been confusion out there about what the final health-care bill will look like. Compounded by the fact that there is still no White House plan – Obama is still waiting for Congress to hammer details out - uncertainty and poor framing have engendered the fertile soil on which doubt can and has been planted. In an informational vacuum, stories about death panels and health-care for illegal immigrants have taken hold.

No one but Obama can frame the issue right for him. Not even the “liberal” media can help him this time. Consider the fact that even outlets like MSNBC have been constantly featuring incensed questioners in Town Hall meetings around the nation, albeit with disapproving commentary. The coverage is only reinforcing the growing belief that public indignation around the nation is not contrived or orchestrated but real and widespread. There is no liberal media working in Obama’s favor this time, because the media has a different story-telling agenda than the policy-selling one that the president has. Barack Obama can take that bull-horn and reframe the health-care reform debate, or he can keep playing catch-up to a debate that has already spiraled out of control.

Saturday, August 15, 2009

How Barack Obama can Pacify the Ghosts of Anti-Federalism to Advance the Health-care Debate

As America goes into intensive partisan-battling mode this summer over health-care reform, it may be helpful for President Barack Obama and his advisors to sit back and understand the basis of the rage against their plan. An understanding of the resurrected ghosts of Anti-Federalism in today’s conservative movement may offer him some strategies for bringing the Republicans and Blue-Dog Democrats back to the discussion table.

The rage that is out there among conservatives may seem excessive and irrational to liberals, but it is based on an ancient American quarrel. The differences between the "Birthers" and angry town-hallers and Obama precede the Democratic and Republican parties; they precede the Progressive, the Whig, and the Jeffersonian-Republican Party. They were there from the beginning. For the biggest fault-line in American politics was also the first political debate Americans ever had between themselves. It was the debate between the Federalists and the Anti-federalists about the need for a consolidated federal government with expanded responsibilities.

In 1787 and 1788, Anti-Federalists hurled charges of despotism and tyranny against those who proposed the need for a stronger federal government with expanded responsibilities than was envisioned in the Articles of Confederation. Today, the analogous charges against the neo-Federalist Obama are of fascism and socialism. As Federalists reviled the Anti-federalists for their shameless populism, Obama has likened the angry protests staged by his health-care opponents as mob-like thuggery. Conservatives, in turn, have recoiled at liberal condescension; just as Anti-Federalists fulminated against the Federalist aristocracy.

The Anti-Federalists envisioned a small republic because they could not conceive of their representatives - sent far away into a distant capital and surrounded by the temptations of a metropole - would ably be able to represent their communities. The fear of the beltway and of faceless, remorseless bureaucrats directing the lives and livelihood of honest workers and farmers struck fear into the heart of every true republican (lowercase is advised), as it does the modern conservative. Death-panels weren't the first Anti-Federalist conspiracy theory.

Today's "birthers" and "enemies list" conspiracy theories are not new stories in themselves other than the fact that they reveal the visceral distrust conservatives have of Barack Obama, just as many Anti-Federalists turned (Jeffersonian) Republicans accused Alexander Hamilton of illicit connections with the mother country, England. Today's "Tea Parties" are but the modern conservative articulation that they are, like the Anti-Federalists were, the true bearers of the "spirit of '76.'"

As Cecilia Kenyon observed decades ago, the Anti-Federalists were "men of little faith." This characterization is both accurate and one-sided at the same time, so it is no surprise that contemporary Democrats have taken the same line of attack, calling Republicans the "party of 'No.'" The Anti-Federalists, like today's conservatives, cannot bring themselves to trust the federal government or Barack Obama. Conservatives are using "scare tactics" because they are scared.

But their fears are not entirely unfounded and certainly not illegitimate, because a measure of distrust of government is the first defense against tyranny and the first implement of liberty. Liberals who have been so quick to trust the federal government should not only have a look at Medicare and Social Security, but acknowledge the mere fact that with one half of the country unconvinced (legitimately or not), the country's faith in its government has been and will almost always be a house divided. This is a given fact of a federal republic; it is the blessed curse that is America. That is why in all areas in which there is concurrent federal and state responsibility - such as in education and immigration policy - lines of authority and execution are invariably confused and American lags behind almost every other industrialized country. In areas in which federal prerogative is clear and settled - that is to say in areas in which the federal government acts like any other non-federal, centralized government in the world - such as in foreign policy, the president can typically act very quickly (if not too quickly).

The conservative grassroots movement (staged or not) is a real threat to Obama's health-care plan. But if the movement doth protest too much, it should ironically also be a source of comfort to the president. That there is so much anxiety and push back suggests that conservatives feel genuinely threatened. With Democratic control of all branches of government (and the open possibility of passing the health-care bill via the reconciliation process which will only need a simple majority in the Senate), conservatives believe that the liberals can transform their America into something their parents and grandparents would no longer recognize.

Here then, is the lesson to be learnt. If the president wants to get anything done - he must strike at the heart of the problem: it is one of a fundamental, thorough-going(dis)trust. Barack Obama must convince Republican and Blue-Dog dissenters that he is one of them. Bowing before foreign Sultans and mouthing off about racial profiling did not endear him to conservatives, who only want to feel assured that the president is for them, not against them. These are minor gestures, which is why it won't be tremendously costly for the president to present them as a peace offering. And calling protesters to his health-care plan a "mob" is definitely not a peace offering. It invokes the very perception of condescension the Anti-Federalists felt in 1787, reinforcing the ancient and original "us" versus "them." To unite the country, he must transcend not only party, but ideology, and history itself. Barack Obama must break the legacy and transcend the language of our 222-year-old, bimodal politics. Quite simply, he must convince conservatives that he too can feel, and talk, and protest, and hurt, and fear, and agitate like a latter-day Anti-Federalist; and he is no less intelligent, no less rational, no less compassionate, no less constructive, and certainly no less American for trying to do so.

Update of 9/12: Representative Joe Wilson's now infamous line, "You Lie!" encapusulates the president's atavistic (dis)trust problem in two words.

Sunday, August 9, 2009

The Power of Reconciliation in the Health-Care Reform Debate

There is a lot of hushed talk about using the Reconciliation procedure to pass health-care reform in the Congress these days, so Americans need to know something about this obscure parliamentary procedure, and what is at stake.

Reconciliation is an optional, deficit-reducing procedure that was created in the 1974 Congressional Budget Act. The Reconciliation process is a two-stage process. First, Reconciliation directives must be included in the annual Budget Resolution (as they were in the 2010 Budget Resolution passed on April 29). These directives instruct the relevant Congressional committees to develop (in this case, health-care) legislation to meet certain spending or revenue targets. This year, the Reconciliation process can be used starting October 15, when the instructed committees can send their legislative recommendations to their respective Budget Committees, who then package all recommendations into one omnibus Reconciliation bill. Enter Stage 2,when this bill can then be considered on the floor of both chambers of Congress under expedited procedures; of greatest political note is the 20-hour limit on debate on any Reconciliation measure, which effectively strips the minority party of the filibustering option in the Senate. That means the Democrats can pass health-care reform with a simple majority.

But there is an attendant cost to the majority party for using Reconciliation. The Byrd rule, passed in 1985, sets out the rules for what Reconciliation can and cannot be used for. In particular, it specifies that Senators will be allowed to raise a point of order against "extraneous" provisions in a Reconciliation bill which, among other things, "would increase the deficit for a fiscal year beyond those covered by the reconciliation measure." Critically, cloture must be invoked to overcome a point of order. So the filibuster power is back.

Here's the bottom line. Since the Budget Act states that the Reconciliation measure covers the next ten years, the Byrd Rule had the effect of allowing a point of order to be raised against any spending increase (or tax cut) that does not contain a ten-year sunset provision. That's why the Bush tax cuts, passed via the Reconciliation route in 2001, 2003, and 2005, had sunset provisions written into them. If Democrats use Reconciliation, they will get a health-care bill, but it will expire.

Now let's talk politics. There's a debate within the debate that only seasoned politicos know about. Since the actual benefits of Reconciliation are mixed - a health-care bill can be passed with a simple majority in the Senate but it must have a sunset provision - the real power of Reconciliation is not in its actual usage, but in the mere threat of its usage.

The benefits of issuing the threat of going the Reconciliation route are akin to the threat of a presidential veto. The threat of a presidential veto sets the boundaries of permissible legislative action; it lets Congress know what is out-of-the-question and therefore powerfully guides legislative outcomes in the direction of the president's preferences. By letting it be known that they will resort to Reconciliation if they had to, Democrats in Congress are incentivizing Republicans to be part of the making of a bi-partisan bill rather than be shut out of a purely partisan one. In making the threat, Democrats are specifying the costs of Republican non-compliance to the tune of: "if we let you stay in the kitchen, at least you can determine some of the ingredients in the cake. Make us shut you out and you won't have even the slightest say."

Like the presidential veto, the power of Reconciliation is maximal at the level of a threat. For between the time a threat is issued and the time when a bill is passed (via Reconciliation or not), there is a powerful incentive for Republican Senators to come back to the bargaining table because there is the distinct possibility that they could be shut out. Reconciliation is the Democratic antidote to the Republican Party becoming the "Party of 'No'" For if Republicans keep saying "No," then they box themselves into the plea of Nolo Contendere.

That is why different spokespersons for the Democratic Party are keeping the Republicans guessing and making sporadic and cryptic references to the Reconciliation possibility. And Republicans are trying to minimize the power of the threat by characterizing it as a no-go "nuclear option." Unfortunately for Republicans, theirs is an empty threat because there is no Mutually Assured Destruction in this asymmetric power situation, and it is both a legal and political fact that, as the White House says, the Reconciliation option "is out there." It is a win-win situation for Democrats to issue the threat, for if Republicans are unmoved by the threat, Democrats could materialize the threat and get what they wanted having known that an effort at bipartisanship had failed anyway.

What is missed in the debate out there now is that the effect of Reconciliation is already underway, for its power lies in its threat.

Sunday, August 2, 2009

Professor Gates v. Sargeant Crowley: A Rush to Judgment that Informs our Healthcare Debate

In his press conference on July 22, President Obama's knee-jerk reaction to call what the Cambridge police department did "stupid" was poor form. The president thought he was avoiding the hot spot when asked about the Gates arrest by saying that the controversy offered a "teachable moment." But having admitted that he had imperfect knowledge of the facts, he went on and assumed that this particular incident invited a lesson about racial profiling and made the very indictment that his conversational segway was intended to avoid. In so doing, Obama confirmed conservatives' belief that minorities love to whine about their beleaguered status (also another knee-jerk belief, incidentally) even if Obama could have made a case had he marshalled the evidence appropriately. Obama spoke like a liberal before he thought, and that was his mistake.

In so doing, he repeated the same mistake that Professor Gates made. Like Obama, Gates, too, jumped to the conclusion that Sgt Crowley was racist. I do not know if Sgt Crowley acted hastily in arresting the Professor for allegedly exhibiting "tumultous" behavior, so I won't jump to conclusions but simply note my suspicion that there was probably a contest of egos on both sides. Those who have rushed to Crowley's defence should ask themselves if they do not also have a knee-jerk reaction to give the benefit of the doubt to a law enforcement officer (or a soldier or a partisanly affiliated Commander-in-Chief.)

Gates, Obama, and possibly Crowley were not the only people who have been jumping to conclusions, substituting unreflected intuition for a careful weighing of the evidence. Frank Luntz and his political students are encouraging Americans to become thoughtless automatons responding to carefully researched code words like "government takeover" and "health-care rationing." The issue domain is different, but the error is the same.

It is very difficult to prove racial-profiling, for it demands an investigator to go inside the head of the alleged perpetrator. It is equally difficult to prove that the president's and Democratic Congress's plan for a "public option" is a precursor to a completely government-run health-care system. If it is not appropriate to rush to accuse someone of being racist, then it is at least premature to rush to accuse of someone of being socialist (assuming that that is a bad thing).

Those who are accusing Obama and Gates for rushing into judgment should look into the mirror to see if they too have not rushed to conclude that liberals are whiners and socialists who want a government takeover of health-care. At some level, we all have the instinct to cherry-pick the evidence to come to the conclusions we want.

Ideologies, like sterotypes, are cognitive cues or heuristics. They help us to "think" before we get the facts. They allow us to abdicate our duty to make sense of the world with our own independent judgment. They do the easy but intellectually dishonest work of guiding our reactions to the conclusions we want without us having to do the hard work of getting to know a person or a proposed policy before we came to a judgment. The people who are reinforcing such behavior in our politics are destroying our democracy and robbing us of our first freedom - the freedom of independent thought.

So the Gates controversy is a teaching moment, and the lesson is quite simple. Look before you leap; think before you conclude. It is probably the first lesson of critical thinking, but two professors forgot it last week. If Obama wants us to learn this lesson, he should have been clearer about what the nature of his lapse was. It wasn't that the president miscallibrated his words - for the question wasn't about the intensity of what he said, but the very fact that he said something at all. Obama should have apologized for expressing what he felt and intuited without having first perused the evidence. If he had done that, he would have claimed the moral ground to shame some of his opponents in Congress into admitting that they too are doing the same thing in their knee-jerk opposition to what they call "Obamacare."