Friday, May 28, 2010

The White House's "Quid Pro Quo" with Sestak

A quid pro quo refers to a relatively equal exchange of goods and services. In the emerging controversy over whether or not the White House had attempted to bribe Congressman Joe Sestak, the quid would be the White House job offer and the quo would be the return favor that Sestak drop out of the Pennsylvania Senate Democratic Primary.

The White House has four ways of getting out of the legal trouble of having potentially offered a bribe. The first two are inconsistent, the third is persuasive, and the fourth is circular, but an utterly unassailable argument.

1. There was no quid.

The White House has centered its response on saying that there really was no quid offered, because only an uncompensated board membership was offered. White House Counsel Robert Bauer issued a memo on the Joe Sestak "job" talks on Friday, saying "Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board ... The advisory positions discussed with Congressman Sestak, while important to the work of the Administration, would have been uncompensated."

What is interesting is that while the White House is admitting that a quo was suggested, a quid was never offered. An uncompensated advisory position, according to the White House, is not a job or at least no one that rises up to being a premise for a quid pro quo.

2. There was no pro quo.

In contrast, Congressman Sestak has acknowledge that while a job offer was made, he has thus far not claimed that attached to it was an explicit and directly connected White House request which he was bound to honor should he accept this job.

The Congressman realizes that he has spoken out of line and angered many Democratic Party leaders, because he has given fodder to the Republicans to create a potential Obamagate. That is why, he felt compelled to justify himself. On Meet the Press last Sunday, he said, "I felt that I needed to answer that question honestly ... I was offered a job, and I answered that." Importantly, he did not say that he was offered a job in return for not running for the Senate. If no quo, then no quid pro quo.

3. Quid pro quos are not illegal.

US Code Section 600 reads:

"Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both."

The fact is no one takes US Code Section 600 seriously. This law makes almost every political action (and therefore no political action) illegal in so broadly stating that any one who indirectly promises any benefit to any person as reward for any political activity for the support of any political candidate engages in criminal activity. Well, to this Robert Bauer's memo rightly notes: let s/he who is guiltless cast the first stone.

4. For better or for worse, quid pro quos are a legitimate part of our democracy.

Bauer's memo articulated a rationale for the White House's horse-trade, arguing that "the Democratic Party leadership had a legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House." This is the major principle being debated here and it is ultimately one that no Democrat or Republican can consistently deny.

Even though parties are not constitutionally sanctioned, the Democratic and Republican party have become quasi-constitutional entities. There is no moral justification for their duopolistic hold on American democracy, but our democracy is unthinkable save in terms of them. Things are as they are and that is why not many top Republican leaders are pushing back hard on the White House's misdemeanor.

I'll let a conservative Justice quoting a Democratic politician make their collective case. In his dissent to a case put before the Supreme Court in 1980, Rutan v. Republican Party of Illinois, Justice Antonin Scalia quoted George Washington Plunkitt of New York's corrupt Tammany Hall political machine:

"I ain't up on sillygisms, but I can give you some arguments that nobody can answer. First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay."

And that is that. This controversy will circle around a bit but go nowhere because the real quid pro quo is between the Democratic and Republican Parties, both of which will scratch the other's back in order to protect their continued capacity to pursue techniques that would promote loyalty and discipline within their own ranks.

Monday, May 24, 2010

The Politics of the Gulf Oil Spill

Whereas Rand Paul has gotten into a lot of trouble for his reservations about the Civil Rights Act of 1964, he has received much less heat from his similar response to the gulf oil spill - that even though "accidents happen," government should not be in the business of telling private businesses what to do. Dr Paul got a free pass on this one because the nation is still undecided about what the scope of government should be.

Dr Paul has criticized President Obama's condemnation of BP because it "sounds really un-American in his criticism of business." For Dr Paul, business - even one headquartered in London and responsible for a colossal oil spill - must always be given the benefit of the doubt over the federal government. This is because as a pure libertarian, he is first an individual in possession of his natural rights before he is an American or a member of a particular community.

Dr Paul's criticism of the administration is in direct contradiction to that of another Tea-Party ally, Sarah Palin, who has accused the administration for "taking so doggone long to get in there, to dive in there, and grasp the complexity and the potential tragedy that we are seeing here in the Gulf of Mexico."

So is the federal government doing too little or too much? Although the disaster in the Gulf is ripe for politicization, the Right has not found a unified attack message because it has not sorted out within its own ranks what the proper role of government should be. The Left is equally undecided.

Bobby Jindal, Governor of the most hard-hit state, Louisiana, is understandably on Palin's side on this issue. He wants more federal aid, not less. Indeed, many liberal commentators appear to be on the same side as Palin too (which, to be sure, might just be indication that Palin doesn't really have a coherent ideology). James Carville felt that the administration had been too "lackadaisical," Donna Brazile felt that the administration hadn't been "tough enough," while Chris Matthews compared the President to "a Vatican Observer."

Ironically, the Obama's administration's position on the proper role of government in the cleanup operation is closer to the libertarians'. Secretary of Homeland Security Janet Napolitano and Secretary of the Interior Ken Salazar made their fourth visit to Louisiana today, and reminded us that BP is to be blamed and the entity to take the lead in the clean-up, under federal supervision and with federal assistance. In a coordinated public relations strategy, the White House rolled out Coast Guard Adm. Thad Allen, the national incident commander for the oil spill for a press conference today. In it, he made it clear that the spill was BP's mistake, and so it is BP's mess to clean up. To those agitating for a federal takeover, he had this retort: "To push BP out of the way, it would raise the question, to replace them with what?" According to Allen, the Coast Guard and the military do not possess the equipment and know-how to spear-head the clean-up effort.

And so, fifteen months after Obama delivered his inaugural address, it turns out that he was prescient when he asserted that "the question we ask today is not whether our government is too big or too small, but whether it works." We may seem more polarized than ever, but the rancor around us is evidence of the exact opposite. We live in an ideologically fluid time. Before us is the agitation and national introspection before a new consensus emerges. Is the Reagan Revolution about to enter its Golden Age or will this President, facing crises economic or environmental, be compelled to become the eponym of a new era of politics?

Sunday, May 16, 2010

On Super Tuesday, Anti-Incumbent really Means Anti-Moderate

It has become the conventional wisdom that this is a bad year for incumbents on the ballot. There is an anti-Washington wave on the horizon headed for the scums in Capitol Hill. This conventional wisdom is a parallel script close enough to the truth, but it is not the whole truth because many of the challengers on the ballot next Tuesday aren't exactly non-incumbents who haven't had any dalliance with power or Washington.

In Arkansas, Senator Blanche Lincoln is seeking a third term in the Senate. Her formally non-incumbent challenger, Lt Governor Bill Halter, is no stranger to Washington, however. While Lincoln was at the Senate, Halter worked for the Senate Finance Committee, the OMB, and was then appointed to be the Deputy Commissioner of the Social Security Administration. In Kentucky, Rand Paul (son of 2008 presidential candidate Ron Paul) is running against Secretary of State Trey Grayson (who has been endorsed by Senator Mitch McConnell), but it is unclear who is the incumbent here since neither have held elected office in Washington and while the latter may be the establishment candidate, the former can be said to be an incumbent in the familial-dynastic sense. And perhaps in the hottest race of the all and the one in which the conventional wisdom has particularly taken hold, in Pennsylvania, Senator Arlen Specter is facing a tough primary challenge from Representative Joe Sestak. Sestak is a young-ish second-term member of congress, but he is not exactly a non-incumbent.

The relevant binary on Super Tuesday is not incumbent versus non-incumbent, but between ideologues and pragmatists. In each electoral battleground on Super Tuesday will be a candidate who represents the ideological purity of the Left or Right, and a moderate candidate who, having worked in Washington, has had to make a couple of compromises in her/his career in order to get legislation passed.

Anti-moderate political appeals have a lot of traction this year not only because it is primary season and primary voters tend to be more informed and issue-focused, but because the electorate this year is especially apprehensive and nervous about the state of the economy. Political challengers on the Left and the Right have become more insistent on the wisdom of their principles because they believe that they can ride into power by proffering certainty - a return to first principles - in an age of anxiety and uncertainty. And ride into power they likely will.

To the embittered Right, Washington represents big government and spending, paternalism, and hubris. To the disenchanted Left, Washington is a place where politicians come to sell out on their principles, a place where corrupt bargains are made and liberal dreams are vanquished. So while the embittered Right charges that government has run too far to the left, the disenchanted Left charges that government has made too many handshakes with the Right, which is why both are in agreement that government, and hence incumbents, have failed us. Hence and NARAL Pro-Choice America has endorsed Joe Sestak over Senator Arlen Specter in Pennsylvania, and why the Tea Party Movement has endorsed Rand Paul over Secretary of State Trey Grayson in Kentucky.

If incumbents are to have any chance of staying office this year, they need to address voter anxiety, not just voter anger. The proper antidote to anxiety is not the false security that comes from ideological purity and insistence, but the calm which comes from knowing that perfection is a trojan horse which stands in the way of delivering the good-enough in Washington.

Sunday, May 9, 2010

Obama to Nominate Elena Kagan to Supreme Court

When the Senate comfirmed Kagan's appointment as Solicitor General in March 2009 by a vote of 61 to 31, it was widely rumored that her name would come up again when a vacancy emerged in the Supreme Court. And so it did when the Obama administration was looking to replace Justice David Souter in June 2009 and so it has now when the administration appears to have settled on nominating Elena Kagan to replace Justice John Paul Stevens.

At her confirmation hearing for Solicitor General, Kagan drew criticism from the Left because of her view that battlefield law could apply to non-traditional battlefields, and therefore her support of unilateral executive authority. Kagan had argued that "'war' is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that 'battlefield' (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an 'enemy combatant.'” Neo-conservatives, understandably, will be on board with this nomination. (Kagan's views on the unilateral executive are elaborated in “Presidential Administration”, 114 Harv. L. Rev. 2245, 2001.)

The push-back in the weeks to come will likely be as vociferous on the Left as on the Right. Kagan, after all, is being nominated to occupy the most liberal seat on the bench. This is the seat once occupied by Justice Brandeis and Douglas and now being occupied by Justice Stevens. The Left will be more intent on putting Kagan through a Progressive litmus test than Justice Sonia Sotormayor was especially because Kagan is a "stealth candidate." Before becoming Solicitor General, Kagan had never argued a case at trial, much less before the Supreme Court. She has no previous appellate experience so there is no documentary record and predictor of what her jurisprudential philosophy would be. Some Democrats are also queasy about the fact that Kagan, if confirmed, would have to recuse herself from all cases in which she had participated as Solicitor General, which means there would be one less liberal justice in an already conservative-dominated court in such scenarios.

But here is what Kagan has going for her. If confirmed, she would only be the fourth woman to take a seat on the nation's highest bench. At only 50, she would be around a long time. And while she is closer to the conservatives on the bench in her views on presidential war power, she is certainly not socially conservative, as exemplified by her strong stance against the Solomon Amendment, which required a university that received federal funding to cooperate with military recruiters on campus even when the university's equal employment policy conflicted with the military's ban on gays.

President Obama has strategically chosen not to radically alter the balance of Court opinion on neo-conservative issues like presidential war power to which the American public is still somewhat partial in our post 9/11 world, but to focus instead on the more winnable front of the culture wars where a new liberal justice could help initiate palatable inroads toward such issues like legalizing gay marriage. Put another way, Obama hopes to build a Democratic majority in the Court by conceding that the modal American voter stands to the right of the Democratic Party on foreign policy and to the left of the Republican Party on social and domestic issues. Known during her Deanship of Harvard Law School to be a shrewd negotiator and a consensus builder, and with views that would not alienate her from the conservative majority in the Court, Obama is craftily attempting to place a 4th liberal justice on the bench with the credibility and wherewithal to occasionally bring on board a 5th. Kagan would have to use her wits while Justice Stevens could rely on his seniority, but the Obama administration is banking on similar results.

Monday, May 3, 2010

The National Consequences of Arizona's Crackdown on Illegal Immigration

Immigration is likely to become the new theater of the culture wars because Arizona's new immigration law has further nationalized the immigration issue. Illegal immigrants in the state would be more likely to move to nearby states like Texas and California, and especially to those cities where sanctuary ordinances have been passed. Since immigrants settle disproportionately in California, New York, Florida, Texas, Pennsylvania, New Jersey and Illinois, we would expect these states to be most affected by Arizona's new law.

Arizona is correct, then, that there can be no state solution to the illegal immigration problem. But that is not so say that the state is doing anything to alleviate the problem by taking things into its own hands. In fact, Arizona's new law is only going to worsen the national problem.

What is missing in the contemporary debate is the asymmetry of support for legal sanctions against those who are here illegally, but not against those who hire illegally, namely businesses who hire illegals (and also lawyers and lobbyists who help them defend the conditions which make this possible). This puts the illegal immigrant in the worst of all worlds, harassed and harangued by the law, and in no position to bargain with prospective employers who are still relatively free to hire them at any price because of half-hearted enforcement of the Legal Arizona Workers Act. This puts downward pressure on wages, and even more native animus against illegal immigrants.

If Arizona is serious about controlling illegal immigration, it should proactively punish employers who hire illegals rather than focus its energies on a hit-and-miss strategy of authorizing law enforcement officials to check the immigration status of suspicious persons. This policy would then escape the "racial profiling" controversy because employers would have to check the immigration status of all potential employees (and not just those who look a certain way). It is somewhat disingenuous for Arizona to disproportionately target illegal immigrants but not legal citizens acting illegally, for at the very least this asymmetry about our tolerance of different kinds of illegality tells us that Arizona's law isn't purely about respect for the law qua law. Rather than focus on the supply of illegals, shouldn't the state equally address the demand thereof?

The national immigration debate, which has currently centered on racial profiling, misses out on this central defect of federal immigration policy, which is that we focus too much on border security and not enough on the glaring fact that over a third of illegal immigrants became illegal because they over-stayed their visas, and the only reason why they could afford to do so was because they were able to find employment.

President Obama was wise, nevertheless, to have taken immigration reform off his agenda for this year, for if he hadn't, Congress would have been forced to enact a quick-fix law that would have exacerbated the pathologies of our current immigration regime. In the long run, the Democratic party, the party more welcoming to immigrants has a competitive advantage; but in the medium run of one or two decades, the party advocating restriction is likely to win. The reason why is simple: until demographics change the constitution of today's electoral majority, the native majority is strongly against lax federal laws toward immigration (as was the native majority in the last wave of mass immigration during the 1890s). When the problem comes to our own backyard (as it now will because of Arizona's new law which will crowd out illegals to neighboring states), most people (70 percent in Arizona) tend to be supportive of draconian tactics against illegal immigrants. That means we are likely to continue to think of the problem as emanating at the border and from the marauding other, and not also by the collaborating insider.