Thursday, October 17, 2013

As Government Reopens, So Should Governing

The events in the past weeks reveal that for all the talk of direct democracy and public leadership that have become the hallmarks of the modern era, the central features of the American system of government remains resolutely and stubborn as the framers created it. Ours is a republic in which representatives of the people vote and make decisions on behalf of the American people. The voice of a movement can and should be heard, but parliamentary skills still matter. The framers of the Constitution intended that the raucous waves of democracy be tempered by representatives in government, charged to distill reason from passion.

One lesson the Tea Party needs to learn is empathy, or a capacity to imagine the possibility that not everyone thinks like them. Over the last three years, members of the movement have dug in their ideological heels because they could not conceive of the possibility that their understanding of the American Founding may not be in sync with the majority of their fellow citizens. The media environment of echo chambers has, of course, reinforced this tendency. The result has been sub-optimal strategies by the movement's leaders. Senator Ted Cruz, relying on grassroots instincts, directed his fire at the policy sub-set -- defunding "Obamacare" --  of the Republican's general set, which is the larger goal of reducing government spending. By placing all his chips in one basket, and pushing the particular agenda so hard, he weakened his party's bargaining position on the bigger goal.

Democrats should not, now, adopt the same hubris that eventually humbled Senator Cruz. President Barack Obama must now talk to Republicans, not the faction within it. There is never any time for victory laps in Washington. Every moment is a precursor to the next; every game is a pre-game, not an end-game. Congress has set up yet another deadline for the next potential shutdown and default, and another game of brinkmanship has already been set up.

Some Democrats in the electorate and in Congress are gloating. They should stop immediately. The key to successful bargaining in Washington is that when one wins, one acts like one didn't. In fact, concealing a victory is more important than having one. Losers must be given graceful exits. To help save your rival's face is to make more likely a cooperative outcome in the next game. Republicans will be out for blood early next year when the negotiations for the debt ceiling enter -- always at the eleventh hour, of course -- into high gear. A magnanimous legislative gift or two by congressional Democrats and Obama in the meantime will help set up a more constructive negotiating environment.

Budget conferences legislate budgets. Not public grandstanding, not political movements. It isn't yet time to campaign; it is time to govern.

Monday, October 7, 2013

On Shutdown Politics: Why it is Not the Constitution's Fault

It has become a routine recourse, when examining American politics, for modern commentators to blame the Constitution for the failures of government. We are told that the separation of powers encourages gridlock, and parties pull together what the Constitution pulls asunder. When considering the mess we are in today that is the government shutdown, the truth is closer to the other way round. Parties are the problem, not the solution.

Let's get down to the nitty gritty, and see if it really is the Constitution that is at fault. Why exactly is Speaker John Boehner refusing to bring a vote to the floor of the House to re-open the federal government? We are told, it is the Hestert Rule, named after Dennis Hastert, which instruct Speakers not to bring a bill to the floor unless it commands the approval of a majority of the majority party in the House.

Well and good, until we consider this indisputable fact: nowhere in the Constitution do we have anything remotely close to codifying the Hestert Rule. The Hestert rule is a creature of modern partisanship; it is named after one man, indeed, it has been denounced by the same man whose name identifies the eponymous rule. Even if the idea that the Speaker should defer to the "majority of the majority" makes sense, it is not to be found in the Constitution.

More importantly, the Tea Party caucus is not a majority of the majority. It is a faction, the vilest enemy to republicanism according to the framers of the Constitution. Or, put another way, the Constitution was expressly created to control faction (by creating a republic so large that no one faction would be able to, at least before the invention of the political party, dominate). Madison could not have been clearer in his opprobrium of faction:

"Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction ... By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community." (Federalist 10)

So when President Barack Obama proclaimed that "one faction of one party in one house of Congress in one branch of government doesn't get to shut down the entire government just to refight the results of an election," he was on very firm constitutional ground, and pointedly -- I think also consciously -- using "faction" exactly as the framers intended it in the eighteenth-century sense. Today's self-proclaimed "originalists" are picking and choosing what part of history to affirm. "Faction" and "partisanship" were foul words to the framers, for precisely the reasons we are experiencing today. President Obama has no obligation, under the original meaning and intent of the Constitution, to negotiate with a faction; indeed he in on good ground to try to rein it in.

Looking ahead, as Washington veers toward another self-inflicted crisis, raising the debt ceiling, it is useful again, to return to original principles. We are told that the framers of the Constitution created a limited government, and perhaps Senator Ted Cruz et al are right to use Congress's power of the purse to limit the excesses of government spending. Wrong again. The Constitution was written to provide a more muscular government to pay off the revolutionary war debt. In fact, paying back what the nation owed was at the heart of Alexander Hamilton's case for the Constitution:

"I believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of its existence, will be found at least equal to its resources ... A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying?" (Federalist 30)

There is no way that one can read these words and conclude that the Founders would have been OK with a U.S. government default or any tactic that suggested it as a possibility.

So it is not the Constitution that is at fault. It is faction, injected like a toxin into the Constitution, that has caused the separation of powers to go awry. And if so, the short-term solution for shutdown politics is to call faction what it is. Errant and arrogant members of Congress need to be reminded or educated that while they represent their constituents, some of whom no doubt want a stay on Obamacare, each member of Congress also belongs to a chamber of the United States and it is always the national majority (across the nation) that counts more than a factional majority (in a district). The long-term solution is as simple as it is admittedly inconceivable: if we want to kill faction, we must kill its grandfather and father -- the political party and the system of primaries that sprung up in the middle of the twentieth century that has created two generations of extreme ideologues and the era of gridlock. To do that requires neither a dismissal nor a cynical revision of original meaning, but an affirmation of its deepest philosophy -- the hope of "a more perfect Union," sans faction, sans party.

Thursday, February 14, 2013

Obama's State of the Union Address

Obama's speech last night was an attempt to be as partisan or liberal as possible, while sounding as reasonable as possible. "Why would that be a partisan issue, helping folks refinance?," the president asked as part of this strategy. The Republican Party continues to suffer an image problem of being out of the mainstream, and the president was trying to capitalize on this moment of vulnerability. There is broad support for preventing the budget "sequester," on minimum wage legislation, and a path to citizenship for children of immigrants - the president knows it, and he is leveraging public support to try to secure compliance from errant members of Congress.

As he showed in his Second Inaugural Address, this is not a president willing to mince his words any more. To talk about climate change and the "overwhelming judgment of science" is to take a clear, uncompromising position. "If Congress won't act soon to protect future generations," he said, "I will." Presidents at least since Theodore Roosevelt have painted themselves as active problem-solvers, as opposed to bickering members of Congress, in order to justify a muscular, even unilateral executive branch. Conservatives who are quicker to see this pattern in liberal presidents should remember the perils of presidential bravado in the next conservative administration; liberals who are enjoying their president pulling his weight should pause to consider if they can consistently stomach the same unilateralism in a different time for different purposes, when it is a conservative president who proclaims, "Now's the time to get it done."

Get it done. They deserve a vote. Send me a bill. But the Constitution doesn't work like that. The televised address makes it look like the president is legislator-in-chief, but he is anything but that. He can only execute the law; but to make the law he wants to execute, he needs Congress. So it may be a stroke of luck that a day after Obama's speech, the news cycle is still consumed with the Christopher Dorner story, suggesting that Americans are tired of politics and political news after the previous year of campaign mud-slinging. Obama's supporters want him to get on the permanent campaign, but some forget that doing well on the speech circuit could well generate congressional resentment and mobilize the "party of 'no'" against him. There is a time for splashy, public campaigns; but look out for silent strokes of executive action in the days to come. "Decision, activity, secrecy, and despatch" are and remain the hallmarks of the executive Publius defended in Federalist 70. Obama has already signaled unabashedly that he will make the tough decisions. He appears to be doing so very publicly, but there is a secret side to transformative agendas. When the going gets tough and Congress doesn't get going, expect Obama to be traversing his agenda with much despatch. His State of the Union address this year constitutes full disclosure, if we care to parse it carefully.

Tuesday, January 22, 2013

Obama's Second Inaugural Address

Conservatives hate it; liberals love it. His Second Inaugural Address evinces Barack Obama projecting himself unvarnished and real before the world. No more elections for him, so also less politics. He is number 17 in the most exclusive club in America - presidents who get to serve a second term. Yes, there's still the bonus of a legacy. But the legacy-desiring second-term president would just sit back and do no harm, rather than put himself out there for vociferous battles to come.

For better or for worse, Barack Obama believes that the constitutional compact from whence he derives the fullness of his authority gives him a responsibility. He believes that the framers of the Constitution "gave to us a republic, a government of, and by, and for the people. Entrusting each generation to keep safe our founding creed." But he did not mean that he was an originalist, or a "constitutional conservative." Indeed, the very opposite is true. Obama believes that the "founding creed" is no less than this: "we have always understood that when times change, so must we, that fidelity to our founding principles requires new responses to new challenges." Originalism means change, he is telling us.

This is a president no longer prepared to dally, or to punt on his liberal beliefs. "The commitments we make to each other through Medicare and Medicaid and Social Security, these things do not sap our initiative. They strengthen us," he said. "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," he also proclaimed. In his mind, there is no need to coddle the political right anymore, and he believes that the truth as he tells it will set us free.

So unreserved was Obama's conviction that he took the sacred line of modern conservatism, "We the people declare today that the most evident of truth that all of us are created equal -- is the star that guides us still" and turned it into the most liberal of philosophies, that "our individual freedom is inextricably bound to the freedom of every soul on Earth." Obama never really had much of a stomach for unadulterated libertarianism; in his heart of hearts, this former community organizer is a communitarian. This is why he cited "We the People" five times in his address.

Call Obama liberal, or call him correct; the point is half the country does not agree, and there are tough wars to come. That Obama has been so uncharacteristically upfront about his intentions signals, though, his belief that the national political tide has turned. That on gay rights, immigration, and so forth, either because of his electoral mandate or the changing demographics of the country, he believes he holds the upper hand.

And however short his second-term "honeymoon," I think he does. Had Obama not been re-elected, his first term might have been construed as a fluke; a bit of electoral charity from a guilt-ridden America willing to give a half-African-Anerican a chance to deliver at the White House. But Barack Obama was re-elected by a vote differential of 5 million. Only the most measly of partisan spirits will deride this victory, and deny Obama the honeymoon that he justly earned.