“Whistling Past The Graveyard”: Why The Raging Dysfunction In Washington Is The New Normal
When Majority Leader Kevin McCarthy abruptly withdrew from his frontrunning candidacy to succeed John Boehner as speaker of the House, it underscored just how dysfunctional the “governing” Republican Party has become. The dispute within the party is not ideological — the degree of policy consensus within the Republican conference is remarkable. Rather, the dispute is tactical. Some party elites, like Boehner, understand that there’s no chance that Republican objectives like repealing the Affordable Care Act and defunding Planned Parenthood can be achieved with Barack Obama in the White House. Members of the Freedom Caucus, conversely, believe (or pretend to believe) that threatening government shutdowns and debt defaults can somehow force Obama to sign bills erasing his primary policy achievements. No wonder nobody wants the job.
It’s tempting to think that this rolling crisis, in which threats to the basic functioning of government become routine, is a temporary phenomenon. But there is a very real and frightening possibility: This is the new normal. The presence of two ideologically coherent parties, combined with the separation of legislative and executive authority, is probably going to produce similar results whenever there’s divided government.
There is a tendency to assume that the American constitutional order is inherently functional, and that there’s no problem that can’t be solved by replacing some bad actors in the legislature and/or judiciary. Nostalgic appeals to a more functional era are pervasive. In a recent interview with Gawker‘s Hamilton Nolan, for example, the dark-horse presidential candidate and legal scholar Lawrence Lessig asserted that the government “has no capacity to make decisions any more” and “it’s trivially easy for any major reform on the left or the right to be blocked,” but that “it’s a 20-year problem” based on the fact that “such a tiny number of people are funding campaigns.”
This is a happy story, despite the outward appearance of despair. If American constitutionalism is essentially functional, but has been ruined by some 5-4 campaign finance decisions issued by the Supreme Court, the problems can be solved. Not easily, but it’s possible to think that the next unified Democratic government can restore order.
But the truth is considerably darker. First of all, Lessig underestimates how difficult major social reform has always been in the United States. It was “trivially easy” for any major reform to be stopped before the author of Citizens United had even been born. The vast majority of the federal welfare and regulatory state was passed during two very brief periods: FDR’s first term and LBJ’s first three years in office. Otherwise, the alleged Golden Age of American politics was largely defined by statis.
Furthermore, it’s not a coincidence that the brief periods of reform occurred during periods of unusually large Democratic supermajorities in Congress. And even these periods were far from unalloyed liberal triumphs: The New Deal, for example, gave disproportionately fewer benefits to African-Americans to win support from Southern Democrats. The American constitutional order was designed to make major changes difficult, and it has largely succeeded.
Lessig is right, however, that some things have gotten worse in the last 20 years. It’s never been easy to pass major reform legislation, and as the first two years of the Obama administration shows, it’s still possible given enough Democrats in Congress. What has changed is that it used to be possible to do basic tasks like keeping the executive and judicial branches properly staffed and the government funded. Congress could also at least pass compromises on issues of lower-order importance. Things have gotten genuinely worse in recent decades in these respects.
Where Lessig is wrong is to think that there’s a magic bullet that can fix the problem. Reducing the role of money in politics and increasing access to the ballot are salutary initiatives that would improve things at the margin, but the dysfunction of American government is rooted deeply in the American constitutional order.
As Matt Yglesias recently explained at Vox, the fundamental problem is the diffusion of accountability that comes from separating the legislative and executive branches. As Yglesias observes, “Within a presidential system, gridlock leads to a constitutional trainwreck with no resolution.” Whether Democrats or Republicans are blamed for dysfunction in a period of divided government depends largely on who voters tend to support on a tribal level.
A paradox of the American separation-of-powers system is that actions like a government shutdown can hurt the reputation of Congress as a whole without threatening the electability of most individual members, a paradox Senate Majority Leader Mitch McConnell has exploited brilliantly. Whereas congressional leaders in the opposition used to think that they had to collaborate on at least some issues with a president to avoid being punished, McConnell and other contemporary leaders have recognized that denying the president accomplishments hurts the president more than it hurts them. And lest any Republican member of Congress consider returning to the old norms for the good of the country — I know, but let’s pretend for a second — they’re likely to face a viable primary challenge.
Does this mean, as Yglesias argues, that American democracy is “doomed”? This is unclear. But it does mean that the dysfunction in Washington, D.C., is likely to get worse before it gets better. And pretending that any single reform — no matter how worthy in itself — can solve these deeper problems is whistling past the graveyard.
By: Paul Lemieux, The Week, October 20, 2015
“There Is No Such Thing As Settled Law”: If You Liked 10 Years Of The Roberts Court, You’ll Love The Next Republican President
There were plenty of terrifying moments in this month’s Republican presidential debate on CNN, but one of the most terrifying, to me, was when the candidates started to complain that the current U.S. Supreme Court isn’t conservative enough.
Specifically, Jeb Bush and Ted Cruz went after Chief Justice John Roberts, who has led what law professor Erwin Chemerinksy has called “the most conservative court since the mid-1930s” but whose appointment the conservative far-right Cruz nonetheless called a “mistake.” What Cruz objected to was Roberts’ two votes to save the Affordable Care Act from frivolous conservative lawsuits. What he didn’t mention is that a less conservative right-wing Court would not have even entertained those politically motivated cases in the first place. In fact, the Court under Roberts has taken a stunning turn to the Right.
Today marks the 10th anniversary of the day Chief Justice Roberts was sworn in to the Supreme Court. In that decade, aided by the confirmation of fellow George W. Bush nominee Samuel Alito, he has led a Court that has radically reshaped vast swathes of the law, undermining constitutional protections for civil rights and voting rights, reproductive freedom, workplace fairness, the environment, gun violence, consumer fairness and representative democracy as a whole.
As People For the American Way explains in “Judgment Day 2016,” a new analysis of Roberts’ decade at the head of the Supreme Court, under his leadership the Court “has issued more than 165 5-4 decisions, many of which have bent the law and defied logic, seriously harmed the rights of ordinary Americans, promoted the interests of powerful corporations, and damaged our democracy.”
The most infamous of these is probably Citizens United v. FEC, which, along with a set of related cases, gutted the country’s campaign finance system, allowing wealthy individuals and corporate interests almost unchecked influence over American elections. But the Roberts Court’s gifts to Corporate America did not end there. Among the cases decided by the court’s five-justice conservative majority were Ledbetter v. Goodyear Tire and Rubber Co., which undermined women’s ability to seek equal pay for equal work; Burwell v. Hobby Lobby, which upended religious liberty protections to allow corporations to deny full health insurance coverage to their employees; and AT&T v. Concepcion, which protected corporations that cheat large numbers of customers out of small amounts of money.
The Court’s conservative right-wing bent has extended to civil rights cases, most stunningly its 5-4 ruling gutting the enforcement mechanism of the Voting Rights Act, which had allowed the Justice Department to review changes in voting laws in areas with a history of racial discrimination in election practices. In other cases, the court has been just one vote away from wreaking havoc on civil rights laws, including the 5-4 decision in which Justice Anthony Kennedy joined the four moderate Justices to preserve the ability to effectively enforce the Fair Housing Act, another critical achievement of the Civil Rights Movement.
This Court will rightly be remembered by many as the one that guaranteed gays and lesbians the right to marry in Obergefell v. Hodges. But that landmark case, in which Justice Kennedy joined the moderate Justices, was one bright spot in a very bleak landscape.
It’s important to remember as well that Chief Justice Roberts, whom Republicans are now attacking as too liberal, wrote the conservative justices’ scathing dissent in that case. If conservatives get one more vote on the Supreme Court, Obergefell could be in danger. If there is one thing the Roberts Court has taught us, it is that there is no such thing as settled law. Despite predictions that the Republican Party would just fold up its tent on the marriage issue, its presidential candidates are campaigning with promises to appoint Justices who will overturn the decision.
Whatever issue you care about most in the upcoming election – civil rights, health care, reproductive freedom, LGBT rights, or others – it will almost certainly end up before the Supreme Court. And the composition of that Court, and whether it will protect our rights or defer to big corporations and right-wing interests, will depend greatly on whether a Democrat or Republican is elected as our next president.
By the end of the next president’s first term, four of the current Supreme Court Justices will be in their 80s, past modern Justices’ average retirement age of 78. This means that the next president will likely have the power to either turn back the Court’s rightward swing … or preserve or worsen it for decades to come.
By: Michael B. Keegan, President, People for The American Way; The Huffington Post Blog, September 29, 2015
“Universal Election Day Registration”: Jimmy Carter And The Conservative Abandonment Of Voting Rights
Being a Georgian and a kiddie volunteer for Jimmy Carter’s first gubernatorial contest in 1966, I thought I was an expert on Most Things Jimmy. But Rick Perlstein, who was seven years old when Carter became our 39th president, has unearthed a proud moment of that presidency which I and probably others watching at the time had all but forgotten: a 1977 election reform initiative which still seems bold in its clear purpose and scope.
Everyone loved to talk about voter apathy, but the real problem, Carter said, was that “millions of Americans are prevented or discouraged from voting in every election by antiquated and overly restricted voter registration laws”—a fact proven, he pointed out, by record rates of participation in 1976 in Minnesota, Wisconsin, and North Dakota, where voters were allowed to register on election day. So he proposed that election-day registration be adopted universally, tempering concerns that such measures might increase opportunities for fraud by also proposing five years in prison and a $10,000 fine as penalties for electoral fraud.
He asked Congress to allot up to $25 million in aid to states to help them comply, and for the current system of federal matching funds for presidential candidates to be expanded to congressional elections. He suggested reforming a loophole in the matching-fund law that disadvantaged candidates competing with rich opponents who funded their campaigns themselves, and revising the Hatch Act to allow federal employees “not in sensitive positions,” and when not on the job, the same rights of political participation as everyone else.
Finally, and most radically, he recommended that Congress adopt a constitutional amendment to do away with the Electoral College—under which, three times in our history (four times if you count George W. Bush 33 years later), a candidate who received fewer votes than his opponent went on to become president—in favor of popular election of presidents. It was one of the broadest political reform packages ever proposed.
As Perlstein notes, Carter’s proposal initially drew support from national leaders of the GOP. But then the engines of the conservative movement became engaged in blocking it, led by Ronald Reagan, making arguments that sound extremely familiar today: real voters don’t need convenience; universal voting will empower looters in league with the Democratic Party; voter fraud will run rampant; and the Electoral College is part and parcel of our infallible system of federalism. The initiative was filibustered to death (in another fine usage of an anti-democratic device), Reagan beat Carter in 1980, and another rock of progress rolled down another long hill.
And now Jimmy Carter, at 90, is suffering from apparently incurable cancer, but is still speaking out:
This spring, when only those closest to him knew of his illness, Jimmy Carter made news on Thom Hartmann’s radio program when he returned to the question of democracy reform. In 1977, he had pledged “to work toward an electoral process which is open to the participation of all our citizens, which meets high ethical standards, and operates in an efficient and responsive manner.” In 2015, he was still at it.
He declared our electoral system a violation of “the essence of what made America a great country in its political system. Now it’s just an oligarchy, with unlimited political bribery being the essence of getting the nominations for president or to elect the president.”
The best possible tribute to Carter at death’s door is what Perlstein is doing: remembering his finest moments in causes then lost but now redeemable, if we take them up again.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, August 28, 2015
“Presidential Candidates, Each Sold Separately”: The Donor Class Will Shape The Choice Of Candidates Long Before A Single Ballot Is Cast
Mark Hanna used to say, “there are two things important in politics.The first is money and I forget the second.” The next president will take the oath of office in 2017, but between now and then expect a lot of money to be spent buying the ear of the next president. The large amount of spending will be driven in part because there are presently 22 candidates vying for the two major party nominations. If Prof. Lawrence Lessig makes it official, there will be 23.
Our campaign finance laws maintain the legal fiction that there is a difference between money given directly to a candidate’s campaign and money spent on ads in support of the candidate that benefit them. Your local billionaire can still only give $5400 (or $2700 per election per candidate) to a candidate for federal office. But at the very same time the wealthy can spend an unlimited amount on ads touting their favorite candidate or trashing the object of their ire.
I don’t know about you, but I’d be mighty grateful if someone spent a million in support of me. And I’d probably be more grateful for the million spent than the $5400 given directly.
The wealthy have had the right to spend lavishly on independent ad buys since Buckley v. Valeo in 1976. But the real spending spiked after Citizens United and a case called SpeechNow with the advent of the Super PAC. According to www.opensecrets.org, in 2010 Super PACs raised $828 million and spent $609 million in the federal election.
Spending through a Super PAC, even if there is one funder ponying up 95 percent or more of the money, gives the illusion that there are groups involved—often with an appropriately Orwellian name—instead of just one random rich guy. Using Super PACs as a vehicle, in 2012 Sheldon Adelson and his wife spent $93 million, William “Bill” Koch of the Koch Brothers spent $4.8 million and Foster Friess spent $2.6 million.
And already we see billionaires lining up behind 2016 candidates in the “money primary” like they were buying so many action figures in a toy store with matching podiums, blue suits, and karate grip. Of course, like so many toys, each candidate is sold separately. And the spending has already started. As Mother Jones recently put it, “These 8 Republican Sugar Daddies Are Already Placing Their Bets on 2016.”
The other phenomenon that has happened is some are backing more than one candidate. With 5 Dems and 17 Republicans, the Center for Public Integrity, argues that “[i]t’s speed dating season for presidential campaign contributors.”
There is no rule that says a donor must only back one candidate. If they want, they can hedge their bets and back two or three. Hell, if they want, they can try to collect them all. At least ten donors are backing two or more of the Republican candidates.
Donors don’t have to be loyal to a single political party either. Seventeen mega spenders are already backing Republican Bush and Democrat Clinton, who may end up as respectively the most popular GI Joe and American Girl doll of 2016. For example, John Tyson, chairman of Tyson Foods, has supported both Bush and Clinton. The same is true of Richard Parsons, the former head of Time Warner, and David Stevens, the CEO of the Mortgage Bankers Association. For a full list of the seventeen Clinton/Bush supporters see here.
Now it’s not necessarily a bad thing for there to be over 20 candidates for president over a year out. It’s a big country with diverse views. But because the presidential public financing system was allowed to atrophy, each of these candidates must run in privately funded races. And this has led to the unseemly spectacles of multiple candidates flying to California for the “Koch” primary or to Las Vegas for the “Adelson” primary. The only primaries that should matter are the ones with actual voters. But the reality is the donor class is likely to shape the choice of candidates long before any Iowans caucus or a New Hampshirite cast a single ballot.
By: Ciara Torres-Spelliscy, Brennan Center for Justice, New York University School of Law, August 14, 2015
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