“Governing-By-Crisis Has Gotten Even Worse”: The Risk That America Will Default On Its Debts Is Now Higher Than Ever
It’s tempting to say that the upcoming need to increase the debt ceiling is another depressing iteration of the governing-by-crisis that we’ve gotten used to over the last five years since Republicans took control of the House. But it isn’t. It’s worse. The chaos that is the Republican caucus in the House of Representatives is about to have some very serious effects on the entire country.
Why is this crisis different from those that came before it? In all of the government shutdown/debt ceiling crises of the last five years, we knew how they would end: eventually, after putting up a show of fighting against that dastardly Obama administration, John Boehner would allow a vote on a bill to either fund the government or raise the debt ceiling, knowing that it would pass only with the votes of Democrats plus a few dozen Republicans sane enough to want to avoid catastrophe. The conservatives would cry “Betrayal!” but the crisis would be over.
But now even that may not be possible. Here’s the latest news from Politico this morning:
House GOP leaders initially planned to vote on a red-meat proposal Friday pitched by the Republican Study Committee to increase the debt ceiling while imposing new limits on executive-branch power. That measure stood no chance of passing the Senate, but would at least show effort.
Yet when House Majority Whip Steve Scalise’s (R-La.) team tested Republican support for the legislation, it fell far short of the needed 218 votes, and Speaker John Boehner (R-Ohio) postponed any floor action.
Now, the U.S. government is 12 days from reaching the debt limit without a clear plan of what to do.
Boehner, McCarthy and other GOP leaders are refusing at this point to move ahead with a “clean” debt ceiling bill insisted on by President Barack Obama. Senior leadership aides said they couldn’t find the 30 Republican votes needed to join with all 188 Democrats to pass that proposal — a bleak indication of the current state of play.
So there aren’t even 30 Republicans in the House willing to keep the United States government from defaulting on its debts. How did we get here?
First, let’s establish some context, since it’s been a while since we had a debt ceiling crisis. For some idiosyncratic historical reasons, the United States has a statutory limit on how many bonds it can issue to pay for what Congress buys, meaning that after it passes a budget, Congress has to pass an extra bill allowing the government to pay for that budget (the only other industrialized country that has a debt ceiling is Denmark, which might dim Bernie Sanders’ affection for the place, though theirs is set so high it doesn’t become a political football). For almost a century, debt ceiling increases were an occasion for brief political theater, as members of the party out of power would make some floor speeches about the administration’s outrageous spending, and then the bill would pass extending the ceiling for a year or two, because even the most committed opponents of the administration weren’t so deranged as to actually want to risk the United States government defaulting on its debts. But that was before the Tea Party came to town.
If a new bill raising the ceiling doesn’t pass by November 3rd, we will default. The Obama administration, as it always has, insists upon a “clean” debt ceiling increase — just increase it, and then we can argue about our other policy disagreements without threatening the full faith and credit of the United States. Republicans, however, see this as a great opportunity for blackmail.
So why are we even more likely now to fail to pass an increase than we were when we had this same crisis in 2011, then again in 2013, then again in 2014? Look at what’s going on in the House. Conservatives there are feeling emboldened because they just got rid of John Boehner, as they had wanted to do for so long. They feel strong and empowered, so naturally they believe that this is a battle they can win, even if they’ve lost before. And they’ve upped their demands.
Now they want not just general budget cuts in exchange for raising the ceiling, but cuts specifically to Medicare, Medicaid, and Social Security. That demand was contained in a document the House Freedom Caucus put out recently, and the conservative Republican Study Committee’s proposal would raise the ceiling in exchange for $3.8 billion in cuts to those programs over the next decade, along with a freeze on all regulations until Barack Obama leaves office. If they think Democrats would ever accept those terms, they’ve lost their minds. But they seem serious.
But it isn’t just this recent revolt. As Jackie Calmes and David Herszenhorn of the New York Times recently pointed out, today’s House is even more conservative than it was when we came so close to defaulting before:
The legislative math has only grown more difficult. When Congress last voted in February 2014 to suspend the debt limit, 28 House Republicans joined nearly all Democrats in support; 199 Republicans were opposed. Now there are fewer Democrats in the House and if all 188 of them voted for an increase, Republican leaders would need 30 votes from their side for a 218-vote majority — two more than last year.
Yet nine of last year’s 28 Republican supporters have left Congress and at least three of their Republican successors — Representatives Dave Brat of Virginia, Steve Knight of California and Mark Walker, Republican of North Carolina — are almost certain to be opposed.
Also, 14 Democrats who voted to increase the debt limit are gone, replaced by Republicans, some of whom are likely to vote no.
That’s why they can’t even find 30 Republicans to vote for a clean increase. Then there’s the question of the next Speaker, who will be the one actually shepherding this crisis if Republicans stick to their schedule of electing the new Speaker next week. While Paul Ryan hasn’t said publicly what he thinks ought to be done, he voted against the increase last year. This topic surely came up when he went to the Freedom Caucus to win their support. What did he tell them? They fervently want to use the threat of default to extort the administration into satisfying some of their policy goals. Is one of Ryan’s first acts a Speaker going to be turning his back on them? Don’t bet on it.
All this suggests that every force involved is propelling Republicans not just toward forcing a crisis, but forcing an actual default. At some point, they might realize that “Republicans are holding a gun to the head of the American economy and they’ll fire unless we let them slash Social Security and Medicare” isn’t exactly a winning political message to send. But who knows how much damage will be done before they realize that?
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line, The Washington Post, October 23, 2015
“Deferred Prosecution Agreements”: Criminals Should Get Same Leniency As Corporations, Judge Says
For years, when corporations paid big fines to escape prosecution for their misdeeds, critics fumed. Why, they asked, shouldn’t big companies be treated like common criminals?
A federal judge turned that question on its head this week as he lamented being asked to approve yet another corporate settlement. Perhaps, he said, common criminals ought to be treated more like big companies.
Judge Emmet G. Sullivan, of the United States District Court for the District of Columbia, took aim at a favorite tool of the Obama administration for addressing corporate wrongdoing: a form of probation known as a deferred prosecution agreement. If companies behave for the length of the agreement, the matter is closed without any criminal record.
The judge said individual defendants should enjoy the same opportunities. While it is not uncommon for judges to criticize outcomes that they see as unjust, it is highly unusual for them to so explicitly advocate — and at such great length — a change in approach.
Judge Sullivan’s 84-page opinion — in what could have been a short, straightforward decision — is the latest influential voice to join a growing chorus of both liberals and conservatives who see the American criminal justice system as fundamentally unfair.
The ruling comes amid a rapidly changing environment: The White House is approving clemency applications at historically high rates; support is coalescing on Capitol Hill to ease sentencing laws; and law enforcement leaders around the country have declared that too many Americans are in prison for too long. Though the federal prison population has declined for the first time in decades, America remains the world’s largest jailer by far; its prison population nearly equals China’s and Russia’s combined.
Justice Department officials agree in principle with Judge Sullivan’s critique and have encouraged Congress to ease tough sentencing laws that were passed at the height of the crack epidemic. Emily Pierce, a department spokeswoman, noted that under an initiative begun in 2013, prosecutors were already ordered to prioritize more serious crimes, while looking for alternatives to prison for low-level offenders. Fewer low-level criminals being charged means fewer people eligible for deferred prosecution. The department has also strongly supported drug courts, which essentially offer the same second chance that companies are given.
At the same time, the Justice Department recently promised to get tough on corporate executives after years of criticism in the aftermath of the financial crisis that bankers, in particular, escaped punishment because their companies agreed to pay big fines. It was that promise, followed days later by a deferred-prosecution agreement with General Motors, that ignited Judge Sullivan’s fury.
Judge Sullivan was appointed to the federal bench by President Bill Clinton. He previously served as a municipal judge and a local appellate judge in Washington, having been appointed by Presidents Ronald Reagan and George Bush.
He called G.M.’s $900 million settlement “a shocking example of potentially culpable individuals not being criminally charged.” G.M. admitted that it misled the public about auto defects, but neither the company nor its executives were prosecuted, “despite the fact that the reprehensible conduct of its employees resulted in the deaths of many people.”
“The court is disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction,” Judge Sullivan wrote.
Justice Department figures show deferred-prosecution agreements are rare for both individuals and companies. But the number of cases against organizations and companies is so tiny — 150 or so each year, compared with 160,000 or more individual prosecutions — that these deals occur at a much higher rate in corporate cases, which also tend to be higher profile.
Deferred-prosecution deals are attractive because they spare companies the consequence of criminal convictions, such as stock collapse and a loss of contracts. For people, the effects can be even more severe. The American Bar Association has identified tens of thousands of consequences of criminal conviction, which demonstrates how a single arrest can cost people their jobs and homes.
President Obama has indicated that he will make a criminal justice overhaul one of the most important issues of his remaining time in office. He became the first sitting president to visit a federal prison. On Thursday, he defended the Black Lives Matter movement, which has been criticized by police unions in particular as being anti-police. Mr. Obama plans to speak about changing the criminal justice system next week at the annual meeting of the International Association of Chiefs of Police in Chicago.
Much of the public debate has focused on reducing the prison population by cutting sentences for those serving long sentences for nonviolent crimes. Lost in the debate, Judge Sullivan said, has been the importance of keeping people out of jail in the first place. “This oversight is lamentable, to say the least!” he wrote.
He said criminal justice reform should offer people “the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions.”
While Judge Sullivan cannot make policy from the bench, the opinion shows the momentum behind efforts to improve the system, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.
“It has finally seeped into the public consciousness that there is something wrong,” he said. “All of a sudden, a nation wakes up and realizes we’ve created this unbelievable cadre of second-class citizens.”
By: Matt Apuzzo, The New York Times, October 23, 2015
“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
“The Self-Defeating GOP”: The Difference Between Trying To Actually Legislate And Simply Grandstanding
These days, there is never a dull moment in the Republican Party. Today, the House of Representatives voted to pass a bill that would repeal significant portions of the Affordable Care Act, President Barack Obama’s signature health care reform law. This time the repeal measures are packaged in a budget reconciliation bill, so named because it carries out instructions that were outlined in the budget resolution which passed Congress earlier this year.
Budget reconciliation bills are subject to special rules which allow for limited debate in the Senate and are thus able to pass that chamber with a simple majority rather than the 60 votes necessary to end a filibuster. Opponents of the health care law view the reconciliation bill as their first opportunity to move a bill targeting the Affordable Care Act through the Senate and on to the president’s desk. Although the president is expected to veto the measure, many Republicans feel the political exercise would be a symbolic victory.
However, not everyone in the Republican Party is happy with the legislation. The Hill reports that three Republican senators, Ted Cruz of Texas, Marco Rubio of Florida and Mike Lee of Utah, will oppose the bill because it only repeals parts of the Affordable Care Act and not the entire law. The authors of the reconciliation bill were limited in what they could include in the package by the rules of the reconciliation process in the Senate. With narrow margins in the Senate, the defection of the three Senators puts Senate Majority Leader Mitch McConnell, R-Ky., perilously close to losing the vote altogether.
The three opposing senators have offered a plan to override the Senate parliamentarian and pass a more aggressive bill as the solution to the conundrum. As of this moment, it does not appear that their proposal has a lot of support.
The revolt over the reconciliation bill is illustrative of the overwhelming tension within the Republican Party. On the one hand is the segment of the party that wants to operate within the parameters of what is achievable, and on the other is the segment of the party that wants to adhere to strict conservative principles no matter what. It’s the difference between trying to actually legislate and simply grandstanding.
The commitment of Cruz and his followers to their talking points regarding full repeal is so blind they don’t even realize they are trying to nullify Senate rules just a few weeks after the conservative House Freedom Caucus managed to force out Speaker John Boehner for his supposed disregard of the House rules. The current party dust up is even more striking because it is over a bill that never has a chance to become law to begin with. As Rep. Thomas Massie, R-Ky., told The Hill, “It’s a pretend vote and people are upset because it doesn’t pretend enough.”
The conflict is not serving the party well. Never mind trying to keep the government open or negotiate a budget deal. It appears that even symbolic political achievements – in this case a standoff with the president – are now at risk. If this keeps up, Democrats won’t have to do anything. They’ll be able to stand back and watch the Republican Party defeat itself.
By: Cary Gibson, Thomas Jefferson Street Blog, U. S. News and World Report, October 23, 2105
“Taking On The N.R.A.”: A New, Reinvigorated Gun-Control Movement With Grassroots Support And Backed By Real Money
In the wake of the massacre at Umpqua Community College, in Oregon, Hillary Clinton promised that if she is elected President she will use executive power to make it harder for people to buy guns without background checks. Meanwhile, Ben Carson, one of the Republican Presidential candidates, said, “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.” The two responses could hardly have been more different, but both were testaments to the power of a single organization: the National Rifle Association. Clinton invoked executive action because the N.R.A. has made it unthinkable that a Republican-controlled Congress could pass meaningful gun-control legislation. Carson found it expedient to make his comment because the N.R.A. has shaped the public discourse around guns, in one of the most successful P.R. (or propaganda, depending on your perspective) campaigns of all time.
In many accounts, the power of the N.R.A. comes down to money. The organization has an annual operating budget of some quarter of a billion dollars, and between 2000 and 2010 it spent fifteen times as much on campaign contributions as gun-control advocates did. But money is less crucial than you’d think. The N.R.A.’s annual lobbying budget is around three million dollars, which is about a fifteenth of what, say, the National Association of Realtors spends. The N.R.A.’s biggest asset isn’t cash but the devotion of its members. Adam Winkler, a law professor at U.C.L.A. and the author of the 2011 book “Gunfight,” told me, “N.R.A. members are politically engaged and politically active. They call and write elected officials, they show up to vote, and they vote based on the gun issue.” In one revealing study, people who were in favor of permits for gun owners described themselves as more invested in the issue than gun-rights supporters did. Yet people in the latter group were four times as likely to have donated money and written a politician about the issue.
The N.R.A.’s ability to mobilize is a classic example of what the advertising guru David Ogilvy called the power of one “big idea.” Beginning in the nineteen-seventies, the N.R.A. relentlessly promoted the view that the right to own a gun is sacrosanct. Playing on fear of rising crime rates and distrust of government, it transformed the terms of the debate. As Ladd Everitt, of the Coalition to Stop Gun Violence, told me, “Gun-control people were rattling off public-health statistics to make their case, while the N.R.A. was connecting gun rights to core American values like individualism and personal liberty.” The success of this strategy explains things that otherwise look anomalous, such as the refusal to be conciliatory even after killings that you’d think would be P.R. disasters. After the massacre of schoolchildren in Newtown, Connecticut, the N.R.A.’s C.E.O. sent a series of e-mails to his members warning them that anti-gun forces were going to use it to “ban your guns” and “destroy the Second Amendment.”
The idea that gun rights are perpetually under threat has been a staple of the N.R.A.’s message for the past four decades. Yet, for most of that period, the gun-control movement was disorganized and ineffective. Today, the landscape is changing. “Newtown really marked a major turning point in America’s gun debate,” Winkler said. “We’ve seen a completely new, reinvigorated gun-control movement, one that has much more grassroots support, and that’s now being backed by real money.” Michael Bloomberg’s Super PAC, Independence USA, has spent millions backing gun-control candidates, and he’s pledged fifty million dollars to the cause. Campaigners have become more effective in pushing for gun-control measures, particularly at the local and state level: in Washington State last year, a referendum to expand background checks got almost sixty per cent of the vote. There are even signs that the N.R.A.’s ability to make or break politicians could be waning; senators it has given F ratings have been reëlected in purple states. Indeed, Hillary Clinton’s embrace of gun control is telling: previously, Democratic Presidential candidates tended to shy away from the issue.
These shifts, plus the fact that demographics are not in the N.R.A.’s favor (Latino and urban voters mostly support gun control), might make it seem that the N.R.A.’s dominance is ebbing. But, if so, that has yet to show up in the numbers. A Pew survey last December found that a majority of Americans thought protecting gun rights was more important than gun control. Fifteen years before, the same poll found that sixty-six per cent of Americans thought that gun control mattered more. And last year, despite all the new money and the grassroots campaigns, states passed more laws expanding gun rights than restricting them.
What is true is that the N.R.A. at last has worthy opponents. The gun-control movement is far more pragmatic than it once was. When the N.R.A. took up the banner of gun rights, in the seventies, gun-control advocates were openly prohibitionist. (The Coalition to Stop Gun Violence was originally called the National Coalition to Ban Handguns.) Today, they’re respectful of gun owners and focussed on screening and background checks. That’s a sensible strategy. It’s also an accommodation to the political reality that the N.R.A. created.
By: James Surowiecki, The New Yorker, October 19, 2015 Issue
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