No Panaceas

Friday, May 02, 2003
Filibuster Lawsuit: I'll probably do a longer post on this sometime soon, but I'm not buying the filibuster lawsuit on at least two different levels: First, filibustering judicial nominees is almost certainly constitutional. Second, even if the lawsuit has merit, I have a lot of trouble believing that anywhere close to a majority of Republican senators seriously support axing the filibuster in this context. It's true that reform is usually driven by short-run political considerations, but the odds of a President Kerry backed by a Democratic Senate in 2005 are just a little too high for the Republicans to put a real effort behind this.

Something for Bush to note: While the results were a bit mixed, overall the Labour party had a rough day yesterday in the British local elections. Blair enjoyed a rally effect much like Bush's, but it could not overcome discontent with, among other things, the health care system.

Spectacular Spectacular! No words of the vernacular can describe this great event. You'll be dumb with wonderment.(Returns are fixed at ten percent. You must agree that's excellent): There is an essay by Bruce Miroff entitled "The Presidential Spectacle." (The most recent version is in this book.) In it, Miroff argues that a prominent feature of the modern presidency is the frequent use of spectacle: elaborate, symbolically rich events and speeches meant to cultivate public opinion. What we saw yesterday was perhaps the most extreme example of a spectacle in the history of the presidency. Certainly it rivals the best work of the ultimate spectacle president, Ronald Reagan (D-Day, Statue of Liberty, "Tear this Wall Down").

But for my money -- and I mean both figuratively and literally, since I'm sure this little show cost a bundle -- it went too far. Sure, it was not exactly Moulin Rouge! over-the-top, but the scene -- not the speech itself, but the scene around the speech -- took on an almost fratboyesque "we kicked their asses, man" quality that served to simultaneously reinforce several negative images: the fratboy president; the idea that we Americans see war as just another sporting event ("Woo hoo, we won the war! What's on next? The Lakers. Alright."); and the persistent image of American arrogance.

Military personnel deserve the right to celebrate: "We succeeded! We're alive! We're going home!" But I think the president has a duty to provide a far more solemn public picture. After all, 137 coalition troops died in Iraq, along with numerous more Iraqi civilians and soldiers.

And with the tailhook business there was another image presented yesterday: the president as conquering hero. This is an unfortunate and intentional blurring of the notion of civilian leadership of the military. I think it's safe to say that President Eisenhower (or a President Powell) would never do something like this because of the imagery. Further, for this particular president, the event invited commentators to point out how he avoided combat in Vietnam. That said, I can't begrudge President Bush's taking the opportunity when given. Who wouldn't want to land on an aircraft carrier?

Thursday, May 01, 2003
I guess today is the day for patriotic labor lawyers: I thought it was May Day, but via Atrios I find out it's Loyalty Day and via How Appealing I find out it's really Law Day. I'm so confused.

At least they're willing to try something, uh, different: First Covent Garden featured an orgy in the opening scene of Rigoletto. Now, it's Jerry Springer. As you hear a lot on the streets of London, Boy Howdy!

Prado walks: He's been confirmed 97-0.

Make sure to eat some kippers and lox: It's May Day so I'm wearing my "Lenin Lager -- The Official Party Beer" t-shirt. It's a nice bright red and wearing it seems to make more sense than dancing around a maypole, whatever that is. Here are some pics from around the world. Make sure to check out Tiananmen Square in numbers nine and ten.

Cloture Vote: As How Appealing reports, the Owen confirmation cloture vote fell well short, 52-44-4.

The Abdication of the First Branch: Back around 1990 when I was in grad school I developed a rather crude game theory model of Congress under the War Powers Act. Without getting too much into the particulars, the model showed that Congress always votes to let the president go to war. Consequently, holding a vote guaranteed that Congress ends up endorsing the president’s action, even when a majority of the body is highly skeptical of the war’s merit. Therefore, the War Powers Act, which when taken seriously required a congressional vote, but that was intended to give Congress more power over making war powers, ironically made Congress worse off by guaranteeing an endorsement of the president’s actions.

I thought of this dustbinned paper yesterday when I read Bruce Ackerman’s terrific “Never Again” in American Prospect. Ackerman laments the way Congress gave Bush a “blank check” to fight the war so early in the process, i.e., before the U.N. voted and, crucially, before public opposition to the war could voice its opinions in the nation’s legislative forum, once war appeared imminent. In washing its hands of responsibility so early, Congress left “opponents of the war [with] nowhere else to go but the streets.”

Regardless of how you feel about this particular war, we should all lament the fact that Congress has largely abdicated its role in war making. I am not suggesting that Congress should be predominant or even equal relative to the president in foreign policy making. But Congress should play a larger role than it does. The reasons for the abdication are complex, and I won’t get into them here, but it happened long before this war. It’s true that Bush played Congress against the U.N in much the way Ackerman describes, but at the end of the day there is little that either Congress (or the U.N.) can now do to stop a committed president from going to war.

Ackerman is right that Congress should be the forum for the hearing for a variety of voices in our system, including voices of dissent. As I complained on March 18th, this time around Congress did not even provide a pretense of a such forum. A cynical interpretation: Speaking out against the war would have little substantive effect, as I've said, and provide little electoral reward while possibly causing great electoral harm. Remaining quiet about the war, or doing some calculated waffling a la Kerry, leaves open the option that if things go well you can say, “I supported it all along,” and if things go badly you can say “This war was wrong, I felt this way all the time, but the rest of my colleagues and the president insisted we go to war. What could I do?”

Wednesday, April 30, 2003
The high cost of redistribution: Yesterday's Post has an editorial by Harold Meyerson regarding Gephardt's health care plan, it's what E.J. Dionne in another editorial calls the "First Big New Idea" of the 2004 campaign. So far I'm rather agnostic about the plan, but there's a point that Meyerson makes that's worth highlighting because its relevance goes beyond health care:

Gephardt is trying to overcome perhaps the chief political obstacle that has confronted everyone who has proposed a universal system in recent decades: how to mobilize support for nationwide coverage in a nation where two-thirds of the citizens already have coverage....In the long run, he has devised the kind of universal plan that is politically more viable than means-tested programs. (Compare the fates of Social Security and Medicare, for instance, with that of welfare.) A universal plan costs more, and Gephardt will be attacked for that, but the higher cost is what we pay to create politically sustainable programs in America.

Bingo. Meyerson is getting at a central but poorly understood aspect of redistributive politics. Programs that target just the poor are unlikely to pass and if they do pass they invariably enjoy an extremely fragile base of support, thus rendering them vulnerable to radical alterations or even cancellation. Social Security is a political juggernaut exactly because so many people, including all of the middle class, have a big stake in it. If we allowed people to opt out of Social Security then the long run effect would be to devastate Social Security's political foundation. Ask yourself why Aid to Families with Dependent Children bit the dust while the Food Stamp Program continues on.

This points to a central irony of redistributive politics in the U.S. One price of social-welfare redistribution is a massive and costly buy-off of powerful interests. Is it worth it? That's a harder question to answer.

Estrada, Owen, and Prado: The Dems are prepared to formally filibuster Priscilla Owen's nomination to the 5th Circuit and the Repubs want to push cloture either today or tomorrow. Meanwhile, there is the case of Edward Prado, another 5th Circuit nominee. Here the Democrats strongly support a Bush nominee. In fact they support him so much they are insisting that Frist bring Prado's nomination to an immediate floor vote. Magnanimity? A forthright offer of an olive branch? He's just such a terrific guy? The last might be true, but what's really going on here is that Prado is Latino with a reputation as a moderate. As Roll Call reports, the Democrats want to force a vote on Prado in order to diffuse the Latino angle as it relates to Estrada. (Roll Call is a subscription service. The article is "Two Judges Face the Heat" by Mark Preston and Paul Kane.) Here's the key section:

Democrats complain that Frist is refusing to bring Prado up for a vote because it would discredit some Republicans' claims that Democrats are anti-Hispanic and anti-Latino for filibustering Estrada.

"He is a non-controversial judge, and the notion that anybody on our side is against anybody because they are Latino is so ridiculous," said Russ Feingold (D-Wis)...

So far Frist isn't biting: "I'm not going to let them cherry pick..."

Tuesday, April 29, 2003
Santorum Slips Away: At this stage I think it is clear that Rick Santorum will suffer no immediate substantive consequences over his recent comments. This raises the obvious question: Why no Trent Lott-type firestorm? Why no Trent Lott-like resignation from the leadership?

There was no firestorm simply because a lot of people agree with the spirit, if not the substance, of Santorum's comments. This was not true in Lott's case. In Lott's case, few people share his nostalgia for segregation and fewer still are willing to say so publicly. As poorly articulated as it was, Santorum's views on the right to privacy and the Constitution are not exactly Earth shattering. Most conservative and a few liberal legal analysts share his view that there is no right to privacy in the Constitution. I am not so sure that many reputable analysts would share his conclusions about the implications of a fully developed right to privacy, but Santorum's red herring about gay sex equating with bestiality, incest, and polygamy is an old standard and, like it or not, a lot people in this country believe it. Trent Lott gave us a useful reminder that racism is not dead, even among our leaders, but that it is at least not considered acceptable. Santorum's gives us a useful reminder that bigotry against homosexuals is far from dead and is still considered largely acceptable.

There is another element to this that I want to touch on. Here are some comments by Eleanor Clift which I saw linked on TPM:

Unlike Trent Lott, who imploded last year after waxing nostalgic for the days of segregation, Santorum is not in any jeopardy of losing his leadership post...Lott was in trouble because the base of the party was not firmly with him. They thought he made too many deals with the Democrats, and they didn’t trust him to keep his word. The base identifies with Santorum. He’s their champion. At the first hint of controversy, powerful figures on the right flooded the White House with calls warning, “not to walk away from Rick.”

I don't disagree with any of this, and it's pretty interesting and ironic when you think about it. Along with Newt Gingrich, Trent Lott was a huge figure in the remaking of the Republican party into exactly the type of conservative-dominated MAJORITY party that now benefits people like Rick Santorum and George W. Bush. Yet, the conservatives ultimately threw both Gingrich and Lott aside. Let us remember, it wasn't because of the Democrats that Lott resigned. He resigned because his party deserted him. It's the same with Gingrich. He barely survived a coup attempt from his own conservatives and then, when caught in a relatively trivial scandal, he was done. Now we have the heated attacks against Frist.

What's going on here? It's simple. A lot of ideologues in the Republican party simply fail to understand the difference between being in the minority and being in the majority, especially when the majority is a slim one. When you are in the majority there are some things you have to do, like, for example, pass a budget. You have to. Period. Oh, and along the way your supporters, read contributors and voters, will expect you to pass other legislation aside from the budget, like asbestos tort reform.

Now, it takes, at minimum, a majority to do things like pass a budget. What if you do not have enough votes among your conservative base to win? Well, you either go deal with your party's moderates or you cross the aisle and deal with the Democrats. Conservative ideologues under Gingrich refused to accept this so they tossed him aside. Likewise in the Senate, compromises eroded Lott's support foundation so that when he put his foot in his mouth, that was it. Now we have Frist in exactly the same boat. As Conference Chair, Santorum does not take the hit for leadership positions. But he apparently covets Frist's job. He should be careful what he wishes for...

It's almost like an entire generation of legislators never learned to count. (To be fair, many Democratic leaders used to suffer from the same problem.) It's quite simple really. All the conservatives have to do is elect at least sixty of their kind to the Senate and a rock solid majority to the House, re-elect George W. Bush to the White House, and replace several justices on the Supreme Court and maybe their leaders won't have to compromise so much.

Monday, April 28, 2003
If Anthony Williams can do it, so can George W. Bush: There is a story lurking in the background that might turn into something quite significant later on. In 2004 it is the Republicans turn to have their convention second. For largely strategic reasons they scheduled it for the end of August/early September. This is a historically late convention, and one of the consequences is that it conflicts with ballot deadlines in several states.

The Republicans knew about the conflicts, but perhaps they underestimated the difficulty of fully resolving the problem. As the Post reported yesterday, right now Alabama, California, West Virginia, and the District of Columbia have to have their ballots finalized before the end of the Republican convention. (There were others but I take it they shifted their deadlines.) This raises the possibility that Bush will have to run as a write-in candidate in these states.

Now, I fully expect that one way or another Bush will be on the ballot in all 51 "states." As well he should. We have these kinds of technical rules for a reason, but the greater weight should always be given to enhancing voters' ability to vote and have their ballot counted. (Insert your favorite 2000 election complaint here ____________ or your favorite "the minor parties get the shaft" complaint here ____________).

However, let's think a bit about what will happen should these states exclude Bush from the ballot. It is a possible outcome, especially in California and Alabama. What happens if Bush has to run a write-in campaign? It is not a disaster for Bush but it is an irritant. First, he almost certainly can take Republican Alabama's nine electoral votes, even with a write-in campaign. But, he will have to put far more money and people into Alabama than he would normally. That takes resources away from other more competitive states. What about West Virginia? Here he has a problem. Here a loss of few percentage points could cost him West Virginia's five electoral votes. From a historical perspective five electoral votes is not very many. (Translation: Let's not interpret everything in terms of what happened in 2000 -- or 1992, for that matter, but that's a different topic.) Certainly if it is looking like a close election then Bush would have to devote more resource to West Virginia than would be necessary were he on the ballot. What about D.C.? Forget about it.

What about California? California will be hard for Bush to win, even if he is on the ballot. But if he is not on the ballot then winning that state's fifty-five electoral votes looks nearly impossible. However, there is a larger problem here. There will be lots of important House races in California. Plus, Sen. Barbara Boxer is up for re-election, and the Republicans would dearly love to take her out. Bush's absence from the ballot potentially shortens his coattails in some of these other races. Thus, an aggressive write-in campaign might be advisable, but it will cost the Bush campaign massive resources.

If this was 2000 then the diversion of resources would be less troublesome because of the seeminlyg endless supply of soft money that the Republicans (and Democrats) enjoyed. Barring a last second Supreme Court reprieve, the money will have to come from more conventional, and far more limited, sources.