Filibusters of Executive Nominations: Good Riddance!

As is often the case, media coverage and political debate over the Senate rule change barring filibusters of executive branch nominations has focused on the politics of the issue, that is – who is doing what to whom and why – rather than the substance of the change and the impact it will have on the functioning of our government.  When examined from a substantive perspective – the rule change is an unqualified positive step that people who care about good governance should applaud, regardless of their political perspective.  

Our analysis should begin with the fundamental, uncontroversial fact that the president is elected by all the people (albeit indirectly) and through this election is legitimately authorized under the Constitution to exercise the power of the executive.  The president’s nominees to cabinet or sub-cabinet offices are put in place for the purpose of aiding the president in the smooth operation of the executive branch and implementing the laws prescribed by Congress and the policies developed by the president. These officials’ power flows directly from the president – they do not have any individual policy making authority.    

The entire constitutional advice and consent process – which gives the Senate a veto power over presidential appointments of “officers” of the United States – places an enormous burden on the functioning of the executive branch of government.  To avoid confirmation battles, the executive is forced to apply a lengthy, intrusive vetting process for its nominees that goes far beyond what would be required for important private job in the private sector.  This vetting (which I have had the unfortunate experience of conducting myself) includes delving into matters that have little to do with a person’s present job qualifications, and everything to do with whether elements of a candidate’s private life, even matters that took place decades ago, could cause embarrassment or controversy.  Candidates that emerge from this process and are then nominated must then endure the Senate confirmation process, which can take months, and in exceptional cases, over a year.

There is ample evidence that the cumbersome process discourages many highly skilled individuals from even considering government service.  Moreover, during the pre-nomination and confirmation process, executive branch positions are left open, with entire agencies and sub-agencies being run by lower level officials operating in an “acting” capacity.  These “acting” officials lack true legitimacy and authority, and therefore usually defer important decision making until a permanent officer is nominated and confirmed.   The result of this lengthy process is that either the efficiency of the government is reduced, or that important decisions which cannot wait are made by individuals who have not been nominated by the president and do not have the imprimatur of Senate confirmation.

Filibusters of executive branch nominations are rarely, if ever, about whether an individual is qualified to hold office.  Indeed, if the Senate process unveils some aspect of a person’s background that was not caught in the executive vetting – that usually leads to withdrawal of a nomination.  The fight over the filibuster rules is rather about power – the power of the minority in the Senate to use the nomination process as leverage to obtain a policy result it cannot accomplish through the legislative process or influence policy in some other way. 

Our evaluation of the nomination process and its rules, therefore, ought to begin with an analysis of whether one believes in greater executive power to form policy or wants to give the Senate, in general, or a minority of Senators, with respect to filibusters, more tools to assert influence.  That discussion should start with a recognition that under our Constitution the executive branch is quite weak, except in matters of military and foreign policy.  Domestically, the President cannot do much of anything on his own other than grant pardons.  Congress, on the other hand, has the power of the purse, a host of specifically enumerated powers to make laws impacting the nation, and the quite expansive power to make all laws “necessary and proper” for the government to execute the full range of its constitutional powers.  By virtue of the legislative filibuster (which remains fully intact), the Senate minority has an arsenal of ways to influence law and policy.  Not a nickel of federal funds can be spent and not a jot of legislation can be passed unless a Senate minority party agrees.  This is an extraordinary power in a system based on the concept of majority rule. 

In light of the power that our system already gives to both Congress and congressional minorities, giving a Senate minority the power to block presidential nominations is wholly unnecessary.  Consider the results of a nomination filibuster:  either a nomination is withdrawn, in which case the president simply nominates another person who shares his views and will implement his policies, or the office remains vacant.  Neither result advances the cause of good governance.  Rather, the filibuster simply provides a visible stage for policy disagreements and partisan differences to be exhibited.  It is perfectly fine for these differences to play themselves out in debates over legislation or in elections – that is what democracy is for.  When it happens in a nomination process, however, damage is inflicted on our country’s ability to execute the functions of government.   

For those of us who want our government to be able to function properly, even during times of partisan disagreements, last week’s rule change was long overdue.    

Plan B Is Now "B"ipartisanship

Last night's meltdown in the House -- where the Republican rank and file cut the legs out from its own leadership and indicated an unwillingness to compromise its orthodoxy even to the slightest degree -- may mark a dramatic turn in American politics.

For decades, the House has been almost exclusively a  majoritarian body.  Due to the filibuster rule and the Senate's larger, more diverse electoral districts - the Senate has always been more centrist and bipartisan.  The legislative process consisted of the House passing one party's favored approach on a given issue.  The Senate would stitch together a bipartisan super-majority (at least on most issues).  And then the political fight would be whether the final legislation ended up closer to where one body began or the other - and how the President's interests would be accommodated in the final product.

The schism in the GOP, combined with the automatic massive tax hikes and spending cuts scheduled to start taking effect on January 1, could break this mold -- maybe in a significant and permanent way.  The House's action last night demonstrates that there may be no overlap in the Venn diagrams of what the House majority will support and what can both pass the Senate and gain President Obama's signature.  If this is the case - and I suspect that it is -- then the only path that avoids fiscal calamity is to pass a bipartisan bill in the Senate and then pass that bill with a bipartisan coalition in the House, consisting of the Republicans who are willing to follow Speaker Boehner's leadership and whichever Democrats President Obama can arm twist and cajole into supporting some cuts to entitlement programs.

The obstacle to this occurring is the Speaker.  Clearly, after last night, if he were to bring to the House floor anything nearing the compromise he and President Obama were close to completing, he would lose support of a majority of House Republicans and lose his Speakership when the new Congress reconvenes on January 3.

Now, perhaps in the interests of the nation, Boehner will take this statesman-like step.  But there is another possibility.  Perhaps this is a fantasy - but what if Democrats promise to deliver as many votes as Boehner needs to reach a majority vote for Speaker?  In this way, he would be empowered to cut bipartisan deals with the President and totally ignore his right flank.  Since Democrats would have to supply votes to pass these deals, Nancy Pelosi would gain a critical seat at the bargaining table instead off being shut out and powerless as she is now.  Deals could be done on tax reform, entitlement reform, improvements to Obama-care, and immigration.   A strong Senate minority and Boehner as Speaker would ensure that there would be  a Republican stamp on all this legislation -- but it would be a mainstream Republican influence, not the radicalism that is represented by the current House Republican majority.

Trying times as these demand creative solutions.  The country is rightfully fed up with the dysfunction of our current government.  Perhaps the conservative rebellion from its leadership last night will push our leaders to seek a new, better way of doing business.

What Will Democrats Be Offering on Medicare? Not Much.

Most of the discussion since the election has been on the parties' respective positions on taxes.  This is an important debate to have, but to get to a deal on taxes, it would appear that there needs to be a discussion on the spending side as well, since Republicans are not going to agree to increases in revenues without additional cuts to spending.  And many are forgetting that besides the so-call fiscal cliff, we are bumping up against the debt-limit ceiling again as well.  Voters have returned to power pretty much all the members of the House of Representatives who simply would not vote to increase the debt limit without agreements to cut spending.  There was bipartisan consensus on the campaign trail against the defense cuts that have been proposed in the "sequester" and Democrats are certainly not going to cut domestic spending any further if defense is taken off the table -- so the only place to get real spending cuts is on health care entitlements.

What are Democrats willing to do on this?  It appears, not much.  Check out this interview of Debbie Wasserman Schultz, chair of the DNC, on Morning Joe (click once, sorry about the ad):

Now, it is clear that Schultz did not want to start negotiating on Morning Joe.  But her obvious discomfort even talking about real cuts to Medicare, leads one to believe that Democrats have barely even begun thinking about what they are willing to do on the entitlement spending side.  Running against "voucher care" was an easy lift for them.  But modernizing the program, finding ways to lower costs, having beneficiaries contribute even a bit more to their care seems to be ideas that Democrats have either firmly rejected, or barely begun to consider.  

For better insight, we can look to a recently issued proposal by the Center for American progress, the Senior Protection Plan.  The plan is offered as an alternative to lowering the retirement age, increasing beneficiaries' contribution through a premium support program (the Ryan plan), increased cost-sharing, and Medicaid cuts.  CAP claims that the plan will lead to $385 million of savings over the next 10 years and would generate $100 billion in new revenues.  The plan's features are:

Enhance competition based on price and quality

Increase transparency of price and quality information

Reform health care delivery to provide better care at lower cost

Repeal the Sustainable Growth Rate mechanism

Reform graduate medical education and the workforce

Reform Medicare premiums and cost-sharing

Reduce drug costs

Bring Medicare payments into line with actual costs

Cut administrative costs and improper payments

Reduce the costs of defensive medicine

Reform the tax treatment of health insurance

Promote better health

These look like the ideas the Obama Administration might be willing to put on the table in negotiations with Republicans.  It is hard to believe that this would be sufficient reform to garner many Republican votes and that Obama might have to do a hard sell on his side to get many to go even this far.  Medicare is going to make the tax side of the equation look easy.  

Who Will Be "Grand Bargaining" for Them?

As Washington re-focuses on issues of taxes, spending and debt, I can't shake the images I saw while helping to get out the vote in some poor, mostly African-American neighborhoods in Durham these past couple of weeks.

I'm ashamed to say that I visit these communities far less than I should, and I am mostly inspired to do so every four years when I am encouraging their residents to cast a ballot in the presidential race.   Even so, it is a humbling experience.  Too many ramshackle homes, too many kids with nowhere to play, too much poverty.  I asked a friend one day how his canvassing was going and whether people were home during the middle of the day.  "Yeah," he said, "people are home because they don't have jobs."

Over the next weeks and perhaps months, Washington will be filled with talk of trillions in tax cuts or increases here and there.  Slimming deductions.  Broadening the base.  Trimming "domestic discretionary spending."  Saving the Pentagon from the dreaded "sequester."  There will be the illusive chase for the grand bargain affecting virtually every government program on the books.  Representatives of every group, organization, trade association, union, contractor, and business will be scrambling around the city trying to make sure their voices are heard and their interests are protected.  My question is -- who will be "grand bargaining" for the people whose doors I was knocking on the past few weeks.

I'm all in favor of tackling our long term debt.  I agree that we need a better tax code.  We can't afford to keep spending so much money on health care.  But I do think that when all is said and done, there has to be something in this bargain for our least represented, our most needy, and our oft forgotten communities. People from these neighborhoods came out to vote in droves -- they were a key part of the coalition that got the president reelected.  There ought to be something in the "grand bargain" for them.  There has to be something in the grand bargain for them.

Most of the discussion is going to be about cuts to government spending.  But in the process, we ought to be adding something as well.  I'm not an expert, but I'd say there has to be some type of jobs program for low income, semi-skilled workers, perhaps building infrastructure, perhaps renovating schools, I don't know.  But we need something to pump money into these communities and help those who the great recession has pushed close to, or even into poverty.  

The people who trudged out to vote, who stood on lines for hours, did so because they have faith in this president.  He cannot move mountains.  But he owes it to them to be their voice, to be their representative at the table as the deals that frame our future for the next decade and beyond are being cut.  

Gridlock ... Back

"Gridlock" took a bit of a hiatus during the presidential campaign, but today, we are back.  Why not blog during the most engaged political moments of the cycle?  Well, campaigns are times of combat, not times to figure out how to get things done.  Ideally, we talk about solutions, but it was clear from early on that this was not going to be a campaign about reckoning with our big problems or addressing systemic defects in government.  There was a moment when it looked like the Republicans had put some big ideas on the table about entitlement reform -- that is, when Paul Ryan was nominated for VP -- but Romney distanced himself so quickly from this that it is as if he realized Ryan had a communicable disease a couple days after selecting him.   Anyway, the election was about "who cares about your problems the most," "who resonates the best with the middle class," "who will create the most jobs (as if a president actually has the power to do this)" and other matters.  Big issues were discussed at their most superficial level -- who gets the next round of tax cuts and how big will they be -- but that is about it.  "Gridlock" didn't have much to offer to this campaign that was not available from many other sources.

But now, all the problems that existed before the election are still here, the players are pretty much the same, as is the balance of power.  The president has been ratified by the voters, so he is a more powerful figure than he was before, but congressional leaders also believe their approaches have been ratified as well.  Nonetheless, as Lincoln said in his second annual message to the Congress, "as our case is new, so we must think anew and act anew."  Hopefully, "Gridlock" can contribute to debates we are surely going to be having in the "stormy present."  

The Incredible Shrinking Mitt Romney

During a speech on foreign policy and the 2012 election in June, I noted that candidates had to pass the Commander in Chief test as a threshold issue to qualify them in the mind of the electorate to serve as President.  I then opined that I expected Mitt Romney to pass this threshold test -- I looked at him as a bright individual, who had been successful in business, a competent governor, and had succeeded on the international stage by hosting a strong Olympics.  Bill Clinton agreed - he said Romney's credentials were "impeccable."

Romney's commentary yesterday about the attacks on our embassies in Egypt and Libya (which were preceded by a botched international trip where he couldn't even avoid offending our closest ally and a convention speech that failed to even mention the ongoing conflict and troops on the ground in Afghanistan)  have raised the possibility that he will not pass the Commander in Chief test - thereby crippling his prospects of winning the presidency.

Not only did the Romney issue a statement well before all the facts were known, not only did he choose to engage in political combat on a day when U.S. diplomats were murdered abroad, not only did he falsely accuse the president of "apologizing" for America when it was the embassy that issued a statement trying to calm the Egyptian public's outrage at an inflammatory U.S. film, and not only did he get the chronology wrong (since the embassy statement came out before the embassy was breached) but after all this became abundantly apparent -- Romney decided to double down on his mistakes and hold a press conference to defend his statements.

Besides the poor taste in holding a political press conference to attack the President when our embassies had been attacked, the substance of Romney's comments indicate that he just may be beyond his depth when talking about foreign policy.  His critique of Obama's actions during this crisis and Obama's overall approach to foreign policy is entirely vapid.

On the crisis - all he could say is that we should never apologize for American values.  Really? Is a film that impugns the holy prophet of 1.2 billion people around the globe an "American value."  Surely free speech is an American value - but others around the globe certainly have an equal right to be offended by the content of American speech.   President Obama said America "rejects efforts to denigrate the religion of others."  Was this too a sign of weakness?  An apology for American values?  Respect for religion is an American value - so what was Romney saying was an inappropriate "apology."

But far worse is Romney's critique of Obama's approach to foreign policy which sounds like a series of bumper sticker slogans devoid of content.   His main concern is "a lack of clarity."  Romney says his foreign policy has three branches - it is worth looking at the exact words:  

"First, confidence in our cause, a recognition that the principles America was based upon are something we [don't] shrink from or apologize for; that we stand for that principles... 

"The second is clarity in our purpose, which is that when we have a foreign policy objective, we describe it honestly and clearly to the American people, to Congress and to the people of the world...

"And number three, is resolve in our might: ... where we decide it's essential for us to apply military might, that we do so with overwhelming force, that we do so in the clarity of a mission, understanding the nature of the U.S. interest involved, understanding when the mission will be complete, what will be left ... behind us when that mission has been terminated."

This is a foreign policy?  On issue after issue - there is never any content to the critique.  What should we have been doing differently in Egypt?  Or Libya?  Apparently the answer to every question like this is "Show leadership, act with resolve, express our values with clarity. "  Like his approach to how we should deal with Afghanistan, Romney has said virtually nothing of substance on what specific things he would have done differently than Obama with respect to the Arab Spring or what he would do if he became president. Romney's view on the Arab Spring?  "We must strive to ensure that the Arab spring does not become an Arab winter." Now there is confidence, clarity, and resolve.  

Why has Romney's foreign policy performance been so unimpressive?  American voters may well start coming to the conclusion that this smart, competent man really does not understand the modern world very well, has not put much thought into how American interests can be advanced in the complicated circumstances of the 21st century, and does not have the background, experience or knowledge necessary to think on his feet on these topics.  If he cannot reverse this building impression -- he will not be the next president.

   

Is Micro-targeting Destroying Our Politics?

There was nothing fundamentally wrong with Mitt Romney's speech last night at the RNC - it was pretty standard Republican fare. For my tastes, there was too much cheesiness about Romney the family man and barely any policy - but I can see where others would disagree.

What disturbed me most, however, and it is true to a great extent about the Obama campaign to date as well, is that there was absolutely no effort to lay out a genuine vision about where the candidate wanted to take the country if elected president.  Nothing about what the role of government ought to be in the 21st century.  After all, the president runs the government, not the economy.  Is it too much to ask that a candidate tell us what he thinks the government should do?  What the government should stay out of?  Should we build more roads?  Should we send a man to Mars?  Should we provide health care coverage?  To whom?  Just wounded veterans?  Or the old?  Or the poor?  Why?  What is the federal government's role in education?  I understand that Republican's want less government -- but I would like to know a bit more about what functions of government they want to trim or eliminate.  Is that too much to ask? Democrats have their chance to answer these questions next week - we'll see if we get any better answers.  But so far in the campaign, all I've heard is that different constituencies will get what they want, or at least that Obama will protect them from getting less than they are getting now.

I wonder if advancements in micro-targeting are at least partially to blame for the  belief that there is no need to have an overarching theme that drives the message and pulls the disparate parts of a campaign together into a coherent whole.  The campaign consultants know the exact demographic slices with which they need to improve their standing -- women 18-23, Latinos in the West, young college educated men, and so on.  Not only that, they know, or at least think they know, the messages that these micro-targets will respond to.  So the campaign becomes a series of mini-messages to slivers of the electorate, rather than a contest between two visions of governance for the times we live in.

So these expensive, all encompassing elections come down to which candidate can string together the right set of initiatives, rhetoric, attacks and campaign commercials to move a sufficient number of micro-targets to get to 50% + 1 voter.  And when it is all said and done, the public is no more educated than it was before about the challenges that are facing the nation and the possible options for addressing them.  The winning candidate does not have a genuine mandate from the voters for a coherent program for governing the nation. And the losing party has no reason to re-think the details of their vision for governing because it was never really presented to the voters.  They can write off the election loss as a failure of marketing  -- next time we need to find a way to do better with married suburbanites who subscribe to Reader's Digest...

America is desperately in need of an election that decides something ... but I fear we are not getting it.