The Enemy Within

I"m overdoing it today, but there"s one more point I want to get to (before I turn my attention to the horror-show that is the budget reconciliation bill):

In Murray Waas"s fascinating, extremely complicated story about the connection between the Plame leak and a Cheney-led smear campaign against White House counterterrorism advisor Fran Townsend, which also used Robert Novak, I found this passage particularly interesting:

Libby, Addington, and others also had concerns that as a Justice Department official, [Townsend] had been too slow in invoking the Foreign Intelligence Surveillance Act, the mechanism by which the government seeks court approval for wiretaps and other electronic surveillance of potential terrorists and spies. Townsend, who declined several requests to be interviewed for this article, has said that in refusing the FISA requests, she was only following the law; that she did not want to jeopardize potential prosecutions by allowing wiretaps that would later be thrown out in court; and that the rules for such electronic surveillance were much stricter before September 11.

So perhaps it wasn"t the fast-turnaround FISA court that the hawks in the administration were afraid of, but their own executive branch approval process for getting to the court.

Byron York attempts to legitimize this very argument today in National Review: "People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It"s not so much that the court doesn"t grant them quickly, it"s that it takes a long time to get to the court."..."

The complication, explained in more detail in this profile of Townsend from a year ago mainly has to do with limits on whether intelligence gathered under FISA can be shared with prosecutors, and that some information shared in this way couldn"t be used in court.

But whatever the cause, none of this makes sense. There"s one thing the executive branch certainly has unfettered control over, and that"s their own process for submitting requests. If the president this the process is the bottleneck, streamline it. If the Justice Dept is being too cautious, tell them to take some chances. And if the issue is whether material can be used in court -- we know from the Times that the information obtained through the secret process definitely couldn"t be used in court.

So this suggests the possibility that whoever was making the decisions about the targets of surveillance under this program wanted to keep it secret not only from the FISA court, but perhaps even from people like Townsend, who Novak -- channeling the Cheney office view -- described as an "enemy within."

I"ll let others speculate about why this might be.

Posted by Mark Schmitt on December 19, 2005 | Permalink | Comments (10) | TrackBack

Alito and the Wiretaps

I have to complain -- I think the left blogosphere generally is going too easy on Bush on the domestic eavesdropping. I keep seeing it referred to -- for example, in Juliette Kayem"s fine post here -- as a violation of a "statutory prohibition," implying that what Bush violated was the Foreign Intelligence Surveillance Act (FISA).

But it was more than that. FISA isn’t the law that prohibits domestic surveillance without a warrant. It’s the Fourth Amendment to the Constitution that does that. FISA is simply the structure by which we accomodate the need for quick turnaround and total secrecy in foreign intelligence-gathering to the Fourth Amendment protection against "unreasonable" domestic searches and requirement of a warrant. To operate outside of FISA is simply and directly to contravene the letter of the Fourth Amendment.

We’re told that the president obtained a "classified" legal opinion claiming that some combination of the Commander-in-Chief power and the congressional resolution authorizing use of force after 9/11 allowed him to do so. If this classified John Yoo special gives the president the authority to contravene the Fourth Amendment, then the same presumably applies to the First, the Second, the Eighth, the 22d, etc.

This is not complicated law. Two days before the Watergate break-in in 1972, the Supreme Court ruled 8-0 in the Keith case that, "The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate." The Nixon administration argument rejected in Keith was quite similar to the Bush argument: that a threat to national security existed (in this case, posed by the White Panther party, whose leader found a more effective means of subversion later by becoming the manager of the Detroit proto-punk band MC5) and vague language in a crime control statute (since superseded by FISA) gave the President the authority to conduct warrantless surveillance. (Justice Rehnquist did not participate in the case because he had been part of the Nixon team crafting the rejected argument.) Keith does not deal with foreign threats, but the fact that a foreign threat may require domestic surveillance is exactly why FISA was enacted. (An interesting history of the case, which involves many other questions as well as one of the great appelate judges of modern times, Damon Keith, can be found here.)

I did mention Alito, which is probably why you’ve read this far. Here’s where Alito fits in: My brother-in-law, an actual attorney, called my attention to another case in the same line as Keith: Mitchell v. Forsyth. This case also flows from Nixon-era wiretapping, but wasn’t decided until 1985. It’s mainly relevant to the question of executive-branch immunity. The Court found that Attorney General Mitchell enjoyed qualified immunity from lawsuits or prosecution for the wiretaps, but only because the constitutional issue had not been clear at the time of the wiretaps, when Keith had not yet been decided

The Reagan administration argued for much more, that the attorney general should have absolute immunity whenever he was performing a national security function. This sounds similar to the Yoo theory that the president can do anything whenever he puts on his special "commander-in-chief" hat. The Court rejected that argument, finding that "Petitioner [the government] points to no historical or common-law basis for absolute immunity for officers carrying out tasks essential to national security."

My brother-in-law noted that the case identifies the lawyers involved as follows: "Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg." Given that Alito is the first working lawyer listed -- as opposed to SG, Deputy SG, AAG -- and the others are not in alphabetical order, it’s probably a good guess that he drafted the brief arguing for absolute immunity.

Alito’s views of executive power should be a major, major topic at the hearings.

Posted by Mark Schmitt on December 19, 2005 | Permalink | Comments (10) | TrackBack

Really Outdated Programs

[cross-posted, as usual, at]

It’s easy to make fun of Matt Bai; he"s a People magazine writer suddenly trying to write for Foreign Policy. His piece in yesterday"s Times magazine read like someone vaguely trying to repeat something he heard someone else say without quite understanding the point or asking questions.

But let’s try to take the point seriously. Bai says that instead of defending old programs, Democrats should rethink the social contract for an economy in which the conditions of work are very different from the "industrial-era" circumstances of lifetime employment with a single company.

Bai alludes to Social Security as one of the programs that needs to change. That’s obviously wrong. If anything, the security of the guaranteed benefit in Social Security is more necessary given the uncertainties of working life in the modern era than it was at the middle of the last century. The security against abject poverty that Social Security provides allows workers to take risks and seek opportunities with their careers and their other savings or investments that would not be possible if everything was at risk.

But Bai only mentions Social Security once, and it’s not clear that his main point is a lame case for privatization. So is his overall argument that we should rethink the social contract wrong?? No. One good response for Democrats to the banal argument that old programs are unsuited to the modern economy would be to identify those that really are outdated, and and focus on reforming them, rather than Social Security. Here are a few:

1. Unemployment Insurance. Surprisingly, because it’s the social program that college-educated journalists and wonks are most likely to be familiar with ("Vandelay Industries," anyone?) unemployment insurance gets almost no attention in these discussions. And yet it’s the program that most directly fits the outdated-industrial-age critique. Everything about the way the program works, from the high bar to eligibility, to the 26-week duration of benefits, to the business-labor board that runs the program in most states shows that this is not a compassionate program for the unfortunate. It’s a system for big industries like steel and autos to manage their labor costs through the business cycle. In cyclical downturns, they could park their employees on UI and bring them back in six months. In essence, employers socialized the cost of maintaining a flexible workforce. Not a bad system. But that was then. The era of the "temporary layoff" is over. When you lose a job, the job’s usually gone forever. When you get a new one, it may not last long enough for you to qualify for UI. And if you drop to part-time or take any time out of the workforce, you may never qualify for UI, which is why less than a quarter of working women are eligible. Finally, the system for extended benefits in recessions is hopelessly broken, which is why every recession brings a painful struggle to find money to pay for extended benefits.

2. Trade Adjustment Assistance. Much like UI, this one was designed for the auto and steel industries, facing challenges from imports in the 1970s. A group of workers has to show some proof that they lost their jobs because of imports. It doesn’t work well for plant closings or outsourcing of services, and certainly doesn’t help the millions of people who lose their jobs because of information technology or corporate cost-cutting. Nathan Newman has been trying to call attention to the Bush administration’s complete mismanagement of this program, which they would like to convert to a block grant to states.

3. Medicaid. There’s nothing wrong with Medicaid, but it is still built on the assumption that the people who need a health care safety net are the jobless poor. As we increasingly use it to fill the huge gaps in the employer-based health care system, its costs will seem to spin out of control and what was a smallish poverty program becomes a bigger and bigger part of the health system. A more comprehensive approach to health care should absorb Medicaid and guarantee decent care, not poverty-program care, for all adults and kids.

4. The Employer-Based Health Insurance Subsidy. Eduardo Porter of the New York Times did about as good a job of explaining this as can be done, also yesterday. In short, we spend about $130 billion to subsidize health insurance through employers. That subsidy is more valuable for more lavish insurance, and as employers increasingly drop health care for low-end workers, the subsidy is concentrated more and more on the wealthier, while it inflates the cost of health insurance for everyone. For $150 billion a year, experts say we could provide pretty decent universal health insurance. If there is any outdated relic of the industrial age, it’s employer-based health care.

I’m sure there are other programs that would fit the model even better. Maybe worker’s comp, but I don’t know anything about that program.

The Social Security fight is over. We shouldn’t get so spooked by the suggestion that modernizing old programs would reopen the privatization fight.

Posted by Mark Schmitt on December 19, 2005 | Permalink | Comments (5) | TrackBack

Why Can"t Lieberman Be Challenged In a Primary?

Sam Rosenfeld points out accurately that I have warned against the temptation of the idea that congressional Democrats should emulate the Republican machine in enforcing rigid party discipline on all issues. But that doesn"t mean I don"t think there are any lines that should be enforced. There are lines. And so I agree that it"s right that Nancy Pelosi should put the screws to Rep. Edolphus Towns for skipping the vote on the budget bill, which was a party vote if ever there was one, and for repeat offenses. (When I challenged the argument that Towns and others should be punished for voting for the Central American Free Trade Agreement, my point was that trade bill votes had never traditionally been party line votes; I don"t need to revisit that question here.)

Another line was certainly crossed by Joe Lieberman last week, when he said, "It’s time for Democrats who distrust President Bush to acknowledge that he will be the commander in chief for three more critical years and that in matters of war we undermine presidential credibility at our nation’s peril."

I"ve always cut Lieberman a lot of slack. He was my state rep when I was a little kid, and probably the first politician other than Nixon I could name. (Which makes it ironic that he would endorse such a Nixonian view.) When I worked in the Senate, I worked with his staff a lot on student loan and child support enforcement issues, and their intelligence and sincerity reflected their boss.  A friend who worked for him would often remind me that despite his posture, his voting record was not notably different from that of Senator Dodd, which is true, and on environmental issues, he not only votes right but has accomplished a lot.

But that endorsement of the Cheney view of the role of dissent, together with his blindness to the fact that only the president undermine"s presidential credibility, crosses the final line for me.

Which brings up the question, why can"t Lieberman be challenged? Yes, he"s generally very popular in the state, but via Ezra Klein, I notice a new poll suggests his support is eroding to 59% among Democrats. And among activist Democrats most likely to vote in a primary, Lieberman in theory ought to be especially vulnerable. Yet all the buzz seems to be about finding an independent anti-war candidate, such as former Republican Senator and independent governor Lowell Weicker, who Lieberman defeated in 1988. Why can"t there be a primary against Lieberman?

The answer has to do with Connecticut"s political culture and rules. Primaries don"t happen. Until a federal court ruling in 2002, a candidate who wanted to appear on a party"s primary ballot had to get 15% at the state party convention. That meant a grueling, expensive, and usually futile ground war in small town nominating conventions at which the state convention delegates were named. According to the Brennan Center for Justice, which filed suit challenging the rule, in 50 years, not a single incumbent member of Congress or Senator, and only one governor, faced a challenge in a primary. (Nationally, 34% of incumbent Senators seeking reelection faced primaries in 2000.)

The 15% rule was found unconstitutional in 2003, and I"m not sure where things stand or whether the state has rewritten the law. Looking at the state Democratic Party rules, it appears that to appear on a statewide primary ballot, you have to get either 15% of the delegates or petition signatures representing 2% of the state"s registered Democrats, or about 13,000 signatures. But without a culture or habit of primaries in the state, it seems unlikely that they would start now.

What"s interesting about this is the history: Connecticut"s politics is the legacy of a severe but benign political machine, especially on the Democratic side. The system created by John M. Bailey, later national party chair and father of former Rep. and failed gubernatorial candidate Barbara Kennelly, was as disciplined as the Hague machine of Jersey City -- exemplified by the 15% rule -- but the politicians it produced were decent, smart admirable liberals like Senator Abraham Ribicoff and governors Chester Bowles and Brien McMahon.

And how do I know any of this history? When I was in high school, I read a great book about Bailey and the Connecticut machine. The author had written it as his senior thesis at Yale. His name was Joe Lieberman.

So maybe it"s time for the Democrats in Connecticut to send him back to book-writing.

Posted by Mark Schmitt on December 15, 2005 | Permalink | Comments (6) | TrackBack

Wal-Mart and Public Subsidies

I, too, have avoided wading into the Wal-Mart debate, but the discussion here and also on TAPPED (especially Ezra Klein"s post yesterday afternoon), but the questions raised about whether Wal-Mart employees" use of benefits such as Medicaid or Food Stamps should be considered "corporate welfare" to the company raises some issues of long interest to me.

The argument about whether it"s a bad thing that Wal-Mart employees use public programs needs a little perspective: We should recognize the quiet revolution that has taken place in social policy for low-income workers over the last twenty years. Two decades ago, Medicaid was an adjunct of welfare. With some exceptions, the only way to be eligible for Medicaid was to get welfare (AFDC): that meant exclusively non-working single parents and their kids. When families came off welfare, they also lost Medicaid, which was the key fact that made the argument of Charles Murray"s Losing Ground basically true: a parent might well be better off on welfare, with health care, than working at a minimum wage job without it, especially with the added costs of child care. That"s not because welfare was too generous, but because the low-end labor market was too cruel, and the cliff too steep.

Over the course of twenty years, however, Medicaid was slowly expanded into a program for low-income families, not just welfare recipients: First, families with incomes up to 150% of the poverty line were made eligible, then states were allowed to cover families up to 185% of poverty. Families leaving welfare also got additional protections -- a year or more of "transitional Medicaid" to smooth the path into the workforce. The State Child Health Insurance Program created in 1997 goes up to 200% of the poverty line and some states go higher. The Earned Income Tax Credit was expanded several times over that period, and in 2001, the Additional Child Tax Credit added another small subsidy for working families with children. Child care spending rose massively in this period. All this made the blow from welfare reform much softer than it would have been otherwise.

In total, according to the Congressional Budget Office, the difference in spending on poor families with children under these entitlement programs, between 1984 and 1999 and adjusted for both inflation and population,  was $45 billion a year -- about $5 billion under the 1984 programs, and $51 billion in 1999. (I wrote more about this, in the course of a somewhat different argument, here.)

Meanwhile, in all that time, the minimum wage rose from $3.35 to $5.15, the last increase a decade ago, and in real dollars it"s worth fifty cents less than in 1984.

What we have here is a massive decision by the federal government to subsidize low-wage work rather than to force employers to pay more or provide basic benefits. Often the tradeoff was very specific: There was consensus among many Republicans and DLC Democrats that the Earned Income Credit was a "better" way of supporting low-wage workers than a minimum-wage increase, and whenever a minimum-wage increase seemed to gain momentum, Republicans would suddenly become the biggest fans of the Earned Income Credit.

So I sort of agree with Matt that there"s no point in blaming Wal-Mart for employing workers who take advantage of these programs. The entire thrust of social policy over the last two decades, albeit a quiet one, has been to encourage the creation of low-wage jobs by subsidizing them. We made a bipartisan political choice not to impose that responsibility on companies, and to use public subsidies instead.

But having made that choice, we can unmake it, or reconsider it. And we should. And if focusing on Wal-Mart, the world"s biggest company and the country"s biggest employer, helps show the consequences of that choice, that"s all to the good.

Here"s why we should reconsider it (I say, as if I were suddenly the chair of the Senate Finance Committee): First, it"s a very complex and partial system. The refundable tax credits are hugely complicated, forcing many low-income workers to pay for tax prep services that eat up half the benefit. The Medicaid benefits still leave huge gaps. I"d be much more concerned about the Wal-Mart workers who earn too much to qualify for Medicaid but still don"t have real health insurance. That"s a particular problem in the South, where Medicaid eligibility is much narrower, and for people without children, such as workers age 55-65 or women of childbearing age who may never see a doctor until they are pregnant. One might try to extend these programs further, but I would argue that we have reached the limit of what can be done with this cumbersome mix of tax credits and Medicaid expansion, especially when we have to increase taxes just to bring the deficit under control.

Second, supports for workers through subsidies should go hand in hand with internal pressures to support workers within the company. As I pointed out above, Republicans rally behind the Earned Income Credit whenever a real threat to increase the minimum wage arises. If unions were stronger and were fighting cuts in health benefits, employers would be more open to a new national deal on health insurance. That"s why Ezra Klein"s argument that unions over-emphasize the expansion of employer-based benefits at the expense of more generous public benefits is short-sighted. You only get political consensus for public benefits when there"s pressure for employer-based benefits. The union pressure on Wal-Mart is plainly leading it to look for public solutions it can support. And it"s not just politics -- we need both employer-based and public benefits. We need a minimum wage increase and the EITC; otherwise the EITC is just filling the gap between an absurdly low wage and the basic costs of survival for a family.

Health care is a little different, because that is more of an either/or. Except for a "pay or play" option, which doesn"t seem to have much political life anymore, it"s a choice between an employer-based system and an individual-based public system. Either we"ll continue to hope that the anachronistic employer-based system survives a little longer, or we"ll revamp it completely, which will mean much greater public subsidy at all levels of the system. That would be a good thing, even if it resulted in Wal-Mart and other companies getting off the hook on health care costs. But Wal-Mart, the Waltons and the shareholders would have to pay higher taxes for such a system. And that"s a good thing too.

Posted by Mark Schmitt on December 2, 2005 | Permalink | Comments (11) | TrackBack

The Dorgan Smear

There will be a lot of elephant dust being kicked up to obscure the one-party corruption machine revealed by the Abramoff investigation. A good example of it is this ABC story, unfortunately picked up on the DailyKos, implying that Senator Byron Dorgan is somehow caught up in the Abramoff mess:

New evidence is emerging that the top Democrat on the Senate committee currently investigating Jack Abramoff got political money arranged by the lobbyist back in 2002 shortly after the lawmaker took action favorable to Abramoff"s tribal clients.

A lawyer for the Louisiana Coushatta Indians told The Associated Press that Abramoff instructed the tribe to send $5,000 to Sen. Byron Dorgan"s political group just three weeks after the North Dakota Democrat urged fellow senators to fund a tribal school program Abramoff"s clients wanted to use.

Dorgan represents a state with a lot of Indians. They are also extremely poor, and have few gaming revenues because they don"t live near population centers. (Unlike, say, the Lousiana Coushattas.) Dorgan is the ranking Democrat on the Senate Indian Affairs Committee. It"s his job -- both as a Senator from North Dakota and as chair of the Indian Affairs committee -- to send a letter to the appropriations committee asking for funding for the Indian programs he thinks are important. If he didn"t send a letter requesting funding for the tribal school program, that would be significant.

ABC tries to connect Dorgan to Abramoff in the following way:

Dorgan"s letter noted that the Mississippi Choctaw, one of Abramoff"s clients, had successfully used the program and requested lawmakers consider long-term funding for it. It made no mention of Abramoff or any of his other tribes that were interested in the program.

Hmm, you might wonder: Why would Dorgan mention an Abramoff client, the Mississippi Choctaw, if he wasn"t somehow in bed with Abramoff. Why wouldn"t he mention a tribe in his own state? Very suspicious, if not the smoking gun.

Yet there"s a perfectly obvious reason: A letter requesting appropriations goes to the chair of the Appropriations Committee. The chair of the Appropriations Committee is one Senator Thad Cochran -- of Mississippi. First rule of appropriations letters is always show how the funds might benefit the appropriator"s own state.

This is business as usual and its not even mildly corrupt business as usual. Senators should advocate for programs that help their constituents.

But why would Abramoff instruct a tribe to make a donation to Dorgan (one-fifth the size of the donation to Conrad Burns), in return for a letter that Dorgan surely would have signed anyway? One possibility is that this was a long-planned setup, and Abramoff wanted to make sure that some Democrats were implicated when it all came to late. But I think the answer is more banal. There"s a dirty secret about Washington lobbying, which is that half of what lobbyists do is not persuade legislators what to do, but persuade their own clients that they -- the lobbyists -- are indispensable. And that means claiming credit for things that would happen anyway. So one way Abramoff could persuade the Coushatta"s that he was earning his keep was to point to letters like Dorgan"s, take credit for them, and then tell them to send money to Dorgan. It"s a small price to pay to maintain the illusion.

It"s no surprise that a lot of Washington reporters don"t seem to recognize how extraordinary Abramoff"s scam was, because they can"t seem to recognize how ordinary Dorgan"s actions were. If people can"t recognize that distinction, the "everyone does it" defense of Abramoff might be more effective than one would imagine.

Posted by Mark Schmitt on November 29, 2005 | Permalink | Comments (7) | TrackBack

Their Own Democrats

Ed Kilgore makes an incredibly important point, drawing on Ruy Teixera"s analysis that shows the Democrats have an advantage on virtually every issue except for "credibility in fighting terror and the clarity of our overall message."

Ed points out that the "clarity of message" of the recent GOP, while perhaps key to its success, has also been its downfall:

You could make a good case that the current GOP meltdown is partly the result of an "our team" mentality that until recently has thwarted any real intra-party Republican debate, or any honest Republican discussion with the rest of the country. I"m perfectly happy to sacrifice a few points in polls on "message clarity" in order to keep my party from following this authoritarian pattern.

You could make a good case, indeed! This is absolutely true. As the Republican juggernaut of corruption falls apart, here"s my biggest worry: That through all the years of Republican dominance, many liberals/Democrats have taken away the conclusion that the key to political success is lock-step adherence to a single coherent ideological message. That may lead to success -- but becoming a parliamentary party is also, in the U.S., the path to catastrophic failure.

It doesn"t matter so much that voters know what Democrats stand for, writ large, as that they know what their own Democrats -- their congressional candidate, their governor, their Senator -- stands for. People like Tim Kaine win because voters in Virginia see Tim Kaine and like what they see. Bernie Sanders wins because people in Vermont see Bernie Sanders, who he is and the fact that he speaks for himself, and they like that. You could go on. As I pointed out in my recent article on why the Republican success in 1994 election is a bad model for 2006, when progressive Democrats have succeeded, as in 1974, it is because they have been exceptionally skilled individuals, brilliant at understanding their own constituents and not just following a national line. The result may be a congressional majority with some ideological differences, but that"s democracy. Whatever the result, the ideological differences will be far narrower than they were back when the Democratic majority included powerful Southern arch-conservatives. I"d rather have a party of brilliant constituent politicians who work for their states and districts than a bunch of talking-point robots echoing a national message for the sake of a misguided worship of the right-wing"s "message clarity."


Posted by Mark Schmitt on November 29, 2005 | Permalink | Comments (4) | TrackBack

The Return of Doolittle and Delay

By now you probably know the names of the members of Congress under investigation in the Abramoff case:
Prosecutors in the department"s public integrity and fraud divisions...are looking into Mr. Abramoff"s interactions with former House Majority Leader Tom DeLay of Texas, Rep. Bob Ney (R., Ohio), Rep. John Doolittle (R., Calif.) and Sen. Conrad Burns (R., Mont.)
To a campaign-finance reform wonk like me, this will be a familiar group of names. Back in the late-1990s, and for some time after, as the McCain-Feingold bill limiting soft money contributions gathered momentum, an alternative emerged that would have eliminated all restrictions on campaign contributions, and in return all contributions would be reported immediately on the Internet. Accompanied by the ritual quotation from Justice Brandeis that "sunlight is the best disinfectant," the proposal to replace regulation with disclosure was first introduced by Congressman Doolittle, with DeLay as his lead cosponsor of "Doolittle/DeLay." Ney did not cosponsor, but probably just because he ran the committee that the bill was referred to, where he supported it. Burns took the same position in the Senate, complete with the same quote from everyone"s favorite Massachusetts liberal.
To this day I encounter people from all points on the political spectrum who believe -- or wish -- that the problems of corruption and perceived corruption stemming from campaign contributions can be dealt with simply by empowering voters through disclosure, so that we can all decide for ourelves whether contributions influence official actions, rather than the cumbersome system of regulation and loophole-closing we"ve devised. As the McCain-Feingold law seems to spin down a rabbit-hole of incomprehensible regulatory hair-splitting over whether blogs might be misused as loopholes for big contributions, such a simple, self-correcting and open option seems more and more appealing.
The fact that the principal advocates for the disclosure-only approach are now revealed to be (alleged) crooks does not in itself invalidate the idea or cancel out its merits as policy. But the specific case, even if none of the named legislators is provably guilty of a felony, shows starkly the limits of such an approach.
First, note that it has taken the FBI several years now to even begin to piece together the relationships between campaign contributions and official actions in this case, with indications that the investigation might take several more years. And that"s with all of Abramoff"s boastful e-mails as a roadmap. How would an ordinary citizen be expected to understand whether a campaign contribution from, say, the Tigua tribe, should be a matter of concern?
And then there"s the even more interesting revelation in this case that what we often think of as "official action" might not be found where we think. Most efforts to connect campaign contributions to official actions would tend to look at congressional voting behavior or at legislation introduced or cosponsored. That"s the approach political scientists have traditionally taken, leading most of them until recently to conclude that money had little influence on official actions, and it"s the approach most researchers have taken in trying to make the case that money does distort public responsibilities. But the emerging DeLay/Doolittle/Ney case, based on what we know about it, shows that this might be a case of the proverbial search for the keys where the light is better. As far as I can tell, in the whole web of corruption involving Abramoff, Scanlon, the tribes, David Safavian, etc, there"s not one actual congressional vote or formally introduced piece of legislation to be found. (I"d welcome any corrections on that; my research staff is still on holiday.)
Instead, Ney and his colleagues operated by various methods that traditional approaches would never find, but which are plainly misuses of official power. They would try to slip provisions helping Abramoff"s clients into the conference reports on legislation at the last minute, such as the provision helping the Tigua into the Help America Vote Act in 2002. It"s often impossible to find the fingerprints on such provisions and they may well go unnoticed until after the bill has been signed. Or, they would use letters directed to subcabinet officials such as Interior Dept official Steven Griles. Although Griles seems to have been a cooperative ideological ally, even dispassionate civil servants jump at letters from members of Congress, even those that say no more than, "please look into this." And such letters are rarely public unless the member of Congress chooses to release them. As far as I know, a freedom of information act request to an agency asking for "all correspondence from Congressman X" is the only way to get them.
And then there is the most remarkable tactic of all, something like hiding in plain sight: Ney"s insertion of statements into the Congressional Record attacking the then-owner of the SunCruz gambling boat company when Abramoff and his partners were trying to buy it. No one doing a traditional analysis of congressional power would pay a moment"s notice to statements inserted in the Congressional Record, especially those not read on the floor. The Congressional Record is like a giant group blog, albeit of far less consequence. And yet, for someone relatively new to the U.S., as SunCruz owner Gus Boulis apparently was, the idea that the U.S. Congress seems to have officially condemned your business practices would probably be a hugely intimidating factor.
These appear to be large crimes, under any system of campaign finance regulation, and should be investigated and prosecuted as such. But they show that, even in the absence of large crimes, or especially in their absence, it will never be easy for citizens to make their own judgments about whether members of Congress are responding to citizens or contributors. And thus there is no alternative to some kind of regulatory system involving limits on contributions, and public financing. But we do need some new strategies in that area -- more on that soon.

Posted by Mark Schmitt on November 28, 2005 | Permalink | Comments (5) | TrackBack

Cheney and the Paradox of Executive Power

The manic nature of the Bush/Cheney pushback against its multiplying number of critics is revealed in one aspect of Vice President Cheney"s speech at AEI Monday. Cheney said,

Some of the most irresponsible comments have come from politicians who actually voted in favor of authorizing the use of force against Saddam Hussein. These are elected officials who had access to the intelligence materials. They are known to have a high opinion of their own analytical capabilities. (Laughter.) And they were free to reach their own judgments based upon the evidence. 

Without getting into the details of exactly who had what information when, what makes that sentence so jarring is that the fundamental philosophy of Bush and Cheney -- and to a lesser degree their predecessors in the White House -- is that members of Congress, in their view, should absolutely not be "free to reach their own judgments" on matters of foreign policy and national security. Rather, advocates of executive branch power argue, the president is due substantial deference on all these questions. After all, to quote the cliche of all executive-branch defenders, "we can't have 535 Secretaries of State." The need to act with a uniform national voice, especially in a crisis, together with the fact that members of Congress will have neither complete intelligence information nor the giant organization needed to properly cull, evaluate, and reach a decision about it, is a strong argument in favor of deference to the executive.

And deference to the executive means that, unless their own judgments strongly counsel a different direction, members of Congress generally will vote to give the president the authorization or flexibility to act, even if they would not have made the same decision themselves. And most legislators operate from that principle. For example, there is no doubt that most of the Democrats, and probably many of the Republicans, who voted to authorize force would not themselves have launched the same war in the same way had they been president, but that was not the standard they used.
This White House takes a particularly far-out view of executive power, explained well by David Cole in his recent New York Review of Books article about the theories of John Yoo, now a Berkeley law professor but better known as the White House lawyer who authored the key "torture memo." Yoo believes, for example, that the Constitutional provision giving Congress the power to "declare war" means only that Congress can "declare" -- as in, observe -- that a war seems to have begun. (Cole's important article is reprinted here.)
While Yoo's theories, along with the related "unitary executive" doctrine associated with Cheney's new chief of staff David Addington, are extreme and novel defenses of the "Imperial Presidency," the basic idea that the president deserves substantial deference on foreign policy is not unusual, and not even that controversial. Members of Congress know that, even in the unlikely event that they had access to 90% of the intelligence information available to the president, they don't have the independent capacity to analyze, prioritize and interpret it, and even if they did, how could the country act in a crisis if 535 legislators came to different conclusions? (The Vice President, who demanded and received raw intelligence data, apparently had no such hesitation about his own small staff's ability to analyze and interpret such information more accurately than the entire professional system, but that's neither here nor there.)
The implication of strong executive-branch powers in foreign affairs is that, if the president is entitled to substantial deference, he also bears equivalent responsibility for the choices he or she makes. If Cheney actually believes that the politicians who voted to allow Bush to use force bear equal responsibility because "they were free to reach their own judgments," then he is implicitly accepting a foreign policy regime in which individual members of Congress are co-equal decision-makers with the President. It is obvious from everything Yoo and Addington and others have written and said that they do not believe this. It's an attack line, and the fact that it contradicts Cheney's most basic philosophy is irrelevant to them.
Those who favor strong executive power over foreign policy should recognize that that position is controversial mostly because of presidents who have abused that power. Tonkin Gulf and the secret bombing of Cambodia led to the War Powers Resolution, which even Clinton did not accept as constitutional. At the end of the day -- although it might take years -- the Iraq invasion is likely to cause a similar backlash. Cheney's implicit acceptance of the idea that members of Congress should bear equal responsibility in decision-making will feed that backlash.

Posted by Mark Schmitt on November 22, 2005 | Permalink | Comments (7) | TrackBack

Woodward is Woodward

I"m not sure I have an opinion on Bob Woodward"s culpability for keeping silent about the fact that he"d been a target of the Valerie Plame leak well before other reporters. While courts at all levels concluded that Matt Cooper and Judith Miller were required to testify, nothing would have required them or Woodward to rush forward unbidden. Woodward"s worst offense was joining in the Victoria Toensing/Joe DiGenova chorus of "there"s no crime here," which is only a little more shameful than it already was, now that we know what he knew.

Much more interesting are the obvious strains in his "odd relationship" with his Post colleagues, especially Walter Pincus. I should say that I know nothing about what goes on in the Post newsroom. But for as long as I've been reading the Washington Post regularly, I've found it sort of ironic that the paper has some of the most amazing investigative reporters in history, reporters who really earn that overused modifier. Pincus and now retired George Lardner are the best examples, but Morton Mintz was another and in the younger generation, probably Dana Priest is a fourth. All are the kind of reporters who understand how to break open a federal agency, nurture an unhappy bureaucrat with a story to tell until he's ready to tell it, or read through 10,000 pages of public records to find the connections between two events. And none of them are or were all that well known.

Meanwhile the paper also had someone who was probably the embodiment of the term "investigative reporter" to a generation, but who is actually not that at all. Woodward instead is a stenographer of the narratives of the people at the very highest levels of power, recording their semi-official versions of history. Not that there's anything wrong with that; it's just a different activity. Even Deep Throat turns out to be not a White House underling shocked at what he's witnessing but basically a rival center of power in Washington at the time, the post-Hoover FBI. I've always wondered if that caused a little tension at the paper. (When I say "stenographer," echoing Maureen Dowd's criticism of Judith Miller, I don't mean to associate Woodward with Miller, whose "entanglement" with sources and her role in the story, makes her something other than a journalist.)

I was glad to see that Greg Anrig linked to an old Joan Didion essay about most of Woodward's books. To my mind the most interesting and revealing of those books is the most unlikely: Wired, his out of print 1984 biography of John Belushi. Wired is almost like a French experimental novel of the 60s, like the novel whose name and author I forget right now that is written entirely without the letter "e": It is a book about humor written entirely from the perspective of a person without any sense of humor or irony. It's years since I read it, but I vividly remember the flat earnestness with which Woodward recounts the "Bees" segment from the early Saturday Night Live, and Belushi's dislike of it, the same tone he would later bring to Colin Powell's march to war. He has no idea why people would dress up as bees, laugh at people dressed as bees, or that there are motives and paradoxes underneath the surface. Woodward's mind has a total literalness to it -- as Anrig says, he believes that "what's really going on" is exactly the same as what his sources tell him. That's wired in, not something he can do anything about, and so I've always been a little sympathetic to Woodward. (And before anyone says "Asperger's," let me just say my name's not Bill Frist and I don't do remote medical diagnosis.) And you can get something out of his reporting, if you bring your own sense of irony and skepticism.

p.s.: The book I was thinking of is "Le Disparition," by Georges Perec, which I cannot claim to have read either in French or in its English translation. From Google and Wikipedia, I learn that such texts are called "lipograms" and that "writing this way is impractical." Indeed.

Posted by Mark Schmitt on November 17, 2005 | Permalink | Comments (9) | TrackBack