Mark Schmitt

What I Learned About Filibusters From Writing One

Continuing my previous post, in which I was going to write about my own experience with a filibuster as a Senate staffer, but never got to it:

Throughout the discussion of filibusters, I've argued that it's important that filibusters be real -- that Senators who want to block or delay action be forced to make some sacrifices of time or sleep to show the depth of their commitment, so that the filibuster is not merely a supermajority. Early in 1996, which was the last year I worked for Senator Bill Bradley (and the last year of his final term), there was a brief period when the Republican majority seemed committed to ending its laid-back attitude. Bob Dole was in his last days as majority leader, and was on the verge of losing control of the institution because you can't simultaneously run for president and manage the Senate. Democrats were on the verge of taking control of the agenda, and the Republicans were reaching deep into the bag of parliamentary tricks to hold them back.

In this context, Senator Bradley decided to filibuster the Utah Wilderness Bill, which actually should have been called the Utah Development Bill. This legislation, similar to bills that have been negotiated and passed for most Wesern states, would have taken the vast acreage controlled by the Bureau of Land Management, and designated some of it as wilderness, opening the rest to development. The version of the bill that the Energy and Natural Resources Committee produced would have left, if I recall correctly, about 20 million acres of the most beautiful and untouched Utah landscape open to mining, roads and other development. Responsibility for fighting this bill fell to Bradley simply because he was the ranking Democrat on the committee's subcommittee on public lands.

Although he had been in the Senate 17 years, Bradley had never led a filibuster. And in the new environment, it seemed likely that the leadership would force him to show his hand, to hold the floor for at least the better part of a day to prove he was serious. Bradley had immersed himself in the bill and the background, but being Bradley, he wanted to be fully prepared. As the legislative staff, we needed to produce many hours worth of factual, readable material relevant to the bill. This wasn't my issue, but it should come as no surprise to anyone reading here that if you need a couple hundred pages of blather written on short notice, I'm your man. So while my colleagues worked on the legislative details, I spent a weekend with my desk heaped with books and reports about the declining significance of mining to the Utah economy, the geology of the Kaiparowits Plateau and other landmarks, and lyrical books about the west by Bernard deVoto, Terry Tempest Williams, Patricia Nelson Limerick, and others, always following the rule of thumb of every 10th-grader writing a term-paper: Why quote just a sentence when the whole paragraph is eloquent?

In the end, I think they forced Bradley to speak for about six hours before calling a cloture vote. The most memorable moment in the whole debate came near the end, when Senator Hatch of Utah rose to make the case for the development of his home: "If I hear one more word from the Senator from New Jersey about the 'silence and solitude' of my own state, I think I'm going to be ill." Perhaps we'd overdone the poetics.

When the vote was called, Bradley didn't get just the 40 votes to sustain the filibuster, he got 49. One Democratic Senator (Pell of Rhode Island) always voted for cloture on principle, so that meant we would have had 50, on final passage, and with Gore breaking the tie, we actually had enough votes to defeat the legislation on a straight up-and-down vote. That was quite a surprise, and a tribute to my eloquence. (joke.)

I want to be careful in drawing generalizations about the filibuster from this one episode, which is now (to my astonishment) almost nine years old, and in unusual in certain respects, but it did shape my thinking about the process in several ways:

First, this is a classic example of an action that cannot be undone, where today's majority should be restrained because of the permanence of their action. If the areas that should be designated wilderness in Utah were open to development and mining, they would never be unopened to development and mining. Just as it was not entirely the prerogative of the current Senators and governor of Utah -- all of whom favored the bill -- to determine how much development should be allowed, it is not necessarily only the current congress that should have a voice in the result.

Second, a real filibuster is a high-profile action that raises the profile of the issue at hand and forces the votes to be more publicly accountable. Without a filibuster, the Utah Wilderness Bill probably would have passed quickly with close to 60 votes, with most Senators not wanting to challenge Hatch or his Republican colleague, Senator Bennett. Only the filibuster put it under the spotlight, made Senators consider their vote carefully and look at the details of the bill. The filibuster, if it is real, in the world of C-SPAN and live-blogging, is not a surreptitious anti-democratic device but a way of drawing things out into the daylight. (This is a significant difference from the Senate in the era of the anti-civil rights filibusters, when it's motto was like Las Vegas's, "What happens here stays here.")

Third, the most interesting thing about spending three days on the staff benches on the corner of the Senate floor nine years ago was that at the same time, Ted Kennedy was figuring out how to get around parliamentary obstacles (obstacles that he had not seen before, and he's been in the Senate since before I was born) to get a vote on the increase in the minimum wage, and also at the same time Senator Dorgan was figuring out how to get a vote on his resolution to prevent the Republicans from plundering Social Security to pay for tax cuts. (I can't remember the details, but it was some early version of the "lockbox" of 2000 -- contrived, not perfect policy, but a good political tactic.) Later that week the Senate passed the minimum wage increase, the only increase between 1990 and today, and a few weeks later Dole stepped down. I've always felt that was the week that the Gingrich tide finally turned, and the Democratic minority in effect became the majority. The filibuster on the Utah bill played a relatively small part in the week's events, but it was essential. In effect, we were holding back the Republican agenda while Kennedy and Dorgan were substituting their own.

Opponents of the filibuster argue that without it, the Senate would be a responsive, majoritarian institution. In fact, it would be a tightly controlled institution, like the DeLay House, just a lot less representative. The right of unlimited debate and unlimited amendment is a critical part of what makes the Senate an open institution, and losing it would be very costly to progressives at any time when they did not have complete control of both houses and the presidency.

That Which Cannot Be Undone

I'm going to take another crack at this filibuster debate. The basic viewpoint put forward first by Nathan Newman on his laborblog, supported by Yglesias and his co-workers, several commentors here (notably "Petey"), and now joined in part by Rick Hertzberg in the New Yorker (a lot of firepower to fend off with my little blog) has been that Democrats/liberals should be eager to get rid of the filibuster because liberalism depends on active government and the filibuster is a way to delay and derail action. All agree that ending the filibuster solely for judicial nominations is a bad idea, but all would welcome a deal by which it could be ended for legislation as well.

My argument in response has been that it's tricky to predict the substantive results of any purely procedural change, because a change can have very different results depending on other circumstances, and that allowing a committed, passionate minority . Without totally discarding that argument, I want to take a second bite at this apple (a phrase that John Bolton just put into my head), and put the argument in another way. In thinking about my own single experience with a filibuster (which I'll discuss below), it occurred to me that while anything that favors delay over action may favor conservatism over liberalism, the current right-wing agenda is really all about trying to foreclose the possibility of future action, or to create actions that cannot be undone.

Liberal actions are rarely permanent, with the great entitlement programs being the major exceptions. Mostly our agenda depends on regulatory regimes like the Clean Air Act that appropriately are reviewed and reauthorized every few years, or spending programs like HeadStart that require not only reauthorization but annual appropriations. (Jonathan Chait has elevated this sense of continual reconsideration into the heart of liberalism itself, in which I think he is correct.) On the other hand, much of the right-wing agenda (which does not deserve to be called conservative) consists of initiatives that have significant long-term consequences and for either practical or political reasons cannot be undone by a future majority. If the Arctic National Wildlife Refuge is opened for oil drilling, it will never be unopened. If a majority of the Supreme Court and circuit courts represent the "Constitution in Exile" extreme, and are under 50, that will not be undone for at least a generation. If the estate tax is permanently ended, it might require decades of struggle to bring it or an alternative back. If Bush's favored form of tax cut -- not rate reductions, but the exclusion of certain forms of investment income from taxation altogether, such as through uncapped tax-free savings accounts -- pass, those income streams will be lost to revenues forever.

This is really the most plausible "principled" point in favor of the filibuster: that it should always be difficult for a majority, which might be a temporary majority, to bind future majorities. That's why we have such a high barrier to constitutional amendments. But there are other legislative choices that can have the same effect as constitutional amendments, because of their permanence and the way they constrain future choices. Filibustering a judicial appointment, a permanent tax cut, or a significant environmental deregulation, or for example, the deregulation of media ownership, would be highly justifiable filibuster targets, in the name of future voters who might have a different view. That's more justifiable than filibustering an appropriations bill, which is just this year's majority's decision about this year's spending. I don't think there's a rule that could precisely reflect this, but if I were a Senator, I think that I would try to set a standard by which I would join a filibuster/oppose cloture principally on things which cannot be reversed, or which can be reversed only with great difficulty, rather than the decisions by today's majority that can easily be reconsidered by a majority in the near future.

On balance, it's hard to really score this, but I think that right now at least, the radical right has a rich agenda of things-that-cannot-be-undone, on the environmental, legal, and economic fronts, and we have much to gain by being able to stop them. At the same time, I think liberalism has less to lose from a structure that might slow down action, but doesn't prevent it permanently.

Nathan Newman pointed out in response to my first post in this sequence, that while all the tax cuts had been passed under the filibuster-proof reconciliation process, the 2001 tax package had passed with more than 60 votes and thus the filibuster wouldn't have helped anyway. True, and a good point, although it would have given the Democrats a little more negotiating power. More to the point, though, if it weren't for the Byrd Rule, which is kind of the exception to the exception, the Bush tax cuts would have been made permanent right from the start. In other words, if there had been no filibuster possibility at all, the estate tax would be gone, and all the other changes would be permanent.

I was going to make this comment a preface to a brief account of my own experience with a filibuster, but I think I'll split that off into a separate post.

Culture of Life? Or Culture of Cost-Benefit?

A fascinating article from The Oregonian (courtesy of a friend in Portland) puts the "culture of life" in perspective:

WASHINGTON -- As President Bush awaited legislation to save the life of Terri Schiavo last month, he urged the nation to build a "culture of life where all Americans are valued, welcomed and protected."

But at the same time, Bush's budget office continued its pursuit of a more sweeping regulatory policy that conflicts with core values of the pro-life movement.

Under Bush, the White House Office of Management and Budget has encouraged federal agencies to weigh relative, "quality-of-life" factors such as the health and age of people who would benefit from health and safety regulations....

Lacking a better yardstick, many agencies count benefits in dollars per life. The Environmental Protection Agency, for example, has in recent years chalked up a standard, $6.1 million benefit for every premature death prevented by reductions in air pollution.

Under Bush, the White House budget office has scrutinized whether that approach does the most good for society. And it has raised a difficult moral question: Can a single dollar amount reflect the value of a healthy 40-year-old as well as a 65-year-old with chronic illness?

In 2002, the budget office helped prepare an "alternative analysis" of Bush's Clear Skies Initiative that assigned benefits per "life year" realized by reduced emissions. The result of the new approach was a lower value for the lives of older people. Critics dubbed it "the senior discount."

The whole article is worth reading.

As the article goes on to suggest, without much background for non-Oregonians, there's more to this than just hypocrisy, although that's not a minor thing. The reason they're particularly interested in this in Oregon is because the business of weighing relative quality-of-life factors so closely resembles the Oregon Health Plan of the early 1990s, probably the most daring of all the efforts to deal with the health coverage crisis of the time, until it was shut down by the Bush I administration. The Oregon Health Plan tried to provide basic health benefits through Medicaid to all adults, paying for them by rationing benefits based on efficacy and quality of life. The core of the plan was a ranking of 800 medical treatments based on those standards, similar to the "benefits per life year" suggested by OMB.

This is the kind of issue that everyone's on all sides of. The Oregon plan was designed by liberal Democrats, notably physician John Kitzhaber, a legislator at the time and later governor, but the opposition came from Democratic Rep. Henry Waxman and from Al Gore, then a Senator, and finally it was Bush I's HHS Secretary, Louis Sullivan, who denied the state the waiver it needed from federal Medicaid rules to enact the experiment.

It's easy to jump on the hypocrisy of the Shiavo demagogues here. But it's also important to acknowledge that, like it or not, if we're ever going to treat health care as a public good, we are going to have to wrestle with these ultimately unresolvable moral questions endlessly -- such as the 28% of Medicare costs that are spent in the last year of life -- and neither Bush I's punting, nor Bush II's vacuous "culture of life" sloganeering helps resolve these questions.

Why the Filibuster is Not A Supermajority

I was asked in comments to explain my statement that a filibuster is not a super-majority requirement, so I will do so.

A filibuster certainly can be equivalent to a supermajority requirement, but only if the Senate chooses to treat it that way. In the 1990s, especially when Bob Dole was majority leader, they did. The practice was to run a test vote early on in the consideration of a bill -- sometimes a vote on the motion to proceed to the bill, sometimes a vote on an amendment that was likely to have the same supporters or opponents as the bill itself -- and then pull anything that didn't get 60 votes. No one on either side wanted to waste their time on something that might get filibustered. They had fundraisers to get to! As a result, opponents were never asked to show the depth of their commitment to opposition, by speaking at length, staying up late, learning Senate procedure, skipping trips, enduring unflattering public scrutiny, etc.

But that's not the way the Senate worked in previous decades, and it's really a cheapening of an important process. If the Republicans are willing to force real filibusters (which means they have to skip the fundraisers and family time and stay awake themselves), the difference between a filibuster and a mere supermajority will be clear. And the distinction is legally very important. For more on this, see TheNextHurrah, a blog produced by several of the very best DailyKos veterans, such as "DemFromCT" and "DHinMI," which has been an invaluable source for indredibly detailed analysis on the Nuclear Option, mainly in a twelve part series signed "KagroX."

In the part I've linked to, KagroX deals with a memo sent by Bush I White House counsel C. Boyden Gray that cited various legal scholars, most of which he identifies as "liberal" or "Democratic activist" to suggest that judicial filibusters were unconstitutional. Most of Gray's citations were blatantly misleading -- no surprise -- but a particularly interesting one was to a paper by Georgetown law professor Susan Low Bloch (or, as Gray put it, "liberal Georgetown Law Professor Susan Low Bloch)" who had spoken at a conference in opposition to a House proposal to require a three-fifths majority to pass a tax increase. Bloch wrote a note protesting the use of her testimony by Gray and later by Senator John Cornyn, himself evidently a legal scholar, on the grounds that they had ignored the distinction between a filibuster and a supermajority:

It should be obvious that the time-honored use of a filibuster to allow Senators to express their views and to decide when to cut off debate and schedule a vote is not equivalent to a rule change requiring a supermajority... Indeed, it is not a rule change at all. Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that. The question is the constitutionality of the ability of Senators to debate until they believe the matter has been thoroughly discussed and should be scheduled for a vote.

There is, in sum, a significant difference between a rule change that attempts to require a supermajority to "pass" a bill or "confirm" a nominee, when the Constitution clearly requires only a majority, and an internal rule of proceeding that says every Senator can speak on a matter unless and until a supermajority decides it has heard enough. The first tampers with the Constitution; the second is an internal rule of procedure

The full Bloch response is in the second comment to the post at TheNextHurrah. And, by the way, keep reading that blog.

Defending the Filibuster (Again)

Sam Rosenfeld asked for my comments on Nathan Newman's well-argued "Hoping for a Mushroom Cloud," a passionate liberal argument for eliminating the filibuster. Newman starts with the familiar note that the filibuster has been "the tool of racists and segregationists for a century," but goes on to make a subtler argument: "Conservatives have thrived in a political environment where they can block any positive use of government. ...Blocking conservative action through filibusters has short-term gains, but it feeds the long-term cynicism of voters that government cannot accomplish anything." In other words, filibusters will always be more effective as a tool of conservative efforts to cut down activist government than the reverse. The relationship between policies and programs, political procedures such as the filibuster, and the impact of long-term cynicism about government is a great way to think about this, and I recommend Newman's post.

Sam was almost pulled over to the dark side. "I feel like I need to hear some more principled progressive arguments for this institution [the filibuster]" he pleads. And he is right that Newman is a lot more persuasive than the New York Times' attempts at a high-minded defense of the filibuster as if it were written into the Apocrypha of the Constitution.

I've written a defense of the filibuster before, in response to a similar request and also mentioning Sam. And I'm not inclined to do it again, because every time I start down this road, before I know it I've written 3,000 words more than anyone wants to read and it's 4:00 in the morning. But my earlier post didn't really address Newman's argument.

For that, I think I'll just refer back to something else I wrote last summer, an article on congressional reform that is mostly a review of a recent book by Julian Zelizer. (And which appeared in the American Prospect online, where Sam works, so this whole thing is circular) What I noted from the book was that procedural reform in the 1940s, 50s and 60s was built on the assumption that if the rules were different the results would change. Reducing the number of votes needed to end a filibuster from 66 to 60, breaking the "committee system" by which senile Southerners held total power over what was considered, and making votes public were expected to lead not only to passage of civil rights legislation, but to a much more activist, presidential government. Reformers assumed that they would help a strong president, who was likely to be liberal, set the congressional agenda.

I noted the irony that everything the reformers had dreamed of had now come true. The president can now set the congressional agenda. And yet, the result in practice is exactly the same: antigovernment Southern conservatives control the game, just as solidly under the new rules as under the old. The point is not that the reforms were mistaken or backfired. It's just the rule of thumb that any procedural reform is likely to have very different results depending on the political and cultural context. As political culture changes, the results become unpredictable. In this case, the big change that overwhelms everything was, as Kevin Drum noted earlier this week, the shift of Southern conservatives from a faction within the Democratic party to the base of the Republican Party.

This uncertainty makes it difficult for me to fully buy Newman's result-oriented view of the filibuster. I hope this isn't too high-minded or Rawlsian, but I think that given the uncertainty, one is best off accepting a neutral principle that you could live with if you didn't know whether your party was in the minority or majority, or whether your immediate cause would benefit or not from the rule change. Given the role that Circuit and Supreme Court judges play in setting the constitutional parameters for both government and individual rights for generations, the principle that a very committed 40% can block an appointment seems like a very reasonable one, one I would accept from behind the veil of ignorance.

The other point I would make in response to Newman is to point out that the greatest obstacles to activist government have been enacted under the filibuster-free zone called budget reconciliation. It is under that 50-vote process that the choices were made that reduced federal revenues from 20.1% of GDP to 16%, a barrier to action far bigger than just public cynicism about government.

Now I wouldn't mind at all if Republicans wanted to make a filibuster very, very difficult. Make the Democrats hold the floor, make them speak, make them master the most arcane rules and precedents, make them cancel those trips to fund-raising dinners and conferences at Aspen, and sleep in shifts in cots off the floor. That's fine with me. (Not actually being a Senator, of course, it's easy for me to say.) The filibuster is not a super-majority requirement. It is a measure of intensity, passion and commitment, a factor that a democracy should try to incorporate. (The fact that there's never been intensity, passion and commitment comparable to the Southerners' passionate commitment to segregation forever is just what gives the filibuster its ugly reputation.) The problem with the filibuster is that it's been reduced in recent years to a mere super-majority requirement. When Bob Dole was majority leader, he used to assert almost every day that "you need 60 votes to get anything done around here," and every bill usually got a test vote, sometimes on the motion to proceed to the bill, and if it didn't get 60, it was quickly pulled.

Assuming the Republicans force a real filibuster on a judicial nomination, it will be a very public spectacle. It's very different from quietly bottling up a nomination in committee, as the Republicans did to Clinton for six years and the Dems to Bush for some of 2002. It will receive intense public scrutiny and will have to be defensible in the modern media context. If the Bush judicial nominee is a reasonable-seeming, qualified conservative, it will be very difficult to mount a filibuster, because some Democrats will inevitably lose their nerve and there's nothing worse than starting a filibuster and then caving. If the judicial nominee, on the other hand, is a "Constitution in Exile" acolyte, with an extremist record in one area or another, then Democrats will stick together and gain strength. And they will be right. But it will take a very careful calculation at a key point, unless Bush hands the Dems a gift from the Bolton/Bernie Kerik school of nominees.

Republicans would like the debate to be about the nuclear option itself, the idea of filibustering judges rather than the judges themselves. If that's the main debate, then Joe Klein's argument in Time might be right: Democrats will be seen as legalistic and obstructionist. That's why we need to get past the nuclear option and to a real debate about actual nominees. Far from being anti-democratic, a debate on a real nominee will be a visible showdown between two visions of government.

Was I Part of "An Immense Scam Perpetrated on the American People"?

[Note: This is the real version of a post that I accidentally posted last night in the course of trying to edit it and fix a problem with line breaks and which I guess was public for about five hours until I realized the mistake. If you linked to or quoted the earlier version, please correct based on this one. Anyone interested in the changes from the earlier draft, I've noted them below in the comments.]

I feel a certain morbid obligation to address an issue that has emerged -- surely not by accident -- on some conservative blogs and the Moon/Murdoch media: the contention that "Campaign finance reform has been an immense scam perpetrated on the American people by a cadre of left-wing foundations," in the words of a New
York Post editorial three weeks ago.

The evidence for this pronouncement is made up of three exhibits:

1. Assigned the Whitaker Chambers role in this scandal is Sean Treglia, a former program officer at the Pew Charitable Trusts and a counterpart of mine when I held a similar role at the Open Society Institute. In a speech last year, Sean essentially took credit for the passage of the McCain-Feingold law, claiming that he built the appearance of a mass movement for reform by persuading organizations to take up the cause, by asking the organizations he funded to "never mention Pew," and by following "the letter but not the spirit" of the law. Sean recently retracted his comments, saying, "me delivering a bad speech at a conference is a far cry from Pew purposely trying to deceive...and I am surprised and saddened that my presentation has led some people to draw that conclusion," an odd formulation.

2. In the role of the pumpkin papers is a report from a for-profit organization, PoliticalMoneyLine.com, which shows that foundation funding made up a large portion of the campaign finance reform movement, not a new fact. Unfortunately, this report is hidden behind a very expensive subscription wall, although all the right-wing bloggers seem to write about it knowledgeably. I have seen it, and corrected some immediately obvious errors. PoliticalMoneyLine.com normally does very good work, but matching up foundation's 990 tax forms and other public information with the 990s from the recipients is a lot harder than cleaning up data from the FEC on campaign contributions, or from the IRS on 527s.

The Post editorial was written by Ryan Sager, a product of the conservative journalism training system who takes credit for unearthing the "bombshell" Treglia video, all of which is posted on his blog.

Good commentary on all this is linked on Professor Rick Hasen's indispensable Election Law Blog. Hasen's own comments are helpful, as are the more critical thoughts of Bob Bauer, a Democratic lawyer and notable campaign finance reform skeptic. Bill Allison of the Center for Public Integrity has also joined this debate and deserves a special prize for attempting to engage with Sager.

First, let's be clear, this is all part of something bigger. A decision has been made to discredit campaign finance reform and the groups involved in it. The scare-mongering about the Federal Election Commission being required to regulate bloggers was the first hit, this is the second. Republican attacks on the watchdog groups that have been critical of Tom DeLay is a third. What's the real agenda behind these attacks? While some would like to repeal McCain-Feingold, I doubt that's the main motive here, since it's now a regime that both parties have learned to live within and that probably still hurts Democrats slightly more than Republicans. The goal could be to discredit McCain as a potential 2008 candidate or as a gadfly. Or it could be to discredit the critics of DeLay, or just to change the subject and put the groups on the defensive. That's the last I'll say about that, though, because just as the sources of support for campaign finance groups has little bearing on their arguments, the provenance of these charges has little
to do with whether they are valid or not.

I generally agree with Hasen that this is much ado about nothing, although I have to admit that Treglia sure makes it seem otherwise, and there are some real concerns. The basic story, stripped of hyperbole, is just this: some foundations ranging from the fairly liberal (OSI, Ford) to the moderate (Carnegie Corporation, Pew) to the conservative (Smith-Richardson) funded a number of organizations from the mid-1990s and continuing into the present that were working on issues related to money in politics at the state and federal level. The information and analysis that helped legislators make the case for the McCain-Feingold law and later its legal defense was a small part of that effort for most of these foundations, though a bigger component for Pew. All of it was public, on both ends -- the foundations make their grants public and the organizations make their funders public.

In fact, Kent Cooper, who runs politicalmoneyline.com, told me that the reason they chose to do a report on funders of campaign finance reform, as opposed to another issue, was for the very reason that the information would be much easier to find than in other fields, because the groups involved all felt obliged to go well beyond the letter of the law in
disclosure!

The breathless conspiracy talk on the right-wing blogs reminds me of reports one often sees about the school voucher movement and its funding by certain conservative foundations, notably the Lynde and Harry Bradley Foundation. Similar to Pew, Bradley and its former president, Michael Joyce, take credit for funding groups that promote vouchers, and many liberals believe vouchers too are "an immense scam perpetrated by a cadre of foundations." I've never had much patience with that analysis: school vouchers are gaining credibility as an idea because too many public schools stink. Campaign finance reform had credibility because politicians like DeLay are on the take and because the huge waves of corporate money in the 1996 elections were disturbing. To think otherwise is a delusion. Both movements existed before foundations supported them and they will continue, though weaker, if they are defunded.

Second, Sean Treglia's speech is really so over-the-top that it should create some doubt in itself. It's about as credible a "confession" as if I confessed to starting the Boer War. No history of political reform in the 1990s-2000s will have the name Sean Treglia in it, as the Washington Times editorial pointed out. The speech is an extreme manifestation of a syndrome one sometimes sees in the foundation world, where the power to allocate millions of dollars of someone
else's money can have undesirable side effects on the ego. (And I may have suffered from this side effect myself -- it's like having spinach in your teeth; you won't know and no one will tell you.) It is a tendency to confuse your power to allocate resources with the effort of those doing the work. It's comparable to the tendency of editors in
book publishing to refer to "my book" when all they did was contract an author to write it.

A particularly disgraceful example of this occurs in Treglia's speech when he talks about the Committee for Economic Development, a moderate-to-conservative business organization with a long and admirable history that released a a report on money in politics in March 1999 that called for generous public financing of congressional candidates. In Treglia's tale, he personally decided that the push for McCain-Feingold needed the appearance of business support, went to the CED and after much cajoling and offers of funding, persuaded them to endorse McCain-Feingold. If the CED wants to sue Treglia for slander, they are welcome to call me as a witness. The real story is that CED undertook a huge and serious project, before there was any funding
from anyone, to understand the problems of money in politics and propose a solution. They put together a task force of corporate leaders who in turn called in academics and lawyers on all sides of the issue and learned all they could in order to make a recommendation. I had the privilege of joining one of those long, thoughtful meetings and that experience, along with the report, left me with great admiration for these responsible, mostly Republican
corporate leaders. Pew deserves credit for helping to fund that effort after it started, but the effort was entirely the CED's own initiative, not Pew's and not Sean's.

Incidentally, the CED recommendation, like most of the work OSI and other foundations supported, was not just the limits-based approach of McCain-Feingold, but included significant public financing for congressional elections, so that candidates are able to run and be heard. To me, that's essential for real campaign finance reform, and at this point, if someone wanted to repeal McCain-Feingold in exchange for real public financing -- what the ACLU used to call "floors without ceilings," I'd be very interested.

On the politicalmoneyline.com report, I think it would be great if that could be made available to the public, in part so that organizations could check the information and correct it. It's also important to note that very little of the funding identified in that report had anything to do with McCain-Feingold per se. The distinction between funding that was intended to promote a particular solution on campaign finance reform and that which is in fact for research and public information totally unrelated to soft money is not at all clear from the report. Again, the best way to clear this up is to have the report be public.

There's a lot more to say, but let me quickly comment on point that I think is legitimately taken by Sager and others. The role of foundations in campaign finance reform, as in other issues, should be covered more thoroughly by the press. I think most foundations could deal with the scrutiny and many would welcome it and find it a healthy challenge. Apart from this issue, foundations are simply an important sector in our public policy because we long ago made a decision that many of the things that government does in other countries would be done in the U.S. through private initiative with a tax advantage. Foundations are semi-public institutions and should be treated and studied as such. Treglia's speech was addressed to an audience of journalists at a seminar on how to cover philanthropy, which perhaps is the one justification for what he was trying to do: he was basically telling them, here was a huge story you overlooked.

But the reason that the role of foundations in campaign finance reform was overlooked is absolutely not, as Bob Bauer argues, that the press favors campaign finance reform. It was overlooked because the press has no idea how to cover foundations at all. The role of foundations in the school voucher movement, noted above, is equally unknown, the role of conservative foundations in promoting radical legal doctrines is unknown, the role of liberal foundations in voter registration projects is unknown, the role of liberal foundations in, say, establishing after-school programs is unknown. There are always stories about George Soros, the individual, but virtually nothing about the foundation that he founded but which is managed by others. There is occasionally coverage of the Ford Foundation, the best known of all major U.S. Foundations, very little of its almost as large brethren such as Pew, the Carnegie Corporation, the Hewlett and Packard Foundations, MacArthur (apart from the fellowships), etc. Stephanie Strom of the New York Times is the first of its "philanthropy" reporters to stay on the beat long enough to get a handle on it, and good reporting is beginning to emerge. Perhaps Sager will eventually contribute to the journalism that leads to a deeper public understanding of this neglected sector.

David Brooks is Forgiven Some Sins

[Updated -- see below]

I commented the other night that the bread-and-butter of the liberal blogger was bashing David Brooks. And it's partly out of frustration, because he used to be so interesting, and at the Times he became such a predictable party hack hiding behind a pose of erudition and independence. It would be easier to bash Charles Krauthammer or Michelle Malkin, but what's the point? They are who they are. Brooks was something more.

Well, I stayed up late enough to read Brooks's column tomorrow, so perhaps I will be among the first to say, no Brooks-bashing today, and none for the next two weeks. Brooks says that liberal efforts to replicate the conservative infrastructure of ideas and organization fundamentally misunderstand the right, characterizing it as an "echo chamber" or "message machine" that disseminates a single viewpoint. I've been making this argument in these discussions on the left for years, but perhaps Brooks will have a little more insider credibility. He says,

Conservatives have not triumphed because they have built a disciplined and efficient message machine. Conservatives have thrived because they are split into feuding factions that squabble incessantly. As these factions have multiplied, more people have come to call themselves conservatives because they've found one faction to agree with.

and concludes,

If I were a liberal, which I used to be, I wouldn't want message discipline. I'd take this opportunity to have a big debate about the things Thomas Paine, Herbert Croly, Isaiah Berlin, R. H. Tawney and John Dewey were writing about. I'd argue about human nature and the American character.

In disunity there is strength.

In between, he describes the early disputes within National Review and among today's factions, arguing that they have made conservatism more introspective and adaptable.

I know this to be true. I'm familiar with the right and it's think tanks and magazines, and I know what goes on in them. What goes on is that people argue. They argue endlessly, not just about their philosophies (because, frankly, very few people think in those terms even if they've read all their Oakeshott and Burke and Hayek), but about practical politics and policies. Sometimes they stop speaking to each other, and sometimes, having aired their disagreements, they find a way to work together. They learn, they adapt, they develop their voice. They argue for their viewpoints knowing that no one viewpoint will dominate. Bill Bradley captured some of that the other day, even though it may be his op-ed that Brooks is reacting to, when he wrote that wrote that the various actors on the conservative side, such as Ann Coulter and Grover Norquist, understand their roles.

Update (the next morning):

Just to be clear: What I'm talking about here, and what Brooks is talking about, is not partisan unity or disunity, which is a separate question. Obviously, there was strength in unity on Social Security and there would have been extraordinary weakness in disunity at that point. I'm talking about the process by which ideas and ideology are developed. Many of those who want to build up the "progressive intellectual infrastructure" see the right-wing institutions, such as the American Enterprise Institute and magazines such as the Weekly Standard as simply part of a disciplined message infrastructure. That leads to a particular conclusion about what a counterpart would look like. And it's wrong: those institutions are loci of great internal debate. Does that debate then lead to ideological clarity, which can be the basis for greater partisan unity later? Absolutely.

If you're going to take the right-wing intellectual infrastructure as a model -- and I'm not convinced one should -- you have to at least understand this one thing about it.

The other question to think about is what to argue about. There's a lot of argument right now about attitude: how to enforce discipline, how to react to Republicans, how to punish Joe Lieberman, etc. Those are natural arguments to have, because people have different views, but they don't lead to greater clarity about the ideas that motivate us. A real argument about our governing philosophy, on the other hand, might.

I hope this isn't perceived as backing off too much from what I wrote at 2:00 in the morning, because it isn't meant to be. But I expect it will be less discomforting to some of the commentators here.

Finally, I would be remiss if I totally honored my promise, and did not bash Brooks on one point: He declares triumphantly that he called up the head of a liberal think tank and asked who his "favorite philosopher" was, and got a promise of a call back later which never came. Aha! Those liberals don't think about philosophy!

But is it really a measure of deep thinking to have a "favorite philosopher"? It reminds me of the argument going on in my household right now about whether everyone should have a favorite color. (My wife, it seems, has no fixed favorite, although my daughter would desperately like to persuade her to join her on the green team, having lost me to blue.)

Warnings, Threats, Il Duce!

Elizabeth Anderson of Left-to-Right had a good summary the other day of recent uses of the rhetorical strategy she calls, "Issue a threat, call it a warning,."Her example was Bush's "warning" that the Social Security Trust Fund would be plundered.

As Matt Yglesias points out, this is obviously applicable to Senator John Cornyn's statement that the recent killings of judges are the inevitable reaction to a judiciary that doesn't respect his theories of constitutional interpretation. Matt compares it to Samuel Huntington's argument in the atrocious Who We Are that Mexican immigration is a problem because it will bring about a white nativist backlash.

Now whenever you think you've found the most outrageous thing these folks say, there's something else, and Cornyn's statement reminded me of one that tops even his. Last year, the Weekly Standard published an article about Mussolini that ended as follows:

You can file the lessons of Mussolini's rise under "H" for Hegel, the idea that extreme movements always beget extreme counter forces. It was the far left, by relentlessly chipping away at the foundations of Italian life, that gave birth and power to the far right--as it did a decade on when Hitler rode nearly the same path under similar circumstances.

This is what seems most pertinent today, as "activist" groups like Moveon.org and demagogues like Michael Moore and angry men like Al Gore and George Soros rail so irrationally against both the president and the structures of daily American life, including the legally adjudicated Supreme Court decision that ultimately decided the 43rd presidency in advance of a tedious recount that would've yielded the same outcome.

... Either this November or in four years, George W. Bush is going to be turned out of office ...Someday, though, a populace provoked by the left's constant fire-breathing may look for a dragon slayer who won't go quite so easily.

I'm sure there are even more bizarre examples of this rhetorical strategy, but you may have to enter David Horowitz's airspace to find them.

The Lakoff Backlash Arrives

In my largely critical comments on the Democrats' "framing" guru, George Lakoff, a few months ago, I wrote that what I really worried about was "liberals' search for a guru, which inevitably leads to a cycle of over-expectation and disappointment, with Lakoff one day and someone else the next."

Well, "the next" has arrived, with the all-too-predictable backlash against Lakoff. The Atlantic Monthly has made itself "No Guru" headquarters, with two articles. In the current issue, Josh Green eloquently dismembers both Lakoff and the Democrats' latest in-house framing or -- this week's phrase -- "branding" expert, a fellow named Richard Yanowitch. Then, via Arts and Letters daily, I came across Marc Cooper's review from last month's issue, which I had somehow missed, of Lakoff's latest book as well as Thomas Frank's What's the Matter with Kansas, which is a much more forceful trashing of Lakoff. (The Cooper essay is not available online at the Atlantic, but it is available at Powell's books. ) Cooper's critique of Lakoff is merciless, bracing, and, unlike the review that launched my own post, by New Democrat Ken Baer, is situated firmly on the left.

But the Cooper review goes on in some very interesting directions. He takes on MoveOn.org, not from the Peter Beinart perspective, which is to challenge its members' leftism and pacifism, but for its insularity. He trashes a MoveOn poll after the election that found its members' biggest concerns were election reform and media reform, followed by Iraq, the environment, the Supreme Court and civil liberties. "In short," he writes, "the biggest problems liberals face are those damned voting machines and Fox News. Glaringly absent from this activist wish list is anything vaguely resembling an aggressive populist agenda...[or addressing people's] fears about their jobs, wages, health insurance, and school tuition."

Cooper suggests that "a far more challenging exercise after the election would have been for MoveOn to order its troops to meet with and listen to ten people who disagreed with them -- instead of talking, as usual, only to one another." Right on. He concludes, "The trick of effective politics -- as opposed to thinly disguised self-affirming psychotherapy and aesthetically gratifying rebel poses -- is precisely to unite people with different views, values, and families around programs, candidates, and campaigns on which they can reach some consensus, however minimal." Also true, though perhaps a truism.

I intend to come back to this in the next few weeks. As I probably indicated in my last American Prospect online article, I appreciate the structure of MoveOn, its more transactional form of membership, the fact that doesn't force people to declare themselves "environmentalists" or "political reform advocates" to the exclusion of other issues. It is in fact more political, more suited to the current ideological challenges, than older single-issue memberships. On the other hand, it creates a much greater insulation, I think and certainly Cooper thinks, by social/educational class and attitude than does, for example, participation in the environmental movement. But is there an alternative that could do both -- that is, combine a more broadly engaged, cross-issue kind of membership, with interactions across class and culture that help people master "effective politics"? Only one thing has ever done it: a broad, American-style political party. I will return to this question, I promise.

I hate the cycle of obsession and backlash, which may lead to what's good in Lakoff's ideas being forgotten as quickly as they became hot. But if in rejecting Lakoff, we can get closer to Cooper's insight, that will be progress.