Mark Schmitt

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.

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.

Really Outdated Programs

[cross-posted, as usual, at TPMcafe.com]

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.

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.

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.