Thursday, July 25, 2013

Nuclear Options Thermonuclear Egos

Nuclear Options, Thermonuclear Egos

“His mind has been so long used to unlimited applause that it could not brook contradiction…”  
While most of America was breathlessly awaiting the latest Andrew Weiner revelations (no, he's not the subject of the above quote) last week the Senate actually did some business by compromising on a slate of Presidential nominees, avoiding the filibuster, and, for now, allowing the Senate to stay out of their well-appointed “Nuclear Option” shelters.

The “Nuclear Option” gets trotted out every couple of years as a threat by the then Senate Majority Leader to change the Senate procedures to limit or even prohibit filibusters.  The purpose is to avoid the absurdity of the necessity for 60 votes for every piece of legislation and every Presidential nomination.  Why 60?  Because 60 is what is needed to invoke cloture, cutting off debate, and allowing the majority to move to an actual vote.

You might search the Constitution far and wide for the word “filibuster” and you will likely find it written in invisible ink, tucked in next to the Hastert Rule.  In short, it doesn’t exist as anything more than an ephemeral connection to the lack of limitation on the time for debate in the Senate’s original rules.  Like Harvey, the six foot rabbit, it is only real because people say it is. 

There is an interesting piece by Thomas Donlan, “No End To The Games” in this week’s Barron’s, in which he calls for bilateral nuclear disarmament.  No more filibusters, by either side.  Mr. Donlan is a very smart man, and he makes one very interesting point, “Ending the filibuster would help new Senators repeal unpopular legislation, and that would force constructive compromise more effectively that the Senate’s current rule.”

The essence of his argument is very reasonable; a law that is written in an extreme manner causes the electorate to swing in the opposite direction.  That should induce the leadership to make Presidential nominations less controversial and legislation more moderate so that both the new laws, and the Senators voting for them, have a better chance hanging around for the long term. 

I admire his optimism, but don’t see his model working, at least not right now.  The present political culture not only disdains statesmanship, it elevates the Wacko Birds by making them genius folk heroes.  They see no obligation to stick to their own word, much less the past promises made by their party.

To my way of thinking, filibusters have a place in unusual circumstances, such as an especially controversial nominee or piece of legislation.  But I also acknowledge that my argument lacks a logical consistency.  If a Senator, or a political party, lacks the integrity to stick to a deal they made on legislation, why would they stick to a deal they made on filibusters?

In the end, it comes down to people, warts and all, egos and all, to do the right thing.  And, even the best can be tempted.  Consider the following:

And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

That is the text of the last of the Alien and Sedition Acts, signed into law by President John Adams, July 14, 1799. 

Imagine that.  Criticizing the Congress, or the President, or opposing a law can get you sent to jail for up to two years.  Just think of the economic upheaval it would cause today (if nothing else, Fox is a Fortune 500 Company.)  You couldn’t build prisons fast enough.

And Mr. Adams used it.  25 critics (mostly aligned with Adam’s rival, Thomas Jefferson) were charged, tried, and, in some cases, eventually jailed.   It was a huge issue in the Election of 1800, allowing Jefferson to portray Adams as an elitist tyrant while he was the defender of the virtues of Republican liberty.   The Virginian celebrated his victory over Adams by promptly pardoning all those who were convicted and still jailed.  He then used the remaining period before the law’s sunset in 1801 to charge some of Adams’s supporters. 

By the way, that quote at the top of the page?  January, 1797.  Thomas Jefferson again, then Secretary of State, referring to George Washington. 

Pretty remarkable, isn’t it? We are talking about The Founders.  Lovers of liberty. Pledgers of their lives, fortunes and sacred honor. All those memorials, and marble busts, and heroic paintings--what could be more heroic than “Washington Crossing The Delaware”?

All intensely human.  Jefferson was ungracious when he spoke of Washington, but more than a little accurate. Adams didn’t lack for self-esteem; he had a genius for political theory but not always for politics.  Jefferson was, in the historian Joseph Ellis’s words, an American Sphinx, at once a great idealist and a more-than-occasionally duplicitous and self-serving politician.  We could talk about Hamilton, a proto-monarchist who switched sides at a crucial moment during the 1800 election, or Madison, who moved from the Federalist side of the aisle to ultimately drafting the Kentucky and Virginia Resolutions, which supported nullification and came very close to advocating succession.

Still, put together this cacophony of idealism mixed with ego and ambition and somehow, 237 years later, we are still here, still bickering with each other. Maybe Mr. Donlan is right, and the system will self-correct.  

Of course, there are always people like Congressman Steve King (R-Iowa).  Mr. King isn’t a fan of immigration.  And he’s not a fan of Mexicans, either.  And he’s not terribly discreet.  In an interview with Newsmax, he argued against the Dream Act.  “for everyone who’s a valedictorian, there’s another 100 out there who weigh 130 pounds — and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.”

I love fruit and vegetable references.  Very agrarian.  Takes you back to a time of yeoman farmers.

Congressman King is running for the open Senate seat in 2014.   He has a decent shot at winning.

Now, about that Nuclear Option……


Thursday, July 18, 2013

John Roberts Meets Big Julie

John Roberts Meets Big Julie

In the wonderful, funny musical  “Guys and Dolls” our slightly hapless hero, Nathan Detroit, finally is able to set up a crap game deep in the New York sewers.  Things are going rather well for him (he gets a cut of every pot) until a disgruntled Big Julie “who has lost a lot of dough” announces he’s going to personally shoot with Nathan.  Nathan demurs, saying he only arranges, he doesn’t play, but Big Julie, with the help of a beefy friend, convinces Nathan otherwise.

Big Julie’s rules are, shall we say, somewhat special to the institution.  He will be playing with his own dice.  Nathan, understandably concerned, asks to inspects them.  Very peculiar dice they are.  No spots.  So, how does one play craps when the dice seem blank? Simple.  Big Julie says that he remembers where the spots are.  Needless to say, his fortunes suddenly take an upturn

I don’t know whether Supreme Court Justices go to the theatre, but in two seminal decisions, Citizens United (written by Justice Kennedy) and Shelby County vs. Holder  (Chief Justice Roberts) the Court has become a spectacular impresario for the Big Julies of the political world.  Citizens United unleashed a torrent of dough that pervades every nook and cranny of virtually every election, allowing the well-heeled to make politics akin to shopping at Costco; walk in with your membership card, and lawmakers may be purchased in bulk.  And Shelby has erased all the spots on the voter discrimination dice.  Anything goes now in suppressing the votes of people who might possibly lean in the wrong direction.

Shelby is a truly fascinating case.  Like Citizens United, it is a classic example of when the Supreme Court might be correct on the law, in the abstract, but chose to completely ignore the practical implications of their decision.  The Shelby case was challenge by Shelby County, Alabama, to the Voting Rights Act of 1965, and specifically to Section 5.  That provision identified nine states (Deep South and Alaska) and assorted jurisdictions in seven others (including places in California, Michigan, North Dakota and five sites in New York City) to get “pre-clearance” from the Justice Department before changing their voting laws.   The idea was to prevent behavior proscribed by Section 2: discrimination in voting laws on the basis of race. 

The original Voting Rights Act was passed in 1965, and was reauthorized five times, the last in 2006 by a “squeaker” of 390-33 in the House, and 98-0 in the Senate.  There were literally thousands of pages of testimony showing continued voting discrimination in the legislative history leading up to the 2006 reauthorization.

But, it was clear that the Act had enemies on the Court.  Justice Scalia, even before the decision was rendered, called it a “perpetuation of racial entitlement.” And it had one clear vulnerability; the static nature of the designation of those States and localities that required “pre-clearance.”  Congress had never changed the formula since 1965. 

That Achilles Heel led to its downfall.  In a brilliant piece of advocacy, Roberts stitched together one fact (that minority voter registration and minority office-holding in the South was at historically high levels) and one crushing question to Solicitor General Verrilli, Is it the government’s submission that the citizens in the South are more racist than citizens in the North?”

Game over.  No pre-clearance, because the designations had not been revisited.  The Chief Justice is sensitive to the Court’s place in history, and his own legacy, so he took great pains to remind everyone that discrimination under Section 2 was still forbidden.  He also suggested that Congress come up with a new definition of a “covered jurisdiction.”  Having found that high ground, he then simply eviscerated the enforcement mechanism.  States and local jurisdictions are now free to do what they want without any impediments, subject to later getting sued, after the election is over, of course, and the votes have all been counted.

I said I thought Roberts was right on the law.  I think he was, if you look through the narrow lens of a static definition of what a “covered jurisdiction” was.  But, in ignoring the legislative history, and the evidence of a continuing pattern of discriminatory acts, he chose not to recognize the practical implications of his decision.

Because the fact of increased minority registration and office holding in the South and the comparative level of racism in the South are substantively irrelevant.  Personal prejudice is both permissible and meaningless. Hate as much as you want in the privacy of your own home, so long as you don’t express it institutionally.   Voter registration and the number of minorities holding office is an interesting piece of data, but it is also irrelevant.  

Why? Because politicians have figured out how to play the game at a far more sophisticated level. Stuff minority voters into gerrymandered districts, and, presto, you have minority office-holders, while “cleansing” adjoining districts of them.  Farfetched?  Not really.  Name a state that Barack Obama carried by 6 points and a majority of the Congressional votes went to Democratic candidates?  That would be Pennsylvania, where the  Democrats hold exactly four of the eighteen Congressional seats.  Not exactly the will of the people.

And, registration levels aren’t nearly as important as voting rates. A registered voter who doesn’t vote because her polling place closes early, or doesn’t have enough voting booths, or enough staff, or changes locations three days before the election, is just another person who didn’t vote.  That is before a raft of voter ID laws, purging of voter rolls, and other less savory aspects of the voter suppression game are played.

Do I think Justice Roberts is a partisan Republican with a single minded, devious plot to undermine Democratic voting and insure GOP primacy for decades to come?  No, of course not.  I think he is a committed jurist who understands that the public expects him, above all other son the Court, to be fair.

But sometimes, when courts put their hands on the legislative scales, they can’t help but tilt them.  That is exactly what happened in this case. The results in Shelby, just as in Citizen’s United, were immediately pernicious.  The gong went off and the race to the bottom has begun.  Texas, North Carolina, Mississippi, Georgia and Florida have already enacted or are discussing new restrictions devised to suppress minority voting, and more GOP-controlled states have similar legislation in the hopper.

What do we say to the people who are going to be disenfranchised and the candidates who will lose close elections as a result?  To quote from Guys and Dolls, Big Julie honors you with the taking of your stakes.”


Thursday, July 11, 2013

Joe, Eliot, and Anthony

Joe, Eliot and Anthony

I was invited recently to a breakfast gathering for Joseph Lhota, the likely Republican nominee for New York City Mayor. 

Now, before any regular readers think I was forcibly detained prior and made to drink some dark-arts potion made from kudzu, Texas mesquite and ground Palmetto bugs, I freely confess I went willingly.  I wanted to hear what “Joe” (according to his literature, regular guy, father was a cop, first one in his family to go to college, then transformed into rich, successful, powerful Republican) had to say.

I did this for three reasons.  The first is that I am simply a junkie for politics, at any level. The second is that I really believe that if you aren’t willing to listen to what the other side has to say, you might actually be missing something.   And the third is that I live here.  New York is my town, and it makes a huge difference to me how it is run.  So, I very much care about who the next Mayor is. 

People who live outside New York tend not to understand us.  We are a heaving, hot, opinionated, pushy, sometimes appallingly indifferent, sometimes overwhelmingly generous sprawling mess of greatness. We clearly repel a great many; a close friend has such an animus to the place that he routinely, when referring to any other city, will use “compares favorably to New York” as a suffix.  I fully expect him to say “Kabul?  Compares favorably with New York.”

Democrats outnumber Republicans by a six to one margin, and the City Council is completely dominated by Democrats, but we are also hardheaded and practical.  When it comes to the person at the top of the ticket, we will listen to anyone who has good ideas and seems to have a clue as to how to run the show.  The last elected Democrat was David Dinkins (nice man, not a good mayor) who succeeded Ed Koch twenty years ago.  We had Rudy, and now we have Mike.  Rudy stormed in and, like Hercules, cleaned the Augean Stables. Then, he was reelected, and indulged himself in power and other vices. Bloomberg, on the whole, has done a fine job, albeit with some missteps and some third-term excesses.  Personally, I have appreciated Bloomberg’s abilities.

So, why Joe?  I listened to him carefully; he was calm, he was rational, he was organized, he was very knowledgeable, and he had a very clever rhetorical trick of turning questions into opportunities to show that knowledge.  He was also quite emotionally intelligent; even in a room of deep-pocketed and influential people clearly ready to write a check, he knew there were certain hot buttons you don’t push.  We may be more than willing to cross party lines if we think the city will run better, but not for Rick Santorum or Wayne LaPierre.

Of course, no discussion of Joe is complete without one of his Democratic opponents, and he has picked a very opportune time to run.  This year’s group is particularly nondescript.  There is the well meaning-but-dull Bill Thompson, and the knowledgeable-but-often ham-fisted Council Speaker, Christine Quinn, and seemingly competent-but-bland Sal Albano, and tightly wound (and perhaps scandal-tinged) City Comptroller, John Liu, and the voluble  but profoundly old-fashioned Public Advocate (a job that doesn’t have a lot of responsibilities or authority) Bill DeBlasio. Each one of these folk has the endorsement of one public union or another.  We also used to be the diligent Manhattan Borough President Scott Stringer (more about him later) but he pulled out, and with the blessings of his mates, is now running for City Comptroller. 

With apologies to all those worthies, there was a certain lack of, shall we say, sex appeal.  Now, don’t get me wrong.  New York has had its glamorous Mayors, like John Lindsay, but most of the time, we pick them a little ehhhh.  Joe Lohta himself bears an unsettling resemblance to the late actor Peter Boyle. But, this is New York.  We are people of substance here.  A Bob McDonnell type just wouldn’t fly.  We aren’t hiring someone who looks like a host of Fox and Friends. 

Still, faced with the well meaning but dull (which, if you think about it, describes a very large percentage of Democratic politicians nationwide) it’s quite possible that Joe’s hulking presence could send shivers down the leg of an Upper East Side doyenne.

Until, of course, Anthony Weiner stepped in.  Yes, that chap, who had to resign his seat in disgrace (or something) because of a minor scandal in which he texted a picture of his underwear (while still in it) to a woman who was not his wife.  Anthony is back, and with him a little prurient interest.  Weiner has better hair than Sal Albano and John Liu, and it’s frankly no contest between him and Joe on that front. 

I’m not sure exactly what Anthony Weiner stands for, as the Weiner for Mayor website doesn’t actually say anything, but, pretty clearly, whatever it is must resonate. Weiner is now leading in some of the polls (I have to admit the reasons for that completely escape me) and one would think that the very worthy and hard working  Scott Stringer must be a very happy man these days, having made the choice to step aside and have a clear and unencumbered path to the Comptroller’s office.

Ah, the agony of counting one’s chickens.  Because, while I might not feel especially inspired by Anthony Weiner’s reentry into political life, others apparently were.  Most prominently, Eliot Spitzer, our disgraced (no question about it) former Governor.  Mr. Spitzer was brought down by his own sex scandal, which involved prostitutes and various other tawdriness.  If you are comparing scandals, Spitzer’s seemed a little more “adult” than Weiner’s, and perhaps that led him to run for a job with great gravitas, the very same City Comptroller’s spot that is the apple in the eye of Scott Stringer.

Stringer, however, is a New Yorker to his very core, and went on CNBC (and later Morning Joe) to say “he’s not going to cry.”  We are tough here.  Unfortunately, he was identified as “Spitzer Opponent.” And he, too, is trailing in the polls. 

You would be amazed at how many people are offended at this, especially among the Republicans.  Rupert Murdoch’s New York Post has been having a grand old time, and one waits with anticipation for Fox to carry special commentary on the issue from Newt Gingrich, an acknowledged authority in this area.  The Daily Caller, Tucker Carlson’s rag, is actually running an article “Spitzer Honed His Lust For Power As Princeton Student Body President.” 

Since you really can’t make any of this up, we will have to see how all these things shake out.  Spitzer may not make it on the ballot; he needs a last minute surge in signature gathering to get there, and Scott Stringer’s troops (and lawyers) are waiting for every smudge.  As for Weiner, I still have a hard time believing he can get the nomination.

And, what about Joe Lhota?  I am sure he is enjoying all this, and he has a well-deserved reputation for competence, but he has some vulnerabilities as well.  There is the “Ghost Of Rudy” Issue, as good old Joe was and apparently still is awfully close to our former Mayor.

And Rudy, despite his second life as a perennial critic, candidate, and money machine, just isn’t that popular back here in his home town.   He doesn’t seem to be all that fond of us either.  When asked by Huff Post if he thought Weiner or Spitzer could win, he said no, but first, he apparently “chuckled” and said "I don't know -- New York is a place that constantly amazes you."

I don’t know either, but the spectacle of Rudy Giuliani (the man who announced his divorce from his second wife at a press conference before mentioning it to either her or their children) opining on Eliot and Anthony’s behavior gave me a bit of a chuckle as well.   

I guess I just haven’t made up my mind in the Mayoral race.  I may not decide until I walk into the voting booth. 

And, as for Comptroller, while I will likely vote for Stringer, I’m half-rooting for Spitzer.  It isn’t just the sex appeal.  A friend who has worked in city government tells me Spitzer is hard-boiled enough to take no prisoners with the budget, and particularly, pension fund management.  That is probably a good thing.

I have decided to save the Daily Caller story on Spitzer’s reign of terror at Princeton until Election Night, if he gets there.  It’s like putting a bottle of Champagne on ice. 


Comments:  Email the Moderator

Thursday, July 4, 2013

Speaking For Us

Speaking For Us

A few years ago my wife and I were up in the Catskills, visiting our daughter in summer camp.  We stayed in a small fishing camp along the Delaware River.  I was out one morning when I ran into an older gentleman who was pulling on his waders.  He was probably in his seventies, great shock of white hair, weathered but handsome features.

He told me that this was the first year he was there without his wife.  She has passed a few months before, and he missed her terribly.  She didn’t much like fishing, but she always went along because she wanted to be with him.  He’d been a bit wild when he was younger, but she stood by him, even when he didn’t deserve it.  She was the one who went to church, and she was the one who kept things together.  Now she was gone.

He seemed very alone, so we talked a little bit.  I told him about my own father after we lost my mother, way too soon.  My Dad always thought he would go first.  He was the unhealthy one; the small stroke, the quintuple bypass.  They had worked and planned together all these years, they had their first two grandchildren and another on the way, and she had been stolen from him. After the shock of the funeral wore off, he kept coming back to it, the injustice.  Finally, we found something that helped.  My Dad, by his own admission, was not without flaws, and not always an easy man to live with.  When his time came, he would need someone to plead his case, someone who knew the inner good in him, someone who could not be denied.  My mother, about as gentle a person as you could possibly find, would speak for him.  

The old man with the nice white hair and the sad face looked up from his boots, shook his head and smiled at me.  He reached up with his hand and touched my open palm.

I thought about that man today.  July 4, 2013 is the 237th anniversary of the signing of the Declaration of Independence and yesterday marked the end of the 150th anniversary of the Battle of Gettysburg. We aren’t an old country at all.  I have a baby picture of me with my great grandmother, who was forty when she emigrated from Russia in 1912.  Born just a few years after Gettysburg, at a time when there were still people alive who came into this world as “Colonists.”  Becoming a citizen, she shared in the inheritance of the efforts and sacrifices of all people, great and small, who preceded her. 

Reading the whole text of the Declaration of Independence in an interesting experience.  1333 words long, it is as much a prosaic list of grievances; a lawyer’s bill of particulars justifying separation from the Crown, as it is an expression of great philosophical truths.  It is perhaps fortunate that what we remember of it is the essence; “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” 

Great and bold words for an uncertain time; 13 rag-tag colonies revolting against the greatest power in the world and demanding recognition as an independent republic.  We tend to forget that a great many colonists were either hesitant or opposed outright.  Jefferson, and the fifty-five other signers of the Declaration, assumed the right to speak for everyone, and in doing so, changed the world irrevocably. 

87 years later, in November of 1863, Lincoln rose at an event far less portentous, the dedication of a cemetery at Gettysburg to memorialize those who had fallen in battle.  He was preceded by the great orator, Edward Everett, who spoke for two hours.  In 273 words, in a time so short that no picture could be taken of him standing at the podium, Lincoln redeemed the promise of the Declaration of Independence. 

We are “a nation dedicated to the proposition that all men are created equal.”  We are tested, but the men at Gettysburg had proved equal to it.  “(F)rom these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.”

The essential human dignity that only freedom can confirm was always in his thoughts.  In 1858, during the Alton debate with Stephen Douglas, Lincoln framed freedom in its most elemental way. “That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles -- right and wrong -- throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, 'You work and toil and earn bread, and I'll eat it.' No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle.”

At Gettysburg, when Lincoln rose to speak, not much was expected of him.  After Everett, perhaps not much was desired.  But he demonstrated again how much he stands apart from the common run of politician who whips you up, tells you what to think and how to feel, speaks at you.   

Lincoln knew us. He knew the “new birth of freedom” was the unbroken line from the Founders, to “the brave men, living and dead” at Gettysburg.  Ultimately, it is to my great grandmother, who led her family here for it, and to me.   

He knew the better angels of our nature, and, at a critical time, he spoke for us.

He still can, if we are willing to listen.