Monday, September 28, 2015

Grab Grab Grab

There is a classic film clip of the great Vince Lombardi screaming his head off at his Green Bay Packers after a blown defensive play.  “What the Hell is going on out here?  Everybody grabbing out there, nobody’s tackling—just grabbing.  Just grabbing, everybody.  Grab Grab Grab.”

I’ve been searching for a metaphor what what we witnessed this week, and somehow, I cannot get this image out of my mind.

It started with Wisconsin’s own “favorite” son Scott Walker withdrawing from the GOP nominating cattle call.  In classic Walker fashion, he managed to wrap pugnaciousness, self-pity, and a little bit of that old time religion in one speech.  Walker said he was quitting because he was “called to lead” (you need to ponder that—it’s one of the ripest moments of synthetic humility we have seen in this election cycle.)  He then offered advice to the stragglers amongst his fellow livestock—get out, as he graciously has, to save the Party from the Evil One (not, for this one time, Barack Obama, but you-know-who with the big mouth and the strange hair).  Left unsaid, the reasons for a stunning, completely earned fall from top tier to Pataki-level.  Scott clearly had no idea what the Hell was going on out there. 

Walker’s public humiliation was short-lived, because attention was immediately drawn to someone with far better polling numbers and a lot better balance—Pope Francis.  It turns out the new Pope is a lot like a conservative predecessor—John Paul II—both charismatic political geniuses of the first water. Francis didn’t make tackles, rather, he slipped them—he glad-handed, he canonized, he blessed, he spoke, and he allowed pretty much everyone to hear something they liked, or, at the very least, something they feared being openly churlish about.   Not everyone was happy with his content, or his rather nuanced decisions on what to emphasize, but you had to work hard to be offended. 

Fortunately, we are a nation of hard workers, and amidst the rhapsodic praise, there were discordant notes that Francis might be running free, but he was running in the wrong direction.  Some on the right see organized religion (of the Judeo-Christian variety) as a tool to extend their political philosophy, and were very unhappy with Francis’ excessive concern for the poor and the environment.  There were those who acted out, on the air and in print.  My personal favorite was the deservedly obscure Congressman Paul Gosar from Arizona (R), who announced, in a piece in the conservative Townhall, that he was skipping the Papal address to a joint session of Congress: “…when the Pope chooses to act and talk like a leftist politician, then he can expect to be treated like one.“

Congressman Gosar is the kind of guy who knows a tree-hugging leftist politician when he sees one.  And he is also a trained scientist—before being elected to Arizona’s 4th, he was Dentist of the Year (I’m not making that up) so he’s an expert in global warming.  And he’s ecumenical-- knows how to treats leftists from every walk of life, from the Vatican all the way to Washington.  Gosar is part of the House’s “Freedom Caucus”,  an amorphous group of ultra-conservatives who just “treated” another leftist-but-Catholic politician (John Boehner) the same way—by shoving him towards the door. Gosar on Boehner, Unfortunately, the actions from Republican leadership did not reflect the will of the American people and a change was clearly needed.”

We could ask, “what the Hell is going on out there” but I think most of already know.  Gosar and his band of Freedomites are self-professed Constitutionalists—they have a deep and abiding reverence for those sections of the text that proclaim that the House of Representatives as the supreme and only law-making body.  And that all-powerful entity is actually run by the 35 or so Caucus people who “reflect the will of the American people.”  It’s in there—you just have to look for it.

Boehner, one of Newt’s prime wingmen when the GOP took control of the House in 1994, apparently did not reflect the will of the people—he lacked the appropriate zest for brinksmanship.  For example, the Freedom Caucus has discerned a clamor amongst the populace for shutting down the government in order to defund Planned Parenthood.  Recent polling by Quinnipiac backs them—an overwhelming 23% of Americans agree (a tepid 69%, all leftists, or worse, oppose). How could the Speaker not understand that and fulfill their needs?  Boehner became an even bigger target than Pelosi.  He was the bad guy.  He was the sell-out, holding the people back.

Boehner was sick of it—while he’s not as canny as Mitch McConnell, he’s a dealmaker, dark liquor and cigarette kind of guy.  And I think he really wanted to have a signature “Grand-Bargain” moment, but he found that being Speaker in a House where fewer people have your back than want to put a knife in it was ultimately un-gratifying.  Recently, Freedom Caucus member Congressman Mark Meadows of North Carolina filed a “motion to vacate the chair”, demanding the election of a new Speaker. Meadows’ buddies then threatened Boehner outright—either be willing to shut down the government over Planned Parenthood, or they would bring up the resolution, and vote in sufficient numbers to require Boehner to get Democratic support to keep the Speakership.

So the man who might have single-handedly brought the term “lachrymose” back into political reporting decided to leave, effective the end of October.  Word spread quickly of his intentions, and fair amount of grave dancing went on.  Marco Rubio announced Boehner’s resignation at the Values Voters Summit, the crowd cheered, and Rubio stuck the needle in a little deeper. “I’m not here to bash anyone,” Rubio said, “but the time has come to turn the page.” 

What happens next?   No one really knows.  Boehner’s stated plan is that there will be no shutdowns—his last acts will be to usher through whatever bills are needed to keep the government running.  But I think that’s overly optimistic.  First of all, we are in the middle debate and primary season—and when someone mainstream like Rubio feels the need to feed red meat to the base, instead of trying to appear Presidential to the general electorate, that tells you a great deal.  The next Speaker may not be selected by the hard right (that’s up in the air right now) but you can be certain will likely be both less experienced and more fearful. 

So, confrontation it will be.  There will be a shutdown, and quite possibly a default.  Boehner was wrong.  His resignation, no matter how well intended, will stop nothing.  20-20 hindsight, he should have moved more forcefully, earlier in his Speakership.  The House is not a democracy—it is a place of the exercise of naked power, and as Speaker, he could have used that power to break the fever years ago.  Carrot and stick are what make the House (and Senate) run. 

But he didn’t.  Instead, he proved Lombardi right.  You have to tackle.  And now, nobody seems to know what the Hell is going on out there.  It’s just Grab, Grab, Grab.

September 28th, 2015

Michael Liss (Moderate Moderator)

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Monday, September 21, 2015

After Donald and Before Carly

I have been channeling my inner Trump, and thinking big (very big) and bold (even bolder than big) to make a simple prediction. The Donald is done, even if he doesn’t know it yet.  And, summoning from the depths my latent Republican self, I can say, it’s going to be great.  Because the GOP has top people-the very top of top, ready to be our next President.  You could get vertigo from all that toppiness.

A little premature?  Perhaps, but it is now possible, and even probable, that, at the last GOP debate, Carly Fiorina threw enough cold water on Trump to cause all his beautiful ugliness to start melting.  His numbers are down to a still-leading 24% in the latest CNN poll, and Carly’s have shot up from a previously infinitesimal level to 15%.  Remember, she was in the “kiddie debate” only a few weeks ago.  She’s now second.  Carson drops to 3rd, with 14%, Rubio, who was moving towards the irrelevant, is now at 11%, Bush at 9%, Cruz and Huck at 6%, Paul at 4%,  Christie, Kasich and Santorum at 3%, 2%, and 1% respectively.  Scott Walker’s candidacy seems to have completely vanished.  Something is clearly happening inside the seething mass that it the GOP electorate, and it is worth looking at.

It starts with Trump.  What happens if Trump is really a goner?  Where does his support go?

Well, that’s a lot harder than it looks, because no one quite grasps who Trump’s supporters really are and why they like him.  He seems to do well with Tea Party types and born-agains, but has very high negatives—40% of Republicans disapprove of him and nearly 60% of the entire sample.  His unique appeal, in an atomized field, means his negatives aren’t as relevant—as long as he wants to, he will be in every debate, and continue have an outsize impact.

That leaves the GOP establishment in a tough spot.  This wasn’t what they planned.  They had an unpopular incumbent in office, and a controversial presumed Democratic nominee that they would investigate through the election.  The original field laid out quite well for them—Cruz, Paul, and Huck would appeal to their three distinct constituencies, but eventually drop out while doing no damage.  Carson and Fiorina would show minorities and women this was a different kind of GOP.  Walker might be a Veep (blue-collar appeal+union buster) and Rubio, or preferably, Bush, would waltz to victory. If everything went right, the really sticky issues that had led Romney to veer farther right than he was comfortable with would be worked out early, and the nominee, and the party, would appear conservative but reasonable, big tent, competent, ready to govern from day one. 

Trump scrambled that.  First he put immigration, front and center, and kicked open the door to loud and often offensive “tougher than thou” bidding.  Second,  and quite possibly more dangerous to the GOP, he has advanced a rather unusual idea that is making the Establishment nuts—you don’t need to be a politician to be a President—in fact, you don't need any governing experience at all.  Add up Trump, Carson, and Fiorina’s numbers and you break 50%--and it was 50% when it was just Trump and Carson.  After more than 6 ½ years of relentless anti-government rhetoric, a good part of it directed at someone they called inexperienced and unqualified, more than half the GOP primary voters are apparently prepared to nominate someone with absolutely no experience. 

The challenge for the party operatives is to put Humpty-Dumpty back together again and return to the mainstream candidates with as little further damage as possible.  But the peculiar structure of the debates, and the bizarre math of having 50% already spoken for, means that the rest of the candidates are now fighting over smaller and smaller pieces of the pie.  Each couple of percent, rather than just being seen as a rounding error, may be the key to staying in.  CNN’s breaking of its own qualifying rule, and making Fiorina the 11th debater, is just going to complicate things further.  If you are floating around in the single digits, you need attention, and the best way to get that is to do something extreme.  So, we have competitions to see who can be the most insulting to minorities, who can be the most theocratic, the most bellicose, etc.  Even Kasich, Mr. Reasonable, after apparently making the grievous error on Wednesday of saying he would have to abide by the Iran agreement, by the weekend had essentially reversed himself by calling for the “nuclear option” in the Senate to oppose it.

All of that is going on with Trump still in. The GOP is holding its breath, hoping his numbers drop (perhaps even below Fiorina’s) and then his ego will lead him to make an exit.  But they really are stumped—there seems no cohesive institutional strategy, beyond nearly everyone (including cooperative debate moderators) bashing Trump.  And there are a lot of unpleasant possibilities here.  Trump could survive; while Fiorina did a fabulous job of wounding the dragon, he’s not quite dead yet. That could mean a more of the same drama through the primaries and possibly into a contentious convention.  And the Trump/Fiorina faceoff has obscured three rather fascinating developments. 

The first is just how much Trump has exposed Jeb Bush.  Whatever Jeb’s good qualities are, his personality is strictly in a minor key.  Nominating Jeb would appeal to the party professional—electable, good governor, moderate temperament while nonetheless conservative, speaks Spanish, will deliver to the Party, its special interests, and its contributors when elected. Perfect, except for the one essential—he seems to excite no one else.

The second is the complete collapse of Scott Walker’s candidacy.  Only a month ago, Walker was considered a real contender, and was leading in Iowa.  It has all evaporated. There were some who thought that Trump was drawing from Walker, and when he dropped out, Walker would gain strength. But Walker has been an awful candidate—unprepared, undistinguished in debates, flailing.  He’s left to grasping at straws right now—he cancelled two major addresses to try to shore up his support in Iowa, and fallen back on his only calling card—an even more radical anti-labor agenda, which would effectively end collective bargaining.  It comes at an absolutely terrible time for him—as the Establishment frantically looks for alternatives to Trump and Carson (and possibly even Fiorina) Walker is showing himself to be a small-timer with a big mouth.  It is possible he could recover—but the more likely result is that his extremely wealthy backers, who have profited from his Governorship, will realize he’s not ready, and tell him to stand down.   

Finally, Ted Cruz.  Ted is only at 5-6% nationally, but Ted is playing a very smart long game.  See how he quietly supports Trump on controversial issues.  Go back and view him again at the last debate—watch his body language as he squared up to the camera (not his fellow debaters) and delivered polished and prepared hard-right answers to every problem.  Cruz is promising one thing—an absolutely uncompromising approach to governing.  Elect Ted Cruz, and you will get a ruthlessly conservative approach—every detail will be tended to, even the smallest hint of Obama-ness will be eradicated—in Winston Churchill’s word about a enemy of similar import, every stain of his infected, corroding fingers will be sponged and purged and, if need be, blasted from the surface of the earth.”  Cruz’s path to the nomination might be a difficult one, but he’s a viable candidate for several reasons: a) he’s not beholden to the GOP establishment at all—he has his financial backers and therefore isn’t answerable, b) his support is probably irreducible—if you like Ted’s brand, you like it, and c) he may pick up substantial support if Trump drops out—Cruz’s favorability rating among Republicans is actually quite high, and if a significant portion of Trump’s support is coming from the “mad as hell” contingent, Cruz is their man.  

If you want weird, you start from 15 and begin subtracting.  Take out Trump, Walker, Huck (who is never going to break into double digits) the fringe candidate Paul, the unloved Governors Christie and Kasich.  Someone named Bush whispers in Jeb’s ear this Fall that he should consider withdrawing before embarrassing himself. Also out, the Breakfast Club of Santorum, Graham, Jindal, and Pataki.

That leaves you Carson, Fiorina, Cruz, and Rubio.   

I know, it’s impossible.  But it would be big.  Really big. As for top?  I can feel the vertigo coming.

September 12, 2015

Michael Liss (Moderate Moderator)
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Saturday, September 12, 2015

Fours and Fourteenths

Syncopated Politics is four years old. 

It has one hidden, but remarkable asset—a very smart readership. Every week, I get emails with tips about or invitations to a conference or lecture or online event.  Others have links to articles, or suggestions for a topic.  Some flat-out challenge me—sometimes on partisan grounds, but more often because of a possible flaw in the underlying logic of a piece.

A reader made an interesting observation after last week’s post about “birthright citizenship” and the 14th Amendment.  The 14th has multiple sections, but the relevant (and now controversial) portion is in Section I,  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  

For more than a century, the general understanding of that clause is what appears to be the plain language of it:  with some very narrow exceptions, if you are born here, no matter how or when your parents got here, you are a citizen.  Children of diplomats, who were clearly subject to a foreign jurisdiction, were not, and Native Americans (who had Tribal Citizenship) were not.   

But our reader, who is nonetheless sympathetic to the traditional interpretation, found himself agreeing with the opinion piece in National Review by John Eastman that I cited.  Eastman claimed that the controlling language in the 14th relating to “not subject to the jurisdiction…” had been misinterpreted for generations—what it really meant was that only a citizen was truly subject to the jurisdiction of United States laws in all respects.  An immigrant—and particularly an illegal immigrant, wasn’t, and could never be.  Derivatively, the American-born child of that immigrant would not be entitled to “birthright citizenship” since that’s not what the Amendment intended.  Thus, accepted logic about the 14th was simply wrong—and all that was needed was greater understanding.

That sounded like a lawyer’s argument—and I don’t mean that with praise.  Eastman was doing something particularly pernicious.  He was skipping past the discussion of whether birthright citizenship was a good thing (upon which there can be and is a healthy and heated debate) and turning it into a procedural one.  For lack of a better phrase, Eastman claimed to have found the loophole.

There is a fundamental difference in the status of mere legislation, like ACA, and the Constitution and its Amendments.  On day one of a new Republican regime in 2017, identical ACA-repeal bills could be approved in the House and Senate, and sent it to President Trump for signature, and ACA would be effectively over, but for the winding down.  That might not be wise, but it could be done.  Altering an Amendment is an entirely different matter--it is deliberately insulated from abrupt change by Congress by mandating a 2/3 vote of both Houses, and then having 38 of 50 states ratify it. 

What Eastman was saying, in effect, was that this particular Amendment was different and could be treated like a simple bit of legislation—effectively fungible at the whim of the majority.  I found Eastman’s argument to be clever, and convenient, sophistry.  But, the email made me question myself—not just whether I was on firm ground intellectually, but how I arrived at the conclusion in the first place.   Was I just being like Eastman—wanting a particular result and tailoring my methods to achieve a particular conclusion?

Upon review, it became clear to me that I was sloppy in my response, probably because I found Eastman to be so disingenuous.  There is a profoundly disturbing trend in American politics today—you can really see it in the Kim Davis situation—where elected officials and aspirants for higher office simply reject laws they don’t agree with.  They don’t bother to go through the process of changing them—they just reject them as either unconstitutional (in their view) or not in keeping with a “higher law” or “God’s Law.”   Eastman, I felt, was the silken glove over the iron fist of rejectionism and nullification.

But I hadn’t really made a credible effort to rebut him.  So, with apologies, and thanks to my reader, I want to approach it differently.  This is going to be a lawyer’s argument (albeit a lawyer with a yen for history)--and argument on process, rather than the merits of birthright citizenship.

Start at the beginning.  Birthright citizenship (except for slaves) was here from the inception of the nation.  It is rooted in English common law “a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection” and was carried over after the Revolution.  It almost had to be, since we were a nation of immigrants—literally—in 1776.  There were a series of naturalization laws, the last in 1802—which set forth some fairly restrictive rules for the granting of citizenship to new immigrants—but they did not exclude from birthright citizenship the children of those immigrants.

That brought us to 1857, and the Dred Scott decision.  Justice Taney changed everything—but for only one group of people.  He would be the last word--Taney wanted to finally end any discussion about Africans, regardless of how they arrived in the United States, wherever they lived, and wherever their masters took them, and regardless of their present legal status—Africans “had no rights that the white man need respect.”  They could never be citizens—not in one year, not in one thousand.

Taney’s monumental misjudgment is not in dispute.  Four years later, in one of the great ironies of history, the then 83 year old Chief administered the Oath of Office to Abraham Lincoln.  Shortly thereafter, in Lincoln’s words, “the war came” and, ultimately, was won.  The slaves were free.  Now, what to do with them?  What was their legal status?

The 14th Amendment decided it.  Taney’s ruling was dead—and note also that those of African descent were not only now citizens of the United States, but also and of the State wherein they reside.  It isn’t all that hard to conceive of states (and not just in the South) refusing to recognize state citizenship.  The plain language of the 14th precluded that, and, to go a step further, it codified the existing law on birthright citizenship-and did absolutely nothing to diminish those rights.

To think otherwise turns your back on history.  It is inconceivable that the drafters of the 14th Amendment in any way meant to diminish the rights of any person (and particularly of European ancestry) previously born in the United States, regardless of how he or she got there.  Imagine a result where the child of slaves, and born into slavery, suddenly had greater legal rights than, say, General George Meade (the winner of Gettysburg) who was himself born in Spain.

It couldn’t have happened that way.  The relevant language of 14th had to be expansive, not limiting.  As the historian C. Van Woodward pointed out in 1964 in American Counterpoint, Slavery and Racism in the North-South Dialog, deep, entrenched animus towards blacks existed everywhere during this period.  He quotes Massachusetts Senator Henry Wilson, “There is today not a square mile in the United States where the advocacy of the equal rights of those colored men has not been in the past and is not now unpopular.”

And, if the drafters of the 14th Amendment had wanted to make distinctions on the citizenship status of people, of any age, then presently residing in the United States, they could have said so.  The opportunity was there to be more restrictive, and they didn't take it.  We can infer the reasons: These were smart politicians--smart enough to know that further dividing up the electorate was not the best way to get a desired result.

Eastman is just wrong—and I feel that more strongly than when I wrote the first piece. The framers of the 14th Amendment were not the intellectual forbearers of his anti-birthright citizenship movement, and we have not misunderstood their intent or their language.  They proposed an Amendment they thought they could get adopted.  That is the one we have.  We can debate it, we can do everything possible to prevent illegal immigration so as to reduce new birthright citizenship, but we cannot do an end run around the Constitution by coming up with a fresh “interpretation.” 

We are still a nation of laws, and we ought to follow them.  Don’t like the 14th?  Don't look for a clever loophole.  Amend it.

Once again, thanks to every reader—Syncopated Politics is work, but it is also pleasure, and you help make it so.

September 12, 2015

Michael Liss (Moderate Moderator)

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