Tag: The Dysfunctional Senate

Reconciliation Goes Nuclear

He sends one of your guys to the hospital., you send one of his to the morgue. That’s the Chicago way.

Just to make sure that Congressional Democrats don’t possibly get their act together, Senate Republicans have vowed to obstruct even more than they have been doing so far:

The GOP Senate leadership has privately settled on a strategy to derail health reform if Dems try to pass the Senate bill with a fix through reconciliation, aides say: Unleash an endless stream of amendments designed to stall for time and to force Dems to take untenable votes.

The aide described the planned GOP strategy as a “free for all of amendments,” vowing Dems would face “a mountain of amendments so politically toxic they’ll make the first health debate look like a post office naming.”

Can they do this?  Well, yes, unless the Democrats grow a pair and bring in the Vice President to rule out these potential amendments as non-germane and dilatory.  Is that hardball?  Yes.  Is it anything more extreme than what the Republicans are proposing?  Do I have to answer that?

Now, I realize that reconciliation doves like Ezra Klein and Mark Schmitt will come up with yet another series of reasons why the Democrats just have to capitulate again, but there is simply no basis for this.  And I have that on good authority.  Here’s an interview with former Senate parliamentarian Robert Dove:

Lester Feder: The decision about what can stay in under the rules is solely up to the parliamentarian?

Robert Dove: Theoretically, no—Vice President Biden is the ultimate decider. But no vice president has tried to play that role in reconciliation. We haven’t had vice presidents that have tried to play important procedural roles for a very long time. The last one was Nelson Rockefeller, in 1975, and before him Hubert Humphrey, in the 1960’s. But no vice president has ever tried to play a role in reconciliation. Basically, since Walter Mondale was vice president, they have kind of been co-opted by the president and given an office down in the West Wing. Their interest in playing Senate politics has become attenuated. That has left the Senate parliamentarian in an extremely powerful position.

Lester Feder: So as the rules of reconciliation are written, the Vice President is the technically the one who should make the procedural call, but he defers to the parliamentarian?

Robert Dove: He doesn’t usually even show up. If you expect to see the Vice President on the Senate floor, you’re going to be disappointed. He’s almost never there, so he’s usually not even there to do that.

If he were to show up, and he wants to make these decisions, yes. He has the authority to do that. He is the president of the Senate.

Emphasis mine.  I have been arguing this for months now, and no one has yet to give me a good answer to it, so I will continue to say it: the Vice President, not the Parliamentarian, has the right to rule on what stays and what goes into a reconciliation bill.  And if the Republicans decide to throw up millions of amendments, the President of the Senate has the right to say as a blanket matter that none are germane.

The goal of Congressional Republicans since 1994 has been nothing less than the destruction of the informal institutions of government — the shared understandings about some things that are “just not done.”  You don’t use the subpoena power to harass your political opponents — but they did.  You don’t use impeachment in order to bring down a President for trivialities — but they did.  You don’t use the filibuster as a matter of course — but they did.  You don’t change Senate blue slips rules not once, not twice, but three times in order to effect their preferences — but they did.  You don’t use the Office of Legal Counsel to authorize illegal behavior and give your people a Get Out of Jail Free card — but they did.  Now, it’s understood that you don’t bring up a million amendments to undermine reconciliation — but they will.  The Democrats must respond or they simply do not deserve the support of Americans.

Barack Obama is from Chicago, as Republicans love to comment.  In The Untouchables, Sean Connery tells Kevin Costner, “He sends one of your guys to the hospital, you send one of his to the morgue.  That’s the Chicago way.”

It’s coming.  It should.

The Southers Confirmation Debacle

This is just up at CQ. Worth the read. Nothing says politicization of homeland security like Erroll Southers’ treatment by the U.S. Senate.

Southers Says Politics Spurred His Departure

By Rob Margetta, CQ Staff

Erroll Southers set off a firestorm in the homeland security world Wednesday when the White House announced his intention to withdraw as President Obama’s nominee to head the Transportation Security Administration.

But while Washington was atwitter over Southers’ decision, the former nominee said he was feeling a sense of relief. In fact, his friends and family were throwing him an “almost confirmation party.”

“At this point, I’m just going to exhale and try to repair the remnants of my reputation that are left,” Southers told CQ Homeland Security on Wednesday evening, adding he plans to stay on as assistant chief for homeland security and intelligence at Los Angeles World Airports’ police department and continue his work in the academic field.

Southers was nominated in September, but his nomination became mired in controversy two months later when his confirmation hearings began. Some Republicans worried he might grant collective-bargaining rights to TSA employees, something they have lacked since TSA was created in 2002. The Bush administration argued that such rights would hinder the agency’s ability to respond to crises.

Later, other critics focused on an incident in the late 1980s, in which Southers accessed information in the FBI criminal database on his estranged wife’s boyfriend. In affidavits Southers submitted prior to his confirmation hearing before the Senate Commerce, Science and Transportation Committee in October, and the Senate Homeland Security and Governmental Affairs Committee in November, he said he had asked a San Diego police officer to access the FBI criminal database for information about his estranged wife’s boyfriend. However, in a letter he submitted to Senate Homeland Security after both committees approved him, Southers acknowledged that he twice conducted searches himself.

Southers says he was caught in a smear campaign aimed at racking up points in the aftermath of the attempted Dec. 25 bombing of Northwest Airlines Flight 253.

“This is about the mission,” Southers said. “I don’t care what party people are in, and I honestly don’t think al Qaeda has a map with red and blue states on it.”

The former nominee also talked about his feelings about a Democratic proposal to grant TSA employees collective-bargaining rights, provided a timeline for the FBI database incident and discussed why he dropped out of the confirmation process when Senate Democratic leadership seemed so close to pushing him through.

Q: When you announced your withdrawal from consideration, you said you had become a political “lightning rod.” Did you mean you were tired of what was happening to the political process or that you were afraid that its politicization was affecting Transportation Security Administration itself?

A: It’s actually both. First of all, TSA needs leadership. They can’t go without leadership. I’m an apolitical guy. I served a Republican governor, a Democratic president nominated me, and quite frankly if President McCain was in the White House, I would hope that he would see my qualifications the same way. I’m a counterterrorism professional. This is about terrorism to me. It was time to move on. And I didn’t know how long this was going to go on, but it had been going on for some time.

With the partisan attacks I had over collective bargaining, I’m not sure if that would have stopped had I been confirmed. So then it wouldn’t just affect me, it would have affected 61,000 people and the largest component of the Department of Homeland Security and probably the most important apparatus we have to protect our nation’s transportation system. And that was unacceptable to me. I was not going to be part of the narrative for a disaster because we got distracted by something that has nothing to do with security.

Q: Sen. Jim DeMint, R-S.C., put a hold on your nomination, saying he was concerned you would give TSA’s security officers collective-bargaining rights. I know that’s something you didn’t take a firm stand on during your confirmation hearing. Did you have a strong feeling about that issue one way or the other? Were you waiting for the administration to make a decision on it? Did you feel the critique was fair?

A. First, it was an unfair critique. I’ll tell you the same thing I told Sen. DeMint: I come from an interdisciplinary world, and to me, the collective-bargaining issue is one which really needed to be assessed scientifically. It needed to have someone get into the organization, get through confirmation, do a top-to-bottom assessment of the organization and where it is, look at how it would affect the operational capability of the organization, do a cost-benefit analysis, and most importantly, talk to some of the 50,000 people it was going to affect. And then, at the end of the day, we could decide what might be the best way to go and make a recommendation to the secretary.

I was not predisposed one way or the other. I told the senator that. It was unacceptable to him. So a “yes” answer was going to result in a hold. A comprehensive review answer, which is what I gave, did result in a hold, and a “no” answer wasn’t an option for me, because the president specifically told one of these unions that we would consider an analysis. I don’t see how you win with that.

Q: The second reason a hold was put on your nomination was the incident with the FBI database. Sens. Tom Coburn, R-Okla., and John McCain, R-Ariz., as well as the other Republicans who placed holds on you, expressed concerns about what you presented in the affidavit before your confirmation hearing and the letter you submitted afterward. How did that discrepancy occur?

A: Let’s talk timeline. In 1987, this incident occurred where this database was accessed. And I want to be clear: It was wrong. It was a need-to-know database. I did not need to know, although I was driven by the fact that this individual was living in my home with my one-year-old son, which has not been mentioned in any media. I’m not justifying it, but I want to present the reasoning behind it.

I wrote in two questionnaires to two separate committees what I recalled from memory on this incident, which by the way I’ve never had to disclose since 1987, despite the numerous clearances I’ve obtained from the FBI. I went through the Commerce Committee, and with the exception of Sen. DeMint and [Sen. John Ensign, R-Nev.] voting against me on collective bargaining, I was successfully voted out.

On Nov. 10, I was getting ready to testify in front of the Homeland Security and Governmental Affairs Committee and [ranking member Susan Collins, R-Maine] wanted more detail on the FBI letter of censure, which, by the way, is a letter of reprimand and the lowest form of discipline you can get in the FBI. I didn’t have the letter, so she asked me questions that required “yes” or “no” answers. The week after the hearing, I was reading a copy of that letter for the first time in 22 years, and when it was read to me, my own statement conflicted with what I wrote and what I testified to.

I didn’t spin it. I didn’t deny it. We called Sen. Collins and [Homeland committee Chairman Joseph I. Lieberman, I-Conn.] and said, “What I just testified to was inconsistent. It’s wrong.” She said, “I want you to write me a letter saying what was read you now in 2009 and what you said happened and you recalled happened in 1987.” I did. She received that letter, she signed off on it.

Q: I’m assuming you don’t think that Senate line of criticism was fair. Do you think the White House properly handled that situation and your confirmation process in general?”

A: I think when a person is being confirmed by the Senate, they need to ask people about everything. And trust me, they did. Was I handled properly? Well, I have never really followed anyone else through a confirmation pre-testimony, so I don’t know how it works, and, again, I’m not a political guy, so I don’t know how that works. I will say this: I tend to lean forward in my personal and professional life, and I don’t like to be rocked back on my heels, and I feel like I was on my heels more often than not.

I do believe I’m qualified. I do believe I was the best choice. I remain honored that I was nominated. And I think the politicization of this process really puts this country at risk.

Q: I was wondering about the timing of your decision. Senate Majority Leader Harry Reid, D-Nev., said he was going to try to push this nomination through, possibly this week. Did you look at this and say, “I’m so close to the end of the tunnel, why not just stick with it?” If so, why did you decide against that?

A: I’m not a quitter, and other people will tell you that. I’ve been close to the end of the tunnel since November and my family had had enough. I’ve had the Los Angeles World Airports Police Department and a [University of Southern California] center of excellence on hold for seven months. . . . I didn’t want to be doing this in June. It was time for TSA to get leadership. It had been stalled for too long. I was becoming a distraction and I wanted the process to move along. It was more important for this country and this organization than my own personal need to be confirmed, which was something I had no guarantee was going to happen this week, this month or this year.

Q: You’ve said that TSA needs leadership. The tone of your confirmation process undoubtedly will influence the next nominee’s willingness to go through it. Are you concerned that future nominees will be discouraged?

A: You don’t know how many people warned me off this process, and I didn’t listen to them. Two months ago, if you’d googled my name, you would have seen a couple of references to the airport and a lot of conferences that I keynoted. Now if you google my name — I hope my daughter never has to google my name, because it’s disgusting.

I should have listened to my friends and colleagues that tried to warn me off, but I didn’t. I thought I could contribute to this country and this organization, and it’s unfortunate what people who only want to serve their country go through. But there’s no way in the world you can convince me that qualified, talented people aren’t scared off by this process. And that is unfortunate, that is a disservice to this country.

Q: TSA is an agency that’s under a lot of public scrutiny right now. Do you have any regrets that you’re not going to be there to try and help it deal with that?

A: Absolutely. We had some things that I discussed with the secretary that I felt would have at least given people . . . confidence that we were doing things that were intelligent and risk-driven. And I think within a year people would have said, “Hey, this is the right guy.” And more importantly, we would have embarked on a process, as they’ve done so successfully in London and in Israel, of educating our public, making them more aware, building in some public resilience so they become part of our security system and not just customers of the security system.

Can Reconciliation Be Used In Financial Regulation?

If taxing banks financial compensation packages will help reduce systemic financial risk, then a chunk of financial regulation might be immune to a filibuster.

The Shrill One has a typically good column today setting forth many of the crucial issues of the upcoming financial regulation struggle.  As they say, read the whole thing.   Krugman says that the current regulatory structure allows egregious conflicts-of-interest, in which bankers get huge bonuses for taking unreasonable risks that threaten the financial system.

But the third-to-last paragraph may be the most important.  Because of these bizarre conflicts-of-interest,

reform really should take on the financial industry’s compensation practices. If Congress can’t legislate away the financial rewards for excessive risk-taking, it can at least try to tax them.

If taxing certain kinds of compensation practices can reduce the risk, then that means that a new package of tax incentives and disincentives can plausibly be included in a budget reconciliation package.  And that means that Joe Lieberman, Ben Nelson, Blanche Lincoln, Kent Conrad, and Mary Landrieu will not be able to hold the rest of the country hostage.  (The question, as always, will be whether such provisions are only “incidentally related” to the budget, about which more later.).

Of course, it’s hardly optimal to use a tax strategy for financial regulation simply because this will prevent an assured Republican filibuster.  But you regulate with the filibuster rules you have, not the filibuster rules you would like.  At least until January 2011.

PS  In any event, compensation reform should be part of a free-standing bill; I will be happy to see Richard Burr and David Vitter, while campaigning for re-election explain why they are joining a filibuster of it, as well as every GOP candidate explain why they would do the same thing.

The strategy of imposing costs

Harry Reid may have to give in to blackmail from Lieberman and Snowe. But he should make them pay a price.

It looks as if there’s going to be no alternative to caving in to Joe Lieberman’s blackmail if we want a heath care bill.   And having done so, Reid won’t even have an excuse to kick Lieberman out of the caucus.  Nor is it clear that he’d want to; just this week Lieberman was the 60th vote for cloture on the debt ceiling extension.

But that doesn’t mean we shouldn’t remember what he did, or that revenge is a dish which persons of taste prefer to consume cold.

Hadassah Lieberman makes a lot of money lobbying for Aetna. Joe Lieberman gets a ton of campaign contributions from Aetna.   I don’t know whether that connection explains Lieberman’s subservience to the interests of the health insurance industry, but Aetna no doubt thinks it’s buying influence with Holy Joe.

In addition to its interest in policies general to insurers, Aetna no doubt has lots of particular interests:  lots of things it wants the Congress to do, or not do.  If I were Harry Reid, I’d make sure that, from now on, Aetna loses on every single one of those issues, and I’d tell Aetna why.

Related thought:   If the only reason we need Lieberman’s vote is because Olympia Snowe doesn’t want to play.  Fine.  Reid should figure out some provision Snowe really, really wants in the bill, or doesn’t want in the bill, and tell her that if she forces to deal with Lieberman that provision is going to come out the way she doesn’t want it to come out.

The kind of stunt Lieberman and Snowe are pulling shouldn’t be free.

Judicial filibusters and the Gang of Fourteen

Will Snowe, Collins, Graham, and McCain stick to their asserted principles, or toe the party line?

If Jon Kyl carries out his threat to filibuster Obama’s judicial nominees he’ll put some of his colleagues in a tricky position. Graham, Snowe, Collins, and McCain were all members of the Gang of Fourteen, whose statement said “Nominees should be filibustered only under extraordinary circumstances.”

Yes, as a deal the Gang of Fourteen agreement applied only to the 109th Congress. But the whole premise of the exercise was that there was something nefarious about filibustering judicial nominations, justifying the Republican threat to invoke the (un)”Constitutional option” (i.e., cheat by having the Vice President make a false ruling and then voting to sustain that ruling).

Assuming that Franken loses but that Lieberman votes as a Democrat on judicial filibusters, Obama would need only two of the four to do the right thing, even if Lugar and Specter voted the party line. And it seems unlikely that Obama will present them with very attractive filibuster targets. So I think there’s reason for optimism that Obama will get his way.

Bayh on Lieberman: Round and round we go

On the Rachel Maddow show, Evan Bayh says that Lieberman should keep his chairmanship of the Senate Homeland Security/Government Affairs Committee, because the Democrats will need him to pass progressive legislation.

And if he doesn’t keep his chairmanship, then he’ll become a Republican.

And if he becomes a Republican, then he’ll vote like a Republican.

Which of course would show that he is totally unprincipled.

So thus there is no reason to think that he will vote to support progressive legislation.

Something doesn’t add up here.

Yes, I suppose that someone’s values are so malleable that they would completely change their political philosophy depending upon their party label. I actually wouldn’t be surprised if Lieberman did that. But then he hardly seems like someone who would be a good bet to support progressive legislation.

Now, maybe he is so unprincipled that if he stays in the caucus (which I hope) then he will still be a relatively progressive Democrat on domestic things. But we have to balance that against two things:

1) In order to maintain party discipline, you have to be able to credibly threaten consequences. If someone from your party says that your candidate is unpatriotic, and that it is “a good question” as to whether he is a Marxist, and you welcome him back with open arms, that does not provide very good incentives. You don’t have to be Tom Delay about it. If Lieberman had just supported McCain, and said great things about McCain, then I could see it. But this goes too far because it gives your people license to undermine you and play into a right-wing framing.

2) Lieberman has been a lousy Homeland Security/Government Affairs Committee chair. That’s not just because he never investigated the Bush Administration, as Waxman did on the House side. It’s because he never did any of the oversight work to make sure that the Homeland Security Department did its job. Do yourself a favor and read Edward Alden’s superb book on homeland security since 9/11: the Department has now become focused on immigration enforcement at the expense of tracking terrorists. And it has undermined our economy in the process, by making it so difficult for high-skilled foreigners to get visas that we are losing potentially valuable resources and outsourcing jobs in the process. And through it all, Joe Lieberman has done nothing.

Those are very powerful considerations. And they are not addressed at all by Bayh.