John's 2nd Attempt At Pontification

I tweeted over the weekend something along the lines of how LBJ wouldn’t have been as successful in 2012 as he was in 1963 and 1964. And, after finishing Robert Caro’s The Passage of Power, I will stand by that remark.

It’s a great book, I highly recommend it. That said, I found it slightly more scattershot than the previous two volumes. The ostensible theme of the volume is supposed to be LBJ’s three years as Vice President and first few months in office as President. I think the years as Vice President largely get swept up in a few chapters because, as even the casual reader might suspect, no Vice President ever does a heck of a lot of note. There’s a lot in the book about LBJ’s too-little, too-late run at the Presidency in 1960. In essence, he thought his status of Majority Leader and most powerful Democrat in the U.S. at the time would equate to power at the convention. It didn’t as he was out-maneuvered by the Kennedy campaign. Which isn’t a surprise, Kennedy had been actually running for President for months before the campaign and had convinced delegates both that they would win and that they would remember who wasn’t with them when they did win. For some reason, LBJ thought the force of his personality would overcome these commitments and the fear of breaking them. In retrospect, it seems pretty irrational.

As I said, the book skips from the interesting 1959 and 1960 events to 1963 with only brief focus on the VP years. If you read the excerpt of the book in a recent New Yorker piece, you’ll see the flavor of the coverage of November 22, 1963 and the events in Dallas. What seemed new to me was the idea that the Bobby Baker scandal was percolating that exact week. With the implication being that had JFK lived, that scandal may have blossomed to the point of endangering LBJ’s slot on the national ticket. As with all alternative histories, we’ll never know. Caro, however, makes the case that LBJ may not have been able to swing Texas for JFK as he did in 1960. Nor was he as popular in the South after deciding to leave his post in the Senate to become Vice President. We’ll never know.

The meat of the months after November 22, 1963 consists of the description of two huge legislative initiatives pushed by Johnson: The Civil Rights Act of 1964 and the so-called Kennedy tax cut (the one we still hear about occasionally from Republicans running for office). Caro makes a case that LBJ got those bills through a Congress when JFK could not have. First, Caro argues (with evidence) that LBJ understood what Kennedy and his congressional liaisons (up to and including Larry O’Brien apparently) did not: that the Civil Rights bill had to be the last big initiative of that Congress. Otherwise, its opponents would use every other important bill sought to be passed by the Administration as leverage in order to kill it. The tax cut bill being the most obvious such hostage. Second, Caro argues (somewhat less convincingly) that only LBJ would have understood that the Chairman of the Senate Finance Committee Harry Byrd (D-VA) meant what he said when he said that no tax bill would pass through his committee unless the 1965 Budget came in at less than $100 billion (with the initial projected budget by Kennedy and his staff looking like it was going to be $105 billion or more). Caro spends a couple of chapters describing the Presidential butt-kissing (and I’m not exaggerating here) by Johnson of Byrd to get his tax cut bill.

Both of these initiatives were passed by a Senate in which the Democrats held a clear majority: 67 Democrats to 33 Republicans! But, remember, the filibuster rule (Senate Rule 22) required 67 Senators to break a filibuster. Still, as Caro described, Southern Democrats and conservative Republicans had formed an alliance which looks, philosophically, not that much different from the current Senate today. The Southern Democrats of 1963 have been transformed into Southern Republicans. However, the difference today is that the Republicans, especially more liberal Republicans (Maine Senators, I’m looking at you) feel a lot less free to buck their caucus than would have been the case for a Senator in either party in 1964. Thus my point on Twitter that even LBJ at the height of his power would not have been able to isolate, say Olympia Snowe, from her larger GOP caucus. There just wouldn’t be enough cover for her.

Caro also argues that the Senate prior to the arrival of Johnson as the Majority Leader and later President sounds an awful lot like the Senate of today. Not a heck of a lot got done. So, could a modern President take some lessons about the power of personal politics from this book? Sure, a few. But, all in all, it’s simply fascinating historical reading about a short time during which the Senate actually worked.

Posted at 7:20pm and tagged with: two column,.

I like broccoli.  There, I said it.  Now, I like it when  it is covered in olive oil, garlic and chili pepper flakes but that’s pretty much how everyone likes it, right?  Broccoli played a prominent role in this week’s Supreme Court oral arguments over the Affordable Care Act (I will call it Obamacare).

You see, the argument goes that if the government can force citizens to purchase health insurance to prevent a free rider problem and generally promote health nationally, can’t the government force you to buy broccoli because broccoli is nutritious and eating it will generally promote health nationally?

Now, to be fair, opponents of Obamacare and Justice Scalia are only deploying broccoli as a way of otherwise asking the rhetorical question - what couldn’t the government make you buy in the name of promoting heath?

However, buying health insurance isn’t just a way to promote health, it’s a way of regulating a market which is not functioning optimally from a public policy perspective.  Part of me is wondering why the Solicitor General didn’t say that the government isn’t forcing people to buy insurance to make them healthier, it’s forcing them to buy insurance in order to prevent free riders.  The government actually doesn’t care about your health, frankly, it would prefer it if you either died quickly or recovered quickly.  Too blunt?  (As I get ready to “publish,” I see that the avoiding free riders principle is one of the three limiting principles suggested by Yale professor Jack Balkin yesterday on his blog.  I recommend that you read it.)

But, more to the point, aren’t there several ways in which the government can compel you to buy broccoli?  Couldn’t the government tax all other non-broccoli vegetables?  (After all, it taxes cigarettes).  Further, couldn’t the government subject me to an income tax if I don’t buy broccoli?  I think the answer is also yes.

Akil Reed Amar made a version of this point in a dialogue yesterday with Ezra Klein.  Congress has all sorts of powers which it could Constitutionally use but doesn’t.  Amar likened some of these arguments to the initial opposition to the income tax, that is, we could be taxed at 100%! Yes, we could be but, politically, Congress would never do so.  (The counter to that argument is that at least the Constitution clearly provides for an income tax.  It does not as specifically set forth the means of enforcing the commerce clause.  Most people see this lack of specificity as both intentional and beneficial.)

I’ll repeat this prediction.  The individual mandate will be stricken down by a 6-3 margin.  It also seems as though there is at least a group of 3 justices who would happily throw the entire statute out.  I tend to agree with James Carville.  Democrats could eventually politically benefit from this in several ways.  One, Democrats will claim that they attacked rising health care costs but were prevented by doing so by an activist, Republican nominated court responding to a Republican-only challenge to the bill.  Two, it reinforces how serious Presidential elections are.  The composition of the Court matters.  Three, the logic of such a decision will serve as a counter-argument to many conservative efforts to privatize government services.  It’s hard to see how you could privatize Social Security after listening to these arguments.  Any effort to privatize Social Security would have to eventually be comprehensive because you can’t continuously fund current beneficiaries if current workers/taxpayers are privately investing what would otherwise be their FICA payments.

By the way, of all of these, I am uncomfortable from the “this is all a Republican judicial plot” argument which will be made by Democrats.  I have too much respect for the Court.  If a law is truly unconstitutional, it’s a public good to have it declared so.  That I might vehemently disagree with the finding, it is what it is.  There’s not a special level of close-to-constitutionality that attaches to 5-4 or Republican-Justices-only decisions.

Posted at 3:02pm and tagged with: two column,.

Ugh.  I don’t know how long I can put up with this before completely dropping out.  President Obama today appointed Richard Cordry to head up the new Consumer Financial Protection Bureau (“CFPB”) as well as three members of the National Labor Relations Board on a recess basis.   There is a clause in the Constitution which allows the President to make executive appointments which would normally require the advice and consent of the Senate without it when the Senate is in recess.

This piece on the Volokh Conspiracy does a far better job than I could ever do in terms of getting into the legal nitty gritty on the interpretation of the recess appointment clause as well as the procedural aspects of all of this.  Suffice it to say that all of these appointments will be litigated. 

Mittens Romney called this “Chicago Style” politics.  How is that?  Look, I get that the GOP hates the CFPB for a variety of reasons: (a) Wall Street hates it, (b) it goes against their anti-regulatory vision, and (c) if it works it could be popular and that popularity could transfer to its backers, the President and Democratic party which got it through Congress.  However, the “got it through Congress” is the key.  The GOP is opposing his appointment not because Codry is unqualified but because they don’t like the CFPB and they want the President to consent to changes they weren’t able to force when the legislation was pending in Congress.  Even with the 60 vote filibuster requirement which has now been imposed by the GOP upon almost all legislation, Democrats still passed the legislation. 

Someone should ask Romney the question of whether all recess appointments are “Chicago politics” (which is fatuous) or whether it’s Chicago politics because Obama is fighting back against what some commentators have referred to as a near nullification effort by the GOP with respect to “reform” (really “weakening”) of the CFPB.   That’s the constitutional crisis.  And it’s not much of one.  If Congress refuses to do its job, the President is left the option in the Constitution to make recess appointments.  As to whether the Senate is really in recess even though it’s been on vacation for a couple weeks?  Check out the Volokh post I linked to above.  I am convinced that the President is on procedurally solid ground and that the Senate is in recess.  And I’m convinced that there is no crisis.

Posted at 9:38pm and tagged with: two column,.

The White House seems to be trumpeting the value of this deal being found in being able to change the subject to jobs.  Which makes sense.  Except for two things:

(a) the Congress leaves for a one month vacation starting tonight,

(b) once it returns, the continuing resolution passed by the lame duck Congress which provides the government with funds to keep running runs out.

One could put (b) another way by saying “we’re facing a threat of a government shut down.”  So, I guess I’m wondering whether the subject will really be changed.  Or whether we will be talking about government shutdowns, more cuts, and the “Super Committee” all the way between now and the first primaries in the 2012 race.   And here’s another thought.  The leverage that the GOP had wasn’t really default so much as it was the threat default posed to the fragile recovery.  What sort of threat do you think hundreds of thousands of government employees going on furlough would pose to the recovery?  And unlike default, there is precedent for the government to be shut down.  (There’s also precedent for the shutdown causing political damage to the GOP.)

When the Woodward-like history of this era of the Obama administration is written, I’m hoping that we learn that the Administration was at least planning for September as part of the debt ceiling discussions.  It’s obviously too much to hope that sort of framework for a budget deal was discussed.  Because, come September, the President will not be able to mobilize the tweeting public to come to his aid…they’ll all be watching football.

Posted at 7:22pm and tagged with: two column,.

I’m not sure the House GOP collectively has any idea what they’re doing.  They are either fiendishly clever or dangerously deluded.  I was unaware that Boehner’s fallback position also includes a Constitutional Amendment on balancing the budget.  Which is certainly a non-starter to Reid and Obama.  So, Boehner’s plan B is also immediately DOA in the Senate.  Thus, I have no idea what he’s talking about when he describes developing something with support from “the bipartisan leadership of the Senate.”  And even Boehner’s desired bill, reportedly, would still result in a downgrade from S & P.  Nothing Speaker Boehner did tonight made it easier for the troubled part of his caucus to vote for the Reid plan if and when it becomes the last best chance to avert default.

Honestly, I’m a bit worried.  Obama’s speech was in defense of the “grand bargain” not because he thinks it’s available this week; it’s clearly not.  Instead, I fear the President was making this case to continue to inoculate himself against blowback once default occurs.

Oh, and Chait just put this out at the New Republic arguing the same thing.  Obama’s speech is really just preparation for a stalemate.

Posted at 7:27pm and tagged with: two column,.