Political Truths

Here are just a few thoughts that popped into my head while reading the news today. I'll most likely expand on these points in future posts:

• The United States is a big country. With 310,000,000 people, it's the third-biggest nation on the planet. While $1 million, $10 million, or even $10 billion may seem like a lot of money to an individual, it's a very small amount considering that there are a hell of a lot of people in the country.
  


• The number one indicator of the incumbent party's fortunes in a federal or state-wide election is the economy--Specifically, the unemployment rate.
  


• Generally, the only thing that can trump economic fears in the minds of voters are national security fears.
  


• Politicians, like most people, most often act in their own self interest. What policy positions a politician takes is affected by his or her personal convictions, who has given a bribe (campaign donation), and the demands of the voting public. Campaign contributions can trump personal conviction, and constituent demands can trump both.
  


• Although what happens in Washington impacts everyone in the nation, most people make the judgement that closely following politics is a waste of their time--time that's better spent on more important things, like taking care of their kids. And that's okay.
  


• The Senate rules are ridiculously stupid and can easily be abused.
  


• The general public will never understand how cloture, holds, or the filibuster actually work.
  


• Congress as a whole has always been unpopular. I don't see that changing any time soon.
  


• Most of the frustrations people have with Congress today can be blamed on the Senate rules that allow any one Senator to force any bill or nomination to be on the floor for 3+ days.
  


• People in general don't understand why the politicians they elected in a landslide can't bring about the change they promised overnight. The politicians are then seen as being disingenuous or weak, as they promised one thing but couldn't deliver.
  


• Given all that, though, some Members of Congress really don't want to pursue their party's platform, and instead use the rules as a shield to explain why they don't enact their promises. This usually doesn't go over too well; People want results, not complicated excuses.
  


• Our political discourse in this country is almost as stupid as the Senate rules.

Political Truths

Tell Congress: Televise Wall Street Reform Conference Committee!

The Senate passed their version of Financial Services Reform last night by a vote of 59-39. Hours earlier, they invoked cloture by the slimmest of margins: 60-40.

Now the bill advances to a conference committee with the House, where a handful of Senators and Representatives get to hammer out the differences and come up with one final bill. This final bill must pass both chambers again before Obama can sign it into law.

David Dayen of FDL has a great run-down of the differences between the two bills:

• The Volcker rule. Contrary to some media reports, there is a “Volcker rule” in the Senate bill; it essentially authorizes a study and tells the regulators to come up with something on it. This is but one of the 28 “studies” in the bill. The House bill passed before there was such a thing as the “Volcker rule” in the lexicon, so that’ll probably be the best we can get here. But we should at least get that.

• The Fed. The House bill has a full annual audit of the Federal Reserve; the Senate bill has a one-time audit of emergency lending facilities. In addition, the Senate bill allows a much bigger role for the Fed than the House version; in fact, the Fed gained more power while the Senate bill was on the floor. Some of that could be reeled in if the House language is adopted.

• Derivatives. Everyone expects the 716 provision, which forces the mega-banks to spin off their swaps trading desks, to be excised in conference. But Michael Greenberger believes something like it will be retained. The House’s derivatives piece is a mess and nearly useless, but Barney Frank has admitted a mistake on that front, and wants to preserve strong rules against derivatives, like in the Senate bill.

There’s also the matter of Maria Cantwell’s main complaint, that the mandate of all trades going through clearinghouses is unenforceable. Obama Administration officials appear to think this is a misreading of the legislation, and that Cantwell’s fix could have unintended consequences. So it looks unlikely that this loophole will be closed, if the major players in conference don’t think it’s a loophole.

• The CFPA. The House bill has an independent Consumer Financial Protection Agency with a compromised, exemption-riddled mandate. The Senate bill has a CFPA inside the Federal Reserve but without as many exemptions. Both bills include some pre-emption of state consumer financial protection laws, though the Senate bill preserves a role for the state Attorneys General in enforcement. A mix of both of these would be preferable. The Senate motion to instruct conferees will urge adoption of the auto dealer exemption from the CFPA, which is in the House bill, but given the Administration’s position there is almost no chance that conference will adopt that.

• Capital requirements. The House bill, in its strongest plank, has a hard 15:1 leverage cap for financial institutions. The Senate bill leaves capital requirements and leverage up to the regulators, although the Collins amendment does force bigger banks to have stronger requirements. The more distinct and specific the language is, the better. And the bank lobbyists will work hard to get the opposite, pure discretionary language.

• Credit rating agencies. There were two competing options for the rating agencies: end the conflict of interest by giving government more of a role, or end the rating agency process altogether. The Senate kind of opted for BOTH approaches, with the Franken amendment empowering an SEC bureau to assign initial ratings to qualified agencies, and the LeMieux amendment eliminating the qualified “seal of approval” for the rating agencies. Franken insists they’re compatible. The House has language similar to the LeMieux amendment. If possible, the Franken amendment should be retained.

• Mortgage underwriting. Both bills actually have some pretty good new standards for mortgage lending, banning the premiums for pushing borrowers into riskier loans, and forcing some ability to pay. This is likely to stay in the bill.

• Interchange fees. One of the toughest measures in the Senate bill changes the swipe fees charged to local merchants when their customers use debit cards. The bank lobbyists will have their knives out for this one.

In my opinion, the two most important pieces to preserve are the 15x leverage cap, which ensure that companies will not borrow more than 15x their worth, and the derivative regulations. The companies that got into the most trouble in 2008 were those who borrowed more than 30x their worth and came crashing down when it turned out that their investments were worthless. And the derivatives market must be brought under control. There is no reason to have a largely unregulated market that is worth $600 trillion, ten times the GDP of the entire world.

How can we prevent these provisions from being gutted now that the bills are off the floor?

Well...

Should the final act of the financial reform fight be televised? If it is, it would make any efforts--whether Republican or Democrat-led--to weaken the final product a heavier lift. And so there will be significant pressure to cut the final deal in as much darkness as possible. But if that's the route legislators decide to go they'll have to walk back from earlier nods toward the importance of transparency

Several weeks ago, House Financial Services Committee Chairman Barney Frank dared Senate Republicans to oppose Wall Street reform, and warned that, after the Senate passed its legislation, any further efforts to weaken the final product would have to be public: a formal conference committee to iron out the differences between the House and Senate bills, even a C-SPAN camera so the whole world could see where each party stood.

Well, last night, the Senate passed its bill, and on Monday the Senate will take formal steps to begin the conference committee process. And in conversation, key Republicans and Democrats last night say they think inviting the cameras along would be just fine.

If the conference committee is televised, it will become much more difficult for members of Congress to strip out the strongest parts of the bill. The amendment process on the Senate floor strengthened the bill overall once Senators were on camera and told to "put up or shut up" regarding their tough-talk against Wall Street. Furthermore, with a televised conference committee, progressives can better target troublesome members when they work to weaken the bill.

If you'd like to see the conference committee conducted in the open, please call your Senator or Representative. This is especially important if your member is the chair or ranking member of the relevant committees and subcommittees:

Barney Frank (MA)
Spencer Bauchus (AL)
Paul E. Kanjorski (PA)
Scott Garrett (NJ)
Maxine Waters (CA)
Shelley Moore Capito (WV)

Christopher Dodd (CT)
Richard Shelby (AL)
Blanche Lincoln (AR)
Saxby Chambliss (GA)

If your member is on the Senate Banking Committee or the House Financial Services Committee, please give them a call!

The Senate will be acting on this issue on Monday. Action must be taken as soon as possible.

Thanks for your help!

Tell Congress: Televise Wall Street Reform Conference Committee!

Forget Obama--Is Schumer the Next LBJ?

In January of 1953, Lyndon Johnson, Democrat from Texas, was chosen by his Senate caucus to be the minority leader. He was the least senior Senator ever elected to this position. The following year, the Democrats recaptured the majority from the Eisenhower-wave Republicans and LBJ became the Senate Majority Leader.

Johnson quickly used his power and connections to shepherd through tough legislation that could be signed by the Republican President. His most impressive accomplishment was breaking southern filibusters and passing the 1957 and 1960 Civil Rights Acts, which were the first civil rights bills signed into law since the election of Rutherford B. Hayes.

Stories of Johnson's time in the Senate are legend in Washington, the most famous of which is the description by Rowland Evans and Bob Novak of LBJ's negotiating tactic, "The Treatment":

The Treatment could last ten minutes or four hours. It came, enveloping its target, at the Johnson Ranch swimming pool, in one of Johnson's offices, in the Senate cloakroom, on the floor of the Senate itself — wherever Johnson might find a fellow Senator within his reach.

Its tone could be supplication, accusation, cajolery, exuberance, scorn, tears, complaint and the hint of threat. It was all of these together. It ran the gamut of human emotions. Its velocity was breathtaking, and it was all in one direction. Interjections from the target were rare. Johnson anticipated them before they could be spoken. He moved in close, his face a scant millimeter from his target, his eyes widening and narrowing, his eyebrows rising and falling. From his pockets poured clippings, memos, statistics. Mimicry, humor, and the genius of analogy made The Treatment an almost hypnotic experience and rendered the target stunned and helpless.

Johnson knew the Senate and its Senators. He both respected the institution and knew how to get what he wanted. So deep was his love for the Legislative branch that a schism was created in the White House when, as Vice President, Johnson was resentful that the young Kennedy team did not put him in charge of pushing the administration's legislative agenda through Congress.

Many people today bemoan the weak Senate leadership that exists in both parties. I am sometimes taken aback when I think of how ineffective Bill Frist was as his job, and how many conservative Republican bills died in the Senate during the Bush years. Now, of course, the Democrats face the same problem, as hundreds of bills have passed the House during the 111th Congress that have not been considered by the Senate, many of which are progressive priorities.

Why don't we have Senate leaders like LBJ anymore? Is a personal style? Or is the Senate so deadlocked by filibusters and unanimous consent agreements that it simply can't get important business done?

Maybe it's both.

Yesterday, Senator Chuck Schumer of New York held a hearing as the chair of the Senate Rules and Administration Committee on how the filibuster can be changed:

We learned in our first hearing that the use of the filibuster has reached unprecedented levels. This chart, prepared from facts supplied by the Congressional Research Service, shows that the use of cloture motions has escalated rapidly in recent Congresses. Cloture motion counts are useful because they represent a response to filibuster tactics – actual filibusters, threats or realistic expectations of them.

During the first period, from 1917 to 1971, there was an average of 1.1 cloture motions filed per year. The next period is from 1971 to 1993, when there was an average of 21 filibusters per year. In the period from 1993-2007, that number increased by almost a third – to an average of 37 cloture motions per year.

Then we come to the 110th and the beginning of the 111th congress. We are now averaging more than 70 cloture motions per year. That’s an average of two per week when we’re in session.

Schumer has come out in favor of reforming the filibuster on the first day of the 112th Congress next year. On that day, the Senate's rules can be rewritten by a simple majority vote. Schumer has not yet decided on what form filibuster reform should take, but he is in favor of changing it.

Why is Schumer's opinion important? Because he may be the next Senate Majority Leader:

Now, with confidant Senate Majority Leader Harry Reid (Nev.) hanging on to his seat by a thread, the Brooklynite is nearing the goal line of his long game. Succeeding Reid would make Schumer the highest-ranking Jewish elected official in American history and, more important for the uber-competitive politician, the first among peers. Schumer has thrust himself into the center of issues ranging from jobs to immigration to Supreme Court hearings, but as that momentum has carried him into a more intimate arena where popularity matters, the grating architect of the current Democratic majority has become noticeably more collegial. Perhaps not coincidentally, his colleagues see him as the front-runner to be their leader.

"It's very much within the realm of possibility," said Chris Dodd of Connecticut, who lost a race for minority leader to South Dakota's Tom Daschle by a vote in 1994. "He's always moving and always talking to people and he has a very good feel for what other people have to put up with. And that's a critical point of that job, understanding the environment your colleague has to operate in."

Schumer declined to be interviewed for this story and betrays an uncharacteristic loss for words whenever the term "majority leader" is uttered. Reid is, after all, still in control, and his closest competitor is Dick Durbin of Illinois, the liberal majority whip with whom Schumer has shared a Washington townhouse for years. Each can boast a strength: Durbin has the pleasant demeanor of a consensus builder; Schumer is the diehard fighter who has never lost an election. The prospect of a Chicago vs. New York majority leader race with echoes of Obama vs. Clinton is tantalizing, but also distracting.

Sen. Mark Begich (D-Alaska) said that the prospective race loomed over Schumer's and Durbin's floor chats with colleagues and said that when Schumer recently approached him about working together on technology or travel legislation, he took the New Yorker's motives at face value. But he's not naive: "Now maybe he wants me on board for other reasons."

Schumer is at largely responsible for getting the Democrats their majority in the Senate. In 2006, he did what many considered to be impossible and ran the table on the Republicans. In a year when more Democrats were up for reelection than Republicans, Schumer, as the chair of the Democratic Senatorial Campaign Committee, managed to win six new Senate seats without losing a single one. In 2008, he added another nine seats to that total.

Because of his work at the DSCC, there are over a dozen young Democrats in the Senate who are indebted to him. Add to that number Senator Kirstin Gillibrand, the junior Senator from NY, and you have a powerful backing that could put Schumer in charge of the Senate if Reid loses his bid for another term.

Furthermore, the newer Senators that form Schumer's base are much more likely to support reforming the filibuster. While senior members like Chris Dodd and Robert Byrd are most reluctant to see the institution of the Senate change, reformers like Democratic Senators Shaheen, Begich, Tom Udall, McCaskill, Sanders, Casey and Sherrod Brown are pushing for change.

But beyond the hopes of reform, Schumer has some other valuable, familiar skills that would be a welcome change from the recent leaders of the Senate:

Schumer's political power in Washington has always rested on the local pillars of voracious fundraising and manic courtship of the media, a cornerstone of which is the Sunday news conference. The idea is that exposure demonstrates hard work to voters and shows colleagues that collaboration will be rewarded with coverage in the New York-based national media.

"It may seem he has a pathological need for attention," said one of more than a dozen former aides interviewed for this article. "But there is a method to the madness. He thinks it's key to his survival."

...

Schumer often tells staffers that he is a senatorial mix of the brainy Daniel Patrick Moynihan and the hands-on D'Amato. But he is as much his own creation. As he toned down his signature advocacy for gun control, which had become politically poisonous, he chimed in on less partisan issues. He also glommed onto colleagues' legislation or news conferences, a tacky scheme so common it became a verb, as when a colleague "got Schumered."

What he lacked in decorum, he made up for in persistence.

One former staffer recalled that Schumer always carried a narrow white card in his jacket's breast pocket: On one side was a call list covered with dozens of names and on the other, he had scrawled the senators he needed to nab.

"He'd buttonhole the senators," recalled the staffer, who added that Schumer, upon making an agreement, would rush to the cloakroom, relay the news to his staff and instruct them to coordinate a news release with his counterpart's aides, "before they could unwind it," inking any deal at the moment of agreement.

If Reid loses in November, the race to replace him will have consequences--but not only for the 112th Congress. The changes that the Democrats put in place next January will forever change the first branch of Government. Furthermore, we are going to need a Majority Leader who can shepherd legislation through a Senate with a shrinking majority. While both Durbin and Schumer would be improvements over Reid, one will invariably be better than the other at guaranteeing filibuster reform and other progressive priorities.

This is an important aspect to keep in mind as we head closer to November. Once the elections are over, the fight will have only just begun.

Forget Obama--Is Schumer the Next LBJ?

Obama's Line-Item Power-Grab

When Obama first selected Biden as his running mate, I was initially disappointed. In the heat of the campaign, I thought it was a stupid move. Why would Obama undercut his main message of "change" by bringing on a man who has been a Senator since Obama was in high school? Why would he choose someone who had made such a colossal error in judgement and voted for the war? Why didn't he pick an outsider like Virginia Governor Tim Kaine? Or, if he had to pick a Senator, why not someone like liberal Rhode Island Senator Jack Reed?

Soon, though, I began to think of the upside: While Biden may not help Obama get elected, he certainly would help Obama govern the country. As someone who was first elected in 1976, Biden had been around for a while. A long while. As such, many people in the Senate must have owed him favors. As the Chair of the Foreign Relations Committee, he was a powerful ally. If the President used him correctly, he could be Obama's Congressional Liaison and help shepherd through his policy priorities.

Once elected, Obama went through Congress while building his staff: Clinton, Salazar, Emanuel, Solis, LaHood, McHugh...the President wasn't afraid of looking to the Capitol for help in running his administration:

The first senator elected directly to the Oval Office since 1960, Obama has an entirely different theory of how to exercise presidential power, and he has consciously designed his administration to avoid Clinton’s fate. After winning the office with the same kind of outsider appeal as his predecessors, he has quietly but methodically assembled the most Congress-centric administration in modern history. Obama’s White House is run by Rahm Emanuel, a former House leader who was generally considered to be on a fast track to the speakership before he resigned to become chief of staff, and it is teeming with aides plucked from the senior ranks of both chambers. Obama seems to think that the dysfunction in Washington isn’t only about the heightened enmity between the parties; it’s also about the longstanding mistrust between the two branches of government that stare each other down from twin peaks on either end of Pennsylvania Avenue.

It seemed that Obama recognized that the President's only constitutional power was to sign or reject legislation. He can set the agenda and make policy proposals, but Congress must take the lead when it comes to drafting specific legislation. The Constitution creates the Legislature and the Executive as two equal partners (and adversaries) in government, and by all accounts Obama has respected that.

Unfortunately, now it appears that Obama is leaving that lesson behind in his pursuit for more power:

President Obama, in his latest effort to signal fiscal responsibility against the rising debt, plans this month to ask Congress to give him and future presidents greater power to try to delete individual items from spending bills.

In doing so, Mr. Obama will join a long line of his predecessors who have sought either line-item veto power or, after the Supreme Court in 1998 ruled such a veto unconstitutional, some other rescission authority that passes muster. Congress once again is unlikely to be receptive, though growing antidebt sentiment could give the proposal life.

Before Congress breaks for its Memorial Day recess, the White House will send it proposed legislation “to give the president a new tool to reduce unnecessary or wasteful spending,” according to an administration official who spoke on condition of anonymity.

Obama is proposing that Congress give him the power to strike out any spending item he would like and turn the bundle of cuts over to Congress. Congress would then be required to take up the package within 25 days and give it an up-or-down vote. Congress would also be barred from amending the spending cut package.

First of all, this proposal is likely unconstitutional. In 1996, the Republican Congress gave Clinton the line-item veto--the power to strike out portions of any passed bill before signing it into law. Cities that did not receive funding sued the President, and sure enough the Supreme Court found the line-item veto unconstitutional in 1998 in the case Clinton v. City of New York.

The Court, in a 6-3 decision, found that the line-item veto violated the Presentment Clause of the Constitution, which states how a bill is to be presented to the President. The Court declared, in short, that the President has two options: Sign it, or veto it. The Constitution's failure to specify other options means that those are indeed the only two choices.

In addition to violating the Presentment Clause, Obama's power grab may also violate the Article I Establishment Clause:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The President can, of course, propose legislation that includes suggested spending cuts, as long as the "proposal" is introduced by a member of Congress. What he cannot do, however, is mandate that Congress take up a specific piece of legislation. That power, like all legislative powers, rests entirely in the hands of Congress. According to the Constitution, Congress cannot give away its powers to decide which bills are brought before it.

If this proposal of Obama's becomes law, I dread the day when the new line-item veto is used for political purposes. What's to stop a Republican President from proposing spending cuts for urban areas? And the proposal being given an up-or-down vote in a Republican Congress? We won't always have a responsible administrator in the White House, much like how we won't always have a responsible Congress. At the risk of sounding melodramatic, much like Clinton's line-item veto, this power would be disastrous in the wrong hands.

Fortunately, with Obama Derangement Syndrome running strong in the Republican Party, it's unlikely that many Republicans will sign on to the possibility of Obama personally cutting funding for their states. And there should be enough old-guard Democrats in the caucus to ensure that this proposal never makes it out of committee.

Still, it's a little surprising to see Obama, a former Senator, make this kind of power-grab. Then again, much like his ever-changing opinions on Executive powers in the modern security state, perhaps being President has changed his outlook on the balance of powers in Washington.

Obama's Line-Item Power-Grab

The Abuse Amendment

Something funny I came across while reviewing the proposed amendments to the Financial Reform bill:

SA 3933. Mr. CORKER submitted an amendment...to the bill S. 3217...; which was
ordered to lie on the table; as follows:

On page 1291, line 15 strike ``, DECEPTIVE, OR ABUSIVE'' and insert ``OR DECEPTIVE''.
On page 1291, line 20, strike ``, deceptive, or abusive'' and insert ``or deceptive''.
On page 1292, line 1, strike ``, deceptive, or abusive'' and insert ``or deceptive''.
On page 1293, strike lines 3 through 20.
On page 1293, line 21, strike ``(e)'' and insert ``(d)''.

The part of the bill that would be changed by this amendment is Section 1031: Prohibiting Unfair, Deceptive, or Abusive Acts or Practices. The amendment strikes the use of the word "abusive" from this section and removes the subsection that bans financial institutions from '"interfer[ing] with the ability of a consumer to understand a term or condition of a consumer financial product or service" or "tak[ing] unreasonable advantage of a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service."

I have no idea why Bob Corker wants to specifically allow abusive practices to continue, but it strikes me as particularly funny that his amendment is designed to strike the ban on banks and credit card companies abusing their customers.

The Abuse Amendment

236 Days

In the coming days, Congress will finally pass the long-debated financial services reform bill, S3217. The Republican leadership in Congress is warning Democrats about the peril of moving "too quickly" on the legislation, and are toying with the notion of further delaying action on the bill. In April, the Republicans insisted on holding cloture votes over the question of even bringing the bill up for debate--and they defeated cloture. Twice. Eventually, the Republicans folded and allowed the Senate to debate the consideration of the bill.

Republicans are now threatening to delay the bill further, possibly requiring the Democrats to file for cloture on many of the proposed amendments.

In the House, bills are sometimes brought to the floor under an "Open Rule". This allows any germane amendment to be brought up for a vote. With a quorum present, amendments can be easily knocked out via voice-vote or with quick, 15 minute votes by electronic device.

Because of the cloture rules, however, the Senate can't do this. The Majority Leader (often in conjunction with the Minority Leader) calls the shots and can only allow a fraction of the proposed amendments to have their time on the floor. Normally, when an amendment is brought up, a unanimous consent agreement waves the normal rules and establishes new rules for a short debate and a vote. If there is an objection to this agreement, however, cloture must be invoked for the amendment to be debated. This involves a three-day wait before the cloture vote, and then a 30 hour debate after cloture is agreed upon.

This would be for each individual amendment.

There are currently 189 proposed amendments to the Financial Reform bill.

If each were brought to the floor, and only one Senator objected to each of them, it would take 236 days for the Senate to get through them all.

This is why the Senate can't have nice things. This is why it's said that each Senator carries with them a nuclear bomb.

Ironically enough, the evil, majoritarian House of Representatives can actually have a greater number of amendments considered and therefore have a more inclusive debate over the legislation than the infamously deliberative Senate. Because of the asinine cloture rules, the Senate can only address a handful of amendments on a given bill, while the House can easily address dozens.

It's no wonder that people are clamoring for Senate reform. While thousands of bills are proposed every legislative session, only a small fraction of them can ever be brought to the Senate floor. Time on the floor is the most valuable commodity available, but it can be wasted for days at a time due to objections by one Senator.

This is the same reason why the Democrats can't bring up the dozens and dozens of unconfirmed nominations to various executive branch positions. The Democrats have the votes to confirm the Deputy Undersecretary for Multifamily Housing, but as long as one Senator threatens to require cloture, it would take over a day to get through each nominee. It would take over three months to get through all the delayed nominees.

Something has to give. Either the rules for cloture must be reformed (say, limiting it to only the final passage of legislation, not amendments and executive business) or the filibuster--and thus cloture--must be eliminated.

We need a new, streamlined Senate to handle the 21st Century needs of the country. With a bigger nation--and a bigger government--the Senate needs to have the tools necessary to deal with the issues of the day. That fact is not open for debate.

236 Days