(cross-posted from my blog)

If you look at the breakdown for the House’s vote on health care reform, you’ll see that of the 39 Democrats voting against reform, 24 were Blue Dogs.  Nearly each of the Blue Dogs voting against reform came from districts that supported John McCain in 2008, and of those, fourteen were freshmen Democrats defending seats in districts that went for McCain by at least ten points.  Most of those districts are predominately rural, and it’s very likely that they rank on the low end of most socio-economic indicators.

All of this is apropos of low-tech cyclist’s discussion of “Blue Doggism” or the tendency on part of Blue Dogs to adopt positions and support policies that hurt their districts economically.  The health care bill stands prominently, but there are dozens of smaller, equally egregious instances of Blue Dogs signing on to legislation that benefits the wealthy and privileged at the expense of the folks they actually represent.  Low-tech cyclist blames the Blue Dogs themselves for this behavior, and while that explanation holds water for some Blue Dogs — see: former Rep. Harold Ford (TN-9) — I’m not sure if it’s true of each Blue Dog.

Looking at the data from the health care vote, my hunch is that the majority of Blue Dogs are actually reflecting their constituents’ preferences.  I’m certain that if you were to look at each of the Blue Dogs that voted against health care reform, and polled health care reform within their districts, you’d find that their constituents are significantly (if not overwhelmingly) against the legislation.  Yes, your average Blue Dog is a corporate lackey, but he also represents aconservative district and in all likelihood, is reflecting the preferences of his constituents.

When it comes down to it, the problem isn’t that Blue Dogs are spineless, it’s that a large swath of rural America –disproportionately poor and disadvantaged — has decided that its interests are best served by conservative policies. Which, at the moment, amount to little more than giveaways to the wealthiest and most privileged Americans.

I can see where Jane Hamsher’s tea-party/populist left united front thing could seem appealing as a movement against something (the no-good politicians in Congress and their corporate special-interest shenanigans).   [Read more →]

New York Times:

The nation’s top military officer said Wednesday that he expected the Pentagon to ask Congress in the next few months for emergency financing to support the wars in Iraq and Afghanistan, even though President Obama has pledged to end the Bush administration practice of paying for the conflicts with so-called supplemental funds that are outside the normal Defense Department budget. The financing would be on top of the $130 billion that Congress authorized for the wars just last month.

At least among liberal bloggers, it’s become a matter of conventional wisdom that Congress – and particularly the Senate – is fundamentally broken.  Matthew Yglesias regularly points out our system’s absurdities, and various commentators have written very smart posts about our system’s complete inability to adequately address long-term challenges.

Here at the League, Mark Thompson has written a great post detailing both a serious problem with our institutional arrangement and its potential solution.  I’m not going to do much block-quoting (though I recommend reading the whole thing), but it suffices to say that Mark wants to make the presidency and Congress more accountable for their failures.  That is, as it stands, even though legislation originates in and is written by Congress, the outsized role of the presidency means that in the public eye, it’s the president who is to blame for failed or ineffective legislation, even if the prerogative lies with the legislature.  Mark’s solution then, is to nationalize elections for the Speaker of the House, in hopes that having a nationally recognized leader of the House would focus criticism where it rightly belongs.  Here’s Mark in his own words:

The most obvious reason why this proposal would greatly reduce regulatory capture and the growth of Executive Power is that it would give voters someone to hold accountable specifically for the passage of legislation. Under our current system, narrow local interests are able to turn national legislation into little more than a giant rent-seeking operation, while the scope of the legislation becomes severely watered down. There is no one to hold accountable for this – if your district gets none of the rent-seeking, you have to be content with “well, it’s better than nothing,” or “well, at least my Congresslizard voted against it.”

Mark’s diagnosis focuses on the problem of accountability and I understand why: as long as its virtually impossible to hold Congress responsible for its failures, we will continue to play this silly game where we pretend that electing a new president will have some measurable effect on Congress’ ability to pass actual legislation, rather than the thinly veiled-giveaways to corporate or parochial interests that passes for legislation.  That said, I’m not sure if increased accountability – through Mark’s solution or any other – should be our first concern.  Before we try to steer Congress towards greater accountability, I think we should first attempt to steer Congress towards greater responsiveness.  That potentially far-reaching legislation is nearly always tamed and de-fanged is partially (or even mostly) a product of the huge number of veto points that exist within our system, including extra-constitutional requirements like the filibuster.

[Read more →]

In my recently concluded interview with Publius from ObsidianWings on the role of the administrative state, a central question was how citizens can better hold the executive and legislative branches accountable and prevent regulatory capture.  It seems clear to me (although Publius may disagree) that these issues are closely related to the issue of growth of executive power in recent years, as Congress increasingly abdicates responsibility for the quality of government to the regulatory state and we increasingly view the President as something of an omnipotent legislator-in-chief. 

I. The Problem

The result of this abdication is largely an inability for citizens to hold government accountable for its actions or inactions.  Congress winds up blaming the Executive Branch for just about everything as a means of justifying its own inaction to remedy past mistakes.  The President blames Congress for failing to pass his legislative agenda while largely ignoring the way in which the regulatory state that he oversees gets captured by narrow interests. 

Meanwhile, the President winds up being the sole person we are willing or able to hold accountable….if the economy is good, we credit the President; if the economy is bad, we blame the President.  We dislike Congress, to be sure, but high incumbent re-election rates show that we are unwilling to actually place blame on our own members of Congress.  At best, we vote out a couple members of Congress in swing districts as a proxy for the President’s popularity (which is in turn a proxy for the state of the economy and the perception of our geopolitical status). 

The Speaker of the House and the Senate Majority leader are hardly immune from criticism and are certainly higher profile than just about any other member of Congress, but even there, we have little ability to hold them accountable for how well they are doing their jobs as long as they remain reasonably popular in their home districts and states. 

II.  The Solution: Turn On The Speakers

There is a simple, if perhaps only partial, solution to this twin problem of abdication of responsibility by Congress and lack of accountability for the administration of the regulatory state: nationalize the election of the Speaker of the House. 

[Read more →]

As many people should know, Obsidian Wings is often a bastion of worthwhile discussion and debate combined with unapologetic opinion in the sea of hackery and straw men that is the political blogosphere.  Over the last several days, the site’s most prolific blogger, as well as an expert on communications law and a passionate advocate of net neutrality, Publius (known in real-life as law professor John Blevins) was kind enough to indulge me (who once likewise blogged using a derivation of Publius as a pseudonym) in an exchange of e-mails on the interplay between regulation, legislation, and democratic accountability, and what the FCC’s recent actions on net neutrality say about it.  For the sake of the readers’ sanity, I should note upfront that the questions get significantly shorter and more focused as the interview wears on, and Publius may deserve sainthood for his ability to respond to the first question at all.

Mark: One aspect of American policy that tends to get little attention in our public discourse is that of administrative law, rulemaking, and adjudication, not to mention even more discretionary issues such as enforcement priorities.  Yet, at least on the federal level, this is quite often where the real “action” is.  With some notable exceptions, it seems (to me, at least) that it is physically impossible for government agencies to uniformly enforce all of the laws and regulations on the books, almost no matter how many resources we give to those agencies. Meanwhile, rulemaking procedures are often immune from the kind of democratic accountability that theoretically exists in the legislative branches – they are uniquely low-visibility, often – though certainly not always - attracting the input only of the most interested players with the biggest budgets.  Even where rulemaking succeeds in overcoming these more basic regulatory capture concerns, the resulting regulations are still inevitably of the one-size-fits-all variety, such that the largest players often wind up increasing their comparative advantage over small players, even where it was the malfeasance of the large players that created the impetus for the rule in the first place.  Additionally, the wide grant of quasi-legislative powers and enforcement discretion to administrative authorities has seemingly given Congress the ability to duck responsibility for its own action or inaction by allowing it to blame agency bureaucrats and appointees for various problems.  For example, we often hear GOP politicians argue quite plausibly against gun control legislation on the grounds that it is only necessary to enforce existing gun laws; meanwhile, to take another issue near and dear to my heart, Democratic politicians avoid responsibility for the nasty effects of the Consumer Product Safety Improvement Act by claiming that those effects are the result of an improper interpretation by the CPSC.

First, I do think the benefits of a strong administrative state outweigh the harms.  My vision of the administrative state isn’t quite as bleak as what you described, though I certainly share some of your frustrations and skepticism.

In general, I think problems with the regulatory state often reflect external problems.  For instance, if wealth and power are concentrated, then those disparities in political power will be reflected in rulemakings.  If, by contrast, there is less concentration, then rulemaking will benefit from more adverse, competing “vectors.”

Similarly, if one of our political parties views regulatory action essentially as a means to enrich industry, then that too will be reflected in the ultimate rulemaking and adjudications.  But that’s a problem with the intellectual state of the political party more than with the administrative state.

Finally, if the broad public isn’t organized and engaged (particularly at an institutional level), that too will be reflected.

But it doesn’t have to be that way.  Indeed, I think the FCC’s recent actions on open networks and net neutrality show the promise of administrative action, and undermines public choice skepticism (a topic we’ve discussed before).

First, the proposals show that you don’t necessarily need powerful rich industry groups to make change happen.  Open networks are the result of lobbying by underfunded, idealistic public interest organizations like Free Press.  The bigger content companies like Google aren’t doing much heavy lifting.  And I think, frankly, that Democratic policymakers are more attentive to policy at this point in history.

Second, the FCC’s actions show the importance of political mobilization and organization-creation.  In many instances, rich industry groups get their way simply because they’re the only people in the room providing information to policymakers.  In a sense, policymakers often read the brief from only one party.

With the rise of public interest and watchdog organizations, policymakers have more sources of information.  The process, therefore, isn’t hopelessly corrupt — it’s just that a lack of organization is depriving policymakers from hearing other voices.  Legislative and regulatory staffers are busy, and it’s an enormous benefit to receive useful information wherever they can get it. [Read more →]

Will is right to say that I didn’t fully address one of Douthat’s core points, which he summarizes (quite well, I should add) in the post below:

The point of redistributive taxation isn’t to soak the rich – raising taxes, after all, imposes economic penalties. The larger goal is to improve the lot of poor and middle class citizens through redistributive programs. If the effectiveness of those programs is compromised by the Democratic Party’s core constituencies – teacher unions, the pro-immigration lobby – then perhaps it’s time to reconsider the scope of the Left’s political ambitions.

I agree that the point of redistributive taxation is to improve the lot of poor and middle class citizens and not, as I sometimes suggest, to soak the rich (though to be honest, I would really enjoy to see the rich soaked, if only to satisfy my class resentment*).  Insofar that I disagree with Will’s post – and Douthat’s column more generally – it’s in the idea that “the effectiveness of those problems is compromised by the Democratic Party’s core constituencies.”  That is, I’m not convinced that core constituencies qua core constituencies have that much influence over the policy-making process.

Or in other words, insofar that constituent groups or interest groups can compromise the passage of legislation – and particularly very big legislation – it’s because they can take advantage of the various veto points in the legislative process.  The stimulus, to use one of Will’s examples, was so incredibly pork laden in part because – in the absence of overwhelming legislative support – the only way to get the bill through was to fatten it up with goodies and sweeteners.  The same will be true of the final health care bill: it’s not so much that any one group can exert so much influence that they override the preferences of the legislators and water down the bill considerably, as it is that legislators have to essentially buy votes by paying off whichever parochial interests happens to want something because there isn’t enough consensus to override said interests (Kevin Drum made this point really well not too long ago).

As it stands, our institutions give interest groups the room to have a ton of influence, and give legislators plenty of incentive to give into that influence.  So, to get back to Will’s post, the Left (and the Right for that matter) does need to reconsider the scope of its political ambitions.  I happen to think that both sides need to widen that scope, and aim not just for passing good policy, but for reforming the institutions of governance**.

*Most of which is a product of my time at UVA.

**It’s worth adding that I might be completely wrong about this entire post.

Or, the one piece of legislation Congress isn’t anxious to claim credit for. Hint: it has something to do with debt.

Creepy admiration for China’s authoritarian government aside, the main point of Tom Friedman’s most recent New York Times op-ed is actually pretty sound: the United States has become something of a neutered one-party democracy.  That is, for those interested in governing – at least on the national level – the Democratic Party really is the only game in town, as the conservative movement’s staunchly anti-government approach has left us with a Republican Party as hyper-ideological as it is lacking in policy expertise.  But because our political institutions are designed around consensus, this makes it incredibly difficult for a single party – even one with clear majority support – to make an enact policy, as consensus requires a good-faith governing partner, which the Democrats simply don’t have.  Of course, this is made all the more problematic by the fact that the nation is facing challenges – nuclear proliferation, climate change, fiscal unsustainability – which require much broader action than what our institutions are actually capable of.

The only thing I’d add to Friedman’s analysis is Chris’ observation – made in the comments – that it is a little inaccurate to describe the Democratic Party as singular or unified in any ideological sense.  In reality, or at least as far as congressional Democrats are concerned, the Democratic Party is more of a loose coalition between a broadly center-left party (based in the Northeast and the West Coast) and a broadly center-right party (based in the Rust Belt, and rural areas throughout the West, Midwest, and the South).  For liberals, this isn’t particularly good.  Under a functional legislative system, where majority rule was given deference, this wouldn’t pose too much of a problem; the center-left party could rely on the center-right party to help craft and pass broadly acceptable legislation (while the right-wing party languished in irrelevance).  The way it stands however, the right-wing party has pretty significant veto power over nearly every piece of legislation, which effectively means that any given piece of progressive legislation has to go through two conservative filters.

To take it back to Friedman’s point though, the fact of our tri-party legislature acts as yet another obstacle to one-party governing, since there simply isn’t enough ideological cohesion and group loyalty within the Democratic Party to pass anything approaching ambitious legislation.  The real solution, of course, is a complete restructuring of our legislature into something approaching a Westminster-style parliamentary system, with multiple member districts and executive branch drawn largely from the legislature.  However, since that is also incredibly unlikely, we’ll probably have to look for other ways to make Congress more responsive to the majority party (like eliminating the filibuster, or revamping the committee system!).

Among many – many – other things, I wish political commentators would stop explaining away our near-constant legislative gridlock as some inevitable, quasi-mystical part of the democratic process.  For instance, here’s Peter Suderman (guest-posting for Andrew Sullivan) describing the “problem with politics”:

No, I don’t think this is a failure of leadership so much as a feature of democratic politics — and a reminder of how unpleasant and unsatisfying to nearly everyone the business of politics can be.

Democratic politics is a messy business. It’s disorganized and frantic and unpredictable and frustrating. Politics is a matter of shouting, and dissent, and deal-making, and strategy, and slippery rhetoric, and compromise. It is not a matter of deciding on the “right” policy and then making it so — even when your party controls the White House, the House, and the Senate.

[...]

It’s not that people enjoy this; in fact, it seems to turn a lot of people off. As Robert Putnam wrote, “Most men are not political animals. The world of public affairs is not their world. It is alien to them — possibly benevolent, more probably threatening, but nearly always alien.” But to a large extent, the spasms and outbursts and irritations that come with the political process are inevitable — no matter who’s in charge, no matter what the polls and pundits and politicians say.

I am completely on board with the observation that democratic politics is a messy, unpleasant affair.  But I’m not so sold on the implication Suderman’s post, which is that the current legislative gridlock is an unfortunate, but fundamentally acceptable, part of the democratic process.  It isn’t acceptable, and more importantly, it isn’t inevitable.  At its heart, the problem facing health care reform – and really, the problem facing any substantive change in domestic policy – is institutional.  Congress is simply ill-equipped to deal with large, complex problems, a rule that goes double for anything requiring substantive changes to the status quo.  That’s not to say that a few tweaks will suddenly turn Congress into a paragon of effective legislating – of course it won’t – but it is entirely within our power to make Congress a more effective vehicle for pursuing and implementing good public policy.  And we need to begin by abandoning this absurd notion that there is something noble about having a deeply unresponsive and counter-majoritarian legislative branch.

On my twitter feed (which you should follow, by the way), a friend asks what I think about the potential use of reconciliation to pass health care reform.  For those of you unawares (or just need a bit more information), reconciliation is “triggered” when Congress passes a concurrent resolution (a legislative measured passed by both the House and the Senate) requiring the committee(s) in question to – by a particular date – report any changes in law which affects the budget.  If those budget instructions affect multiple committees, those committees send their recommendations to the Budget Committee, which then packages them into a single omnibus bill.  Once on the floor, debate is limited to 20 hours, and amendments are sharply limited.  What’s more – and most relevant for our discussion – reconciliation bills cannot be filibustered and only require a simple majority vote.

If that sounds a bit too simple… you’re right, it is.  In 1985, the Senate adopted the Byrd Rule which prevented senators from including into a reconciliation bill any provision which was irrelevant to the purpose of implementing budget resolution policies.  In 1990, the Congressional Budget Act was amended to include the Byrd Rule.  This rule allows any senator to raise a point of order against any provision held to be irrelevant or “extraneous” to the budget.  If the point of order is sustained, then the provision is removed from the bill.

That last point should make progressives wary of using reconciliation to pass a strong public option, or a health care bill more generally.  While there are rules describing what counts as “extraneous,” they aren’t terrible precise, and are very much open to interpretation.  For instance, according to a budget committee report on the Byrd Rule:

Subsection (b)(2) of the Byrd rule provides that a Senate-originated provision that does not produce a  change in outlays or revenues shall not be considered extraneous if the chairman and  ranking minority members of the Budget Committee and the committee reporting the provision certify that —

• the provision mitigates direct effects clearly attributable to a
  provision changing outlays or revenues and both provisions together
  produce a net reduction in the deficit; or
• the provision will (or is likely to) reduce outlays or increase
  revenues:  (1) in one or more fiscal years beyond those covered by
  the reconciliation measure; (2) on the basis of new regulations, court
  rulings on pending legislation, or relationships between economic
  indices and stipulated statutory triggers pertaining to the provision;
  or (3) but reliable estimates cannot be made due to insufficient data.

While it is possible that the public option is a perfectly legitimate part of a reconciliation bill, it’s just as likely that it isn’t.  And if it isn’t, it’s not clear whether the public option counts as an exception to the rule.  Indeed, it’s fair to say that an exception is whatever the Senate Parliamentarian (who is responsible for deciding which provisions are ineligible under the rule) says it is.  What’s more, there is a fair chance that there are plenty of measures a liberal health care bill which would run afoul of the Byrd Rule, and thus be unceremoniously stripped from the final package.  In fact, it’s entirely possible that using reconciliation could result in a bill completely stripped of anything useful.

Honestly, I think progressives should stop worrying about reconciliation, and instead, focus on trying to break the inevitable Republican filibuster.  That said, I think I’m correct to say that the legislative drama over health care reform – and the preoccupation with arcane budgetary processes – serves as another data point in favor of repealing the filibuster.  Not only is it a tremendously anti-democratic tool (situated within a fairly counter-majoritarian institution), but to paraphrase a recent Hendrick Hertzberg post, the it is a clear impediment to those “who see democratic self-government as an instrument of public action.”  At the risk of sounding a little banal, we know that the United States is a vastly different country than what existed two hundred years ago, and we have tailored or changed most of our institutions to reflect this basic fact.  It’s time for the Senate to follow suit.

I’m not sure how well Freddie and I addressed the central question of our discussion last night, to wit, how to overcome the institutional problems in our representative democracy.  But the discussion about health care alternatives and the lack of significant hope for Wyden-Bennett has gotten me thinking about the role of divided government not only in limiting government (which is a standard libertarian argument for divided government), but also, counterintuitively, in ensuring that changes (whether of the government-growing, government-limiting, or size-neutral variety) that do become law are meaningful.

In the six months that Democrats have had control of the Presidency and overwhelming control of the House and Senate, they have pushed three particularly major pieces of legislation: a stimulus package, cap-and-trade, and health care reform.  In each case, Republican/conservative opposition has been pretty much unified and, uhh, outspoken (Sens. Collins and Snowe notwithstanding).  Also in each case, the resulting legislation has been a huge letdown to liberal wonks and, really, the liberal “base” in general – at best, this group has viewed the legislation as a disappointingly inadequate (if important) step in the right direction, and in some cases has even viewed it as counterproductive (see, e.g., the reaction of various environmental groups to Waxman-Markely). 

In response, liberals have typically been blaming “Blue Dog” Democrats for insisting on watering the legislation down to a ridiculous level, although I’ve also seen attempts to blame Republicans for having no interest in negotiating in good faith such that the only way to pass legislation is to horse-trade with the Blue Dogs.

To a certain extent, I think this finger-pointing is accurate – Blue Dog Democrats with relatively conservative constituencies have very much been at the center of watering down these proposals, or at least adding on various goodies for their constituencies that have the effect of undermining the legislation’s purpose.  Similarly, there would be little need for horse-trading with the Blue Dogs if Republicans had any interest in passing legislation that would fix the problems these piece of legislation are supposed to fix – that’s not to say that the legislation would meet the liberal ideal if Republicans were serious about these problems, just that it would better reflect good faith ideas about how to correct those problems.  So, if Republicans were serious about health care, for instance, the result wouldn’t be the liberal ideal of single-payer, but it would probably be something along the lines of Wyden-Bennett, which just about everyone agrees would be a meaningful reform that would solve a lot of our system’s biggest problems. 

At the same time, though, this finger-pointing at Blue Dogs and Republicans misses something pretty important – no matter who’s in power, there are always going to be squishy centrists on the side of the majority who have constituencies that need to be bribed and/or appeased in any reform legislation.  Similarly, whenever you have single-party control of government, the opposition party will have no real reason to do anything other than be the “Party of No” – if a reform achieves its goals, the party in power will get all the credit, ensuring the party out of power falls even further out of power; if the reform fails, the party out of power will be able to heap all the blame on the party in power – but only if the party out of power almost uniformly opposes the legislation. 

[Read more →]