Archive for the ‘Congress’ Category

Arlen Specter and a Postpartisan Landscape

Written by Henry L. Chambers, Jr. on April 29th, 2009

The Democrats have gone from minority status to almost filibuster-proof majority status in the Senate with blazing speed, at least in political years.  The essential switch in party affiliation by Sen. Arlen Specterspecter.jpg coupled with the anticipated eventual victory of Al Franken in Minnesota has nearly made the transformation complete.  The irony is in how many Republicans have changed their tune with respect to the power that should be accorded a majority.  Many Republicans seemed to argue that 51 Republican votes in the Senate should lead to the exercise of 100% of power.  When Democrats gained 51 votes in the Senate, the Republican mantra became shared power.  The claim was that power should be shared because America was essentially equally divided.  Indeed, even when Democrats reached the high-50s in number of Senators, the Republican position appeared to be that using the filibuster to enforce shared power was perfectly acceptable.  Using the filibuster until Democrats shared power or put some Republican ideas into specific pieces of legislation was deemed perfectly appropriate.  The question now becomes: What power should the Republicans be able to exercise in a Senate in which Democrats have a filibuster-proof majority?

Republicans, as a political group, should not be able to exercise much pure power vis-a-vis the Democrats.  Of course, individual senators and certain groups of senators with ideologically similar positions on specific issues should be able to exercise influence on particular matters.  As a consequence of the numerical paucity of Republicans, Democrats arguably should stop listening to Republicans as Republicans and should start listening to individual Republican senators or mixed groups of Democratic and Republican senators as members of the club who might have good ideas.  Ironically, if Democrats take the ideas of these groups seriously, Sen. Specter’s switch in party affiliation may be the first step to a postpartisan Senate.

Equal Access to Justice

Written by Rebecca Zietlow on April 16th, 2009

Our current economic crisis has caused thousands of people to face unemployment, home foreclosures, evictions, bankruptcies, domestic violence and other problems.  However, too many people wtom-harkin.jpgho find themselves in legal trouble cannot afford to hire a lawyer to help them – as many as 80% in some parts of the country.  As a former legal services lawyer, I can attest to the value of having a lawyer when a person is in an overcrowded housing court, or seeking benefits from the government.  Regardless of the strength of your case, whether or not you have a lawyer often makes the difference between winning and losing.  Yet even as the need for legal assistance has skyrocketted, in recent years, Congress has slashed LSC funds and imposed drastic restrictions on the use of those funds.  The reduction in LSC funds has caused LSC programs to consolidate and reduce services.  Nationally, 50% of eligible applicants those who seek assistance from LSC programs are turned away.  Consider this – in order to be eligible for LSC assistance, your annual household income must be below 125% of the poverty line – currently about $25,000 for a family of four.  If LSC lawyers can’t help them, no one will.

Last month, Senator Tom Harkin introduced the Civil Access to Justice Act.  The CAJA would re-authorise the Legal Services Corporation for the first time since 1981.  It would also increase funding for the Legal Services Corporation, reduce the restrictions on LSC funded programs, provide for improved governance at LSC, and authorize a grant program from the Department of Education to expand law school clinics.  The proposed bill would expand funding to $740,000, a mere drop in the bucket in the federal budget, but over twice the funding level from last year.  It would once again enable LSC programs to collect attorneys’ fees and file class actions to provide systemic relief.  Harkin, also a former legal services lawyer, is well aware of the crying need for the Civil Access to Justice Act.  I hope that Congress will pass it quickly, to further the promise on the United States Supreme Court facade of “Equal Justice Under Law.”

“Progressive Originalism”

Written by Rebecca Zietlow on March 19th, 2009

The Wall Street Journal had an interesting article this week about the surge of interest in originalism among constitutional scholars and advocates.  These scholars and advocates focus not on the original constitutiojohn-bingham.jpgn, but on the Reconstruction Era, also known as the Second Founding because the Reconstruction Amendments changed our constitution so fundamentally.  I am happy to see the Framers of the Reconstruction constitution getting attention in the mainstream media, especially John Bingham, the original author of Section One of the Fourteenth Amendment and one of the leading constitutional theorists in the Reconstruction Congress.  The article also provides an opportunity to consider the question of originalism as a method of constitutional interpretation, and whether “preogressive originalism” is an oxymoron.  “Originalism” as a method of constitutional interpretation has long been associated with conservative ideology.  Indeed, originalism is a fundamentally conservative method of constitutional interpretation in the classic sense of conservatism.  There are varying schools of originalism, but basically originalists ask judges who are interpreting the constitution to look back at the past and to be bound (to varying extents depending on the scholar or judge) by the meaning of the constitution at the time that it was drafted.

Given the fundamentally conservative nature of originalism, how could any originalist consider him or herself to be “progressive?”  For scholars such as myself who research and write about the Reconstruction Era, the answer is simple.  The members of the Reconstruction Congress were progressive, very progressive, even radical.  They intended the Reconstruction Amendments to alter our system of federalism by transfering the primary responsibility over individual rights from the states to the federal government.  They also had a very broad vision of what these individual rights would be, ranging from the rights to life, liberty and property to all of the fundamental rights.  Finally, and perhaps most importantly, they were the first to give Congress the power to define and protect our individual rights by including congressional enforcement clauses in the Reconstruction Amendments.

Focusing on Reconstruction enables scholars to be originalists and believe that the constitution is a progressive document at the same time.  But this attitude does not answer the fundamental dilemma of constitutional interpretation – whether those interpreting the constitution must always look back to what constitutional provisions meant at the time that they were written, or whether they can consider what those provisions mean in contemporary times.  Conservative originalists like originalism because it cabins the discretion of unaccountable judges when they are interpreting the constitution.  They argue that considering the contemporary meaning of constitutional provisions is an invitation to judges to allow their political and personal views to color their interpretation of the Constitution.

The dilemma of “progressive originalism” is less problematic when we understand that the members of the Reconstruction Congress did not believe that judges were the sole, or even the primary interpreters of the constitution.  Like conservative originalists, members of the Reconstruction Congress were very skeptical of the judicial branch, which they recognized as the author of Dred Scott and an apologist for the Slave Power.  They also believed that members of Congress had a large amount of autonomy to interpret the constitution themselves, and they intended the congressional enforcement clauses to reflect this vision of constitutional interpretation.  When members of Congress interpret the constitution, they need not look back to the meaning of those provisions at the time that they were adopted.  Instead, they may take their political views and contemporary circumstances into account.  That is their job, and that is the task assigned to them by the Reconstruction Congress.  The Framers of the Reconstruction Amendments assumed that those interpreting the broad provisions establishing individual rights in those amendments would take contemporary circumstances into account.  They just didn’t expect the Court to monopolize that interpretation the way that it has in cases such as City of Boerne v. Flores.  Thus, an originalist understanding of the Reconstruction Amendments is progressive, both politically and institutionally.

Unfortunately, the current Supreme Court, comprised primarily of “originalists,” has failed to take an originalist approach to the Fourteenth Amendment.  In Boerne, the Court restricted the Congress’ power to enforce the Fourteenth Amendment in a manner that would have made Reconstruction Framers such as Bingham, James Ashley and Lyman Trumbull roll over in their graves.  Let’s hope the new originalist approach to Reconstruction makes its way to the US Supreme Court, so that the progressive vision of the Reconstruction Framers can be restored – not just in the courts, but also in Congress.

Earmarks, Pet Projects, Pork, and Representing the People

Written by Robert Justin Lipkin on March 6th, 2009

The controversy over earmarks is mystifying. Representatives on both sides of the aisle insist that earmarks must be eliminated from spending bills. Okay. But what should be included in such bills? For members of the House of Representatives surely fighting for money to fund projects that benefits one’s district should be considered kosher.  Simtmpphpcdogbe.jpgilarly, senators should try to pass legislation that benefits their states. Such spending provisions must be presumptively valid in a representative democracy. Right? If you think not, what sort of “democracy” do you propose putting in its place?  I say “presumptively valid” because we know of course, that members of Congress often sell their vote to the highest bidder or fight for spending provisions to grease the palms of financial donors or simply provide gratuities for their buddies. (In that regard what do you think when the executive grants “no-bid” contracts to their buddies or former employers?)  But to say that because the process whereby members of Congress fight to benefit their constituents can and is abused, doesn’t warrant the hysterical reaction that every effort to benefit constituents is presumptively invalid. The better view is that when members of Congress vote for spending bills, their goal should be to benefit their constituents and where possible the entire nation.  Sure, even here there will be controversy.  Should Congresswoman Jones prefer spending provisions that benefit her constituents over those that benefit the nation? I suppose the glib answer is sometimes yes and at other times no. Of course, in the abstract, where spending bill X is clearly in the interest of the nation and where spending bill Y is in the interest of local constituencies, but not the nation, it’s difficult to appreciate an argument in favor of the local constituency.  But we operate in concrete, not abstract circumstances. Hence, when a representative votes in favor of his or her constituencies, this vote is not against the nation’s interest, but only what some believe to be in the interest of the nation. In any event, both reasons, benefiting the nation or benefiting local constituencies, are good reasons for legislation. So what then is all the fuss about? In a representative democracy, legislators act irresponsible when they fail to consider the interests of their constituencies. (Of course, in emergency spending bills even justifiable earmarks should be excluded.)

Rather than inveigh against earmarks, we should instead put in place a system of transparency and accountability.  We should post the national budget on the Internet highlighting the earmarks. Members of Congress must then explain why the earmark is justified. Let’s get rid of wasteful earmarks designed for special interests–defined reasonably–and put in its place this system of transparency and accountability. Whatever we do, we should not throw out representative democracy in a hysterical rush to rid ourselves of earmarks that are the bread and butter of representative democracy.

The Ghost of FDR

Written by Rebecca Zietlow on February 19th, 2009

This week, President Obama signed a stimulus bill that is designed to end our country’s downward economic slide.  Given the dire circumstances we are in, you might expect that the Repub905b3673-b527-f2b2-d2c261171c4d48c01.jpglicans in Congress would be open to the plan suggested by a new president whose victory last fall was based in large part on his economic vision.  Yet the Republicans remain steadfastly opposed to the plan.  To hear the congressional Republicans talk, you’d think the election was still going on.  This is especially true of the Republican standard bearer, John McCain, who continues to advocate the same free market tax cutting policies of the former Republican president, despite the fact that the American people overwhelmingly rejected those ideas last November.  Moreover, current polls show that the American people favor the stimulus bill, and congressional Republicans lag far behind the Democrats in their approval ratings.  Why are the Republicans being so obstructionist? Rush Limbaugh over-simplified the reason when he said he hopes that Obama will fail (even though if Obama fails, thousands more Americans will suffer).  The real reason is that the Republicans really hope that Obama will fail, because they are haunted by the ghost of Franklin Delano Roosevelt.

Congressional Republicans know enough about history to understand what happened the last time a charismatic, articulate president, who was able to instill hope and confidence in the people, took over from a Republican president whose free market ideology had contributed to economic devastation in our country.  Roosevelt’s New Deal policies rejected that free market ideology, expanded the government safety net, and contributed to the country’s economic recovery.  More importantly, the American people gave FDR credit for saving the country from the Depression.  They re-elected him by a landslide in 1936, and re-elected him again two more times.  The success of FDR and the perceived success of his New Deal led millions of Americans to become lifelong Democrats, and contributed to the Democratic dominance of Congress for over 40 years.  Given President Obama’s charisma, political savvy and popularity with people below the age of 30, if he is perceived to succeed in reviving our economy, we could be facing another generation of Democratic rule.

In the past thirty years, the Republicans have sought to dismantle the successes of the New Deal, and the Democrimages24.jpgats have mostly gone along with them.  Unfortunately, they were largely successful at cutting back on government regulation of the financial industry and effectively ending welfare (with the help of President Bill Clinton).  Fortunately, President George W. Bush did not succeed at gutting our social security system, the steadfast iconic New Deal success.  However, the Democrats’ cooperation with the de-regulation of big business, the restrictions on organized labor and welfare “reform” made it possible for Bush to argue in 2004 that the Democratic Party was no longer the party of Roosevelt.

I am hopeful that the Democrats are returning to their legacy as the party of FDR under the leadership of President Obama.  Above all, that legacy was based on the idea that government can work, and that ir can help working people.  The Republicans are haunted by the ghost of FDR.  Let’s hope that the Democrats are, too.


Written by Henry L. Chambers, Jr. on February 18th, 2009

During and after the battle over the stimulus package, many prominent Republicans complained about a supposed lack of bipartisanship demonstrated by Democrats and President Obama.  Sen. McCain, Sen. Graham and Rep. Boehner all have pointedly noted the very small number of Republicans who voted for the stimulus package, claiming that this proves that the bill was not bipartisan.  Of course, that a small number of Republicans voted for the bill hardly means the bill is not bipartisan.  The bill itself may be bipartisan.  That is, it may reflect fairly reflect principles largely thought to be Republican principles, even if the bill is not the same bill the congressional Republicans would have drafted.  It is entirely possible that not only should the Republican congressmen have voted for the bill, but that rank and file Republicans and centrists may generally support the bill.  If that is the case, likely because congressional Republicans (and especially Republican senators) are isolated from and more conservative than average Republicans, it is the congressional Republicans who are not reaching out far enough rather than congressional Democrats leaving Republicans out of the discussion.

Not surprisingly, what it likely occurring is that the big-name Republicans simply have not adjusted their outlook to the new reality.  When Republicans were in the majority, they wrote bills.  When Republicanstmpphpqdhlzb.jpg were a filibuster-proof minority they had the power to help write bills by stopping bills from passing.  Now that Republicans number barely 40 in the Senate and have no filibuster to protect them in the House, all they have is the power to persuade and the ability to stomp their feet if they do not get their way.  For newly elected Republicans who know no better, bipartisanship may appear to mean merely that one’s ideas will be given a fair hearing.  However, to Republicans like McCain, Graham and Boehner who have wielded power, bipartisanship means the ability to wield power even when one is in the minority.  To them, bipartisanship is what happens when they have to be courted for their votes because Democrats are required to reach fairly deeply into the Republican caucus to try to get votes.  Now that these senators are merely being courted for the quality of their ideas, rather than their votes, bipartisanship appears to them to be dead.   I am not ready to argue that the stimulus bill incorporates large chunks of Republican orthodoxy.  However, I am willing to say that the mere refusal of Republicans to vote for the stimulus package does not mean that centrist and Republican concerns were not taken into account when the bill was written.

Sixty Votes and the Dark Side of Bipartisanship

Written by Henry L. Chambers, Jr. on February 11th, 2009

A constitutionally troubling concept seems to be gaining currency with those in the government and in the media.  It is that it takes 60 votes to pass a piece of legislation in the Senate.  Of course, the relevant parties understand that only 51 votes are required for the actual passage of legislation.  Indeed, many have noted that one of the vice president’s few delineated tasks is to break ties in the Senate.  Fifty votes plus the VP’s are sufficient to pass any legislation.  It is not that those who claim the 60-vote threshold do not know their Constmpphpj7ytra1.jpgtitution.  It is that they are using verbal shorthand when they should be using verbal longhand.  Sixty votes are necessary to end debate and move to a vote in the Senate.  However, the decision to end debate and the substantive decision on the question at issue are very different.  As folks who have sat through meetings run by Robert’s Rules of Order realize, voting to call the question and end debate is quite different than voting for a motion, even though calling the question is necessary to get a vote.  Voting to end debate makes sense when all productive debate is finished.  Certainly, if the ability to end debate allows the majority to decline to listen to the minority, the use of a filibuster to stop legislation to make the majority listen is sensible.  Indeed, the filibuster has been used to allow a minority to stand on (often misguided) principle and stop a vote.  However, it is unclear that the filibuster has ever been used so promiscuously that people were willing to equate the ability to overcome a filibuster with the ability to pass legislation.  Under the rules of the Senate, a minority of sufficient size can use the filibuster to stop any piece of legislation with which it disagrees.  However, one would expect politics to extract a cost from that minority for doing so.

The dark side of bipartisanship arises when the majority does not extract a cost from the minority for its improper actions.  In this case, President Obama has declined to play politics with the issue of the Republican intransigence.  Certainly, he has mentioned that some in Congress have only been willing to stand in the way of the stimulus bill rather than provide their own solutions.  However, he has not called out the Senate Republicans in particular for being obstructionist.  The Senate Republicans did not filibuster the bill, but they threatened to do so sufficiently that the Democratic majority decided that it had to get 60 votes.  Indeed, the issue appears to be what bill will be sufficient to keep the 61 votes that the stimulus package has so far.  That is simply unacceptable.  Rather than capitulate to the notion that 60 votes are necessary to pass legislation in the Senate, the Democrats and President Obama might consider internalizing the notion that all that is necessary for Senate passage is 51 votes plus the will to drag the minority through the ringer until the public forces the minority to allow a vote.  Otherwise, the verbal shorthand will become practical longhand.

Putting Away Childish Things, Part One

Written by Henry L. Chambers, Jr. on January 28th, 2009

In his inaugural speech, President Obama noted that it is time to put away childish things.  This call to action and maturity was taken by some as a slap at the Bush Administration and taken by others as a slap at the entire political system.  Regardless of what it was, it was a call to action and a call to acting like grown-ups in a clear-headed manner.  We are now beginning to see what Obama meant when he talked of putting away childish things.  The first piece of evidence is how he is interacting with congressional Republicans.  President Obama’s interactions with congressional Republicans appear to have been cordial and inviting, but fairly strong.  His position appears to be the grown-up one, that the Republicans have every right to be heard, but little right to govern.  Republican policy preferences are to be considered and, when appropriate, blended with the president’s policies and those of thfinal1.jpge Democratic majority on Capitol Hill.  At the end of the day, the Republicans may not have their policy preferences written into law, but they will be heard.  This may appear to be cold comfort to the Republicans who may view the inabilty to write laws favorable to them to be a continuation of the same old politics.  However, that they will be listened to and courted is a change from regime past in which the majority party wrote legislation and merely invited the minority party to get with the program.  More important, however, is that the president’s willingness to listen to the Republicans suggests that once legislation is passed, he is more likely to execute the law in a manner that incorporates those Republican positions that Obama believes are meritorious.  That would be a sea change from past presidential practice.   Ironically, President Obama may not get credit for his pre-legislation stance or his post-legislation stance.  The pre-legislation stance will likely be criticized by those in his party who prefer a scorched Earth, 51%-of-the-votes-equals-100%-of-the-power stance all too often reflected in the congressional battles over the past few decades.  It will also be criticized by those Republicans who view the inability to write their preferences into law as being shut out of the system, even though Democrats have won the White House and both houses of Congress.  Conversely, the post-legislation stance will be criticzed by Democrats who believe that the execution of the law is within the president’s sole power and should be exercised in a manner that reflects the views of the party from which he was elected. If President Obama wants this government to work, he may need to become Schoolmaster Obama and work very hard to get his students to put away their childish things.

What Safety Net?

Written by Rebecca Zietlow on January 15th, 2009

As more and more Americans lose their jobs, our system of unemployment insurance has come under strain.  Last week, the Ohio unemployment insurance computer system crashed under the strain of overuse, and the phone lines followed, because they were receiving 80,000  calls a day.  Unemployed workers are running into the time limit on benefits while they are still searching for another job.  Other workers, including temporary workers, part-time workers, and independent contractors, are not eligible for benefits even though they are currently unemployed.  What are these people to do to survive and keep a roof over their heads?

Unfortunately, aside from unemployment insurance, there’s not much of a safety net left in our country.  In 1996, Congress effectively ended welfare by terminating the Depression Era Aid to Families with Dependent Children program.   They replactmpphpk0moss.jpged AFDC with the Temporary Assistance to Needy Families Program.  The TANF program has many flaws.  First, TANF has a federal five year lifetime limit for recipients, and some states have reduced that limit to only three years.  For folks that have fallen on hard times in the past, therefore, TANF may no longer be available.  In addition, TANF requires recipients to work for at least 20 hours a week in order to receive benefits.  That is extremely difficult for primary caretakers of young children, but TANF has few exceptions to the work requirement, and having a toddler is not one of them.  The work requirement brings with it other burdens, including the cost of work clothing and transportation, and, of course, the task of looking for a job.   As a safety net, therefore, TANF is full of gaping holes.  Food stamp benefits are also paltry – food pantries throughout the country are struggling to meet the additional needs of hungry families.

The House of Representatives took a step in the right direction today by overwhelmingly approving the extention of the State Child Health Insurance Program today.  But it’s time that Congress also realized that they made a huge mistake by “ending welfare as we know it” back in 1996.  Our country needs a safety net for people struggling in these hard economic times.  It’s a crime that we don’t have one.

What’s the Constitution Got to Do With It?

Written by Rebecca Zietlow on December 11th, 2008

Admist the avalanche of bad economic news, what does the constitution have to do with it?  Abstract concepts simages3.jpguch as federalism, separation of powers, and preemption seem so insignificant when thousands of people around us are losing their jobs, their homes and their health care.  What, if anything, can the Constitution do to help our country now?  Nothing –  if by the constitution, we mean court enforcement of the constitutions provisions.  The United States Supreme Court long ago made it clear that there are no individual constitutional rights to a job, a home, or even economic subsistence.  However, the Constitution means more than just what the Court says it does.  The United States Constitution also embodies the fundamental values of our country, and as Larry Kramer argues, the “people themselves” (ourselves) have a say in interpreting those values.

During the New Deal, our country experienced what Bruce Ackeman called a “constitutional moment” as Congress and the president transformed our government.  New Deal measures expanded federal power, creating the modern administrative state and an economic safety net with programs such as Social Security, and protecting the right of workers to organize into unions and bargain collectively.   As our representatives consider such unprecedented measures as the bailout of the financial sector and the automobile industry, this may be time for another constitutional moment.

What individual rights do we believe in – the “right” of workers to compete without government protection as the automobile industry goes bankrupt, or the right of all Americans to health care?  What should the goals of members of Congress be as they regulate interstate commerce?  The growth of the economy no matter who benefits, or an economy that provides decent jobs for middle class workers?  We the people have a say in answering these questions, which are fundamental to the values, the structure and the future of our country.  Then, we must demand that our representatives implement our constitutional vision.