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How Democrats Handled a Law-Breaking President

How Democrats Handled a Law-Breaking President

By Bill Scher - December 1, 2014

Republicans in Congress are in a quandary. They want to quickly cater to demands from their base to thwart the president’s immigration executive action, on the grounds that it violates the law and the Constitution. They also know that they lack obvious options, and any tactic that gets tangled up with the pending bill to keep the government open after the Dec. 11 funding deadline risks another politically disastrous government shutdown.

As Republicans hunt for an escape hatch, they should examine the last time a Congress dealt with a president from the opposing party whom it accused of breaking the law and violating the Constitution.

It was December 2005 when The New York Times revealed that President George W. Bush “secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.” The report also noted: “Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional.”

Democrats, who did not yet control Congress, immediately called for an investigation. Sen. Russ Feingold, among others, said Bush was “putting himself above the law.”

No reforms curbing the administration’s practices had been enacted by the time Democrats took over Congress in 2007. Suddenly, they were in a position to scotch the rogue program. They could have taken care of any legal ambiguity and explicitly banned warrantless wiretapping. They could have passed budgets that withheld NSA funding. They could have blocked Bush’s 2007 nominee for director of national intelligence.  They could have threatened to shut the whole government down.

They didn’t do any of it.

What Democratic leaders did was cooperate with the Bush administration to pass legislation in 2007 and 2008 that effectively legalized the program.

The 2007 version had a six-month sunset provision to allow for further negotiation. The vast majority of Democrats voted against it, including Sen. Barack Obama. But House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid allowed it to reach the House and Senate floors and receive and up-or-down vote. Democrats were able to tweak the 2008 version, attracting the support of nearly half of the Democratic caucus. But Bush administration officials largely got what they wanted.

And in what was seen by many progressive activists as the biggest failure, Democrats failed to strip the bill of a provision granting legal immunity to telecommunications companies that complied with Bush’s warrantless wiretapping requests. If the amendment had succeeded, such legislation would have essentially made what happened before 2007 illegal and enforceable. Instead, the new law wiped the slate clean.

Obama, at this point the Democrats’ presidential nominee, supported the anti-immunity amendment. But when it lost on the Senate floor, he voted for the overall bill anyway. “Given the legitimate threats we face,” he said in June 2008, “providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise.”

Democrats had a choice to make: raise hell about the process or focus on the policy. They chose the policy.

Perhaps they made that choice for political reasons, fearing they could be tarred as soft on terrorism if they got hung up on procedural niceties. Perhaps they made it for substantive reasons, believing that the law needed to be updated to permit technologically advanced surveillance techniques and aggressively pursue terrorist plots -- even if it meant standing up to some in their party’s base who didn’t agree.

Whatever their motivation, the Democrats’ decision sent a message to the public: We are prioritizing counterterrorism and putting public safety first. And it helped them win the presidency.

If Democrats had not done that, and demanded President Bush first be held accountable for his law-breaking and Constitution-shredding, a different message would be sent: We care more about winning a legal argument than fighting terrorists. Considering that Sen. Chris Dodd based his whole presidential campaign on protecting civil liberties and won 0 percent of the Iowa caucus vote, such a message probably would not have served Obama well in the general election.

Republicans now face a similar choice. They can raise hell over the president’s immigration action and accuse him of breaking the law and trampling on the Constitution. Or they can work with him on a fix of our immigration system that goes beyond just border security and provides relief to the 11 million undocumented people already here.

If they did the latter, perhaps their motivation would be for political reasons, fearing they would lose the Latino vote for a generation if they don’t do something to help immigrants stay in America. Or perhaps it would be substantive reasons, believing that helping the undocumented get right with the law would keep families together and provide an economic boost -- even if it meant standing up to some in their party’s base who didn’t agree.

Whatever the motivation might be, if they chose to work with Obama, Republicans would be sending a message to the public: We are prioritizing immigration. If they don’t, the Republican message is: We care more about winning a legal argument than the plight of the undocumented and the success of industries that rely on a steady flow of immigrant labor.

The Republicans in Congress have a choice, and it will speak volumes.

Bill Scher is executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.

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