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By Jay Cost

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The Return of ObamaCare, Part II: The Political Context

In the last essay, I argued that the legislative process is going to complicate the passage of Obama's health care reform proposal. Just how complicated it will be is too early to say.

The politics are at least as complicated, if not more so. The biggest trouble will be in the House, not in the Senate. Consider:

-The vote on final passage of the Affordable Health Care for America Act was 220 to 215, with 38 Democrats voting with Republicans.

-John Murtha has since passed away.

-Robert Wexler has since resigned, and Florida's 19th Congressional District will not elect a replacement until early April.

-Neil Abercrombie of Hawaii's 1st Congressional District will resign at the end of this month. The special election to replace him will be held May 22. Thanks to the peculiar election rules, Republicans actually stand a chance of replacing him.

-Reports indicate that Joseph Cao, the sole Republican to support the reform efforts in November, will not do so this time around.

-That puts the number at 216-216, which is insufficient for passage.

Additionally, striking the Stupak abortion language from the bill will satisfy the left flank of the House caucus, but it will scare off pro-life Democrats who voted with the Speaker in November. There are 15 Democrats who voted for the Stupak amendment and for final passage with a lifetime National Right to Life Committee (NRLC) score of 70% or higher. 6 have a score higher than 90%.

For any votes held between the time that Abercrombie resigns and Wexler's replacement is seated, the Speaker will need to flip at least one Democratic vote to get the bill to pass. Factor in the Stupak Democrats, and the real number is probably between 5 and 20. That is, she'll have to convince between 5 and 20 Democratic House members who voted nay in November to vote yea this time around.

Next question: who are these House Democrats that voted nay in November? Here are some relevant details on them:

-Obama's median share of the presidential vote in their districts was just 45%.

-22 of them voted in favor of the Stupak amendment. 12 have lifetime NRLC scores greater than 70%.

-13 are freshmen members. 24 are Blue Dogs. 3 have stated plans to retire.

-On four divisive roll calls this year - cap-and-trade, financial reform, raising the debt limit, and the jobs bill - 34 voted against the leadership at least once; 21 at least twice; 12 at least three times.

-Update, 1:30 PM. Charlie Cook rates 31 of these 38 seats as competitive. 2 are likely Republican; 9 are toss-up; 9 are lean Democratic; 11 are likely democratic.

Nothing conveys a political problem quite like a map. Here is how their districts are distributed geographically.

District Location of Nay Voters - Google Maps.jpg

Put simply, these will be some tough nuts to crack.

It's important to note that whatever changes the reconciliation bill ultimately embodies are not really being done for the sake of these 38 members. They are instead meant to bring on board the House liberals. So, getting 50 votes in the Senate for a reconciliation bill is not directly related to securing any of these 38 defectors.

It's far too early to put any probability numbers on anything occurring. Instead, I think it's more worthwhile to highlight some salient political themes. There are a few that help the Democrats in their efforts to flip some of these members, and a few that hurt them.

Themes That Help

1. Pocket Votes? Among scholars of Congress, relatively few think that legislative parties operate primarily by influencing their members directly on roll call votes. That's not to say that the parties in the House are powerless. The most compelling work on party power in recent years has suggested that the party organizations are set up as agenda-setting cartels, making sure that items that would split the majority in half do not get brought for a vote on the House floor. Simply put, the leadership's job is to make sure that the floor vote always goes with a "majority of the majority."

Still, there has been research suggesting that "pocket votes" are indeed an important factor at the margins. An example of such a pocket vote, or option, is offered by David King and Richard Zeckhauser of Harvard in Legislative Studies Quarterly.

Marjorie Margolies-Mezvinsky (D-PA)...cast the deciding vote on President Clinton's 1993 budget-reconciliation bill. As the last legislator to vote on August 5, 1993, the outcome was hers to determine, and most observers expected a "no" vote. Margolies-Mezvinsky voted "yes" instead. Congressional Quarterly tells the story: "She had pledged during her campaign and even the day before the vote that she would vote against a bill that increased taxes. But Democratic leaders extracted a private promise from her to support the deficit-reduction package if her vote proved necessary to pass it" (CQ Almanac 1993, C39). This was a classic "if you need me" pledge, which we shall label an "option." Although it was widely predicted that the tax package would be handily defeated, President Clinton and House leaders got matters close enough that calling in the option on Margolies- Mezvinsky's vote was worthwhile; the bill triumphed by a single vote.

How many such "options" does Nancy Pelosi have among these 38 nay voters? That's the big question, and it is impossible to pin down a precise answer. However, it's important to note that the Stupak amendment is precisely the kind of bill that the party leadership does not allow onto the floor - it passed, but with a majority of the majority voting against it. That Pelosi allowed this to happen suggests that she needed the Stupak voters, which in turn suggests that they are (or at least, were) more numerous than however many pocket votes she had.

I would suggest, then, that Pelosi's pocket votes are probably not enough to get the bill to passage absent the Stupak language. Still, her pocket votes could cut down on the number of Democrats she has to flip. In particular, I'd look at the announced three retirees who voted against the bill in November - Brian Baird of Washington, and Bart Gordon and John Tanner of Tennessee - as the most likely pocket votes for the Speaker.

2. Lieberman Over Waxman. The Senate bill will inevitably form the bulk of the final product. Now that Scott Brown is the junior senator from Massachusetts, the Democrats can only hope to make modest changes to it. This means that the nominal price tag - as assigned by CBO - should be lower than what the House passed. It also means that the public option is gone. Lefty number crunchers want us to believe that this is in fact a bad thing for moderate Democrats because the public option is the biggest hit since Saturday Night Fever - but the data buttressing this argument lacks external validity. Oh sure, have the pollsters at ABC News/WaPo define the public option for people, and it does pretty well. But these moderate members didn't get to Congress by relying on the ABC News/WaPo poll. They know better than that. They understand that a public option opens the door for a full-blown GOP campaign about a "government takeover of health care." Take another look at that map, and ask yourself if the moderates who are scared of the public option are acting as irrationally as the polls and their diviners on the left have suggested. No way. The reality is that the public option is a political nightmare for many of these members - and it's a blessing for them that it has been removed.

So, having a bill whose guts are more like the Senate bill, i.e. more moderate, might make it easier to flip a few of these members.

Themes That Hurt

1. Reconciliation. In the last column, I identified myself as a procedural Hobbesian. I don't think "right" and "wrong" enter into considerations on procedural matters. That does not mean, however, that reconciliation is not going to give the GOP another political angle. It is. Scott Brown's office offers a sneak peak (h/t NRO's Critical Condition):

"If the Democrats try to ram their health-care bill through Congress using reconciliation, they are sending a dangerous signal to the American people that they will stop at nothing to raise our taxes, increase premiums and slash Medicare...Using the nuclear option damages the concept of representative leadership and represents more of the politics-as-usual that voters have repeatedly rejected."

The Democrats will push back, but (again) look at that map and consider the audience. Is the GOP argument going to have traction in these districts? I'd say yes.

2. Who Goes First? Somebody has to. Either the Senate passes the reconciliation fix first or the House passes the Senate bill first. House liberals will want the Senate to act first. They do not want to pass the Senate bill, then have the GOP use the Byrd rule to gut the major compromises in the reconciliation bill. That would be as bad as passing the original Senate bill all by itself, which they just cannot do.

Unfortunately for them, a key Senate Democrat is suggesting that the House has to go first.

(Kent) Conrad (Chairman of the Senate Budget Committee) threw some doubt Wednesday on the plan that House Speaker Nancy Pelosi has been pushing, and Senate Majority Leader Harry Reid has indicated he could accept -- to pass the sidecar reconciliation bill with the fixes before the House takes up the Senate bill, as a way to mollify House members who strongly oppose the more conservative Senate measure.

Conrad, who has been open to reconciliation as long as the fixes are limited, said the order must be reversed. The House must pass the Senate bill first -- before either chamber considers the reconciliation package, he said.

"I don't know of any way, I don't know of any way where you can have a reconciliation bill pass before the bill that it is meant to reconcile passes," said Conrad, who would be a central figure on the Senate floor if Democrats embark on the complicated process. "I don't know how you would deal with the scoring. I don't know how I could look you in the eye and say this package reduces the deficit. It's kind of got the cart before the horse."

The rules of the reconciliation procedure indicate that when multiple committees report bills for reconciliation, they all go to the Senate Budget Committee, and thus to Conrad. His opinion matters.

3. Declining Support. In November, CNN had net support for the bill at -3. Now, it is at -20. If you're a Senate Democrat who isn't up for reelection until 2012 or 2014, this is not a huge concern. But if you're a House Democrat, you have to stand before the voters in less than nine months. This is a major problem.

Similarly, President Obama's net job approval was +7.7 in the RCP average on the day the health care bill passed the House. Today it is at +1.6. You can imagine where it is in those 38 districts.

4. It's a Scott Brown World. We're Just Living In It. The Democrats might be able to sidestep the legislative effect that Scott Brown's election has had - but what about the political effect? A heretofore unheard of Republican state senator won a Senate seat in Massachusetts by explicitly running against this bill. Politically speaking, this was a major event. It raises an important question: if the GOP can win in Massachusetts by running against ObamaCare, where can't it win? Toss in some other big-ticket political events - Evan Bayh's resignation, Byron Dorgan's resignation, and Charlie Cook now suggesting that a GOP takeover of the House could very well happen - and there is a growing sense among House Democrats that this is going to be a tough election year. Not a good political context for a nay-to-yea flip-flop.

5. "We got something done..." Or "I stood up to my own party..."? Suppose you are one of those 38 nay voters, and you flip your vote. What's your argument to your constituents? It would probably be something like this: "Obviously, this bill was not my ideal - that's why I voted nay in November. But it was so important that we Democrats get something done, that we proved we were capable of governing - that I had no choice but to change my vote." Granted that could be an effective argument for reelection in Manhattan or San Francisco - but these 38 Democrats don't come from there. They hail from Alabama, North Carolina, Tennessee, and so on. Big difference.

Politically speaking, they would be much better off voting against the bill again, going back to their constituents, and saying something like this: "You voted for me because I promised to be an independent voice in Washington, D.C. That's exactly what I have been. The leadership and the President pushed me hard to change my vote, but I know how strongly opposed you are to this bill - and so I resisted them."

Final Thoughts

I've been thinking hard about this subject for a couple days. I tried my best to come up with as many political pro's and con's for passing the health care bill - and you can see that the final count is 5-2, con.

Again, I'm not willing to put odds on anything, but this should make clear that there are major political hurdles left to jump, even if they can get a reconciliation bill through the Senate. Ultimately, the best news for reform advocates is that they only need maybe 15% to 50% of these previous defectors to come on board. In other words, most of them can continue to defy the President, and the bill can still pass.

Still, it will be no little feat to get any of those who voted against the bill in the fall to support it in the spring. A lot of the political problems have to do with the decaying political environment Democrats face. House members are inherently more sensitive to politics. This is as it was designed to be all the way back in 1787. Forcing Representatives to stand for reelection every two years makes them more responsive to the desires of their constituents, i.e. to politics. It's one thing to pass a bill through the House in November, 2009. It's another thing entirely to try it in April, 2010.

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-Jay Cost

The Return of ObamaCare, Part 1: The Legislative Context

With the Lazarus-like return of ObamaCare, liberal pundits are again touting budget reconciliation as a viable way forward. Blogger Ezra Klein offers an over-simple description of the process.

This is actually the sort of situation reconciliation was designed to address... Budget reconciliation is called "reconciliation" because it's supposed to speed the, well, reconciliation of the differences between two budget bills. That's exactly what's left to do with the health-care reform bills, which were indeed part of the 2010 budget and whose passage is expected in the 2011 budget.

It's more complicated than this, and in important ways. Here's some background on budget reconciliation.

It's a product of the 1974 Budget Act, which in turn was a product of presidential-congressional battles over fiscal responsibility. President Nixon had impounded funds to protest congressional profligacy. The courts ruled against him, but the court of public opinion ruled in favor of him. So, Congress reformed its ways by doing only what Congress can: adding another layer of complications to an already too-complicated process.

It goes like this. Early in the year, Congress passes a budget resolution that sets revenue and spending targets that instructed committees are supposed to meet. The House and Senate Budget Committees can then compile the committee-drafted products into a reconciliation bill. Reconciliation is optional, though in recent years it has become pretty regular.

Reconciliation bills have a privileged status on the Senate floor. There is no debate on whether to begin consideration of a reconciliation bill. Proposed amendments must be germane to the bill. Debate on the bill and any amendments to it is limited to 20 hours. If you've ever heard the phrase "vote-a-rama," this is where it comes from: when the time limit for debate on a reconciliation bill has been reached, remaining amendments are voted on in quick succession.

All of this is designed to facilitate Congress in making a budget plan, then actually sticking to it. Of course, determined congressional majorities, especially when given clear guidance by a determined President, have used reconciliations rules for purposes beyond the original intent. The first notable event in this history occurred in 1981 when President Reagan and the GOP Senate majority used it to cut spending and taxes by a significant amount. As legislative expert Walter Oleszek has written, "Never before had reconciliation been employed on such a grand scale."

Liberals like Klein will suggest that this justifies, in some ethical sense, the use that Harry Reid is now apparently planning for budget reconciliation. Conservatives will use words like "jam" and "ram" and phrases like "the nuclear option" to argue that there is no such justification.

When it comes to legislative procedure, I am a strict Hobbesian. There is what a Senate majority can do, and what it can't do. "Appropriate" or "inappropriate" are not applicable phrases. Congress is sovereign over its own procedures, which are the product of self-interested members working to secure reelection and/or policy goals. Morality doesn't enter into it. (See the note at the bottom of this post for another thought on this topic.)

I'll go a step further to suggest that people with strong policy preferences should rarely be listened to in a debate about appropriate procedure. People who care intensely about the final vote tally often don't care how the votes are counted, so long as they get their preferred outcome. This is why there was no hue and cry coming from most of these born-again majoritarians on the left when the Democrats were looking to filibuster judicial nominees in 2005. It is easy to find numerous examples of conservative hypocrisy on this subject, too.

The better question, then, is whether the Democrats can use reconciliation to get their health care bill through the Senate.

Can they?

Absent a filibuster-proof majority, the Democrats still have a handful of legislative options to pass the bill. They can:

(a) Negotiate with Scott Brown, Susan Collins, and/or Olympia Snowe to find a 60th vote.

(b) Prevail upon the House to agree to the Senate bill without amendment.

(c) Prevail upon the House to pass the original Senate bill, with both chambers passing a reconciliation bill resolving inter-chamber differences.

Let's think about each of these options.

Many liberals suggest that (a) is off the table because Olympia Snowe has magically become indistinguishable from Jim DeMint. I think this is a facile and self-serving argument, designed to pin the blame on polarization exclusively on increased conservatism on the GOP side. No doubt the GOP has moved rightward, but the Democratic Party has also moved leftward - so far to the left, in fact, that a true moderate like Olympia Snowe cannot cooperate with them. And, I hasten to add, ditto 38 House Democrats who defected from the party line in November. Are they part and parcel of Republican extremism?

The fact that (b) is off the table is a signal that the public is not wrong to dislike the proposal as broadly as it apparently does. From what I have gathered from media reports, House liberals are willing to sign on to the Senate bill only if their favored interest groups - labor unions - get special exemptions.

So, the preferred strategy is (c). Ezra Klein wants you to think that this is in keeping with the grandest traditions of the government's estimable budget process (stop laughing!), but that's a stretch. The "original intent" of reconciliation was to help Congress stick to its outlined budget plan, not to aid majorities in resolving inter-chamber differences on divisive, comprehensive reform of 1/6th of the United States economy.

Again, this is not to argue that the Democratic leaders are acting unethically here. The point is that, legislatively speaking, they are looking to put a square peg through a round hole.

Can they? Maybe, but it could be difficult.

I don't know how difficult it will be, and I'll suggest that in fact nobody really knows just yet. For starters, the ease or difficulty will depend on what the compromise between House and Senate Democrats actually entails, including what the House absolutely, positively must get for it to be willing to pass the Senate bill. Nobody yet knows the contents of said compromise because it hasn't been reached yet.

Assuming there is some compromise, the success or failure of the process in the Senate will come down to a simple question: how well can the Republicans use the "Byrd rule?"

The Byrd rule, named after Senator Robert Byrd (D-WV), was implemented in the 1980s because the Senate had used reconciliation to pass items that were not related to the budget. In other words, Senators were getting around the filibuster, that ancient device which is either the final protection against an extreme majority or the last recourse of a discredited minority (depending upon which side one finds oneself!). The Byrd rule puts limits on what reconciliation can be used for. Extraneous provisions are stricken from reconciliation bills, and have to be passed through the typical procedure. Here are several relevant definitions of "extraneous" (quoting a report from the Congressional Research Service by Robert Keith and Bill Heniff, Jr.):

A provision is considered to be extraneous if it fails under one or more of the following six definitions:
(1) It does not produce a change in outlays or revenues...

(4) It produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision.

(5) It would increase the deficit for a fiscal year beyond those covered by the reconciliation measure...

This suggests why smart Democrats never seriously discussed using reconciliation to pass an entire health care bill. If a provision does not alter spending or tax revenues, does so only "incidentally" (an unimportantly ambiguous word!), or adds to the deficit - it can be stricken.

The Byrd rule will set the parameters of the legislative battle, should the Democrats take this path. In that case, the Democrats will write a reconciliation bill that resolves the differences between the two chambers and, so they hope, does not include extraneous measures, as defined by the Byrd rule. The Republicans will test how well the Democrats have drafted their legislation - raising points of order in the hopes of striking provisions that they argue are extraneous.

Remember, this reconciliation bill is serving as the substitute for the amendment that would have resolved House/Senate differences had Scott Brown lost to Martha Coakley. The House needs the reconciliation bill to fix certain problems in the Senate bill, or else it will fail in the lower chamber. Mitch McConnell's goal will be to use the Byrd rule to blow a hole through the House/Senate compromise that the reconciliation bill embodies - thus creating a final product that the House cannot pass.

It's hard for me to compare this reconciliation attempt with previous ones because I am not an expert on the budget process, but I can say this. This strategy comes across as ironic when one reads the Audacity of Hope. In it, one finds then-Senator Obama preening about the horrors of Bush 43 legislative strong-arming and the assault on minority rights. Typical politicians tend to be hypocrites when it comes to the legislative process. Yet it is appropriate to hold the President to a higher standard, especially one who spent two years on the campaign trail hawking his moral superiority as a sure-fire tonic that can cure partisan division. His explanations for the lack of bipartisanship in his first 13 months are noteworthy examples of presidential sophistry. If history is any guide, expect the 44th President to earnestly explain that he really, really wanted to be bipartisan on health care - but sadly he could not find a single Republican in the United States Senate willing to negotiate in good faith. That's what this summit is all about, isn't it?

Budget reconciliation is a risky legislative strategy with much uncertainty. The Democrats are looking to use decades-old rules to do something the rule makers never envisioned. I don't know whether they can succeed - and I don't think anybody does yet, either.

As difficult as the legislative path is, the political path is much harder for Democrats. We'll discuss the politics tomorrow.

While I don't think right versus wrong properly enter into considerations of reconciliation, I have noticed one particularly ridiculous moral argument in favor of reconciliation making the rounds. We are told that it promotes the ideal of a simple majority, which most people believe is normatively appropriate. Indeed, that is the common opinion - but the Senate is not a majoritarian institution! You could have a super-majority of 82 senators whose constituents still don't amount to a majority of the United States population. So, what is the normative value of half-plus-one votes in an institution where votes are not pegged on population?

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-Jay Cost

On Evan Bayh's Retirement

I'll take Senator Bayh at his word that he is sick and tired of partisan politics in Washington, D.C. Still, I do think that his electoral situation had a great deal to do with his decision to retire. Whether he was bound to win or lose in November, he was sure to face a nasty reelection fight, one that would have focused squarely on him. That's a tough prospect for anybody - and if your heart is not in it, it's a good time to retire.

And I do think it's a retirement, not a preparatory move for the presidency. First, you don't tell people you're sick of politics if you plan to run for President. Second, I think it's highly unlikely that Bayh could ever actually win the Democratic nomination - and I think he knows it. He has been in Indiana politics for a quarter century. That requires a level of political moderation that would make him a tough sell for progressives and labor unions.

I think it is fair to say that this retirement is a recent decision on the part of Senator Bayh. When you look at the roll call votes on health care reform in December, Bayh was voting with the Republicans on a series of amendments, like the Gregg Amendment, "to prevent Medicare from being raided for new entitlements and to use Medicare savings to save Medicare." That's the kind of vote you take when you're looking to inoculate yourself for an electoral campaign. Only three Democrats voted with Republicans on that amendment: Bayh, Ben Nelson, and Jim Webb.

Still, Bayh's problem is that he was set to be on the hook for several unpopular votes. Obviously, there was health care reform. He also voted for the stimulus bill. Republicans are certainly running on the debt this year, which is why the votes to raise the debt ceiling - a necessary move - were party line votes. Bayh would thus have to answer for voting with his party on the federal debt limit.

Bayh has a reputation in the Senate as a moderate, and by contemporary standards that is a fair characterization. He's also more moderate than his father. Yet he has not been exempt from the process of increasing legislative polarization. Thus, he and other moderates like Mary Landrieu, Blanche Lincoln, and Mark Pryor are not really centrists in the strictest sense of the word. They're to the left of center. Susan Collins, Nelson, and Olympia Snowe are the only true centrists left in the upper chamber. Bayh was a good bit to their left.

And his problem, of course, was that thanks to the legislative strategy designed by his party's leadership, he was obliged to support them as the critical vote over and over. Nancy Pelosi could always allow up to 40 vulnerable House Democrats to defect from the tough votes, but there was no such luxury in the Senate. Absent bipartisan cooperation, Reid could not suffer a defection on any major item - which meant Bayh had to vote with the party every time. That might not have been a problem in other cycles, but in this one it was going to be a big one.

Could Bayh have won in November? Yes, but it was no certainty. If 2010 turns out to be a "GOP Wave" - Bayh is exactly the kind of candidate you'd see go down, even though the most formidable GOP opponents, e.g. Mitch Daniels, declined to challenge him. So, there was a decent chance he would lose. And a victory would probably be narrow, and it would follow a brutal campaign focused squarely on Evan Bayh.

At this point, the House electoral landscape is not quite as dramatic as what we're seeing in the Senate - but I take the Senate to be a leading indicator of the House. Senators are higher profile, and states are more easily polled than congressional districts. The fact that the Senate landscape looks so bad for the Democrats now - with 10 of 18 Democrat-held seats rated "Lean Democrat" or worse according to Charlie Cook - is a sign that the GOP will be very strong in House elections, too. We'll probably see the House picture take shape later in the year. If it mimics the Senate, the Democrats are going to be in for a very rough November.

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-Jay Cost

Remembering President Washington

Today is President's Day, which is also the day we celebrate the birth of George Washington. It's appropriate, on this day, to make note of the important contributions he made to founding this great nation.

His military heroism and skill is well known, so also is his establishing many beneficial precedents that survive to this day. What is less commented upon, however, is Washington's strong nationalism, and his work to bring about the United States as it is known today.

Washington had experienced firsthand the ineptness of confederated government during the American Revolution, most notably in its inability to pay soldiers in a regular and fair way. After the war, he retired to Mount Vernon, but stayed interested in politics. He was greatly concerned about the nation's disarray. The Confederation was unable to attend to basic governmental matters - and it appeared to Washington that things were spiraling out of control. In 1785, he wrote the following to James Warren, former Paymaster General of the Continental Army:

Illiberality, Jealousy, and local policy mix too much in all our public councils for the good government of the Union. In a word, the confederation appears to me to be little more than a shadow without the substance; and Congress a nugatory body, their ordinances being little attended to...

That we have it in our power to become one of the most respectable Nations upon Earth, admits, in my humble opinion, of no doubt; if we would but pursue a wise, just, and liberal policy towards one another, and would keep good faith with the rest of the World: that our resources are ample and encreasing, none can deny; but while they are grudgingly applyed, or not applyed at all, we give a vital stab to public faith, and shall sink, in the eyes of Europe, into contempt.

Not content to sit on the sidelines, Washington was one of the key nationalists who worked behind the scenes - with men like John Jay, Alexander Hamilton, and James Madison - to bring about the Constitutional Convention. In fact, one of the first preparatory meetings in advance of the Convention was held at Washington's estate in 1785. The so-called Mount Vernon Conference was a good first step in fostering good interstate relations independent of the measly Articles of Confederation. Because of its success, nationalists like James Madison sought to extend this basic idea, ultimately resulting in the Constitutional Convention in Philadelphia two years later.

Washington did more than this, though. He lent his nationwide credibility to the Convention by agreeing to be its President. This was an extraordinary gesture. It's easy for us to think nowadays that the Constitutional debate was fought over abstract principles and the highest notions of the public good - but, like everything else in America, politics mattered a great deal. That George Washington was willing to lend his good name to the Convention was a truly selfless act of statesmanship. His signature on the final document - the first of 39 - might very well have made the difference in the Virginia ratifying convention, where the Constitution passed by a hair's breadth. Surely, if Washington had refused to support the Constitution, it would have failed.

This country has had many heroic war time leaders, and she has almost always honored them with her never-ending gratitude, respect, and trust. The fact that George Washington would use that this adoration not to his own benefit, but to help bind the thirteen diverse states into a single Union testifies to the greatness of the nation's First President. Through the Revolutionary War, the tumultuous years of the Confederation, and the early years of the Republic - George Washington is rightly remembered as the father of his country.

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-Jay Cost

The Blair House Stunt

The bipartisan health care summit is either:

(a) An honest endeavor to build a bipartisan coalition in support of health care reform.

(b) A political stunt intended to win the White House a news cycle or two.

My instant reaction when I heard about the meeting was that it is a stunt, that the White House felt that they had "won" the battle with the GOP at the House Republican retreat, and so why not do a sequel? The public loves sequels! Transformers 2, The Dark Knight, Superman IV: The Quest for Peace, Led Zeppelin II, and so on. Plus, it's not as if an obvious legislative strategy for passing health care has presented itself. As Hollywood has clearly demonstrated, the sequel is the best way to grab attention when you're genuinely out of good ideas!

There are three notable facts about this meeting at Blair House that indicate that it's a stunt:

(1) It's televised. The White House was dinged by the press corps for breaking the campaign promise of televising every meeting on C-SPAN, but the reason the White House broke that promise was because it was a stupid one that had to be broken. C'mon - you can't get stuff done when the cameras are rolling! The cameras completely alter the incentive structures for the attendees. Thanks to the cameras, the participants won't be worried about finding common ground on a bill, or debating the merits of this idea or that idea. Instead, they'll be thinking about their constituents back home, or undecided voters across the country who may swing in November, or whomever. They transform from legislators hammering out a deal to politicians preening for the "benefit" of the voters. Televising these proceedings means that we'll get little more than recitation of talking points, which is what we see every Sunday on the news shows. "Meet the Republicans. With your host, Barack Obama."

(2) The invitation was extended to the party leaders. Just as strong an indication that this is a stunt. If I were a Democrat looking to build a bipartisan coalition, there are about 15 or so Senate Republicans I'd look to before Mitch McConnell. In fact, the whole idea of bipartisanship - at least on a controversial issue like health care reform - is one where the President should not be looking to win over a majority of the opposition. I do not think there is any comprehensive health care reform bill that President Obama could sign and Mitch McConnell could vote for. So why is he coming the meeting? A truly bipartisan legislative strategy would be one where you separate the moderates like Olympia Snowe from the party leadership. So, it's a less-than-great idea to invite the leadership to the bipartisanship meeting! Unless, of course, your goal is to make yourself look good and the congressional GOP leadership look bad. In that case, you'd want McConnell there.

(3) It's in February, 2010. This is just nine months from a midterm election where the GOP is expected to do well. Why in the world would the Republican leadership want to risk that by helping the President bail out his massively unpopular health care reform initiative? The time for bipartisanship was last year, and (as I noted in a previous article) the legislative scope where bipartisanship is possible is much smaller than comprehensive reform of 1/6th of the United States economy. No matter how nice Blair House is, it won't be enough to get Eric Cantor and Barack Obama to agree on such a sweeping legislative program.

This is a PR stunt from a West Wing staff whose major experience prior to entering the White House was the electoral campaign, which is really just an accumulation of PR stunts. They're going with what they know. The White House believes that the President bested the congressional Republicans at the retreat, and they want to try the same thing again.

I think the White House did best the GOP at the retreat, that Obama did get some nice press, and that the Republicans were made to look weaker. So, from a certain perspective, I understand the logic here. But, from another perspective, it is mind-numbingly ridiculous. What is the ultimate purpose of this? Memo to the West Wing: your guy is the President now. It doesn't matter whether he can out-debate the congressional GOP. He gets the credit or the blame for policy output. That is all that matters. This Blair House meeting is just noise that Politico, The Hill and Roll Call will write about for a few days - and that's all it is. This President will be judged on whether the government under his tenure has solved problems, not whether he can out-talk the congressional GOP in some silly debate. In a word, it's not about campaigning - it's about governing.

You'd think that they would have figured that out by now!

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-Jay Cost

America is Not Ungovernable

Recently, some analysts have suggested that the lack of major policy breakthroughs in the last year is due to the fact that America has become ungovernable. Ezra Klein argued that it was time to reform the filibuster because the government cannot function with it intact anymore. Tom Friedman suggested that America's "political instability" was making people abroad nervous. And Michael Cohen of Newsweek blamed "obstructionist Republicans," "spineless Democrats," and an "incoherent public" for the problem.

Nonsense. America is not ungovernable. Her President has simply not been up to the job.

Let's acknowledge that governing the United States of America is an extremely difficult task. Intentionally so. When designing our system, the Founders were faced with a dilemma. How to empower a vigorous government without endangering liberty or true republicanism? On the one hand, George III's government was effective at satisfying the will of the sovereign, but that will had become tyrannical. On the other hand, the Articles of Confederation acknowledged the rights of the states, but so much so that the federal government was incapable of solving basic problems.

The solution the country ultimately settled on had five important features: checks and balances so that the branches would police one another; a large republic so that majority sentiment was fleeting and not intensely felt; a Senate where the states would be equal; enumerated congressional powers to limit the scope of governmental authority; and the Bill of Rights to offer extra protection against the government.

The end result was a government that is powerful, but not infinitely so. Additionally, it is schizophrenic. It can do great things when it is of a single mind - but quite often it is not of one mind. So, to govern, our leaders need to build a broad consensus. When there is no such consensus, the most likely outcome is that the government will do nothing.

The President's two major initiatives - cap-and-trade and health care - have failed because there was not a broad consensus to enact them. Our system is heavily biased against such proposals. That's a good thing.

It's not accurate to blame this on the Republicans. From Arlen Specter's defection to Scott Brown's swearing in, Democrats had total control over the policy-making process. The only recourse the Republicans had was the First Amendment. They used it well, but don't let it be said that the President lacked access to it. Given Mr. Obama's bully pulpit and his omnipresence on the national stage, his voice has been louder than anybody's. If Mr. Obama has lost the public debate to the beleaguered rump that is the congressional GOP, he has nobody to blame but himself.

It's not accurate to blame this on "spineless Democrats," i.e. rank-and-file legislators who balked at the various solutions offered by Mr. Obama. Moderate Democrats might have defected because they were worried about their jobs - but the point of popular elections is to link the personal interests of legislators with the interests of their constituents. It often fails to work - but in a situation where "spineless Democrats" clearly voted with their districts, it seems to have been working pretty well. One might argue that they should have shown some leadership - voted for unpopular bills because they were good for the country. But ask those thirty to forty House Democratic defectors on the health care, cap-and-trade, and jobs bills whether they thought the bills were good for the country, and you'll hear a different answer than the one Newsweek is quick to give.

It's not accurate to blame this on the people. This country is most certainly divided, but not deeply so. Consider, for instance, the enormous goodwill that greeted Mr. Obama upon his inauguration. It is not tenable to suggest that there was no way to turn that into a broad consensus for policy solutions.

The responsibility for the government's failure in the last year rests with President Obama. Two significant blunders stand out.

First, President Obama has installed Nancy Pelosi as de facto Prime Minister - giving her leave to dominate not only the House, but also the entire domestic policy agenda. The indefatigable Speaker Pelosi has taken advantage of the President's laissez-faire attitude by governing from the left.

That's not to say that the left has been happy with the domestic proposals that have come up for a vote. Instead, the point is that policy has consistently been built from the left - thanks in no small part to the very liberal chairs of key committees - with compromises made to win just enough centrist votes to get passage. On the jobs bill, the health care bill, and the cap-and-trade bill, the Democrats won only narrow victories due to mass defections on their own side. Almost all of these defections were from the center. Faced with a choice between losing a moderate or a liberal, the Speaker has consistently chosen to sacrifice the moderate.

It's easy to blame the Senate for inactivity - but the problem is the House. It has consistently passed legislation that is too far to the left for the Senate and the country. Ultimate responsibility rests with the President, whose expressed indifference toward policy details has allowed the more vigorous House Democrats, led by an extraordinarily vigorous Speaker, to dominate. That the President consistently praised the House and blamed the Senate in his State of the Union address suggests that he remains unaware of this problem.

The President's second major failing has been his stubborn insistence on comprehensive reforms. Perhaps this is due to his inexperience in the federal lawmaking process, or his extraordinary vanity, or both. Still, this has been a grave mistake. If the truly great Henry Clay could not pass the Compromise of 1850 through the Congress in a single package, what made Barack Obama think he could sign comprehensive energy and health care reforms?

President Obama's desire for comprehensive legislation seriously damaged the chances for bipartisanship, given his decision to let Nancy Pelosi and her allies write the bills. Republican "extremism" is an easy rhetorical foil - but when we're talking about Mike Castle and Olympia Snowe voting against the President, it fails to explain the full story. Bipartisanship implies legislators with different world views working together. The larger a bill's scope, the more likely it favors one worldview over another, and the less likely it will attract bipartisan support. With an extremely liberal Speaker and a supporting cast of left wing committee chairs running the process, comprehensive legislation was bound to favor heavily the liberal worldview. Even the most moderate of Republicans would always have trouble with that. In fact, thirty to forty House Democrats have defected on the President's key items, meaning that the bipartisan position has been opposition to President Obama. This has made it difficult for a centrist public to support reforms. With very limited information on specifics, the public took unanimous Republican and substantial moderate Democratic opposition as cues about the merits of the bills. Public opposition is what ultimately ended the Democratic supermajority - in Massachusetts, of all places.

Both of these failures get back to the idea that this country can only be led effectively when there is a broad coalition supporting her leaders. That requires those leaders to have a breadth of vision that this President has so far lacked. He has allowed a very liberal Speaker to lead the House too far to the left, and he has demanded comprehensive reforms that were destined to alienate a significant portion of the country.

He has been narrow, not broad. He has been partial, not post-partisan. He has been ideological, not pragmatic. No number of "eloquent" speeches can alter these facts. This is why his major initiatives have failed, why his net job approval has dropped 50 points in 12 months, and why he is substantially weaker now than he was a year ago.

This strategy might have made sense if the country was really in the midst of a "liberal moment." But it is not. While the President won a decisive victory in 2008, his congressional majority in both chambers depends entirely upon members whose constituents voted for John McCain. In fact, the President's election 16 months ago was one of the most polarizing in recent history. This remains a divided country, which creates complications in a system such as ours. The President should have recognized this, and governed with a view to building a broad coalition. But he has not.

America is not ungovernable. Barack Obama has so far failed to govern it.

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-Jay Cost

Understanding President Obama's Partisanship

As I wrote last week, a political party is an extra-governmental conspiracy to control the government. Partisans coordinate their efforts across branches to centralize power in a system that otherwise disperses it far and wide.

Partisanship is simply partiality to one conspiracy over another. It's a bias or an inclination. Partisans are more receptive to arguments from their own side than those proffered by the opposition. They are more apt to notice the malfeasances of those on the other side, while often ignoring the sins on their own side. They're willing to give their side credit, but are stingy when it comes to praising the other side. And so on.

For as much as partisan Democrats and Republicans disagree on policy - their views of the political process are often mirror images of one another. This is especially true when it comes to attitudes about the public discourse.

The public discourse is simply the national political conversation. Dominated by the two parties, it consists of partisan arguers who make partisan arguments. Partisan Democrats and Republicans often hold exactly opposite views on both. Let's examine each in turn.

First, regarding the arguers, what motivates them to be partisan?

There are two basic motivations. The first is a commitment to the party's public policy goals. This is the belief that one's own side has correct solutions to public problems, and the opposition has wrong ones. The other motivation is not as noble. To get people to sacrifice private profit, society has made work in representative government prestigious. This breeds private reasons for partisanship - something to the effect of, "I want to keep my awesome job. Those guys are trying to take it from me. So, to hell with them!"

It's fair to say that public and private interests have motivated officials on both sides in roughly equal measure. Yet Republicans and Democrats often act as though their side is vastly superior to the other. Republicans often see their members as representing their views fairly and accurately, but Democrats accuse Republicans of being pawns of the business interests. Democrats see their members as public-spirited; Republicans paint them as the tools of the labor unions.

Second, what kind of arguments are the partisans making?

Arguments can be rationally developed in an attempt to persuade a thoughtful public. On the other hand, they can make recourse to propaganda - one-sided, tendentious appeals, often to the passions rather than reason.

Reason and propaganda have comingled throughout the history of the American political debate. For instance, Federalist #10 is James Madison's reasoned disquisition on the value of a large republic. But in Federalists #6, 7, and 8 Alexander Hamilton sets the gold standard for partisan fear-mongering - warning that if the states do not unite under the Constitution, war will be followed by plunder, permanent armies, and even monarchy. Partisan discourse today often follows the example set by the Federalist Papers: a mix of cool rationality with heated propaganda as partisans try to persuade an undecided, uninformed, and indifferent public.

Yet here again, Democrats and Republicans often have exactly opposite views of who is using what type of argument. Partisan Republicans are inclined to dismiss Democratic assertions as the product of faulty data, specious reasoning, and an appeal to some set of base emotions. Meanwhile, they view their own arguments as derived from self-evident principles and grounded in the finest traditions of American history. Partisan Democrats, of course, see themselves as the keepers of the American faith, and the Republicans as the purveyors of propaganda.

So, on both fronts - arguers and arguments - I would suggest that partisans have exactly opposite views. This enables us to generalize the partisan view of the public discourse into a simple chart:

Partisan View of the Public Discourse.jpg

Importantly, not all Republicans are "partisan Republicans" in this sense, nor are all Democrats "partisan Democrats." One can, at least in theory, hold Republican policy preferences without having these views about the two sides. Ditto if one is a Democrat. In practice, I think it is more accurate to say that at least some partisan bias is inevitable for those who pay close attention to or participate in politics, and that some subscribe less fully to the partisan worldview than others.

President Obama's introductory remarks to the House Republican caucus suggest that he holds a partisan Democrat's view of the public discourse. In that address he regularly cites his desire to turn down the partisan dials and the value of a robust debate, but he couches those gestures to bipartisanship in a very negative view of how the opposition has actually behaved.

The President begins with a broad, philosophical affirmation of the value of the partisan debate:

I'm a big believer not just in the value of a loyal opposition, but in its necessity. Having differences of opinion, having a real debate about matters of domestic policy and national security -- and that's not something that's only good for our country, it's absolutely essential. It's only through the process of disagreement and debate that bad ideas get tossed out and good ideas get refined and made better. And that kind of vigorous back and forth -- that imperfect but well-founded process, messy as it often is -- is at the heart of our democracy. That's what makes us the greatest nation in the world.

This is a heartening statement to hear from any President. Party politics is messy and unpleasant, but ultimately necessary for the good functioning of our democracy. The Election of 1800, for instance, was one of the ugliest in American history. Still, big ideas were discussed, and the country made an important decision. To borrow the title of a recent book on that election, American democracy is a "magnificent catastrophe."

During the subsequent question-and-answer session, the President returns to the value of spirited debate and indicates a hope that the two sides could have a productive dialogue.

But the President starts to lose me shortly thereafter. He says:

I want you to stand up for your beliefs, and knowing this caucus, I have no doubt that you will. I want us to have a constructive debate. The only thing I don't want -- and here I am listening to the American people, and I think they don't want either -- is for Washington to continue being so Washington-like. I know folks, when we're in town there, spend a lot of time reading the polls and looking at focus groups and interpreting which party has the upper hand in November and in 2012...

I'm still technically on board here. I agree that politicians are often out there playing "politics," working for their own self-interest rather than the public good. Yet he soon pivots from trumpeting the virtues of bipartisanship to initiating a partisan attack:

[W]e have a track record of working together. It is possible. But, as John, you mentioned, on some very big things, we've seen party-line votes that, I'm just going to be honest, were disappointing. Let's start with our efforts to jumpstart the economy last winter, when we were losing 700,000 jobs a month. Our financial system teetered on the brink of collapse and the threat of a second Great Depression loomed large. I didn't understand then, and I still don't understand, why we got opposition in this caucus for almost $300 billion in badly needed tax cuts for the American people, or COBRA coverage to help Americans who've lost jobs in this recession to keep the health insurance that they desperately needed, or opposition to putting Americans to work laying broadband and rebuilding roads and bridges and breaking ground on new construction projects.

That's a Democratic view of the public discourse. The President "honest(ly)" expresses "disappointment" at a lack of bipartisanship, which was absent because of inexplicable opposition from the Republican Party. In other words, the Republicans did not offer and have not yet offered valid reasons to oppose the stimulus bill.

Why did they oppose it? The temptation for self-interested political calculation was too great:

And let's face it, some of you have been at the ribbon-cuttings for some of these important projects in your communities. Now, I understand some of you had some philosophical differences perhaps on the just the concept of government spending, but, as I recall, opposition was declared before we had a chance to actually meet and exchange ideas.

The President makes a rhetorical nod to "some philosophical differences perhaps on the concept of government spending" (emphases mine) - but his point here is that bipartisanship has been absent because the Republican caucus has largely been acting out of its own political self-interest.

Interestingly, throughout the session, the President frequently makes use of a form of propaganda to justify this position. His reasoning often goes something like this: you Republicans supported particular items within these bills, so you should have supported the bills; that you did not is a sign that you've been playing politics, and your objections were not tenable. This is a fallacy of composition.

This is how he concludes his introductory remarks:

Bipartisanship -- not for its own sake but to solve problems -- that's what our constituents, the American people, need from us right now. All of us then have a choice to make. We have to choose whether we're going to be politicians first or partners for progress; whether we're going to put success at the polls ahead of the lasting success we can achieve together for America. Just think about it for a while. We don't have to put it up for a vote today.

Let me close by saying this. I was not elected by Democrats or Republicans, but by the American people. That's especially true because the fastest growing group of Americans are independents. That should tell us both something. I'm ready and eager to work with anyone who is willing to proceed in a spirit of goodwill. But understand, if we can't break free from partisan gridlock, if we can't move past a politics of "no," if resistance supplants constructive debate, I still have to meet my responsibilities as President. I've got to act for the greater good -- because that, too, is a commitment that I have made. And that's -- that, too, is what the American people sent me to Washington to do.

His question-and-answer session basically follows the same script. He combines broad appeals for rigorous debate and cooperation with not-so-subtle attacks on Republicans for not participating in a serious manner. It seems that the President's view is that the Republicans are putting "success at the polls ahead of the lasting success we can achieve together for America" and offering irrational arguments that the President "(didn't) understand then, and...still (doesn't) understand" today.

To return to the previous chart, his introductory remarks suggest that this is how the President views the public discourse:

Obama's View of the Public Discourse.jpg

Since he was inaugurated, I have been critical of President Obama's failure to live up to his pledge of bipartisanship. But maybe he has lived up to it, at least on his own terms.

After all, the line of reasoning in this essay suggests a partisan view of bipartisanship, which would go something like this:

We're the ones who are (mostly) public-spirited and rational; they're the ones who are (mostly) self-interested and using propaganda. Thus, bipartisanship will come when they mend their ways.

In so doing, they will start to agree with us. While there may be some lingering divisions, many will disappear. After all, if both sides are motivated by the public interest and making recourse only to rational argument - how much divergence can there possibly be?

This could reconcile Obama's complaints about what he saw as mere gestures from the previous administration with his belief that congressional Republicans should have been happy with the gestures he made to them. This partisan view of bipartisanship doesn't suggest a meeting at the halfway point. The meeting point depends on which party is more virtuous and more reasonable. If the President thinks he has the market cornered on both assets, then the idea that Bush should have given more is quite compatible with the thought that he has given enough.

What to make of this view of the political world? For starters, I do not think it is very peculiar or unique. Most strong partisans, I think, have a partisan view of the public discourse. Plenty of members of Congress do, too. That goes for the whole of American history. So, I don't think there is anything wrong with a President who thinks the other side is full of you-know-what.

What's peculiar and unique is the President's consistent pretensions toward bipartisanship. I'm not sure what to make of the fact that he consistently joins a partisan attack with an appeal to bipartisanship. I do think the political benefits of this are questionable. If this is the President's view of the public discourse - he should not hold his breath for Republican cooperation. It will not be forthcoming. To keep suggesting that it might be forthcoming puts him in danger of being held responsible for its absence.

After all, Republicans do not hold a Democratic view of the public discourse. Most of the congressional caucus probably holds the Republican view. Some - like Susan Collins, Judd Gregg, Lindsay Graham, and Olympia Snowe - have less partisan views and would be willing to meet President Obama halfway. But is Obama prepared to meet them there? His remarks to House Republicans suggest that the answer - despite all his pretensions - is actually no.

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-Jay Cost