San Francisco Gets an Antiwar Congresswoman

The recent 226-202 House of Representatives approval of the supplemental budget was a particular disappointment to antiwar activists.  At one point they’d thought it might be possible to block the bill and its $79.9 billion Department of Defense appropriation earmarked largely for the Iraq and Afghanistan wars, – at least temporarily.   Nonetheless, San Francisco antiwar voters might take some consolation in one thing anyhow – it appears that the city now has an antiwar Congresswoman.  And no, it’s not House Speaker Nancy Pelosi, but Jackie Speier, elected just last year to represent the less liberal western part of the city and several towns on the Peninsula to the south.

Not only was Speier one of but sixty votes (fifty-one of them Democrat) against the budget in its first trip through the House, but she also made a second, tougher vote against it.  When House Republicans took umbrage at the addition of a $5 billion International Monetary Fund loan guarantee, they announced they would switch sides and vote against the bill upon its return from the Senate, raising the possibility of its defeat should the antiwar Democrat votes hold firm.

Predictably, they did not.  This time even Pelosi herself – who did not vote the first time as is common practice for a Speaker – was recorded in favor, presumably to demonstrate how much the House leadership really wanted the votes.  And yet, despite a San Francisco Chronicle report that “the White House has threatened to pull support from Democratic freshmen who vote no,” Speier did just that, one of only six freshmen – among thirty-two total Democrats – to do so.  Arguably, Speier was doing nothing but what San Francisco voters had directed her to do last November when 59 percent of them supported Proposition U which stated that the city’s Congressional representatives “should vote against any further funding for the deployment of United States Armed Forces in Iraq.”

But realistically speaking, although the ballot question’s only exception concerned “funds specifically earmarked to provide for their [American troops in Iraq] safe and orderly withdrawal” and did not exempt funding requests from Democratic Presidents, the fact that George Bush had negotiated a troop withdrawal agreement before leaving office seems to have made most House Democrats feel they have a pass to fund that war right through 2011. And certainly Pelosi has never given any indication of paying the proposition any heed despite the fact that 61 percent of her district backed it.

On the contrary, she’s made it clear that she views it as a Democratic Speaker’s duty to ensure the funding of what a Democratic President has now taken on as his wars.  Her spokesman, Brendan Daly, told the Chronicle that Pelosi was telling members “we need to do this, this is President Obama’s plan for both Iraq and Afghanistan. He’s got a plan to end the war in Iraq.  He’s got a plan to refocus our efforts in Afghanistan, and we need to support the president in that, and this is the right way to go.”

And yet when Representative Jim McGovern (D-MA) proposed adding language calling for the Secretary of Defense to “submit to Congress a report outlining the United States exit strategy for United States military forces in Afghanistan” by December 31, 2009, it was no dice.  Pelosi’s view is apparently that the President shall give us his plan in his own good time. (McGovern has since filed his amendment as a free-standing bill with 84 co-sponsors.)

Her San Francisco colleague Speier, on the other hand, said she had “serious problems with the current wars” and didn’t believe that “escalating the conflicts make America or the world safer.”  Speier’s viewpoint is particularly welcome in that it differs so markedly from that of her predecessor, the late Tom Lantos, who voted for the first House resolution for the Iraq War (which Pelosi did not.)

Moreover, in her ascent to her new position, Speier had betrayed no particular maverick tendencies.  She gained it not through any kind of insurgent antiwar campaign but more of a vetting process of the area’s political establishment.  A former state legislator forced to leave office due to term limits, she had failed in a prior bid for the Democratic nomination for Lieutenant Governor. But when she announced her interest in the Lantos seat, it soon became clear that she would have the endorsements deemed to matter – and presumably the attendant campaign financing.  At this point, other potential candidates backed off and the insider consensus choice was presented to the voters for their ratification.  Speier then won 90 percent of the Democratic vote in a special primary after a campaign that seemed to involve less of telling people what she stood for than reminding them that they already knew her – and that her ultimate victory was inevitable.

So, at a point when the country’s antiwar movements are largely stalled, Bay Area antiwar voters can at least cheer the pleasant surprise of having a new Congresswoman willing to buck both the White House and the House leadership.

Will He or Won’t He? The Investigation Question

If it is true that sitting presidents set the political boundaries for future ones, then the recent hand-off of executive power was truly a gift for Barack Obama. When, in modern presidential politics, has a president been provided with so much room to operate? Not only has he enormous public support, his party’s majority in the two houses of Congress, and a huge, urgent financial crisis affording him opportunity for inventive solutions, but most important, he has the George W. Bush administration preceding him. Having Bush brandish executive power over the Constitution like a swinging ax, the boundaries of what is politically acceptable have been pushed so far that, for Obama, it is like playing football on a field the size of Texas.

Within in the context of the last eight years, Obama has been given free reign over an almost full gamut of the political spectrum to execute his ideas. As such, the combination of revulsion toward Bush, and excitement for Obama, causes each conservative move he makes to be acceptable, and any restoration of common sense to be celebrated as progressive.

And this was apparent from the day of the inauguration onward. In his speech, Obama managed set a conservative tone without hardly a whisper of reaction from most progressive commentators. In invoking the Bible to “set aside childish things” (implying collective responsibility for the financial crisis), and adamantly stating that we will not apologize for our way of life, Obama was able to successfully plant conservative memes because they were wrapped in massive progressive celebration. The fact that both The Daily Show and Bill Kristol picked up on this is highly illustrative.

However, the lesson of context is more instructive when considering Obama’s first actions as president. While his executive orders, such as the closure of Guantanamo, the order for the CIA to follow the Army Field Manual for interrogation, and limitations of government secrecy are welcome, are they cause for progressive celebration? A sigh of relief, yes, but the shoots of a progressive agenda? I’m afraid not. After watching Bush spend eight years bending the Constitution to near snapping point, Obama is merely attempting to restore the document to some recognizable form. And more notable, these were the easy moves. In fact, he had to issue these orders. The public outrage over state encroachment of civil liberties had been swelling to bursting point, and was subsequently channeled into the Obama campaign. He had the mandate and the political will to do so, not to mention the founding ideals of the nation on his side. Really, all he has done has been to put back in place what Bush had removed, while at the same time, continuing militarily, very much, in the same vein as his predecessor: bombing Waziristan and killing 14 people. Because the reversals of Bush policy have been rapid, the ones that stayed the same went almost unnoticed.

The great irony of the Bush legacy, though, is that by conducting his office so disastrously, and, by extension, handing Obama so much political breathing space, it is clear that Obama feels he cannot hold Bush accountable, lest that breathing space disappear. The choice between massive political capital and following the Constitution is a very real one, and one with very high stakes. In attempting to bring the former administration to justice, it is very likely, given the tone set by current congressional Republicans, Obama’s agenda would shrink to zero by potentially instigating a political civil war — memories from the nineties, obviously fresh in Obama’s mind. If Obama finds it difficult now, twisting Republican arms in Congress, imagine his options after he attempts to try Bush and Cheney for high crimes and misdemeanors. Then there’s also a massive economic crisis to address, not to mention his own party’s complicity in the waterboarding program, making it not merely difficult to start an investigation, but nigh on impossible.

To prosecute members of the previous administration would be like lighting a match to a partisan war, causing the mechanisms of Congress to jam up, just when we need it to function as efficiently as possible.

It is clear that Obama regards his options less as a balancing act and more mutually exclusive; a choice between principle and pragmatism. And as you would expect, the choice is not without precedent. There is the much-cited example of Lincoln’s magnanimity toward the South before and after the Civil War, but there is also the more appropriate parallel of the Jefferson presidency. After winning the presidency in 1800, Jefferson struck a remarkably conciliatory tone, when he said at his inaugural address that “every difference of opinion is not a difference of principle.” And this, too, was after an incredibly brutal, partisan election, where it followed an administration that severely curtailed both civil liberties and the freedom of the press. Jefferson prosecuted no one for these infractions of the Constitution, including previous president John Adams. In order for him to keep the union together — a very real concern during the nascent United States — Jefferson had to reach out to northern Federalists. For an avid student of history such as Obama, it would seem he seeks to emulate this pragmatic, albeit contradictory, approach to crisis.

It is easy to imagine the president thinking of how he would best like to be remembered: the man who attempted to bring executive malfeasance to justice, or the man who wrested America from an economic free fall. It is clear which one is most politically viable. And given how difficult it would be to investigate Bush, fixing the biggest economic crisis since the Great Depression would be easier.

The problem remains though, what to do to prevent future abuse of the executive office? And this is one area where progressives can press Obama to demonstrate some progressive mettle.

Speaker of the House Nancy Pelosi famously took impeachment off the table due to her own complicity in the CIA torture program and, unfortunately, impeachment was the only opportunity to hold Bush to account. However, if the Obama administration were to propose a framework where the requirements to hold impeachment hearings would be made easier — specifically, more definitive — it would do much to prevent politicians like Pelosi from fudging the issue, and presidents (and vice presidents) from abusing their office. Though this would probably require a constitutional amendment, it would be the only way of protecting the state from future executive abuse. As it currently stands, the definition of crimes tried by impeachment is woefully ill-defined to be effective and consistent:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

As then-House Minority Leader Gerald Ford said in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

By providing clear definitions of the offenses punishable by impeachment, Obama could demonstrate a willingness to address the crimes of the previous administration without having to sacrifice too much goodwill.

For all the celebrations of Obama’s restoring of civil liberties, it is clear that violations of those liberties must not happen again, and this is where the progressive fight to hold those in power accountable should be aimed.

Session in Order: Speakers and Old Tricks

Nobody does it like Texas. With appropriate pomp and circumstance, the 81^st session of the Texas Legislature has come to order. While all the vestigial parliamentary rituals went off with minimal incident, some drama came from unexpected quarters.

The House

The tension and intrigue preceding the installation of Joe Straus as the 84^th Speaker of the Texas House had largely played out about a week before commencement of the session. Tom Craddick, the Republican incumbent whose three reigns as speaker had been characterized and criticized as some of the most heavy-handed and partisan in Texas’ history, had dropped out of the race. Nine of the ten Democrats whose support he, ironically, relied upon for his reelection had jumped ship, thus irrevocably tipping the scales against him. Their change of heart had been motivated by a group of eleven Republicans, dubbed the ABC (Anyone But Craddick) gang, who had nominated Straus as a moderate alternative. In a narrowly divided house, 76 Republicans to 74 Democrats, Craddick just didn’t have the votes to win without the entirety of his party behind him, and when he lost the support of those few Democrats who embraced him, all hope was gone.

Apropos to both the spirit of bipartisanship and the re-consolidation of the heretofore fragmented Republican majority, Straus’ nominating speakers came from both sides of the aisle.

First to rise was Jose Menendez, a Democrat from Straus’ hometown of San Antonio. His selection to speak may have raised a few eyebrows from the anti-gambling conservatives in the House, suspicious of the new speaker from day one. Straus and his family have a big stake in a San Antonio pari-mutuel horse track, and have been long-time supporters of betting on the ponies. Menendez is in favor of legalizing Vegas-style poker in the state of Texas and has a bill before the house to make it so. Consequently, his appearance on the dais probably did little to quell the anti-gambling crowd’s concerns about Straus. They’re worried that he will abuse his influence as speaker to push through more relaxed legislation on gaming. Menendez praised Straus for his support of allocating funding to cord-blood banks, which is a big deal for the pro-stem-cell research crowd. A moderate, indeed.

Seconding the nomination was Houston Democrat Senfronia Thompson. Her own pre-session bid for speaker was only symbolic as she was in the minority party, but the fact that she got up to speak in support of Straus was poignant. Consider that Straus’ claim to the speakership was solidified when he got the pledges of 70 of the 74 House Democrats and 15 Republicans compared to Tom “Mr. Partisan” Craddick’s 87 Republicans to 15 Democrats in 2002.

In total, six representatives rose in support of Straus as the new speaker. Extolling his virtues were four Democrats, and two Republicans, including John Smithee who represented the waning vestiges of the Craddick camp. He had taken up the conservative mantle for speaker after Craddick’s abandonment of the race, hoping to form a coalition of now-freed Craddick supporters and bring both Republicans and Democrats crossovers back into the fold. That didn’t happen, and he too dropped out. His subsequent open support of Straus seems to have mended fences for the time being within Republican circles.

All in all, it was a smooth transition of power and a good start to business within the House of Representatives. Too bad it isn’t going as smoothly over in the East Wing.

The Senate

In short, the Senate Republicans are taking their cues from the Tom DeLay playbook chapter entitled “When We Don’t Like the Rules, We Just Change Them.”

As the Senate rules stand, it takes the approval of two-thirds of the Senators, the exact number is presently 21, to open up a measure to debate. Senator Dan Patrick, R-Houston, wants to change that to a three-fifths rule, which would lower the absolute number to 19. Guess what the Republican to Democrat ratio in the Texas Senate is: 19 Rs to 12 Ds.

The most pressing issue relevant to the rule change is a forthcoming voter ID bill that was passed in the House during the previous session, but died on the floor in the Senate because the Republicans couldn’t meet the two-thirds rule. It is likely to be reintroduced this session and is staunchly opposed by Democrats who fear the disenfranchisement of many traditionally Democratic voters by such a bill. Without the rule change, the Republicans would most likely be out of luck on passing this bill.

The subject of redistricting is even more nefarious. Some longtime followers of Texas politics may remember Senate Democrats leaving the state in 2003 to prevent a quorum, and thus a vote, on the gerrymandering of congressional maps. The Dems eventually came back and lost the issue, and the redistricting that ensued significantly favored Republicans in the federal House races that followed. While Texas is not presently up for redistricting, it’s not unreasonable to presume that many GOP senators want the state Senate voting rules changed now while they still hold a slight majority in the face of a state that is trending Democrat.

What’s Ahead

As always, the most looming issue facing the legislature this session is the budget. On this issue, the news this year is particularly bleak. Comptroller Susan Combs has announced a projected $9 billion drop in revenue over the next two years. She cites significant declines in car and cigarette sales tax revenue and lowered lottery earnings as the main culprits.

Legislators use the Comptroller’s numbers when writing spending and appropriations bills, and Combs’ figures represent about a 10.5% drop in available money from two years ago. Granted, there is the proverbial “Rainy Day Fund” of about $6.7 billion. Yes, it’s a lot of money, but to get at it, a super majority of both houses needs to approve, and its use would be sure to breed contention. In addition, in hard economic times, once the money is gone, replenishing it would be no easy task.

Expectations

With a House that is now seemingly united behind a young, charismatic moderate, many Texans echo Rep. Jim McReynolds’ sentiments that “we in this chamber want a workhorse, not a show pony.” The state Senate needs to take its cues from the “lower” chamber and intelligently set aside corrosive partisanship. It’s time to get down to the business of the state. With the gloomiest economic climate in decades, the decisions made by this legislature will bear heavily on the fiscal fitness of Texas through the coming financial tempest.

Why Mr. Burris Won’t Go to Washington

Roland Burris appears to be the one to fill Barack Obama’s sexy, well-toned shoes. Maybe. With Illinois Gov. Rod Blagojevich daring the Senate to do anything about it, what is the Senate to do?

The authors of Slate’s “Jurisprudence” column, Akhil Reed Amar and Josh Chafetz, believe that the Senate can stop Burris from taking office. For those of you following along at home, your relevant citations are Article I, § 5 and Amend. XVII. Oh, and don’t forget Powell v. McCormack, 395 U.S. 486 (1969). You’ll need that one later.

Prior to 1913, U.S. senators were chosen by state legislatures. Constitutionally, senators were seen as a liaison between the state government and the federal government; their election was too important to be left up to the people, who had their own representation in the House of Representatives, anyway. As might be expected, there was a lot of party wheeling and dealing that went on as potential senators exchanged favors in order to get the job. To sidestep the sleaze, many states enacted laws requiring their legislatures to appoint to the U.S. Senate the winner of a popular vote, effectively permitting direct election of senators.

The 17th Amendment finally permitted direct election of senators but with a twist: the “executive authority” of a state must call for a special election to fill a senator’s vacancy, but in the meantime, the state legislature must give that executive the power to name a temporary senator to the office in the meantime.

Amar and Chafetz argue that the use of the word “returns” in Art. I, § 5 is the key to this issue: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” meaning each house of Congress can decide not to seat someone for one of those reasons. “Returns” in the 18th-century sense “involved a report of an appointment made by a sheriff or other official.” So, argue Amar and Chafetz, the Senate can just as readily exclude a member based on a corrupt appointment as it would based on a corrupt election.

Our friend Adam Clayton Powell, who had been duly elected to the House of Representatives in 1966, had been charged with misappropriating public funds. The House voted to deny him his seat based on these charges. Powell sued, alleging that the House couldn’t stop him from taking office, since he met all the “Qualifications” required of a House member (at least 25 years old, a U.S. citizen for seven years, and an inhabitant of the state he’s representing). The case is a little convoluted, since Powell was never seated in the 90th Congress to which he was elected. That Congress ended, but Powell was elected to the 91st Congress. The U.S. Supreme Court devoted about 90% of its ink to the question of whether or not it even had jurisdiction to adjudicate the issue. Lower courts concluded that they themselves did not have such jurisdiction, for a variety of reasons.

On the issue of whether or not the House had the power to exclude a duly-elected member, the court said it did not. It would be extremely dangerous, the Court said, to allow Congress to use the “Qualifications” clause to mean something other than merely raw qualifications, in this case a red herring to seat someone whom they felt was unseemly due to corruption charges. That would allow Congress to refuse to seat members who were chosen by the people. Appropriate relief, wrote Chief Justice Warren, would be for the House to initiate expulsion proceedings against Powell once the Congress convened.

The opinion, say Amar and Chafetz, emphasizes upholding the people’s choice, which doesn’t apply in the current Burris situation. But it does! Constitutionally, the governor acts in the people’s stead, for good or evil. What really should have happened is that the Illinois state legislature should have passed a bill stripping the governor of the authority to make the interim appointment. The legislature did not do that, however, partially due to Harry Reid and other Senate Democrats not wanting to risk losing the seat to a Republican in a special election. The U.S. Senate cannot make up for the lack of will of the Illinois legislature.

Certainly Senate Democrats are within their rights to refuse to let Burris caucus with them (although, Roland Burris can’t caucus with the Democrats because the person who appointed him initially demanded a bribe for the seat; Joe Lieberman can caucus with the Democrats, even though he actively campaigned against the Democratic presidential candidate to the point where he was stripped of his status as a Democratic superdelegate?). But I cannot see how excluding him from the Senate is possible. Sorry, Dems, you’ll just have to vote to expel him. You missed your opportunity.

What If? The 269-269 Scenario

Lurking behind the event-driven noise of this unusually noisy election, the routine business of state-by-state polling has continued apace. Few people are looking, of course, but the state-level polls have actually shown unexpected strengths for both candidates in unusual places. For Mr. Obama, both Indiana and North Carolina have polled improbably well, while Mr. McCain does well in both Pennsylvania and New Hampshire.

Assuming for the moment that Obama holds Pennsylvania and McCain ultimately carries Indiana and North Carolina, along with other swing states such as Ohio, Florida, and Virginia, a wide assortment of 269-269 scenarios involving a possible flip of New Hampshire (4) have emerged. Notably, if Mr. Obama wins all of the Kerry states besides New Hampshire (248 electoral votes), plus Iowa (7), New Mexico (5), and Colorado (9), where he is comfortably ahead, Mr. Obama and Mr. McCain would both end up with 269 electoral votes. So what happens if the electoral vote is tied?

On one level, the answer is known and is obvious: the race “goes to the House.” Most tenth graders know this much, of course–but many fewer people understand what this expression precisely means, and just how much chaos might well ensue if it should happen for the first time in modern history.

Most of us assume that each House member gets a single vote, but in fact it is each state that gets a single vote, based on internal negotiations for which there are no preset rules. At the moment a casual “whip count” from assembling all of the close House races would seem to be suggest that Democratic majorities are likely in anything from 22 to 27 of the delegations, while the Republicans can only count on 14 solid votes when the time comes. Even if the Republicans win all of their solids, all 6 of those currently leaning their way, and all 3 of the truly up for grabs, their count would still fall two votes short, 23-27. To make a 26-vote majority outright, the Republicans would probably need to win back control, something few experts are prepared to grant as even an outside possibility this year.

The complicating factor is that several states are expected to have Democratic majorities in Congress, but with popular-vote majorities for McCain (in some cases quite large majorities at that). Of the Democrat’s projected 27 state majority in the voting, two states (North and South Dakota) are represented by single Democratic congresspersons and will almost certainly go hard-red on election night, while a third (Mississippi) is only represented by four House members, one almost certain to be Republican.

Naturally all Democratic congresspersons in such a position would be lobbied aggressively by both campaigns–particularly if Mr. McCain were to win the national popular vote. McCain would promise electoral vengeance for anyone daring to buck the will of the people, and Obama would reply with promises of cushy jobs in the Administration for anyone who suffered this fate.

If in consequence, the House simply fails to arrive at a 26-vote consensus, the job falls to the Senate, which elects the Vice President (one-man, one-vote), deciding the Presidency by default after the House’s decision to leave the top job vacant.  This raises the bizarre spectacle of a President Joe Biden. (Many pundits have suggested that Biden would pick Obama to be his Vice President and then resign, but he is under no constitutional obligation to do so.)

After the events of the past two days, this sort of bedlam seems increasingly possible, if not downright foreordained. The real question is what each of us will do about it, in our capacities as letter-writing, protest-organizing, rank-and-file citizenry.  Will the galvanized voters of the extreme right-wing prevail, as they did in 2000, on the basis of having stronger and longer lasting will? Or does the incumbent party always have the harder sell for four more years?

Mercifully, that aspect of the larger question is always, always, always left to each of us to decide for ourselves–regardless of who carries the single electoral vote that goes with winning the Omaha suburbs,* which could (even more bizarrely) decide the outcome of the entire election.

*Nebraska and Maine award electoral votes by congressional district. A candidate wins two electoral votes for carrying the state and one electoral vote for each congressional district