About all that nonsense Bush is tossing around about this being a "do-nothing Congress," here's something to keep in mind: with six vetoes to his credit during the first year of this Congress, and 53 veto threats pending, if this is a "do-nothing Congress," then we certainly have an "allow nothing White House."
Bush has stood the so-called power of the purse on its head, insisting he'll veto any appropriations bill that exceeds his budget numbers. He'll just veto them, and send the Congress back to the drawing board because the legislative branch didn't rubber stamp the executive branch's budget numbers.
Combine that with the move he pulled on FISA in August -- where he said he'd force Congress to stay in session until they passed the bill he wanted, and he'd veto all else -- and you have a pretty serious problem. I've been waiting for the White House to threaten this on Iraq and/or appropriations as the end of the first session approaches. Haven't seen it yet, thankfully, but we're not out of the woods yet.
As I wrote back in August, there is something fundamentally wrong here. Basically, the situation is such that Bush feels perfectly comfortable vetoing everything of substance the Congress even proposes passing. Forget the "60 vote requirement" in the Senate. With Bush, if he wants his way, it takes 67 votes to do anything different. And 290 in the House.
And the really wonderful news here is that any Republican president in the future can count on the same dynamic and get pretty much whatever he wants this way. But no Democrat can, as long as Democrats control the Congress. Because a Democratic president can't run that hard against the Democrats in Congress. It doesn't make political sense, and it won't make sense to the public. But in divided government, that narrative makes enough sense to fly.
This is the institutional manifestation of the "Permanent Republican Majority." If you thought it disappeared with the 2006 elections, I wouldn't be so sure. Republicans are willing to work the angles in ways that mean they don't even actually have to hold a majority to exercise it. If they do, great for them. If they don't, but they hold the White House, they can pull out the veto card and force supermajorities for everything. It's built into the system, and can only be defeated (or rather, put into stasis) by perpetually electing Democratic presidents (and we're 3 for 10 on that score since Nixon) or by perpetually electing Democratic supermajorities in Congress. The only other situation likely to lead to a suspension of this dynamic, of course, is losing the majority in Congress altogether and losing the White House. Then they won't need it.
Again, our record is not good here. The modern political era has been characterized by a virtual Republican lock on the White House and a Democratic lock on Congress. So it only makes sense that Republicans would want to make an all-out assault on whatever powers the Congress had, vis-a-vis the executive branch. We've all known that this was Dick Cheney's primary objective all along, but it's not just to avenge Watergate. It also makes sense because it tilts the balance toward the one branch they always have a reliable shot at winning, and means they can control the government by winning just one election, whereas -- if we lose the big one -- our only shot at controlling government is winning 357 elections. Any less and it's a stalemate at best, or else a series of capitulations that spell victory for the White House, and it can last as long as any Republican president wants.
You'd think that Democrats might have a greater interest in aggressively defending the prerogatives of the legislative branch, since that's where their power appears to lie over the long term. But strangely, that hasn't been the case. Instead, the strategy has been to sacrifice the defense of those prerogatives in the pursuit of an all-the-eggs-in-one-basket strategy of winning the White House (and presumably never losing it again, ever), even though our record there has been spotty at best.
Make no mistake, we must win it, lest another Republican president use the office to lock down the judicial branch as well, and give the sheen of legality to all of this, putting a reversal perhaps hopelessly beyond reach.
But some consideration really must be given to the long-term effects of the dynamic the Democratic strategy is creating.
The FISA bill before the Congress at the moment provides a convenient model for demonstrating this dynamic, as well as the Senatorial steak sauce dynamic discussed the other day.
While we struggle mightily to sort through the procedural haze on the question of retroactive amnesty for the telecom companies who sold America privacy down the river, the arcana of the procedure serves to give cover to this underlying problem.
The House passed a relatively solid FISA reform bill, in the form of the RESTORE Act, and sent it on to the Senate. But rather than consider that bill, the Senate has considered its own (as is their wont), and now embroiled itself in the difficulties that referring that bill to both the Intelligence and Judiciary committees has created. And in the middle of those difficulties, observers have noted that Senate Majority Leader Harry Reid had, under the rules at least, several options open to him, including having the Senate consider the House bill directly. It's a relatively rare thing, but not unheard of. He opted not to do so.
In fact, though, picking up the House bill is hardly unknown. Not to long ago, in fact, we were assured that this was brilliant strategy, and it was even given a catchy nickname: "ping ponging."
But today, that strategy doesn't appear to exist among the options.
Why not? Because the House bill would be vetoed, and Bush would just pull the same trick he pulled in August: send me the bill I want, or I'll veto what you send and force you to stay in session to deal with this "emergency." And that will end in capitulation anyway, so why not just save everyone the time and capitulate now?
A principled refusal to capitulate, though, forces the Congress to face an excruciating possibility: that the president is abusing his powers under the Constitution to dictate the terms of legislation to the Congress, and that that's created a serious imbalance in the separation of powers, and revealed the underlying truth that a Congress unwilling (or just unable) to impeach a president that abuses his powers and usurps theirs is completely neutered.
On the other hand, if they opt not to have this fight (or the fight over subpoenas and contempt of Congress, or signing statements, or any of several others that boil down to this same problem), in all likelihood no one of any importance or influence will ever figure exactly how neutered they've become. People may call them spineless and weak, but they won't necessarily notice that they've surrendered the legislative prerogative. That's too much of an abstraction, and even if it wasn't, it'd be too frightening a prospect for most people to contemplate, so they just won't do it.
Now, there's an argument to be made that FISA just isn't the ground on which to make this stand, and that there's some better, clearer turf. And there probably is. But if we're not going to have that fight, either, then the extent to which this gets offered as an excuse, it'll be worth keeping in mind that there's no game plan or strategy for having the fight on any other turf either, so it's ultimately a bullshit excuse.
On the upside, though, civics classes will be easier to teach in the future.
It's a tough spot, to be sure. And the "answer" most often offered -- impeachment -- has considerable practical problems, as desirable and well-suited to the occasion as it is in theory.
But in the long run, it may be no more practical, realistic or pragmatic to continue on as if the problem didn't exist. Someone's got to take stock of this, and start thinking publicly about how to dig out of this hole.
So go ahead, everybody. Get to it. Type me up some answers!