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Monday, November 25, 2013

THE FILIBUSTER AND CHECKS AND BALANCES


 

The tradition of unlimited debate in the U.S. Senate, while not a Constitutional provision, is based on a Senate rule that goes back over a century.  It is only the unwieldy size of the U.S. House of Representatives (435 members) that made such a tradition impossible.  Until just recently, the rule reflected the basic governing  philosophy  of the creators of the Constitution, which was divided government, checks and balances and the avoidance of concentrations of power. 

The filibuster, which was the embodiment of unlimited  debate in the Senate, certainly has been abused by both political parties depending on which party was in the majority in the Senate.  Suggestions to change the rule however, have been opposed in the past by prominent politicians of both parties i.e. former Senator Barack Obama (D-IL) and, current Majority Leader Senator Harry Reid (D-NV).  Now, Senator Reid, with the support of the thin Democrat majority in the Senate and the concurrence of President Obama, has changed the rule to do away with the filibuster by changing the requirement for ending debate (“cloture”) from sixty votes to fifty-one, a simple majority.

This was brought on by the fact that the Democrats did not have the necessary 60 votes and the Republican minority was not cooperating with respect to the President’s choices of Cabinet secretaries and federal judges.  The Constitution does not demand acquiescence by the Senate in such nominations.  It specifically requires the “advise and consent” of the Senate to approve those choices.  If the Senate is expected to automatically approve the President’s nominations then the “advise and consent” provision of the Constitution has no meaning.  That of course, was clearly understood though most of U.S. history until now. 

Defenders of Senator Reid’s initiative reside totally in the liberal wing of the Democrat Party. They argue that a simple majority is a manifestation of “true democracy” i.e. majority rule. This is the basis of the parliamentary system of government in which the leader of the majority party in the lower legislative body is always the chief executive (Prime Minister).  Thus this is a system of one party rule which America’s “founders” rejected, unless provided by elections to both houses and the presidency. Although it has occurred occasionally through U.S. history, it represented a concentration of power which the various requirements for super majorities off-set. The liberal “wing” actually makes up most of the Democrat Party who support the President’s nomination of liberal judges for the federal courts, especially three vacancies on the Federal Court of Appeals for the District of Columbia Circuit which hears most appeals involving the federal government.  This makes this court the most important federal court after the Supreme Court.  This also makes the importance of the now defunct cloture rule of sixty votes compatible with the “framers” belief that issues of great importance should require super-majorities, requiring a significant portion of the minority which would then demonstrate a higher level of consensus than just fifty percent plus one.

The Constitution makes clear the importance of such a belief.  The President, or his delegated representative, may negotiate and sign treaties with foreign powers but the Senate must ratify such treaties by a two thirds vote for them to become U.S. law.  The Constitution itself may be amended but this highly important process requires a two thirds vote in both houses of Congress and under the usual process, a three fourths concurrence by states legislatures.

Impeachment of federal officers, including the President and federal judges requires a two thirds vote in the “trial” portion of the process which occurs in the Senate.  Confirmation of federal judges, who serve for life, is also a matter of high importance and the super majority of the previous cloture threshold was entirely appropriate.

What Senator Reid and the Democrat majority has done is make an ideologically driven change of an historic Senate rule for short term gain; short term because the Senate, and the Presidency will not permanently remain in Democrat hands.  The political pendulum will shift but the nation’s political process will suffer in the long run.

Sunday, November 17, 2013

THE FOLLY OF "FIRSTS"


It is now November 2013, and already the political media has started a speculation and agenda driven “analysis” of the November, 2016 U.S. presidential election.  Why?  The speculation part is simply what pundits do for a living, although tiresome to readers and listeners simply interested in current political news.  The agenda part comes from interest groups, pundits and editorial boards, eager to get a jump start on the selection process by building momentum for a particular candidate.  Thus the movement to create an atmosphere of inevitability around the Democrat nomination and election of Hillary Clinton is in full force.  A “super pac  (political action committee) has been established to raise millions on her behalf and squeeze out the fund raising efforts of other Democrat candidates who might challenge her.  A quasi-official campaign staff of volunteers is being organized and Hillary, who hasn’t made a public commitment to run, is traveling the country giving speeches before friendly audiences.

Hillary was also the “inevitable” Democrat nominee and “next President” in the 2008 elections, until an unconventional young candidate who matched her ambition and lack of credentials, pushed her aside and went on to win the nomination and presidency.  Besides having thin resume’s, an underlying theme motivated the most dedicated supporters of both candidates, the notion of “first”.  Hillary was to be the “first” female President of the United States.  This captivated the imaginations of women young and old who seemed to see it as some kind of validation of them as equal citizens. To feminists, it took on the characteristics of a revolutionary movement, not to be denied by such old fashioned “glass ceiling” concepts like qualifications and ideology. The thin reasoning offered by the feminists then and now, seems limited to the notion that a female president would provide an important role model for the nation’s little girls who could now aspire to that same high office.  Of course, the unspoken limitation imposed by such organizations as the National Organization for Women (NOW), the Feminist Majority Foundation, and Emily’s List, is that only a liberal Democrat female president would properly fulfill this role.  

Hillary was going to be “the first”, except she wasn’t. While the Republican well had been poisoned by George Bush’s multi-year military campaigns in Iraq and Afghanistan and the on-set of the “great recession”, Barack Obama offered his own “first” candidacy which appealed to the Democrat Left which was already put off by Hillary’s senate vote in support of the invasion of Iraq.  Essentially, the prospect of the “first woman president” was defeated by the attraction of the “first black president”.   On November 13, 2013 the Washington Post reported that “Guests descended upon the Japanese Embassy to celebrate (Caroline) Kennedy as the nation’s ‘first female U.S. envoy’, (ambassador to Japan.)  Here is a woman, noted for nothing besides her relationship to President John F. Kennedy, who died when she was six years old, and her inherited wealth.  She has a law degree but has never practiced, spending her entire “professional life” lending her famous name to  boards and advisory positions of non-profits, arts and education organizations. While she may be a charming and intelligent individual (or not), there is nothing in her background that indicates any knowledge of, or experience with , international relations and diplomacy in general, or of Japan in particular.  Ambassadorships are commonly awarded to financial and political supporters of successful presidential candidates as rewards for their patronage.  However, most of these appointments are to lesser important and socially appealing posts like Caribbean island nations or European fun spots like Lichtenstein or Luxembourg.  Relations with Japan are critical.  Japan and China are involved in a serious conflict over remote islands in the Western Pacific which may have important oil reserves.  The constant tension with the nuclear armed dictatorship North Korea presents an important regional security threat which requires continuous and sensitive diplomatic efforts among the U.S. and regional nations including Japan.  Another highly sensitive diplomatic issue with Japan is U.S. military basing agreements.  This is not the place for a social/political appointment of an unqualified “first”.

When President Obama decided that Federal Reserve Chairman Ben Bernanke would not be reappointed, it became known that his preferred choice for the position was Lawrence Summers, an esteemed economist, former President of Harvard University and economic advisor to the president.  However, feminist organizations immediately started a media campaign to use the vacancy to achieve the appointment of “the first female” Chair- (man; woman; person) of the Federal Reserve.  The person the feminist organizations picked was Janet Yellen.  Yellen is indeed qualified.  She has served as the Vice Chairman since 2010 and has a significant professional background in economics.  But her nomination was promoted on the basis of her being the “first”.  Again, no attempt was made to make the argument that her chromosomal make- up would provide special insights, competency, or even any policies that differed from either her predecessor or Summers.  The political heat became so inflated that Summers withdrew his name from consideration and Obama was able to make the “politically correct” choice necessary to accommodate the “glass ceiling” crowd.  In her recent Senate confirmation hearings Yellen supported the continuation of Bernanke’s bond purchase “stimulation” policy which has pumped billions of dollars into the economy and is becoming increasingly controversial, so expect nothing new.

Although George W. Bush appointed the “first black female” National Security Adviser who then became the “first black female Secretary of State”, “firsts” have been mostly the agenda of the Democrats. While  celebrations of “firsts” might be of interest to cultural historians,  few, if any supporters of individual “firsts” ever explain how the individuals who actually are the “firsts” are substantively different from others who might have been elected or appointed.  Thus, the question of appearance out weighing competence always remains below the surface. 

More recently, there has been press speculation about the political attractiveness of New Mexico’s Republican Governor, Susana Martinez as a potential presidential candidate.  Ms. Martinez is the “first Hispanic female governor” of New Mexico.  It was reported that Governor Martinez was considered for the Vice Presidential nomination by 2012 Republican candidate Mitt Romney.  This would have been a crass political event of Palin-like proportions, and would have achieved the same result.  Martinez may be an intelligent and capable politician but there is no question that her electoral success in generally liberal and heavily Hispanic New Mexico was aided by her ancestry which in theory is seen by some to be transferable to the national electorate. However,   there is also no question that her resume’ does not reflect sufficient qualifications for the most important political office in the world.  She has been governor of New Mexico only since 2011, prior to that she was a government lawyer.  That’s it.  Still, the ever pretentious editors of Time magazine in 2013, named her one of the “100 Most Influential People in the World”, (along with rapper J-Z).  This is certainly a lofty credential, or would be if anybody took it seriously.  New Mexico has just five electoral votes out of the national total of 538 and a population of just over two million, a little less than Houston, Texas.  Thus, in spite of Time magazine’s over reach, her selection reflects the unfortunate devolution of the U.S. electorate into competing groups engaging in “identity politics”, that is, supporting candidates who share their ethnicity, gender, or even gender identification , and without close scrutiny of their qualifications .

The supporters of “firsts” feed off this tendency ignoring the down side, one of which is the unfair perception that choice of qualified candidates and appointees was mostly the result of their “first” characterization and not their achievements.  Of course, the major down side is the possibility that they are not qualified at all.

Based on her current resume’, and compared to the incumbent, Hillary is “qualified “for the office of the presidency.  However, in her role as Secretary of State ,after being sent out of the country for four years by Obama, the state of U.S. relations with the important nations of the world does not reflect a record of significant accomplishment on her part.  Relations with Egypt, Saudi Arabia, Israel and the Palestinians, Russia, China and even European Union countries, are frayed to poor.  Thus there is an important difference between “qualified” and competent.  Obama was neither, and in spite of his status as a “first” and his success at breaking the “color barrier” to the White House, the nation is not any better off after his five years in office in terms of public policy or domestic race relations, or by any other important measure. Indeed, he may have done a disservice to future more capable black candidates.  By being the “first”, he may have become the “last”, for the foreseeable future.

And in spite of Hillary’s new and improved qualifications since 2008, the main justification for her candidacy is still to be the “first” female president.  Such a rationale without close examination of her public policy vision for the nation and her views on the proper role of the U.S. in the world will put the country at risk of another four or even eight years of decline.

 

 

 

Thursday, November 7, 2013

IMMIGRATION: COMPROMISE OR GRIDLOCK


Now that the fight over the extension of the debt limit and the government shut down is over, (until it starts again in early 2014), President Obama has said he wants to move on and focus on “comprehensive immigration reform”.  An immigration reform bill actually was passed in the Democrat controlled Senate (S.-744) in June.  Under ordinary legislative procedures, this bill would be introduced in the House of Representatives and after the inevitable modifications, it would go to a Conference Committee of members of both houses for negotiation into one final bill for votes by both houses.

However  “ordinary legislative procedures” seem to be an endangered species; most votes of any importance in the Senate now require a minimum of 60 supporters instead of 51 to avoid the threat of a filibuster; the “ordinary” annual federal budget process has been suspended by partisan intransigence and has been replaced by a series of “continuing resolutions” that simply extend government spending at existing levels;  joint Senate/House committees like the one that was supposed to avoid the across the board cuts required by the “sequester”,  are stacked with ideologically intransigent members from both houses which make successful compromise impossible.

So what will happen when, or if, the Senate immigration bill gets to the House?  First, the President, the Democrats, Hispanic advocacy groups and their liberal supporters have insisted on a “comprehensive” reform bill.  That means they want one huge bill that addresses all the problems with the current immigration situation and is broad enough to allow the inclusion of the more permissive aspects of their version of reform.

The House Republicans want to deal with the problems with a series of bills that address specific issues.  That will allow them to prioritize the reform effort and put border enforcement at the top of the list.  Democrats are more concerned with the legal assimilation of the 11-14 million illegal aliens currently living in the U.S.

The Senate bill did pass with the support of 14 Republican Senators who were able to negotiate the inclusion of some provisions that are most important to conservatives in the House.  However, the substance of some of these provisions and the general provisions for establishing a legal status for the millions of resident illegals will still stimulate significant opposition in the House. 

Essentially the broad divisions are between those who are seeking tougher border enforcement to stem the tide of illegal immigration and those who are seeking a “path to citizenship” for current illegal residents.  The Senate bill and a similar one which has been introduced in the House attempts to deal with both issues. 

Basically, the path to citizenship creates a new class of immigrant status, the Registered Provisional Immigrant status for which illegals may apply if they’ve been in the U.S. continuously prior to December 31, 2011. The application period is for one year but can be extended by the government. There is a cash penalty fee and those with a criminal history are inelegible.

RPI status lasts for six years but is also renewable. After ten years the RPIs can apply for permanent legal resident status under existing rules. After three years as permanent legal residents, individuals may apply for citizenship, thus creating a 13 year track to become citizens.  During this process the RPIs are not eligible for Federal benefits including Obamacare.

To satisfy the border security first proponents S. 744 contains the following provisions:

The bill requires an additional 19,200 Border agents be hired bringing the total to 38,405.

Seven hundred miles of border fence will be installed

The E-Verify system of legal employee identification must be fully implemented for all employers.

Electronic surveillance, unmanned aircraft, radar stations and other sensors will be deployed.

Thus S.744 appears to be the most comprehensive attempt at bi-partisan immigration legislation to date and should provide a strong basis for the inevitable further negotiations that will come with the House of Representative’s response.  The bill however, is not without flaws and its authors have also succumbed to the usual temptation to use the “comprehensive” label to include more than is necessary to address the primary issues in immigration reform, which will make it more difficult to reach a final agreement.

The included provisions of the Southern Border Fencing Strategy and the Southern Border Security Strategy which include the above requirements, require prompt action on the part of the Secretary of Homeland Security to establish “plans” for “effective control of the border. These represent “triggers” which must be accomplished before RPIs may apply for Lawful Permanent Residence status (green card) on their way to naturalization i.e. citizenship.  However, that is a ten year process.  A Southern Border Security Commission will be created to make recommendations to achieve these goals if the Secretary of Homeland Security cannot certify “effective control” of all borders within 5 yrs.

So is this legislation going to fix the problem of illegal immigration especially from the southern border?  The answer is no.  From the Democrats and Hispanic activists point of view that was never the goal.  Their goal was legalization and a path to citizenship for the eleven million illegals now living in the U.S. and “reform” in immigration policy to allow even more immigrants into the country legally. The legislation does both.

The goals of Republicans were first to secure the border and then find some accommodation  with moderate Democrats, if any could be found, to deal with the existing illegal immigrant population. In spite of the enhanced security measures required by the bill, securing a two thousand mile border is a physical impossibility. The new border patrol agents and new technology will help but the legislation contains a “hedge” by giving the Secretary of Homeland Security five years to certify “effective control’ and then the only result of a failure will be “recommendations” on the part of the Southern Border Commission.  Until the incentives for coming into the country are reduced and penalties assessed for violation of the law, illegal immigration will continue. 

Ironically, the very fact that the current eleven million may be granted an amnesty including full citizenship benefits, might itself be a continuing incentive for the next eleven million to come.  The legislation actually makes it more difficult to deport illegal aliens by providing enhanced legal counsel  and more discretion for immigration judges to grant legal status of some kind.  De-incentivizing  also must include lowering the expectations of employment.  This makes the mandatory use of E-Verify by employers crucial.  But this is a five year plan with staged implementation. 

House Republicans have already introduced several bills dealing with specific parts of the Senate’s legislation.  Clearly they should not simply throw up non-negotiable road blocks to any reform attempt.  S.-744 is far from perfect but political momentum for doing something is widespread and the political damage that would follow a simple obstructionist position following the damage done over the government shut down and debt ceiling fiasco would be significant.  The “comprehensive” Senate bill need not be adopted all at once and the current Republican strategy of passing different parts of the bill as separate legislation can be followed if the core portions are seriously dealt with. 

The Senate bill includes reform of HB-1 visas which deal with immigrants who have special skills and request non-permanent admittance.  It also significantly raises the number of immigrants who would be allowed to enter the U.S. legally under existing law. These provisions  have nothing directly to do with the border issues or the current illegal immigrant population and could be considered separately so that they can be considered after specific analysis and debate.

There is room for toughening up the schedule for upgrading border enforcement and shortening the schedule for full E-Verify compliance with penalties included.  The  “amnesty” need not include a “path to citizenship” although this has been the “holy grail” espoused by the political Left for years.  Millions of immigrants who entered the country legally currently have permanent legal residence.  Rewarding those who entered illegally is simply a liberal gift and an attempt to add millions to Democrat Party registration.  Nonetheless, House Republicans should work to produce common sense legislation that serves the core goals of both parties while looking to the future interests of the nation, and the reality is that Democrats in the Senate will have to be prepared to make concessions also if they want to reform immigration policy in 2014.