Monthly Archives: December 2009

I Got A Fever, or Why We Need More Senate Filibusters

In the recent debate on health care legislation, Senate rules forced Democrats to come up with 60 votes to invoke cloture and end the threat of a Republican-led filibuster so that health care legislation could then come to a vote. Because there are only 60 Senators who vote consistently with the Democrats, this meant the balance of power accrued to a bloc of moderate Democrats, led by Nebraska Senator Ben Nelson, who used their strategic position to extract huge concessions for their states in return for supporting the leadership’s proposal, and to block passage of any bill that contained provisions, such as the public option, that they opposed. In the end, the health bill passed, but just barely and in watered down form that made it more like insurance reform rather than a fundamental reworking of the fee-for-services, employer-based system most Americans utilize.  The outcome produced howls of protest from liberals, even those who accepted the outcome as better than no bill at all.  Paul Krugman’s comments are typical: “It was, however, a close-run thing. And the fact that it was such a close thing shows that the Senate — and, therefore, the U.S. government as a whole — has become ominously dysfunctional.”

The most obvious evidence of that dysfunction, according to Krugman and others, is the increasing use of the filibuster. The need for at least 60 votes to bring legislation to vote, rather than a simple majority of 51, allows a Senate minority to prevent passage of legislation supported by a Senate majority and by the public.

It’s easy to dismiss Krugman’s objections, of course, since he’s an economist (and is paid to editorialize) and not a political scientist.  But even some knowledgeable students of politics have come out against the filibuster. So I want to take some time to explain why Krugman is wrong, and why the filibuster serves a very useful purpose, especially in this increasingly polarized atmosphere.  To anticipate my concluding point, I will argue that we need more filibusters, not less. Let me explain.

As most of you know, the filibuster refers to senators’ use of procedures, most notably holding the Senate floor, to prevent a vote on legislation. The filibuster, (as Krugman and others critics are fond of pointing out) is not explicitly part of the Constitution – it is a Senate rule that developed very early in that chamber’s history.  Under the Constitution, each chamber is granted authority to develop their own rules. (This will become important when I talk about reform.) Although the actual term filibuster didn’t come into common use until the 1850’s, both the Senate and the House operated under rules dating back to the beginning of the 19th century that allowed almost unlimited debate. (The history is a little more complicated than this, but fully documenting it would require a separate post. However, Greg Koger has some very short, readable posts gathered here that provide some fascinating background.)  Eventually the House ended the practice of allowing unlimited debate as it grew in size, but the Senate retained it until 1917, when its rules were finally altered to allow 2/3 of the Senate to invoke cloture to end a filibuster, that is, to end debate and bring an issue to vote. That number was reduced to 3/5, or 60 votes, in 1975. (See a brief Senate history of the filibuster here.)

If Krugman and others’ arguments against the filibuster seem familiar, it is because they parrot the claims made by Republican supporters four years ago, when the then minority Democrats used the threat of a filibuster to block the Republican-controlled Senate from voting on ten of President George W. Bush’s judicial nominees. Were it not for a compromise constructed by a gang of 14 moderate Senators that allowed some, but not all, of Bush’s nominees to come to a vote, Senate Republicans threatened in 2005 to invoke the “nuclear option”, that is, to blow up the use of the filibuster. (Essentially, this was a parliamentary procedure that would allow a majority of Senators – 51 as opposed to 60 – to invoke cloture to end a filibuster.) Their efforts to make stopping a filibuster easier were opposed by a litany of progressive groups, such as, as well as minority leader Senator Harry Reid, who defended the use of the filibuster as a way to protect minority interests and prevent confirmation of judicial nominees that they felt were too politically extreme.

So we see that what’s bad for the goose is bad for the gander. Or Donkey and Elephant, as the case may be.

The growing chorus of complaints from both liberals and conservatives regarding the use of the filibuster reflects in part its increasing frequency, a trend documented by political scientists such as Barbara Sinclair.  She finds that in the 1960s, 8% of major legislation was affected by the threat of a filibuster, but by the 1980s that had risen to 27% and after Democrats retook Congress in 2006, it jumped to 70% of major legislation.  (I will try to get more detailed data from Sinclair to post.)  Suffice to say, however, the use of the filibuster, and of the cloture votes to end it, is on the rise.

What explains the rise in the use of these tactics?  A reasonable explanation is the growth in partisan polarization in the Senate as the moderate middle shrinks in size, something I’ve discussed in depth in previous posts.  But as Koger points out, the rise in the use of obstruction-related tactics predates the increase in polarization. Instead, he suggests that the use of the filibuster is on the rise because Senators have found it to be a more efficient tool for protecting individual prerogatives.  Sixty years ago, when a Senator took to the floor to filibuster, senators would merely wait him out, employing a strategy of attrition. It was an effective but time-costly strategy.  (If you want to see what it was like, watch Jimmy Stewart in Mr. Smith Goes to Washington.)  But in the more hectic Senate schedule of today, when business is increasingly conducted in the Senate chambers on a Tuesday-Thursday schedule so that Senators can return to their home states, that strategy is no longer efficient. Instead, Senators are more willing to begin debate by invoking cloture at the start, thus forestalling a threatened filibuster.  That, in turn, makes it easier for individual Senators to use the filibuster, because they know it will be ended through a cloture vote. In other words, as the cost of filibustering in terms of using precious Senate time has lessened, the frequency of its use goes up.

More generally, we tend to think of the filibuster as a tactic used by the minority party to thwart the will of the majority.  But that’s misleading – members of the majority party are equally obstructionist, but their threats to filibuster tend more frequently to get resolved behind closed doors, before reaching the stage of an actual filibuster.  (These objections often take the form of a Senate “hold” – an injunction on an action that is the precursor to a filibuster.)  In short, it is more accurate to view the filibuster as simply another manifestation of the Senate’s propensity to protect the influence of individual Senators. At its core, the Senate is a deliberative body.  Critics of the filibuster like Krugman and Ezra Klein argue that the filibuster, as now used, stifles debate. This is different, they argue, from its “proper” function, which is to “protect” debate.  But this is a distinction without a difference.

Consider the health care debate.  The threat of a Senate filibuster didn’t empower the minority Republicans – it empowered moderate Democrats in the majority, like Lieberman, Landrieu, Lincoln and Nelson.   Republicans, with the conspicuous exception of Snowe, were largely left out of the debate and in the end not one of them could bring themselves to vote for the bill. Nor did it stifle debate – indeed, it did just the opposite. In the end, the need for 60 votes forced the Senate leadership under Reid to make several significant concessions that eventually changed what might have been health care reform into significant insurance reform.  Now, you might not agree with the outcome – you might have preferred a single payer option, or a bill that contained a public option, or one that extended Medicare.  But all these elements were considered and they were eliminated as the price necessary to attract those 60 Senate votes.

In truth, what we see here is that the latest criticisms by Krugman and Klein and others regarding the use of the filibuster is largely driven by the outcome it produced in the health care battle, rather than any principled debate on its merits.  (And that’s generally the case with any reform – think about debates regarding the Electoral College. Democrats really got in a snit in 2000 when Gore won the popular vote but lost the Electoral College vote [and yes, he really did lose the Electoral College vote.]) Indeed, I’d feel a lot better about Krugman’s complaints if I heard him voice them in 2005 by arguing for an up or down vote on Bush’s judicial nominees. But no matter… pointing out critics’ hypocrisy isn’t the issue here – defending the filibuster is.

My larger point is that the Senate, unlike the House, is a chamber designed to protect the rights of individual Senators to deliberate.  In this respect, if the filibuster didn’t exist, it would have to be invented.  Put another way, Senators increasingly utilize the filibuster because it is the most economical way to protect individual senators’ deliberative rights. Eliminating the filibuster, or making it easier to invoke cloture, would likely merely shift the means by which Senators protect their prerogatives.  How do I know this?  Because the history of the Senate shows that the chamber resists any reform designed to weaken the autonomy of individual Senators.   Consider the compromise engineered by the Gang of 14 in 2005 – when the Republicans threatened the nuclear option to end the filibuster – moderates in both parties scrambled to find a compromise to defuse the crisis in order to prevent the imposition of de facto majority rule.

Put another way, Senators will do almost anything to prevent their chamber from becoming a facsimile of the House.  Let me be clear here – nothing stops the majority party right now from changing Senate rules to empower the majority party.  That they refuse to do so reflects their understanding that, under the Constitution, the Senate serves a different purpose than the House.

To see what would happen if we changed the rules in the Senate to allow the majority unfettered power, we need only look at the House – a chamber that lacks any supermajority requirement.   Here the Republicans were largely a peripheral force during the health care debate – but so were conservative Democrats; with the conspicuous exception of the Stupak amendment, the health care bill was essentially developed by the party leadership, working from three committee bills. Only one Democratic amendment was accepted on the floor. In the end fully 39 Democrats – almost all conservatives – were forced to vote against the bill.

My point is that there was arguably less debate in the House – certainly the conservative wing of the majority party had much less leverage to move the bill closer to the middle than did their Senate counterparts.   More generally, the trend in the House in the era of increased party polarization has been away from deliberation, and toward majority-party rule.

In the end, the debate is not really about the filibuster – it is about the role of the Senate in our constitutional system.  As such, it is a debate about federalism – about a system of representation that by recognizing the rights of individual states regardless of population allows for regional interests to influence Senate debate.  Sometimes that means the minority of Senators can thwart the will of the majority of Senators. But it also means the filibuster can be used to prevent a majority of senators who represent a minority of the national population from enactinglegislation or confirming nominees to the court or executive branch.  That is, the filibuster can be used to protect majority interests of the public.

More generally, by forcing deliberation, it protects states’ interests. The threat of the filibuster allowed Ben Nelson to make certain that the federal government would pay for any additional Medicaid costs imposed on his state of Nebraska.  Changing the filibuster rule will not eliminate the tactics of obstruction employed by Nelson and other senators to protect their states’ interests.  To do that you have to change the reasons why Senators refuse to eliminate the filibuster and other obstruction-oriented tactics – you need to change federalism. Unlike in the House, these tactics insure that minority interests are protected against a majority.  It means that the federal government can’t put a nuclear waste dump in your state, or relocate the Gitmo terrorists there, or do any number of things which the majority might like but which your own state’s residents oppose.

Indeed, there is an argument to be made that in this polarized atmosphere, we want more filibustering, not less, in order to protect regional differences and to make sure that whatever passes the Senate must at least attract some moderate support.   Furthermore, a strong case can be made that the filibuster prevented the Senate from passing a more liberal piece of health care legislation that was farther out of step with the more moderate impulses of Americans, the cost of which would be borne by many states whose residents opposed key elements of that reform package.

In the end the Senate passed health/insurance reform.  It’s not what Krugman or liberal Democrats wanted.  But we forget it’s not what conservatives Republicans wanted either. In an increasingly polarized Senate, in which Democrats grow more liberal and Republicans more conservative, there’s something to be said for maintaining a mechanism that, as we saw in the health care debate, protects the interests of the moderate middle.

When conservative and liberal bloggers are both outraged about the details of the health bill, we need to remind ourselves that the American political system is premised on the idea of checking the passions of the majority through a variety of mechanisms, included a sharing of powers at the national level, and a federalist system that recognizes the role that individual states play.  It is a unique system in the world, one founded on the ideal of limiting the ability of government to impose its views on the people.  The filibuster, although it has no Constitutional basis, is an outgrowth of that underlying system. Want to end the use of the filibuster and all other tactics of obstruction?   Remove Senate representation based on states – that is, federalism.  Replace geographic representation with at large elections, with representation apportioned by how many votes your party gets.  That would end the use of the filibuster and other mechansisms designed to protect minority interests in a heartbeat.

That’s really what the debate is about:  should we change the underlying premise of Senate representation?

In the meantime, let me paraphrase Christopher Walken in his justly famous Saturday Night “cowbell” skit:  in this era of polarized parties dominated by extremists, I got a fever, and the only prescription is more filibusters, not less.

Addendum: Ezra Klein took questions on his article on the filibuster today and perpetuated some of the misleading ideas about the filibuster that I address above.  Note in particular  how he equates majority vote in the Senate with the “public interest” and suggests that’s what the Framers wanted as well.  As an alternative perspective, go read Madison’s Federalist #10 for starters. Here’s the link to Klein:

Health Care Reform, the Left, Campaign Promises and Christmas in Vermont: The Legislative Stocking is Half Full

When is health care reform not health care reform?  When it is largely insurance reform, which – according to critics – is precisely what the Senate is on the verge of passing.  The combination of individual mandates and no public option is, according to many on the Left, a giant payout to insurance companies because it forces people to rely on the existing private insurance system to pay for health care.  (That’s why, they claim, insurance stocks jumped on news of the Senate deal.)  Whatever the merits of this criticism (and I think it is a vast oversimplification of what the current legislation does), the Senate version of a health reform bill passed another procedural vote last night, and if the Senate is able to muster the 60 votes on Wednesday to invoke cloture on debate regarding the latest version of the bill – as it appears will happen – the bill is on track to pass the Senate on Christmas Eve.  At that point it will have to go to conference to iron out the differences with the House version – no mean feat.  This is a long way from a done deal, but it is progress.  Whether it is beneficial progress, of course, depends on to whom you listen.

At this point, however, nothing has happened to change my prediction, posted in an earlier blog here, that Congress was never likely to pass the type of health care reform that the Left wanted and that the final bill would be closer to insurance reform than health care reform. The reason, I argued, is that Obama lacks the political clout to fulfill his campaign promises regarding health care, particularly his pledge not to support individual mandates and to include some version of a public option.  In fact, the current Senate bill, with the inclusion of the individual mandate, does more than I anticipated, and in that sense can be viewed as a significant accomplishment.  But because it is not what Obama promised during the campaign, much of his party base has turned against him with a vengeance. The following comments by journalists Matt Taibbi and Bob Kuttner, in an exchange on Bill Moyers’ PBS show, capture the sense of disappointment by many in the Democratic base:

TAIBBI: “I mean, that’s what George Bush did when he wanted to get something unpopular passed or something that was iffy. I mean, he just took, you know, if there were any recalcitrant members, he just took him in the back room and beat him with a rubber hose until they changed their minds. I mean, he could’ve taken Joe Lieberman back there and said, look, if Connecticut ever wants a dime of highway money again, you’re going to have to play ball on this thing. That’s what the president does. I mean, the president has an enormous amount of power…. I just – the idea that they couldn’t do this was – is a fallacy.”

Kuttner, one of the founders of the influential American Prospect,  also takes Obama to task, but for failing to take his case to the people: “The other way you can do it is to try to rally the people against the special interests and play on the fact that the insurance industry, the drug industry are not going to win any popularity contests with the American people. And you, as the president be the champion of the people against the special interests. That’s the course that Obama’s chosen not to pursue.”

This is the type of fantasy that passes for analysis in many media outlets. First, Obama was in no position to threaten any Senator with a loss of funds. Instead, influence went in the other direction; it was individual senators who brought the rubber hoses to the Senate floor. Earlier I suggested that there are essentially two ways in which health care could achieve 60 votes in the Senate. One was to alter the substantive details of the bills to attract more moderates, but without losing votes on the Left.   The second was to make side payments to fence-sitting senators.  By last week, it was clear that Harry Reid could not devise a bill that would keep the Left on board and still attract moderate support without some additional “incentives” in the form of amendments to win over wavering senators. Recognizing this, Reid opened the legislative spigot to round up the remaining votes.  Consider my own state of Vermont’s Bernie Sanders, one of the Senate’s more liberal members who earlier introduced a single-payer health care plan. Last Wednesday he announced that because of the elimination of the public option, a step taken to attract moderate Senate votes, he could not longer support the Senate bill. Without his support, the bill was dead.

Yesterday, however, Sanders voted in favor of the bill. What happened?  Did Harry Reid acquiesce to Sanders’ principled stand and reinsert a version of the public option?  Of course not.  Instead, he bought Sanders’ vote by increasing Medicaid reimbursements by $250 million to Vermont and adding money to fund at least two additional community health centers.  Sanders is not shy about trumpeting his willingness to sell his vote for an increase in state aid – you can read about it on his own Senate website:

“One of the reasons I voted for the Senate bill was that we were able to get in an amendment for $10 billion over five years to expand community health centers and the National Health Service Corps,” said Sanders on Monday. “You’re talking about a program that benefits people in 50 states.”  Of course, what he downplays is the fact that his support was conditional on some of that money going to Vermont to fund Medicaid and the creation of more community health centers.

Note: I am not criticizing Sanders for using the threat of defection to leverage additional state aid – his was only one of numerous last-minute deals Reid made, in the form of the 383-page package of amendments to the initial Senate bill, to secure the necessary 60 votes.  The last holdout, as I suggested earlier it would be, was Ben Nelson who occupies the 60th most liberal position in the Senate based on voting studies. Much was made in the media about the carefully crafted abortion amendment that allowed Nelson to support the Senate bill.  Less well noted, however, was the increased Medicaid funding that he also negotiated in the final package for his state of Nebraska.

Sanders and Nelson and Mary Landrieu (D-LA) and Blanche Lincoln (D-AR) did what Senators are supposed to do in our system of shared powers based on geographical representation – use their influence to address the interests of their states.  And one can make a strong case that additional Medicaid funding and more dollars for community health centers is money well spent.  My larger point, however, is that again and again pundits overestimate the ability of the president to influence the particulars of health care reform. Too often the health care debate is portrayed as a test of Obama’s persuasive powers; if only he brought the rubber hose to his meetings with Congressional leaders, or used his rhetorical skills, he could have achieved his campaign promises. This, in my view, is a gross misreading of the president’s powers, something those on the Left continually fail to grasp.  In truth, Obama has almost no formal powers, short of threatening a veto, with which to influence legislative debate. Similarly, he can make all the speeches he wants, and the heavens will open and the petals will rain down and supporters will weep and Senators will largely ignore him. Contrary to what Taibbi and Kuttner and legions of other bloggers would have you believe, presidential rhetoric designed to mobilize the masses is no substitute for control over tangible benefits – benefits that Obama is not in a position to deliver by himself.  And threats to withhold federal aid or other resources are worse than meaningless – they are counterproductive in a system in which the president depends on Senate support in future legislative debates to achieve his policy goals.  I understand that many of Obama’s supporters voted for him in the hope that he would produce substantive policy change.  But by overestimating the strength of his electoral victory, and the power of the presidency more generally, they fail to see that even insurance reform as represented by the current Senate bill is a significant accomplishment.

Repeat after me: the presidency is weak.  Why is it weak?  Because that’s how the Framers intended it to be.  Ours is a congressional system of government – not a presidential one.  You wanted real health care reform?  Don’t blame Obama – blame Madison.

I’ve received several emails about the filibuster, which is back in the news now that Paul Krugman has decided it serves no useful purpose.  I’ll explain why Krugman is wrong in my next posting.

Obama, Gallup and the Purple Crayon: Worst Approval Ratings Ever?

Gallup’s daily tracking poll released last Monday, showing that Obama’s approval had dipped to 47%, “a new low for his administration to date” provoked a strong rebuke from White House spokesperson Robert Gibbs. He likened the Gallup poll to an EKG, or something a child might draw (because EKG’s and stick pictures are almost indistinguishable, I guess, and of equal significance):  “I’m sure a six-year-old with a Crayon could do something not unlike that. I don’t put a lot of stake in, never have, in the EKG that is daily Gallup trend. I don’t pay a lot of attention to the meaninglessness of it.”

Gibbs’ response is understandable, but misdirected (and not particularly effective, I might add).  He is right, of course, to dismiss daily movements based on the average of a three-day tracking poll as signifying anything more than statistical noise.  Moreover, the fact that Obama’s rating is the lowest in Gallup polling history for this juncture is somewhat misleading; in fact, both Harry Truman and Ronald Reagan checked in at almost similar percentages at the same point in their presidency, as the following chart shows:

President (from highest to lowest in approval) Approval Rating at About 10 months
George W. Bush 86
John F. Kennedy 77
Lyndon Johnson 74
George H. W. Bush 71
Dwight Eisenhower 69
Richard Nixon 59
Jimmy Carter 57
Bill Clinton 52
Gerald Ford 52
Ronald Reagan 49
Harry Truman 49
Barack Obama 47

I’m not sure of the significance of a daily tracking poll that shows perhaps a 1-2% difference between Obama’s approval rating and that of some previous presidents at this juncture in their presidency.

But what Gibbs ignores is the unmistakable fact that Obama’s approval rating has exhibited a steady decline since he took office.  Two composite trackers – one by Pollster.Com and the other by RealClearPolitics – clearly show the long-term downward trends.  The virtue of these polls is that they aggregate several different individual polls, thus dampening the house effects exhibited by any single polling company.  The latest Real Clear Politics composite shows Obama’s approval ratings exhibiting an almost steady decline, so that today “…Obama has … reached an all-time low approval rating in the RCP National Average at 48.9%.”  Of the 7 polls (not counting  the two daily tracking polls) used by RealClearPolitics for their composite poll, 6 recorded all time lows for Obama in their latest results, with only Fox News showing an increase in his approval during the last month.

As you can see, shows a similar trend here:

Predictably, right-wing bloggers and even ostensibly neutral news pundits interpreted the latest results as further evidence that Obama’s influence is eroding.   At, David Winston opined: “Simply put, if a Presidential job approval is below 50%, a governing majority coalition does not exist and without a governing majority, controversial policies like health care and cap and trade are relegated to the uphill climb of minority status….:   Winston warned that if Obama’s disapproval ratings should exceed his approval ratings, his presidency would be seriously compromised.  And, in fact, that is precisely what has happened in several recent polls that show more Americans disapproving of Obama’s job performance than approving, although he still retains a slight overall advantage in popularity when all polls are aggregated.

Even usually sober-minded political scientists like Larry Sabato expressed alarm at the historical significance of Obama’s declining approval rates:  “President Obama has reason to be concerned about his ratings. Even in tough times, presidents have usually been able to stay above the critical 50 percent mark in the first year, when the public is most inclined to give the new incumbent the benefit of the doubt.”  (Source here).

What these comments all have in common is the assumption that approval ratings are in some sense a measure of a president’s “political capital”; that they serve as a resource upon which presidents can draw to use in negotiations with Congress, much as you or I might withdraw money from our bank account, and therefore it is bad news when popularity declines, particularly below the 50% mark.  The more popular the president, goes the argument, the more leverage he has, because he can “take his case to the people” to overcome congressional obstinacy.  The view is captured nicely in this line from the usually reliable Christian Science Monitor: “Poll numbers bounce around, affected by events in the country and the world. But they do provide a rough guide to the clout a president has in getting his legislative program through Congress.”

The problem with this perspective is that it is wrong. In fact, study after political science study has shown that once you control for the partisan and ideological composition of Congress, a president’s poll numbers have almost no impact on his ability to get his legislation through Congress.   I’ve said it before, but it bears repeating: members of Congress are not oblivious to the President’s national standing, but they are far more concerned with what their own constituents think about a particular piece of legislation, such as health care, than they are about the President’s overall approval ratings.

Presidents should be glad about this, because of a second dirty secret regarding polling numbers: presidents have almost no control over them.  Rather than a useful reflection of the president’s effectiveness in office, they are driven instead by the public’s more general assessment of how the country is doing.  In this regard, Obama’s declining support is driven primarily by the convergence of two factors: the artificially high numbers at the start of his presidency characteristic of the presidential honeymoon – a honeymoon that was initially stronger than average because of the historic symbolism of his election – and the on-going economic recession.  One year into Obama’s presidency many voters, fairly or not, now view the recession as “his”, notwithstanding the fact that he is no more responsible for the sluggish economy than was his predecessor. As presidents dating back to FDR have discovered, they largely lack the tools to do much more than mitigate some of the worst aspects of the economic cycle.

Not surprisingly, given the severity of this recession, Obama’s loss of popular support is the second steepest decline in the post-FDR modern era through Sept. 1, according to Charles Franklin’s calculations using Gallup poll data (if I get a chance I’ll update Franklin’s figures through Dec. 30):

And while Obama’s decline is relatively steeper than that of most other modern presidents (again using Gallup poll data), it is not drastically different from the patterns of approval for recent presidents, including his two immediate predecessors:

These caveats notwithstanding, the media’s fascination with approval ratings is understandable: it is “hard” news that seems impervious to “spin”, and which appears to measure an important component of a President’s sources of power.  And there is some evidence, which I will explore in a later post, that approval ratings are a useful predictor of the president’s party’s performance in the midterm elections.  But it is far too early to extrapolate from Obama’s current ratings to project midterm results in 2010.  And, of course, history shows that a president’s ratings during his first year in office doesn’t say much about where his approval will stand a year hence.

In the meantime, brace yourself for a steady dose of stories about how Obama’s shrinking approval ratings reveal a loss of political clout, particularly when his disapproval consistently exceeds his approval.  We saw the same misguided analysis by pundits during the Bush presidency.  The reality, however, is that when it comes to influencing Congress, approval ratings are scarcely more meaningful than the wonderful pictures Harold drew with his purple crayon:

A Lawyer in the White House and the Surge in Afghanistan: Why They Are Linked

I want to take some time to comment on Sunday’s New York Times story that purports to describe the process by which Obama came to his recently-announced decision to escalate the U.S. military presence in Afghanistan with the addition of 30,000  troops.

In announcing his troop “surge”, Obama linked it with a 2011 deadline to begin drawing down the U.S. military presence. This latter pledge, as I noted when live blogging the speech, is  essentially a sop to the Left of the Democratic Party that opposes any escalation of U.S. combat forces, and is substantively almost meaningless, as the comments from Obama’s advisers the next day made quite clear. What we have, then, is Obama reprising the Bush tactic in Iraq – embracing a potentially open-ended military commitment, combined with a change in tactics, to buy time for the Afghani government to stand on its own. And, as we have seen in Iraq, even if the “surge” works in the short term, it is no guarantee that a stable, functioning government will follow – indeed, I think the likelihood of this happening in Afghanistan is less than the probability of establishing a stable government in Iraq.

Following the lead of NY Times story, however, I’m less interested in assessing whether Obama made the “right” decision than in understanding why he made the choice to reprise the Bush strategy.  I want to suggest that the NY Times article underplays or ignores key elements of the decision process that, in my view, made Obama’s decision both very predictable and points to weaknesses in the way he organizes his advising process.  Be forewarned: what follows is more speculative than most of my posts. In my defense, this story addresses an ongoing research interest of mine; I’ve written extensively on presidential decision making, and devote a full chapter in my latest book manuscript to this issue.  I’m also working with my colleague Professor Amy Yuen on this topic (she’s not to be blamed, however, for anything I write here!)  So this gives me an opportunity to try some of my ideas out on you. I expect some pushback here.

To begin, note that whenever the White House allows reporters an “exclusive” look at how the President made a crucial decision, an implicit bargain is struck: in return for an exclusive story there is an expectation that the coverage is more likely to be favorable than not.  Of course, neither side can or will admit to this beforehand and both will deny it after the story comes out.

It is not surprising, then, that the picture painted in the NY Times story is of a model decision-making process, one in which the President patiently and exhaustively listened to all his advisers, weighed the pros and cons of every option, and came finally to advocate a position – a surge coupled with an exit strategy – that in many ways addressed multiple concerns and superficially split the differences among his advisers. In the end, Obama kept his own counsel and, ultimately, acted as “decider-in-chief.”  I want to suggest, however, that most of what is depicted in the story is, essentially, window dressing (not to put too fine a point on it.)  In fact, as my students heard me say repeatedly in the weeks leading up to Obama’s speech, there was never any real possibility that he was going to reverse course in Afghanistan and begin a withdrawal.  Indeed, dating back to the day he took office, I wrote repeatedly that he would largely embrace the major tenets of Bush’s War on Terror.  And, in area after area, from the use of military commission to the maintenance of the state secrets doctrine to the adoption of the Bush surge tactic he has done essentially that.

In part this is because Obama lacks the political capital to be a truly “transformative” president; his presidential campaign, with its emphasis on somewhat nebulous “change” allowed his supporters to read into it their most fervent hopes but it never provided any real roadmap, nor political clout, for reversing the major elements of the War on Terror. And, for political and institutional reasons, the Democratic Congress has no great incentive to follow his lead in most policy areas – his margin of victory was about average and he had little in the way of “coattails”. (Nor, as I have written elsewhere, was there much possibility that he would substitute a more bipartisan governing approach for the polarization that characterized presidential-congressional relations during the previous eight years.)

But there is an additional reason why I told my students several weeks ago that Obama would accept the recommendations of his military advisers to escalate the U.S. troop presence in Afghanistan:  Obama is a Harvard-trained lawyer. Let me elaborate.

In addition to learning the substance of the law, lawyers do two things well: they understand process, and they know how to marshal evidence on behalf of an objective.  Typically lawyers are brought in to make a case – to provide legal justification for arriving at a predetermined conclusion.  That means making sure the relevant facts are gathered and considered in a logical manner.  Rarely are lawyers asked to question the conclusion itself, except as that questioning provides further evidence to support the conclusion.  It’s the lawyer’s job to serve the client – not to change the client’s mind.  Witnesses are cross-examined in order to strengthen their stories in support of the conclusion, or – if they oppose the conclusion – to expose flaws in their testimony.  The goal here is to make reasonable people reach the conclusion that the lawyer has been tasked with defending.

Now consider the NY Times story.  Almost from the first line it tells the tale of a President who early on accepts what the conclusion must be and thereafter is concerned with making the best possible case for reaching that conclusion. Almost overlooked, however, is a thorough discussion regarding why Obama reaches that conclusion in the first place.  Instead, the story focuses on the decision making process that flows from this conclusion; it was, one participant said, “a virtual seminar” led by a president who performed as something “between a college professor and a gentle-cross examiner.”  Cross-examiner?  College professor?   To what purpose?  Remarkably, the Times report largely skirts this issue.  All we learn is that Obama began the process skeptical of the request for more troops, but in the end is convinced to support it for fear of “the consequences of failure.”  It is a decision that in the end appears predicated on not wanting to appear to lose Afghanistan rather than focusing on what it would take to win there.

Note how the Times story begins: Obama is haunted, the author says, by the projected cost in lives, and money, of the military options presented to him.  So how does he react? He decides to quicken the pace of military engagement!  Essentially, he takes his options as given, and pushes for alterations that will allow him the best possibility of serving multiple objectives: not losing militarily, and not appearing to get bogged down in an open-ended commitment.  It is a classic split-the-difference approach that hides the failure to choose in the guise of a thorough, orderly decision process.

Here is the key passage in the story: on September 29, Obama “firmly closed the door on any withdrawal. ‘I just want to say right now, I want to take off the table that we’re leaving Afghanistan.’”  At that point, more than a month before he announced his decision, real debate was essentially over.  All that remained was to decide which of the military options McChrystal proposed – 15,000, 40,000 or 80,000 more troops – Obama would embrace.  And McChrystal, through selective leaks, played his role beautifully, engaging in the classic bureaucratic maneuver – give the president three options, realizing full well that he will choose the middle one.  And Obama dutifully walked right down the garden path, aided by a decision process supervised by the NSC staff that produced, on Oct. 22, a “consensus” memo, “much of which originated out of the defense secretary’s [Bush holdover Robert Gates] office.”  Ultimately, it was Gates who drew up the final plan, including the level of troops that would “bridge the differences” between Obama’s advisers.

Reading between the lines of the NY Times story, then, we see a decision process in which the president’s early decision to remain in Afghanistan for fear of “failure” essentially closed off genuine debate about altering Afghanistan’s place in the War on Terror.  Thereafter, his options were largely dictated by one person – Gates – and shaped to achieve the widest possible consensus within the administration.  It was a pragmatic, lawyer-like decision process that in the end led to a continuation of the basic outlines of the War on Terror which Obama inherited from Bush, rather than exposing the president to a real debate on the substance of that War, as it pertained to Afghanistan, that may have produced genuine change.

Let me be clear here: Obama did what many presidents who had a similar lack of foreign policy experience have done before, whether it was JFK acquiescing to the Bay of Pigs invasion in1961 or LBJ deciding in the summer of 1965 to escalate the U.S. presence in Vietnam. In both cases presidents failed to seriously question the underlying assumptions behind the options presented them, and instead proceeded to debate the options themselves.  Both worried more about the consequences of failing to do what their military advisers said was necessary than in debating whether the proffered options would produce success.

How can presidents prevent succumbing to a process that too often makes them choose between options that present no real alternatives?  One way is if the President has first-hand experience with the issue under debate.  This was the case with Eisenhower in 1954, when the French, supported by some in the American military, pressed for the U.S. to intervene in Dien Bien Phu, the besieged French stronghold in Vietnam.  Eisenhower understood through personal experience the risks of fighting a land war in Asia, and he rigged the subsequent “debate” to make sure that he could defend not committing U.S. troops on behalf of the French.

Most presidents, however, are like Obama; they lack the relevant foreign policy experience to independently arrive at a policy choice for most of the issues they confront.  In this case they must use their advising process in a way that engages in real debate by exposing the assumptions underlying the various options they are given.  Unfortunately, lawyers by training (and often by temperament) are usually better versed at making the best possible case for a given option, rather than forcing debate on whether that option is even advisable.  Obama was in a difficult position – he inherited a war in Afghanistan he perhaps never truly believed in, but his advising process evidently never gave him an option for withdrawing that he felt was politically tenable.  What he needed was debate on where Afghanistan stood in the overall war on Terror – not debate on how to prevent a Taliban takeover in that country.  But he was hemmed in by a decision process that was instigated by the CIA and military reports of impending “mission failure” in Afghanistan.  That initial question – what can we do to save Afghanistan – drove subsequent debate. Early on, he made the decision that he couldn’t afford the perception that he had “failed” by losing Afghanistan.  Obama, like any good lawyer, took that conclusion and came up with the best possible response – one that prevented that loss at least in the short term and did so without splitting his administration. It was the consensus decision – but a consensus borne from Obama’s initial conclusion that he could not risk “failing” in Afghanistan.

How might he have approached this decision differently?  In a subsequent post I’ll discuss some of the research Professor Yuen and I have done, as well as related research, that suggests how Obama might have more effectively framed debate and utilized his advisers in the months leading to his decision to reprise the surge.  Let me be clear here: I am not arguing that the choice to remain in Afghanistan is wrong. Instead, my claim is that the process – as describe in the Times –  that Obama used to arrive at his decision did not adequately expose him to debate regarding the assumptions underlying whether success or failure in Afghanistan matters.  It was a process that fit well with Obama’s temperament and legal training – one that thoroughly vetted a given option – how not to fail in Afghanistan – and that arrived at a consensus for implementing that option.  But it did not do enough to allow him to truly question the premises underlying that option: that victory is obtainable, and at a cost we are willing to pay.

Daily Kos the Prophet Warns of Impending Doom for Democrats

In a recent widely-read column in The Hill (a magazine devoted to covering Congress), Markos Moulitsas warns of impending catastrophe for Democrats in the 2010 midterms.  Under the headline “Brutal poll for Dems”, Moulitsas cites the results of a recent survey commissioned by his website, The Daily Kos, that reveals a huge disparity in the number of Democrats and Republicans who say they are “definitely” or “probably” likely to vote in the congressional races next year.  Moulitsas writes, “Among Republican respondents, 81 percent said they were definitely or probably going to vote, versus only 14 percent who were definitely or not likely to do so. Among independent voters, it was 65-23. Among Democrats? A woeful 56-40: Two out of every five Democrats are currently unlikely to vote.”  His conclusion? “If these numbers hold for the next year…If base Democratic voters don’t turn out, like what happened in New Jersey and Virginia this year, Democrats will suffer at the ballot box.”

Moulitsas trumpets these numbers as evidence that the Democratic base is turned off by Obama’s and the Democratically-controlled Congress’ tepid leadership and failure to pursue the more progressive policies that Moulitsas champions.  He may be right.  But the poll results he cites (which, by the way, are not actually linked to in the article) don’t necessarily support his argument.  Here’s why.

To begin, the Daily Kos poll surveys all adults, not just likely voters. You’ve heard me say this before, but it bears repeating: polls of all adults are typically weighted more heavily to Democrats than are polls of likely voters.  However, the Kos’ “nonpartisan” poll actually includes fewer Democrats and Republicans than many polls because it has separate categories for not only independents, but also categories labeled “other” and “not vote” (the latter presumably refers to people who didn’t vote in the last election and thus aren’t affiliated with any party.)  In fact, if you look at the crosstabs for the actual poll, as I did, you’ll find that the respondents break down into 31% Democrats, 22% Republicans, 25% independents, 17% “nonvoters” and 5% other.  For comparison purposes, the most recent Gallup poll breaks down the public’s partisan affiliation as 35% Democrat,  28% Republican and 35% independent.

Why is that important?  Because Moulitsas bases his prediction largely by comparing turnout rates among Democrats and Republicans, who comprise barely more than half of his survey.  You wouldn’t know this by reading the article which merely references the turnout percentages within each party.

However, for the sake of argument, let us assume that the percentages are an accurate predictor of the actual voting by Democrats and Republicans next November. Doesn’t that disparity in likely turnout still mean a bloodbath for Democrats as Moulitsas says?  No, but again you need to look at the actual survey to see why not.  Moulitsas compares two percentages – the 81% of Republicans in the poll that say they will likely vote versus the “woeful” 56% of Democrats.  But it you translate that into actual numbers, that is, if you take the percentage of the actual number of Democrats and Republicans who are surveyed, you might come to a different conclusion. Eighty one percent of 526 Republicans (the number in the sample) equals 426 Republicans likely to vote in 2010 versus the 51% of the 744 Democrats sampled which comes to…. drum roll, please… 417 Democrats likely to vote.  That’s a difference of 9 likely voters, or less than 1% in a survey with a margin of error of 2%.  In other words, given the current partisan composition of the electorate as indicated in the survey, these turnout figures – based on Moulitsas’ own logic – suggest a dead heat in 2010 (that is, if we assume straight party voting, and ignore independent and other voters who comprise 47% of the survey).

Now, one can spin these numbers any way one wants.  Certainly the lower projected turnout isn’t the best news for Democrats.  But Moulitsas could have easily (and accurately) headlined his story as follows, “Survey suggests Democrats poised to break even in 2010 midterm congressional elections.”   Indeed, an equally viable spin is that this survey is exceedingly good news for Democrats, since the party that holds the White House has, with two exceptions, lost seats in Congress during the first midterm dating back to every president since FDR.  In 2010, however, Democrats might buck history and break even!

But that spin doesn’t serve Moulitsas’ purpose, which is to castigate Obama and Democrats for not embracing the Daily Kos worldview.   And I don’t blame Moulitsas for putting the more pessimistic gloss on the survey.  There is a reason liberals and progressives flock to the Daily Kos website in such great numbers (and why I lurk there to see what the left wing is saying, just as I survey conservative websites to get the opposing view.) Moulitsas and his colleagues are skilled preachers. As I noted in an interview with a local reporter, websites like Kos’ serve as the equivalent of political churches, where like-minded devotees gather together to read from the same hymnal containing familiar doctrines, and to hear sermons from ministers who share their political convictions. (And where sinners, like those who supported Hillary in 2008, are excommunicated and cast, weeping and gnashing their teeth, into darkness.)  The Daily Kos website is comforting and reassuring and a reaffirmation that there is at least one place where people have the correct outlook on life, even if the rest of the world is populated by goose-stepping, bible-thumping, gun-toting fascists that hate Mom, America and Apple Pie. (Upon consideration, it’s a lot like living in Vermont.  Or teaching at Middlebury College. )  And the conservatives have their own “churches of the blog” as well where actual gun-toting bible thumpers can mingle among their own fascist kind, like bankers and insurance executives.

My point is that these blogs serve an important function, but it isn’t to teach you about politics, or even give you the “truth” about political affairs (if by truth one means what can be demonstrated to be factual.)  They attract many readers for the same reason that churches attract numerous worshipers.  But you don’t go to church expecting to learn how to operate heavy machinery – you go to commune with like-minded people (and to save your soul). For the same reason, you shouldn’t go to the Daily Kos website, or read Andrew Sullivan, or Michelle Malkin expecting to learn the facts about presidential or national politics.  That’s not their purpose.  And when they do post a column purporting to give you the facts, as Moulitsas does regarding the impending Democratic catastrophe, alarms bells should sound and you should immediately begin checking the details.

Praise the Lord. Pass the Facts. End of Sermon.


CORRECTION:  An earlier version of this post misspelled Moulitsas’ name  – I think I’ve corrected all references now.