The President, the Constitution, and Don’t Ask, Don’t Tell

The ruling by federal district judge Virginia Phillips that the “don’t ask don’t tell” (DADT) law regarding gay people in the military could not be enforced Constitutionally (October 12, 2010) has put President Obama in an anomalous position. He says that he agrees that DADT is wrong; yet his administration plans to appeal the decision in court, in effect fighting for a policy he says he does not believe in. According to CNN, the rationalization for this seemingly contradictory stance is that the decision should be made by Congress, not the courts, and that “The Justice Department says that it defends all laws of Congress in court.”

Is that correct? Should a presidential administration go to court to defend laws it disagrees with? That depends, in my opinion, on what sort of disagreement it is. If President Obama just thinks that DADT is a bad idea, perhaps he should defer to the existing Congress-passed law, and try to get it repealed through the legislative process.

However, the court did not rule that the law is a bad idea. It ruled that it violates the Constitution, by denying gay members of the Armed Services equal protection of the laws. The President’s oath of office calls for him to defend the Constitution – so it could be argued (and has been by many presidents) that he should not enforce a law if he believes it to violate the Constitution.

No doubt the right of gays and lesbians to serve in the miliary will be more strongly established if it is established by Congressional action, or by a Supreme Court ruling, rather than a failure to appeal on the part of the Obama administration. However, the duty of the President is to enforce the Constitution as he sees it, and he should do so in this case.

The strikes in France

The press reaction to the strikes in France is sort of amazing. In the depression of the 1930s, people thought that strikes and protests were perfectly natural. In fact, most of the social benefits that governments provide — both in the US and in France date from that period: think of the Social Security Act and the National Labor Relations Act, for example.

The press reaction has been along the lines of ‘Those silly French – why don’t they want to postpone retirement?’ Similarly, I heard one commentator on NPR mention that the last Socialist government in France had tried to move to a 35-hour work week, which the commentator thought that France ‘obviously’ couldn’t afford. (I know, I should give names and citations, but i was listening on a car radio while driving and didn’t get the details).

Just think about it — in a period of high unemployment, what would be the result of shortening the work week? More job! Less unemployment, as the amount of work available was spread over more people. That’s not unaffordable indulgence, it’s about solidarity.

The more basic issue is who should pay for the crisis. Investment bank executives continued to pay themselves huge bonuses after their banks went broke. Right now in the US, the right wing is arguing that we can’t afford to let the Bush tax cuts for the rich expire — in other words, that higher incomes for the rich help the economy.

In fact, it’s just the other way around. Higher incomes for the rich just fuel speculative investments, like the recent bubble in mortgage-backed securities that triggered the crisis when it burst. It can’t fuel productive, job-creating investment, because there is no demand for the additional products that such investment would produce.

On the other hand, higher income for working people would generate increased demand, since it would put more money into the pockets of people who are struggling to get by, and therefore spending everything they take in. That’s precisely what is needed now.

Earlier retirement spreads the existing jobs around, and it puts more money into the hands of working people — so it’s just what is needed in this crisis. The French strikers are right.

Reference: For a good analysis of the causes of the crisis, see Martijn Konings, ed., The Great Credit Crash (London: Verso, 2010).

The Senate Filibuster – Barrier to Democracy

Over the summer, I get behind on reading the New York Review of Books – so I just finished just got to Michael Tomaskey’s review of two books on the Senate filibuster:

During the (long!) time I’ve been paying attention to politics, I’ve seen the filibuster go from a badge of shame, used only by Southern segregationists to block civil rights laws, to a tool that was used, but rarely, on issues where a particular senator wanted to call attention to a matter of principle, to the current situation — where the press routinely reports, falsely, that it takes 60 votes to pass a bill in the Senate. (It does not – it takes 60 votes to close debate, but there are many bills where debate is closed by unanimous consent, even though some senators will then vote against the bill).

The change began in 1993, when Republican senators, led by Robert Dole (R-KS), declared that President Clinton’s mandate was illegitimate, since he had not received a majority of the popular vote, and set out to block all of Clinton’s initiatives through the filibuster. This tactic succeeded in making Clinton look ineffective, and helped produce the Republican victory of 1994, when they won a majority of the House for the first time in almost 50 years.

In 2009, the Republicans decided that the same strategy would work again, so they strove to block all President Obama’s initiatives, with considerable success. It is understandable that the Republicans would do this; the more interesting questions is what the Democrats will do about it.

The Democrats were able to pass the national health care bill through the budget reconciliation procedure, but this was possible only because they had previously (before the Massachusetts special election) overcome a filibuster to pass the original bill. But they now find almost all their legislation blocked in the Senate.

This need not be! There are several ways a determined majority can overcome a filibuster, even without 60 votes. The easiest would be to simply change the rules of the Senate, so that debate can be ended by majority vote. Traditionally, changes in the rules were themselves subject to the filibuster — but it is not clear that this is so when a new Congress reconvenes. The issue is whether the rule allowing the filibuster is already in effect before the rules are adopted. Some argue that they are, because the Senate is a “continuing body” – with two-thirds of its membership continuing from the previous Congress. Others have maintained that the Senate is in the same situation as the House – the rules must be adopted with each new Congress. Provided the Democrats still have a majority, and are willing to stick together, Vice President Biden could simply rule that the Senate is not a continuing body. The Republicans could then appeal the parliamentary ruling, but that ruling could be upheld by majority vote.

More drastically, Biden might accept the strong case that can be made that the filibuster is unconstitutional (since, among other things, it violates the one-person, one-vote principle). In that case, he would not have to wait until January, but could act right now, when the Senate comes back into session.

Failing a rules change, the Democrats could also make political gains by forcing the Republicans to really filibuster. These days we have a sort of virtual filibuster — the minority says “we are filibustering,” and the majority says, “Oh, all right then,” and drops the issue. That way, the public sees that Congress is not doing anything, but they don’t really see why. Imagine how it would different if Republican senators were standing up and reading phone books in order to block a minimum wage bill.

So it can be done! And it should be — there’s nothing democratic about minority rule. The real issue is why the Democrats don’t do it. I fear that the answer is that they (or too many of them) are corrupted by the benefits they can get from it themselves, the opportunity to serve a district interest (or a major contributor) by putting a hold on a bill until their concerns are met.  As long as this is the norm, we will continue to see an ineffective Congress. This will only change if public awareness of the filibuster rises to the level it had in the 1960s.

The Crisis of American Politics

Here’s the question I’m working on right now: given the collapse of the US economy a couple of years ago, why aren’t masses of people coming to the obvious conclusion that the capitalist economic system is unsustainable? Instead, we get the Tea Party demanding that the state regulate capitalism even less.

Here are some possible answers:

1. People are coming to that conclusion, but the media aren’t telling us about it. (E.g., the Tea Party convention got tons of coverage, the US Social Forum gathering in Detroit, which was much bigger, got almost none).

2. The collapse of the Soviet bloc has made the Left stop talking about socialism; as a result, hardly anyone even knows what socialism is — so that, for example, the government bailout of the big banks is perceived by many (especially, again, the Tea Party) as a “socialist” measure — because it involved the government. If people understood socialism as control of the state by the working class, they would see that this is just the opposite — control by the biggest capitalists.

Probably there are other answers as well — I will be looking for them (and at them) in the book I am writing now, working title: Minor Parties and the Crisis of the American Party System.