Thoughts on Trumpcare’s Demise and John McCain

I have thoughts about the final (final?) healthcare vote.

McCain

  • I said McCain was a hypocrite for not voting to send this back to committee. I still think that was his most principled course of actions, and woe be it to the rest of them who didn’t even help kill this monstrosity.
  • That said, having watched it play out, McCain just humiliated the Majority Leader on live television in a monumental spectacle after calling for regular order. It is not clear to me that he could have made a better case for regular order than making it apparent that McConnell’s process was a sham designed to bully McCain and then calling McConnell’s bluff. When McCain demands the next issue is addressed by committing the bill to committee, he has good standing in the caucus to do that. So, I feel like I was right to defend McCain and that he weakly met the spirit of my defense, but not the letter of my analysis?
  • I’m not trying to save face here. I feel good about defending McCain broadly, because I didn’t game the last minutes of McConnell’s pressure cooker plan out right. Nonetheless, I think there was a higher road to be taken. I was kind of wrong? I was kind of right?
  • There’s a larger lesson here. McConnell would not have gone to the floor if he’d seen this coming. McCain kills A LOT of bills, but normally he has the decency to pull this stunt in a back room. McCain is known as a maverick because when he doesn’t like a bill, he puts in the hard, important work of finding a few others and negotiating with whichever party is in charge. Outlets like FiveThiryEight (who, granted, have him parting ways with Trump more often than almost anyone else in his party) are stuck counting only those bills that make it to the floor. McCain is such a powerhouse because he keeps things off the floor that can never be counted, or gets large concessions that make it easier for him to swallow the bad parts. He’s not a Democrat, and you shouldn’t expect him to torpedo GOP legislation because you don’t like it. But McCain privately shapes legislation in profound ways.
  • Murkowski and Collins displayed much more consistency through this process and good on them.
  • McConnell should resign. He won’t. But he should.
  • Paul Ryan’s big plan for Tax Reform hinged on billions of dollars of savings from this bill. So, the next legislative set piece for the House is in bad shape. They will figure something out and it will be a mess. Get ready to fight.
  • What, precisely, is protecting Trump now? The antics of his Interior Secretary likely pushed Murkowski away. He’s a giant electoral and international liability, the Trump/Russia affair stinks of illegal activity, and now he’s without a legislative agenda to offset that. Expect more Republican Senators to really warm to the idea of getting to the bottom of this. They won’t say the words “President Pence seems better” while cameras are running, but they are saying it to each other.
  • Even set off from quotes, I feel dirty typing the words “President Pence”. *shudder*
  • Both McConnell and Schumer got tears in their eyes during their post-vote speeches. Not enough men cry in the public sphere, so, I’m all here for Schumer getting misty eyed because activism helped kill this bill. However, McConnell looked about ready to cry because his plan to deny treatment that would save tens of thousands of American lives per year failed in a humiliating way after he tried to cheat his way through the process. I do not kid: I was ready to drink them.
  • There is talk of repealing the 17th Amendment so that Senators cannot scuttle legislation. Two things. First, that means the likes of Mike Huckabee are getting the lesson that they did not play enough dirty tricks. That’s super gross and a window into why the GOP needs to be removed from the majority ASAP. Second, the idea that Portman would have defied his governor if he was counting on his support for reappointment is bonkers. The whole point of having states appoint Senators (as was originally done) was that they would have to think about what their state government wanted, while Representatives would have to think about what their constituents directly wanted. Ohio, West Virginia, and Arizona would have killed this more decisively!

There’s a lot more to be said, especially parsing McCain’s principles here. But this was not only a victory for those who think protecting healthcare access in this country is important, but also for those who believe that long, boring committee meetings are the only way they are going to improve it.

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The True Test of Hypocrisy for McCain is Coming Today

Charges of hypocrisy are easy. But proving them is harder.

McCain found himself in a complicated vote yesterday with three competing values. First of all, McCain broadly supports Obamacare repeal, so moving onto debate and getting the legislative process underway suits those interests. (Liberals who feel like that’s unprincipled need to square themselves with the fact that principles they don’t like are still principles.) Debating that is in his interest and I take him at his word when he says he believes it in the nation’s interest.

Second, McCain opposes using procedural votes as proxies for final votes—in fact, he generally opposes Motions to Proceed. McCain has been in the Senate long enough to remember when they skipped that Motion by unanimously voting to debate. The principle here is to err on the side of debate rather than hiding behind the process. McConnell changed all that to make it harder for the Democrats to operate. McCain opposed the change, though, to be clear, he was inconsistent in actually voting against Motions to Proceed. It’s less hypocritical when you consider that in those cases, he usually had a clear principle against whatever was being advanced. This is the classic rock and a hard place.

Third, McCain supports regular order in committee. I can’t explain this better than the pure column of justified rage that was Claire McCaskill:

Traditionally this committee would have had not held just a hearing, but multiple hearings. McCain has publicly joined these concerns—though, he has not yelled at a committee chair with cameras on. The vote on the Motion to Proceed restored regular order, but skipped this step. McCaskill and McCain differed on their final judgment in ways that benefit their hope for a final outcome. It is a complicated trade off. Do you accept half of regular order? Or is it all or nothing? How do you weigh your legislative goals in these calculations? Its easy to say McCain should have voted the way you want. But that doesn’t mean the principles here are easy or clear.

Fortunately, Minority Leader Schumer is going to make this easy!

The motion to send back to committee is a chance for Senators calling for regular order to get it. Having asked around, the consensus I got is that this this will take 60 votes to overcome the procedural filibuster and then 51 to pass. Every person, however, said some variation of they’re not sure, so take this with a grain of salt.

Republican Senators on Record Supporting a return to regular order:

If these 8 of these 9 band together and vote with the Democrats, they can overrule McConnell’s unusual process that trashes Senate norms. I am sure a few other others should be on this list. At any rate, 7 of them have explicitly said they would like to see a return to the committee process, while Cassidy and Capito have spoken more about a vague “open process”. They are arranged on the list above in roughly descending order of commitment, though its a very subjective order.

Am I predicting that they will send this back to committee? No. Apart from the logistical hurdle of making that deal in the next few hours, I suspect that some of them supported it when it was cheap and are just full of hot air. Paul, Cassidy, and Moran strike me as especially likely to fold given anything resembling a deal; Capito and Cassidy haven’t even explicitly committed to the plan.

But for the 7 who have offered unqualified support for the committee process, this is a good test of how genuine that support is. For those who attacked McCain last night, he can prove you wrong or he can prove you early by voting to head back to committee.

This, more than the final vote, is the measure of hypocrisy.

Trump and the Chocolate Factory

The internet called:

20245837_657587191111260_8690833738861307185_n

I answered:

Flynn

Oompa Loompa Doompadee Doo
I’ve got a perfect puzzle for you
Oompa Loompa, Doomapadah Dee
If you are wise you’ll listen to me

Who do you blame when your man’s a traitor?
Taking money to give our foes favor!
Have you no decency nor any shame?
Pay from the president is not the same…

He will take the plea bargain!

If you follow laws you’ll be fine
And you will live very free too
Like the Oompa Loompa Doompadee Do
Doompadee Doo.

Spicer

Oompa Loompa Doompadee Doo
I’ve got another puzzle for you
Oompa Loompa Doompadah Dee
If you are wise you’ll listen to me

What do you get when you obfuscate?
Wallowing in lies and getting irate!
Do you think you can get another job?
Or will the nation see you as a slob?

Joke’s on you and on TV!

If you don’t lie you will go far
You will live in happiness too
Like the Oompa Loompa Doompadee Do
Doompadee Doo.

Kasowitz

Oompa Loompa Doompadee Doo
I’ve got another puzzle for you
Oompa Loompa Doompadah Dee
If you are wise you’ll listen to me

Where do you find an honest attorney?
Not near the President, apparently!
Justice must be paired with truth and honor
Or else you get Lovecraftian horror

Why did you go into law?

With ethics you will go far
You will live in happiness too
Like the Oompa Loompa Doompadee Do
Doompadee Doo.

Conclusion

Never let it be said that I don’t do this blog as a public service. I may update this as firings continue? Stay tuned!

We’re Not Heading for an Authoritarian Crisis

These Will Still Be Trying Times for Our Democracy

Back in February, a piece, Trial Balloon for a Coup made the rounds on blue Facebook. The essence of the piece was that the way the travel ban was rolled out—through a gutted state department, around an objecting DHS, and skirting the orders of the court—was Trump’s team trying to test the waters. I dissented, suggesting it was much more likely blundering by people who did not understand the limits and finesse of executive power. As the courts have continuously struck down and rolled back the ban and the administration has ceded to their authority, I have felt vindicated. The Trump Administration is testing and searching, but so far within Constitutional limits. And they’ve not been very good at it.

The newest round of breathless panic is about how the final months of the Trump administration might play out. And I do mean it: final months. The panic in the administration as Mueller moves in on Trump’s finances should tell that he is hiding something there. The publicly available information is starting to point to a racketeering operation that ties in with Russian efforts to compromise our democracy. We may not need to prove espionage to impeach the President; money laundering could well do the trick.

The President is enormously powerful and will have a few tools at his disposal. First, he could fire Mueller. There are some niceties here. Whether or not Trump can literally fire Mueller or if he has to find someone in the chain of command to do it for him has been debated. If Nixon’s precedent is anything to go on, he may have to fire Deputy Attorneys General until someone is willing to carry out the order to fire Mueller. The so-called Saturday Night Massacre touched off a firestorm that ultimately undid Nixon. Trump may be convinced not to follow that precedent.

Beyond a basic level of immunity and privilege (designed to keep more baseless
“scandals” from consuming the Executive), he may also be able to pardon the conspiracy. There is a vigorous legal debate about whether or not SCOTUS will uphold those pardons. First, there is good reason to think the President cannot pardon himself, though the matter is far from settled. If he cannot, then pardoning co-conspirators may also not be allowed because it would undermine the investigation into the President and effectively amount to a self-pardon. It would be an incredible SCOTUS case, to say the least. At any rate, being pardoned waives the right to claim the 5th Amendment (as self-incrimination would then be impossible). We could fall into an infinite loop of contempt charges and Presidential pardons, but its worth pausing here to consider the political ramifications of this.

This blog does not offer much aid or quarter to Republicans in Congress. Members of Congress are a spineless, self-preserving lot and this is a liberal outfit besides. But Republicans have been nominally correct on two fronts. First, there has been a paucity of conclusive evidence. Aside from the Donald Trump Jr. emails—and that’s a huge aside—there has mostly been innuendo, leaks, and speculation. Second, while it is technically their job to check the executive, Mueller is running an internal investigation. Passing the buck is not ideal, but its not in any way contrary to the way the Constitution frames this kind of problem. The public position of most Republicans in Congress has been to defer to Mueller and point out they’ve conveniently not seen much evidence.

Liberals were kidding themselves if they expected Representatives to rush to the steps of the Capitol to announce they were abandoning their party’s President before 6 months were up on a single admission by the President’s son. Conservatives are delusional if they think their party isn’t having private meetings about how they are going to close ranks when mostly smoke becomes mostly fire. Firing Mueller or issuing pardons would remove the veneer of plausible deniability and create a media sensation eclipsing the Comey firing. Committee hearings into Russia’s tampering of our election got more serious after that; imagine what a Mueller firing will do. Members of Congress saying they are “very concerned” may be a joke, but they are leaving themselves an escape hatch. Either of these actions by the President may well force them to finally take it.

What if I’m wrong? What if they duck for more cover? The crisis would be real, but the incentives to use our institutions to check the Executive would grow commensurately. Firing Mueller will almost certainly require a major reorganizing of the Department of Justice, while pardons would be tantamount to an admission of guilt. The firestorm that would follow would consume Washington, scuttle the domestic agenda, and fundamentally alter the political landscape more than even Comey’s firing. I predict that the public outcry would be withering, and that a critical mass of Republicans would defect against the President. But again, if I’m wrong, that wouldn’t be the worst of it. There will be a few days grace period for Senators and Representatives to cobble together a response. If it was not forthcoming or woefully insufficient, the institutional coup that would follow would be profound and undercut any authoritarian designs Trump harbored.

As a matter of public record, the Intelligence Community has been on this case for years. While they were not ready to pull the trigger in the lead up to the election—and Obama stopped them from the more measured plan they hatched—it has long been known they have damning evidence against Trump and his associates. If the first three branches refuse to see what is plainly recorded in the dark recesses of the NSA, there is a final, informal branch of government they can appeal to. If the Republican Party proves too paralyzed to defend our nation, the IC will not so much as leak as hemorrhage. It will be unsparing. Every Senator and Representative with tangential ties to Russia or the RICO case will find themselves the subject of a widening “leaking scandal”. The exact contours of the FARA case will become the subject of breathless NYT and WaPo reporting. Senators can scoff at WaPo’s masthead, but this Presidency may well die in the light.

This final recourse will do incalculable damage to the political system, but it will not be an authoritarian crisis. We have every reason to believe the evidence was collected legally for national security purposes, and only sought after foreign adversaries mentioned this plan. For good reason that information is meted out through the politically accountable parts of our government, but the system was designed on the premise that our Congress would defend the Constitution from plain threats. If there is ever a time for leaks, it is as the President bullies Congress into accepting his collaboration with a foreign adversary.

To clamp down on this, Congress, the Press, and the rank-and-file officers of the Executive Branch would have to accept a clamp-down on rights. Could attorneys at the DOJ suddenly prosecute periodicals that published leaks? The DOJ would stand empty before most did that. Will SCOTUS acquiesce to a suspension of civil liberties? Could Trump shut down the press? It hardly warrants consideration. Would Congress stand by him through an assault on the First Amendment? Stuff of fiction! Would the Army back a power grab if he tried to deputize them? There is a great miniseries in that, but it should be relegated to speculative television. The machinery of authoritarianism is not in place, nor will it materialize in the next year.

Appointing Mueller created a brittle covenant with the GOP in Congress. So long as he is investigating, they will defer to him and turn over as few stones as they can get away with. It is not praiseworthy, but it is also only support at the most tacit level. They get stability and keep their options open. They can credibly say that their duty to check the President has been outsourced. If Trump removes Mueller or pardons the conspiracy, that covenant is broken. Congress will abandon him to save their own skins and, on the off the off chance I’m wrong, the IC will bring to light what our “leaders” have been too cowardly to show us.

The coming crisis—and I do think its all but upon us—will shake our Democracy to its foundations and re-write politics for a generation. But it will be the desperate final acts of incompetent, self-serving blow-hard, not the calculated authoritarian power grab that liberals fear. Trump’s extraordinary power and Congress’s vile timidness means that any patriotic should be ready to defend those foundations. But, having exhausted all other options, Congress will do the right thing if Mueller is removed.

We Are Sansa Stark: Martin’s Bleak View of Rights

Content Note: Spoilers for the book and first season of Game of Thrones.

game-of-thrones-season-7

The first book of a Song of Ice and Fire, the series that has been adopted into Game of Thrones on HBO, follows virtuous Ned Stark to the capital of a tenuous confederacy of Medieval kingdoms. It is a generation after a Civil War where Stark himself helped to put the current king on the throne. Though his friend was an excellent warrior and general—and we learn their cause was against a king who was cruel by even the brutal standard of Martin’s Westeros—he is a terrible ruler. He would rather whore, drink, and hunt than “count coppers” and see to the justice of the land. By contrast, Ned Stark is virtuous, judicious, and concerned with ensuring the safety and security of his people.

It is a nod to the dynamic that emerges in J.R.R. Tolkien’s Return of the King. In it, Aragorn, the distant descendant of the last king of Gondor, at last returns to his ancestral home with the intent of taking the throne. He finds the descendants of the Stewards, who have been on the throne for 3000 years, unwilling to let go. Aragorn’s personal virtue and noble blood (yes, there is some racism involved) allow him to retake the thrown when the corruption of the Stewards is laid bare. Whatever you think of it as an allegory, it has little resemblance to our own history.

Another character in the book Game of Thrones who grapples with these ideas of honor is Sansa. The show is criticized for its sexism, but Martin built a sexist world and then showed us the thoughts of women navigating it*. Sansa is thrown into the capital with her father and must reconcile her education about chivalry, the right way for a man of status to act, with the actions of the men she is surrounded by. She wants Joffery to be her kind and gentle protector, but his budding sadism manifests in tormenting her. She witnesses one knight murder another with an underhanded trick. Her father’s friend, the King, is transparently lecherous and lazy. Again and again she sees the men she was taught to idolize break their chivalrous oaths.

Chivalry was the human rights of the middle ages—the latter is indeed a descendant of the former. There are critical differences, particularly in how common people were treated. The expectation was that the nobility would act, well, nobly to protect them. But they had an enormous amount of power and protection that meant if those ideals were not met, there was little recourse. except war between nobles and the king. (And this happened! The way Italian principalities turned on Caterina Sforza for murdering children is instructive.) If it was not expedient, horrors could unfold. But this is not so different than our own time, where some human rights violations are dealt with swiftly and other breaches are tolerated, albeit with condemnations.

As Martin moves towards the final act of Game of Thrones, he has a potent cocktail of themes. He has set up both a formidable cast of villains and the expectation that Ned Stark’s virtue can overcome them a la Tolkien. His daughter is trying to find a way to cling to her beliefs about the men in the capital. The king dies in an “accident” orchestrated by his wife. Ned Stark accurately accuses the queen of treason and is imprisoned for his efforts. To save his family, he confesses to the crime and agrees to go into exile.

And then King Joffery has him executed because he could.

Martin is in conversation with both Tolkien and human rights here. He is saying that ultimately, he (or she!) with the power decides what rights are. At the dawn of the 21st century, we are not used to thinking of human rights as a construct, something that exists simply because the powerful allow them to. But for years, a show essentially premised on that conceit (albeit, through chivalry) has captivated American audiences. Likewise, he is saying virtue is a frail and fickle answer to the vilest whims of the powerful; Aragorn would have been beheaded and the Stewards would have consolidated power.

Importantly, we are Sansa Stark. We believe in Human Rights with all the intensity Sansa believed in the chivalry of her world. Sansa is often criticized for being naive and willfully ignorant at the start of the series, but for me she hit close to home. I buy into the ideals of Human Rights, though I’ve soured to any idea they are literally real. Like Sansa, I’ve seen them ignored too many times for reasons that were too self-serving to believe that we have those rights in any intrinsic way. I’ve had to come to terms with the fact that the man I idolize did not always rise to the full heights of those ideals. Sansa feels essential to me because she shows me something about myself I do not like.

So, as you watch the new season of Game of Thrones, keep in mind Martin’s point: Human Rights exist only as long as we are willing to defend the lie.




*I will leave it to other commentators to discuss Martin’s obligation to build a world that transcends sexism, but I find his exploration within those constraints to be at least adequate. Lady Stark, Circe Lannister, and Brienne of Tarth are also perspective characters in the book and each shows a different facet of living with the sexism of the world.