Archive for January, 2012

Defensive Gymnastics

Last night, Rick Santorum and Newt Gingrich went head-to-head on the long-term solvency of Social Security.  Gingrich proposed – again – individual accounts, modeled after the highly successful Chilean “Little Passbook” system.  (From Gingrich’s remarks, the system’s architect, Jose Pinera, was slated to give a presentation on the subject later, but you can see him speak here.)  Santorum pointed out the plan’s Achilles’ Heel, the cost of covering defined benefits to current and soon-to-be recipients during the transition.

Instead, Santorum, and then Romney, proposed more tweaks to the system, of the kind that have gotten us into this mess in the first place.  Santorum’s solution, raising the retirement age a couple of years, isn’t going to solve a mismatch caused by declining birth rates and decades-longer life spans.  Romney’s seemed unaware of the existence of 401(k) accounts and IRAs.

To erstwhile Romney supporter Jennifer Rubin, however, not only is Santorum’s limited vision correct, it’s an excuse to boost the un-nominatable Santorum at the expense of Gingrich, who poses a real national threat to her candidate:

…we have a huge, nagging debt right now and he’s going to make it worse with his plan. And while Santorum was certainly right on substance, Gingrich’s glibness may have successfully concealed how really silly is his policy proposal.

In short, aside from the political hurdles (George Bush died on his sword over individual accounts) Gingrich’s Social Security plan is, as Santorum claimed, irresponsible.

Individual accounts funded by individual contributions – defined contribution accounts – are the right answer, and the longer we wait, the greater the cost, the greater the burden on the country’s finances.  But to Rubin, the right answer, easier to implement today than tomorrow, is “irresponsible,” while ineffective tweaks and redundant savings plans are “right on substance.”

And this is only a taste of the defensive gymnastics, the excuses for timidity, the defenses of unnecessary compromise (and yes, folks, there is such a thing as necessary compromise) that a Romney presidency will likely bring.

No wonder those promises of “electability” are beginning to seem a little suspect.

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Certainly my favorite part of the school day.  For presidents trying to make appointments to administrative posts, not so much.  While presidents have always been able to make temporary appointments while the Senate is in recess, there has been a recent gentlemen’s agreement that presidents won’t make such appointments during Senate recesses of less than three days.  This allowed the Senate to declare interim “non-working” sessions to technically avoid recess for that length of time.

Republicans are now – yet again – learning the value of gentlemen’s agreements with Democrats, President Obama making four recess appointments yesterday despite disagreement about whether or not the Senate is actually in recess.  (Much has been made of then-Senator Obama’s opposition to recess appointments, but a change of position on the limits of executive power was to be expected once he became President.  Such institutional tension is part of the Constitution.)

That these appointments substantially shift the balance of power to the executive and away from Congress is clear.  Some have been suggesting that impeachment may be the only way to deal with this, and I have to admit that, despite my reluctance to throw that term around, that was my initial reaction, as well.  However, with a little more research and reflection, I consider that route to be extremely unlikely for a number of reasons.

First, over at the Volokh Conspiracy, John Elwood argues that the appointments are actually constitutional.  His claim is that even if the Senate is not in technical recess, it is in functional recess, as it has denied itself the ability to provide the constitutionally required advice & consent. It would be unthinkable to impeach either a President or his appointees if there’s been no crime committed.

However, Elwood points out that the matter has not been adjudicated by the courts, and any regulatory actions taken by the appointees could be challenged on the basis that they didn’t have the right to hold the office.  These are high-profile offices, which will provide ample opportunities for such challenges.  Whether or not the courts will go further, and remove the appointees from their offices, or simply invalidate their acts and require repeated and persistent challenges to a regulatory authority could also determine whether or not the maneuver will succeed in spite of being found illegal.

The act establishing the consumer protection office also provides room for a statutory challenge short of a constitutional one – it explicitly requires Senate approval before the Secretary of the Treasury can transfer authority to him.  Courts traditionally prefer to make decisions on statutory bases rather than constitutional ones where possible.

So much for the legal considerations.  The politics of the situation also militates against impeachment, even assuming a timely and  clear court decision that the appointments were unconstitutional.  First, Fast and Furious provides far better grounds for impeachment against underlings like Attorney General Holder.  Starting with the abuses of power there makes much more sense.  Second, in an election year, unless there is a clear an undeniable abuse of power and criminal behavior, it will be almost impossible to persuade the public that impeachment proceedings are anything other than political.

The political and legislative overhead involved in something as momentous as impeachment is huge.  To pass articles of impeachment out of the House, knowing that they will be inevitably rejected by Senate Democrats determined to defend the administration at almost any cost is to invite a repeat of the public’s judgment on the 1998 Clinton impeachment.  Worse, repeated impeachments – even talking too freely about impeachment – risks devaluing it.

Ultimately, the political calculations by the President are probably even more important to him than the legal ones.  In the matter of the financial regulators, loud and ineffectual opposition to the appointment will simply reinforce his public position as Defender of the Little Guy Against Wall Street, in a year when his re-election strategy will be to rename Mitt Romney, “Wall Street.”

Moreover, it’s a preview of coming attractions in 2012, and Obama’s second term, should he win one – his determination to use executive powers to their fullest, in the absence of effective Congressional opposition.  The Democrats have already shown their willingness to govern without a budget for years on end, and thereby prevent Congress from exercising oversight through the power of the purse.  They’ve also shown the political skill to frame the debate in narrow enough terms to make Republican opposition to that seem “obstructionist.”  That’s really what’s at stake here.

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Jared Polis, Keepin’ It Classy

It’s one thing for Dan Savage to keep his long-running campaign to associate social conservative Senator Rick Santorum’s name with something foul.  (Google it yourself, if you’re that interested.)  It’s something else again for a sitting Congressman to join in the “fun,” now that Sen. Santorum’s campaign is showing heretofore undetected signs of life.

In all likelihood, we’ll see either silence, or an insincere non-apology of the “if I offended anyone” genre, combined with much behind-the-scenes juvenile snickers at which the Left excels.


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