On the menu today: As the Biden administration envisions using reconciliation more frequently, I look back at Democrats’ objections to the use of it in 2017; Senate Democrats conclude they can determine criminals’ motivations better than the FBI director can; Sidney Powell declares in court that her claims were never meant to be treated as “facts” by “reasonable people”; and AstraZeneca can’t put together two good days in a row.
Democrats: See, Reconciliation Is Different When We Do It
A Washington story, in three parts.
Part One: Then-Brooklyn Law School professor Rebecca Kysar, writing in Slate, back in January 2017, objecting to the use of reconciliation to pass the Trump tax cuts:
Reconciliation has been used in the past to enact simple changes in the tax code, but it has never been used for complex tax reform. In fact, the past three tax reform acts were passed with wide bipartisan support. During the Nixon years, tax reform drew upon proposals from the prior, Democratic Treasury Department. Ford-era tax reform was a partnership between the Republican administration and a Democratic Congress. And the Tax Reform Act of 1986 occurred during an era of divided government through bipartisan compromise.
Reconciliation is a poor vehicle for major policy changes and is especially inappropriate when it comes to the complicated demands of an issue like comprehensive tax reform . . . Reconciliation’s truncated timelines curtail deliberation and potentially limit involvement from key sources of tax policy — the Treasury Department, the Joint Committee on Taxation, and the tax-writing committees. If the Republicans pass their reforms using reconciliation, the resulting law will be less reasoned and less substantive.
(I suspect many Republicans would quibble with the contention, “the past three tax reform acts were passed with wide bipartisan support.” Maybe compared to today’s 50–50 votes. The Economic Growth and Tax Relief Reconciliation Act of 2001 passed the Senate 58–33. The Jobs and Growth Tax Relief Reconciliation Act of 2003 passed the Senate after a 50–50 vote, with then-vice president Dick Cheney breaking the tie.)
Maybe you agree with Kysar’s assessment or maybe you don’t. I think most Americans would agree that it would be preferable to get both parties to “buy into” the success of a particular piece of legislation. If a member of Congress opposed a bill from the start and doesn’t see any of her concessions or priorities addressed in it, that member has no reason to hope the legislation succeeds, and little incentive to help ensure it works as intended.
Part Two: Kysar went on to teach at Fordham University Law School, and in February of this year joined the Biden administration:
Fordham Law School Professor Rebecca Kysar was sworn in as counselor to the assistant secretary of tax policy in the U.S. Department of the Treasury yesterday. Kysar, who teaches and conducts research in the areas of tax policy, international taxation, legislation, and the budget process, will handle engagement with multilateral international tax affairs, as well as development and implementation of domestic tax policies in her new position.
Part Three: Axios, this morning: “The White House is considering using budget reconciliation two more times this year to pass up to $3 trillion in spending aimed at core priorities, including infrastructure, climate change, education, taxes and health care, according to Democratic and Republican budget experts.”
Now, as counselor to the assistant secretary of tax policy in the U.S. Department of the Treasury, Kysar doesn’t get to make decisions for the whole White House. Maybe she still thinks reconciliation is a bad way to enact sweeping policy changes. She’s not in a position where she can tell the president and Senate majority leader Chuck Schumer, “don’t use reconciliation in this way, it’s is a poor vehicle for major policy changes.”
But I suspect a lot of Democrats who saw the GOP’s use of reconciliation in 2017 as a reckless and unfair twisting of the rules are now shrugging and seeing it as a necessary legislative strategy because the Republicans, in their view, are just being too stubborn and partisan. Of course, that’s exactly how Republicans saw Democrats four years ago. And you can find accounts of senators’ hypocritically flip-flopping on the validity of the filibuster from 2005 and 2013 and today. Barack Obama joined a filibuster against Samuel Alito, and then decried Republican senators’ use of filibusters against his own nominees.
In the end, the vast majority of members of Congress operate on the principle, “but it’s different when I do it.”
Most legislators believe that the fairest version of the rules is the one that allows them to get what they want. When senators are in the majority, the majority rules, and the minority must not be allowed to block the priorities of the duly elected majority (even if that “majority” consists of 50 senators and the “minority” consists of 50 senators). When senators are in the minority, they recognize the filibuster is an important tool that protects the rights of the legislative minority, forces the chamber to seek consensus, and ideally prevents a bad idea from getting rammed through on a close party-line vote.
As one senator put it:
I’ve been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or to confirm a nominee I felt strongly about. But I didn’t, and it was understood that the option of doing so just wasn’t on the table. You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain. Adopting the “nuclear option” would change this fundamental understanding and unbroken practice of what the Senate is all about. Senators would start thinking about changing other rules when they became ‘inconvenient.’ Instead of two-thirds of the vote to change a rule, you’d now have precedent that it only takes a bare majority. Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous.
That senator, of course, was Joe Biden.
Nothing in our politics or government works unless we all agree on what the rules are. This applies both to written laws and to unwritten “norms.” You’ve probably seen references to “Calvinball” in National Review. This goes back to the classic Calvin and Hobbes comic strip; Calvin invented a game where the players make up their own rules as they go along so that no Calvinball game is like another.
During the Brett Kavanaugh trial, one rule favored by the Democrats was that a woman who accused Kavanaugh of misconduct must be trusted, even if she had no corroborating witnesses or evidence, and even if her claims grew wildly implausible. Recall that, after Julie Swetnick claimed that a teenaged Kavanaugh had organized weekly rape parties in high school, all ten Democrats on the Senate Judiciary Committee cited her as one of “multiple women with consistent accounts of serious sexual misconduct” committed by the judge, and demanded that he withdraw from the nomination process.
Meanwhile, eight women who worked with New York governor Andrew Cuomo have accused him of consistent accounts of serious sexual misconduct, but few Democrats in New York or nationally support his impeachment and removal from office.
For too many elected officials, when a member of the opposition is accused, the accusation itself is de facto proof of guilt. But when a member of their party is accused, there is nothing more important than due process, avoiding a rush to judgment, and protecting the rights of the accused.
You cannot govern like this for long before vast swaths of the public see it all as a cynical game and tune it out . . . which is pretty much where we are today. If anybody in public office wants to win back some of that trust, respect, and stature, they have to pick one set of rules and consistently apply them to similar circumstances regardless of party. If the rights of the accused and due process are important when somebody you like is accused, they’re important when somebody you dislike is accused. If you felt the filibuster was important when your party was in the minority in the Senate, then it’s important when your party is in the majority.
And if reconciliation was a bad way to pass sweeping legislation when the other guys were in power, then it’s a bad way to pass sweeping legislation for you, too, now that you’re in power.
Senate Democrats: We Know Better Than the FBI Director
The boss offers another vivid example of the phenomenon. Senate Democrats believe FBI director Christopher Wray just can’t be trusted on the issue of criminal motivations. During the Russia investigation and afterward, officials such as Director Wray were put on a pedestal by Democrats and the media:
Now, Wray has occasioned sharp Democratic dissent by stating that the horrifying murder spree at Atlanta-area spas that killed six Asian women wasn’t racially motivated.
Over the weekend, Tammy Duckworth, the Democratic senator from Illinois, said in response to Wray that she wanted to see a deeper investigation, “It looks racially motivated to me.” The new Democratic senator from Georgia, Raphael Warnock, agreed, “We all know hate when we see it.”
And few noticed that Senator Sheldon Whitehouse of Rhode Island is now claiming that the FBI”s investigation of Kavanaugh was “fake.” The QAnon conspiracy theory is nutty, toxic stuff, but it’s not the only crazy or false belief floating around the halls of Congress.
Speaking of Crazy Beliefs in Politics . . .
Brad Raffensperger, the secretary of state for Georgia, appears on NRO today, comparing Donald Trump to Stacey Abrams:
To many people, President Donald Trump’s effort to overturn an election may have seemed unprecedented. Many members of the media have cast Trump’s efforts as unheard of. But sitting in Georgia, it was impossible to watch the events after November 3 without seeing the unmistakable signs of the Stacey Abrams playbook: Don’t concede. Say you were cheated. Allege voter irregularities. File lawsuits. Get witness testimony. Raise money. Repeat.
Meanwhile, the infamous Sidney Powell now says in court that her outlandish claims about Venezuelan hackers stealing the election for Biden by switching votes within machines were never meant to be treated as “facts” by “reasonable people.” She’s right, but maybe she should have said so at the time.
A guy tweeted at me during the post-election period, “either [Trump’s lawyers] have proof or they don’t. . . . If they don’t, they wrecked their credibility. . . . If they do, you just wrecked yours.”
ADDENDUM: Hey, remember yesterday’s good news about the AstraZeneca vaccine? The U.S. National Institute of Allergy and Infectious Diseases slammed the brakes on that late Monday:
Late Monday, the Data and Safety Monitoring Board (DSMB) notified NIAID, BARDA, and AstraZeneca that it was concerned by information released by AstraZeneca on initial data from its COVID-19 vaccine clinical trial. The DSMB expressed concern that AstraZeneca may have included outdated information from that trial, which may have provided an incomplete view of the efficacy data. We urge the company to work with the DSMB to review the efficacy data and ensure the most accurate, up-to-date efficacy data be made public as quickly as possible.
Authorization and guidelines for use of the vaccine in the United States will be determined by the Food and Drug Administration and Centers for Disease Control and Prevention after thorough review of the data by independent advisory committees.
What, did somebody over there at AstraZeneca break a mirror or something?