legislative intent matters

I've never understood why Justice Scalia and some of his acolytes believes that the Court should ignore what Congress intended by its laws and rely solely on the dictionary definitions of words used. As a Senate staffer, I worked hard to be sure our intent was spelled out in speeches, hearings, and committee reports.

Norm Ornstein draws on a new book by a sitting appeals court judge to make the case for attention to legislative intent in judicial proceedings.

The underlying point of Judging Statutes is that the American constitutional system requires a deep respect among the institutions of governance—which includes a respect by Congress and the courts for the key role that executive branch officials play in their front-line role of interpreting the meaning and intent of the laws Congress passes in order to implement them; a respect by Congress for the difficulty of that executive role and for the role of the judiciary as independent arbiter; and very importantly, the respect of judges for the inherently political nature of Congress, and the difficulty and messiness involved in building coalitions and passing statutes. The latter may be distasteful and often worthy of ridicule, but it is baked into the constitutional order.

I agree. 

football as it used to be

I don't follow football any more, but I still took great pleasure in reading noted writer John McPhee's piece in the New Yorker which has a lot of football history and his personal involvement with the game. I broke out laughing, for example, when I read this:

My father played football at Oberlin, class of 1917, notably in a game won by Ohio State 128–0.

College football was different a half century and a full century ago.  Read it and enjoy.

Presidents in step with public opinion

If President Obama decides to launch major air strikes in Iraq and Syria and give arms to Kurdish forces in Iraq, he'll have support from American public opinion, a new poll says. The numbers are quite dramatic.

Today, 71 percent of all Americans say they support airstrikes in Iraq — up from 54 percent three weeks ago and from 45 percent in June. Among those who say Obama has been too cautious, 82 percent support the strikes; among those who think his handling of international affairs has been about right, 66 percent support them.

Nearly as many Americans — 65 percent — say they support the potentially more controversial action of launching airstrikes in Syria, which Obama has not done. That is more than double the level of support a year ago for launching airstrikes to punish the Syrian regime for using chemical weapons.

Support for arming Kurdish forces opposing the Sunni insurgents in Iraq also has risen over the past month, from 45 percent in August to 58 percent in the new survey.

I have long believed that public opinion can provide a permissive consensus for military actions which presidents can seize upon if they wish. Obama may not want to get involved, but the political risks are much less than if opinion were more begative.

An important historical example can be found in Franklin Roosevelt's conduct before Pearl Harbor. Of course, FDR wanted to help those fighting Hitler.But he was constrained by various laws and by substantial public opposition.

As I've written:

[His] strategy, as described by his chief speechwriter, was “to keep one step ahead of public opinion, not to be stampeded into one direction or the other, and to encourage full debate before taking too drastic action.”

            In fact, as early as January, 1941, the American people agreed (48% to 42%)  that we were already in the war. By June the figures on that question were 79.1% to 10.9%. By July, they supported convoying ships as far as Iceland, 75%-15%. By September they were ready to have U.S. ships shoot on sight (62%) rather than waiting until they were first attacked (28%). By early October, they favored 72%-21% arming U.S. merchant ships—a change in the law approved by Congress a few weeks later. Perhaps most significantly, by mid-September, the American people overwhelmingly [71% to 22%] agreed that if the United States is to be free, the Nazi government must be destroyed.

When presidents are in step with public opinion, they can do much.

cowardly warriors

When Congress passed the war powers act over President Nixon's veto, its primary goal was to prevent "another Vietnam."  That meant a major war, lasting more than a few weeks, where the U.S. military involvement grew incrementally, despite presidential denials of escalation or a wider war. The wording of the law, referring to "troops equipped for combat" and "introduced into hostilities," suggested a concern regarding ground forces, army soldiers and marines, rather than air strikes or naval deployments.

Despite the many controversies over the law, including repeated presidential refusals to consider the law binding, it has achieved its authors' goal: no major military operation not authorized by Congress has lasted more than three or four months.

Now we face a potential conflict against ISIL which will likely last a long time, require significant numbers of American military personnel and a wide variety of military operations, and carry the risk of broader conflict and unintended consequences. Although the Obama administration will promise "no boots on the ground," meaning regular infantry, in fact it is likely to deploy personnel to gather intelligence and advise allied forces -- the same slippery slope seen in Vietnam.

If Congress cared about the Constitution, and its power to authorize major combat operations, it would stand up, debate, vote -- and keep voting until it passes something which can be signed into law. I fear, however, that Congress is too cowardly to act.  Measures have already been introduced. But the leadership in both parties seems reluctant. And many Senators are already wedded to conflicting positions. There is even one proposal that would allow those boots on the ground.

One of the most consistent advocates of force to deal with various problems, Senator Lindsey Graham [R-SC], explained his reluctance to have a vote.

"What if it comes over and you can't pass it? That would be a disaster. And what if you put so many conditions on it that it makes any military operation ineffective, that's what I worry about," Mr. Graham said.

Yes, those are bad outcomes. The only good outcome is a genuine vote on a compromise measure that fulfills congressional responsibility and makes them accountable.

pay piper, call tune

The New York Times has a major story documenting foreign government contributions to think tanks as a tool of their foreign policy. The think tanks, of course, deny that the money has a pernicious influence. I think the U.S. recipients are naive.

A 1938 law, which also provided the framework for lobbying and election campaign laws, required agents of foreign governments to register and report their activities to influence U.S. officials and even the general public. The transparency of reporting was deemed sufficient to reduce secret influence. The law was passed to expose and counteract pro-Nazi activities.

The laws regulating lobbying also require registration of anyone, American or foreign, trying to influence executive or legislative branch actions. Many foreign governments regularly hire firms not only for direct lobbying but also for public relations campaigns on their behalf.

The whole field of conflict of interest has been steadily evolving toward greater disclosures and tighter restrictions. Members of Congress used to get "honoraria" for speeches to interest groups. No longer. But there are still loopholes.

The think tanks may like to believe that their views are independent of their sponsors, but the pressure is still there, if not for today, then for renewal of a contract in the future. And the Times quotes documents and some scholars that are much more explicit on the positions taken by the think tanks.

I hope we use this report to rethink all of the influence peddling techniques used, not just by foreign governments, and force recipients of funds to be more cautious and transparent when they take special interest money.

The fall of Atlanta and the 1864 elections

In one of the Marx Brothers movies, Chico is caught in a lie but bravely says, "Who do you believe, me or your own eyes?"  There's something of the same contradiction in a Monkey Cage post by a political science professor, Nathan Kalmoe.

Kalmoe cites the conventional historical wisdom -- which I have followed in my own writings -- that Lincoln was rescued from defeat in the 1864 elections by the capture and burning of Atlanta in early September. Like a good political scientist, he tests that proposition by analyzing election returns before and after that battle -- since even congressional elections were spread during the year. [They were all held on the same day in November only after an 1872 law.] Kalmoe finds that there was no post-Atlanta "bounce" for Republicans. In fact the GOP share of the vote shrank below earlier levels in some states. Accordingly, he concludes that Sherman's victory was not a game-changer for Lincoln.

Maybe. But many people at the time thought it did help Lincoln significantly. And maybe we should also pay close attention not only to party allegiance of voters but also to the "ground game" of the Republican officials. As I have written:

In 1862, the Republicans held on to 33 of 52 Senate seats, but saw their lead in the House drop from 108-44 [plus 34 of other parties] to 85-72 [with 27 from other parties].  These results could deny them a working majority.

Stanton reacted to these setbacks by working to guarantee a strong Republican turnout in the 1863 state elections and in the 1864 presidential contest. He made sure that Ohio defeated a leading peace Democrat running for Governor, for example, by arranging for Ohio troops to vote in the field and allowing war department clerks to travel home with free railroad passes. Lame-duck Democrats tried to pass a bill censuring Stanton and forbidding military officers from interfering in civil elections, but the measure failed.

In 1864, Stanton pressured military officials to help Republican state agents and to thwart the Democrats. Entire regiments were furloughed home to crucial states. As Charles Dana commented, “all the power and influence of the War Department … were employed to secure the re-election of Mr. Lincoln.”Stanton knew how strongly the men in uniform supported the president: Lincoln got 53% of the votes overall, but a rousing 78% of those of Union soldiers.

 I'm sure Atlanta helped Union troop morale, too.