Boffoblog

No, Bush Really Comes Clean

This exchange on Social Security in the Washington Post interview is so priceless it has to be printed in full:

The Post: Will you talk to Senate Democrats about your privatization plan?

THE PRESIDENT: You mean, the personal savings accounts?

The Post: Yes, exactly. Scott has been --

THE PRESIDENT: We don't want to be editorializing, at least in the questions.

The Post: You used partial privatization yourself last year, sir.

THE PRESIDENT: Yes?

The Post: Yes, three times in one sentence. We had to figure this out, because we're in an argument with the RNC [Republican National Committee] about how we should actually word this. [Post staff writer] Mike Allen, the industrious Mike Allen, found it.

THE PRESIDENT: Allen did what now?

The Post: You used partial privatization.

THE PRESIDENT: I did, personally?

The Post: Right.

THE PRESIDENT: When?

The Post: To describe it.

THE PRESIDENT: When, when was it?

The Post: Mike said it was right around the election.

THE PRESIDENT: Seriously?

The Post: It was right around the election. We'll send it over.

THE PRESIDENT: I'm surprised. Maybe I did. It's amazing what happens when you're tired.

Yes, like forgetting your talking points and telling the truth.

Bush Comes Clean...

... er, sort of.

In an interview with the Washington Post, here are the nuggets of wisdom we got from our president:

• "In terms of the current account deficit, the best way to deal with that is to, one, ensure that currencies around the world are market driven, not controlled by state, and secondly, at home, is to make America an attractive place for people to take risk, a place to invest. That's one of the reasons why I've started talking about legal reform early."  Once again, just like tax cuts in his first term, which seemed just the medicine for a rainy day or a sunny one, tort reform is meant to solve the health care crisis and the current account deficit in one fell swoop.  I need to take what he's taking.

• "We'll continue to be a free trade administration."  Right.  Like on steel tariffs.

• In regards to a National Intelligence Council arguing was others have said for many months, that Iraq has become a breeding ground for terrorists: "I think the report was somewhat speculative; this could happen. And I agree."  Well, that's a start.  About two years too late, but it's a start.

• Again downplaying the focus on the Iraqi election, to avoid the question of the legitimacy of the government that comes out of it: "So the political process is unfolding. And it is a process. In other words, this is the election of an assembly, which will choose leadership. And out of that leadership will, obviously, become -- we'll work to develop -- further refine the security strategy, as well as watch a process unfold that will write a constitution. And it's important for people to understand that. Unlike our system, that has "the election," and it defines what America -- how America will be governed for four years, this is a process."  Well, yes, there are multiple steps, however if later steps are conditional on this one, as he recognizes with this statement, then it is of very real concern whether the results of this election are legitimate.

• About the American public's view on the war in Iraq: "Well, we had an accountability moment, and that's called the 2004 election. And the American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me, for which I'm grateful."  Again with the mandate thing.  Can't hold this against him too much because it's what any election winner would do -- try to interpret the majority's decision to his advantage -- but this interpretation becomes less and less relevant the more time passes after the election and the more public support drops.

• As for the question about the unexpected results that no WMDs were found and the Iraqis did not welcome us with ticker tape parades: "Listen, in times of war, things don't go exactly as planned. Some were saying there was no way that Saddam Hussein would be toppled as quickly as we toppled him. Some were saying there would be mass refugee flows and starvation, which didn't happen. My only point is, is that, on a complicated matter such as removing a dictator from power and trying to help achieve democracy, sometimes the unexpected will happen, both good and bad."  Well, yes, I suppose that since millions haven't died from starvation that can be counted as a good thing.  It might be nice if we set a somewhat higher bar for our foreign policy, however.

• "[S]overeignty was transferred in June of 2004."  Apparently sovereignty is graded on a curve.

• But at least he still has his glib hat on:  In response to the question why we haven't caught Osama, he says, "Because he's hiding."

• "The people of Afghanistan, which is a part of the Muslim world, are really happy that the government of the United States, along with others, liberated them from the Taliban."  Er, except for the ones living under the warlords again.  "I suspect that people in the Muslim world, as we speak, are thrilled that supplies are being delivered by U.S. servicemen and women."  Is he speaking about Indonesia and the relief effort in Sumatra?  Because word is they're not completely happy.  "The Iranians -- the reformers in Iran are, I suspect, very hopeful that the United States government is firm in our belief that democracy ought to spread. In other words, there are some places we're not popular, and other places where we're liked."  Well, if that's his list of who in the Muslim world is not completely pissed off at us, that's a pretty short and dubious list.

• "And there's no question we've got to continue to do a better job of explaining what America is all about; that in our country you're free to worship as you see fit, that we honor the Muslim faith, and that if you choose not to -- we don't want territory, we want there to be freedom. And I've talked to Condi [Rice, the nominee for secretary of state] about this, and she agrees that we need to work on a public diplomacy effort that explains our motives and explains our intentions." Yes, I'm sure talk is all it will take.  Deeds, deeds are highly overrated. [Update: I had a joke here which, in retrospect, I decided was tasteless and so is deleted.]

• On Social Security: "The number of payers is declining quite rapidly relative to the number of retirees. And that, thus far, has been our focus, because that is the part where the Congress needs to focus."  Ah-ha!  Now we've discovered his real plan for Social Security.  It isn't privatization after all, it's soylent green!

• Much to James Dobson's dismay, he has no plan to push an anti-gay marriage amendment anytime soon: "The point is, is that senators have made it clear that so long as [the Defense of Marriage Act] is deemed constitutional, nothing will happen. I'd take their admonition seriously."

• As we know and Bush knows, once people accept the fiction that there is a crisis with Social Security, he's won more than half the battle: "The threshold question is for some who say, we don't have a problem. And once we get people talking about how to fund it, how do you handle the transition costs? I think we're making progress when that happens. It hasn't happened yet, because we're still trying to -- I am making the case that people that have got to understand we have a problem that should be addressed now."

• What was that I said about tort reform being the answer for everything he doesn't have an answer for?  Let me take that back -- it's No Child Left Behind.  Just like in the debates when any question about jobs turned into an answer about education, so too is it the answer to why African Americans don't vote Republican: "Listen, I am -- when we worked on the No Child Left Behind law, part of what motivated me on that law, and part of what motivated me as governor to insist upon accountability is I fully understand that oftentimes it was the inner-city black child who just got moved through, and the system just quit on him or her.... I remember the time when an African American stood up and said, reading is the new civil right. And there's no doubt in my mind that No Child Left Behind Act, when fully implemented, and if not weakened -- and it won't be weakened when I'm the president -- will end up helping young black kids realize their dreams."  Oh, and again he trots out the false claim about African-American men being shortchanged by Social Security.

• Finally, on why there is such partisan divisiveness in Washington ("one of my regrets"): "And, you know, coming into the '04 elections, the mood changed. And I've done my best to try to -- when it came to policy and working with others, to share credit and to give people a chance to participate.... But I'm mindful of my rhetoric when it comes to the Democrats. I've really checked back. And I'm not talking about the campaign. That was more of a survival mode. (Laughter.) But I wasn't personal. I didn't feel like my rhetoric was harsh."  Of course not.  He left that to others.  Just that he never asked them to tone down the rhetoric on his behalf.  But that's a completely different thing, isn't it?  Isn't it?

Bluster About the Filibuster III

As things heat up and the Senate GOP inches closer to invoking the "nuclear option" to rule from the chair that filibusters are unconstitutional, no doubt the rightwing press and bloggers increasingly will write defenses of that interpretation.  In addition to my analysis of the text and history of the relevant constitutional provisions, which as I see it cast serious and quite reasonable doubt on their arguments, I thought it useful to provide some more ammunition for rebuttal.  So, here are a couple of general points we might keep in mind when we encounter the GOP's claims.

First, if they try trotting out statistics about filibusters and cloture, the numbers should be treated with great caution.  Above all, remember this: Filibusters do not necessarily imply attempts to impose cloture, and cloture does not imply there had been a filibuster.  That is precisely the message this Congressional Research Service (CRS) report makes.

• Let's start with the obvious: Just because there was a filibuster does not mean the Senate tries to impose cloture.  Sometimes the filibuster is aborted; sometimes the measure (or nomination) is dropped.  Filibuster need not be announced formally, and sometimes members and staff are unaware a filibuster is going on until after it has already started.  A filibuster can also be over before it really begins.  In part this is due to the more free-form nature of Senate debate, in contrast to the highly structured House.  (Take an example from an earlier stage of my career as a staffer for Sen. Pat Moynihan.  Jesse Helms offered one of his usual amendments to an appropriation bill to gut the NEA, which DPM's legislative director and I, as his staffer for education and the arts, told him about.  He decided to go to the floor to speak, but gave no indication to us or anyone else that he would do more than register his opposition.  It wasn't until he started telling the early history of government support for the arts and reciting a favorite Ogden Nash poem that we and everyone else realized he was filibustering.  After a couple hours, including spontaneous help from a couple sympathetic Democratic colleagues, Helms withdrew the amendment.)  Counts of filibusters are highly imprecise for this very reason, and even the diligent researchers at the CRS admit that, depending on the measure one chooses and how carefully we read the Congressional Record, we either seriously undercount or overcount filibuster attempts.

• Conversely, just because cloture was invoked does not mean a filibuster was underway.  The cloture rule does not just limit debate, but also imposes a number of other restrictions on Senate deliberations.  This CRS report summarizes the key points, and this one goes into more detail.  The highlights include a 30-hour limit on consideration, no more than one hour per senator, all amendments must be pre-filed and germane (more restrictive than the House rule), points of order are not debatable, and the measure under cloture takes precedence over other Senate business.  These restrictions, along with others, make cloture attractive to a leadership trying to move complex legislation through in an orderly fashion.  As a result, in recent years there has been an increasing tendency to invoke cloture not to head off a filibuster, but to control the otherwise unwieldy Senate floor.  Since this is a technique put to great use by the GOP leadership, it is particularly self-serving for them to trot out figures on cloture to make claims about the frequency of Dem filibusters.

My second general warning is to watch carefully for invocation of the views of the founders to support claims that the filibuster is unconstitutional.  Take this wingnut as an example, who cites -- correctly, I might add -- Madison's strong support for simple majority rule.  What he leaves out is that Madison was also a supporter initially of having the Senate make all nominations itself; after others at the Constitutional Convention preferred the president make nominations, he pushed strongly for a Senate role in the process.  Note that this is in contrast to the views of Hamilton, who advocated that the power of appointment be held by the president alone, so much so that in Federalist 76 he characterized the Senate's role as largely perfunctory, clearly in contrast with the views of Madison.  Supporters of the nuclear option will cite both Madison and Hamilton for these separate views with0ut reconciling their fundamental disagreement over how the power ought to be exercised.

None of that changes the historical record, which I outlined yesterday, showing a great range of opinion over the size of majorities and who should hold the balance of power for appointments.  How should we read the debates?  I argued that in the case of "advice and consent" we get a sense of what was meant by considering the options that were rejected, such as Madison's language to require a formal vote to turn down a nomination.  Absent clear indication otherwise, the debates give helpful clues.

At the same time, the Constitutional Convention debates often raise as many questions as answers, as the back-and-forth about the size of majorities indicates.  The idea that the business of the House and Senate is meant to be conducted solely by simple majority, except where stated, is implicit at best.  But in this case, we are also confronted with the quite clear statement in Article I, Section 5 that the House and Senate are to determine their rules for themselves.  In other words, where the Constitutional Convention could not reach a consensus, they left the matter up to Congress itself to decide.  And so, on occasion, Congress has decided otherwise, such as in requiring a 3/5ths majority in the House to increase income taxes (a rule I doubt the GOP wants to see abolished).

As much as the right likes to talk big about the intentions of the founders, they are highly selective in whom they invoke and when.  Madison to support majorities (except, I suppose, for income tax increases); Hamilton to support deference by the Senate.  We oughtn't let them off the hook for their intellectual dishonesty.  This calls to mind John Yoo's selective use of the writings of Hamilton in a memo to the White House to justify an extremely broad defense of the president's power to conduct preemptive war, even though such an interpretation was specifically opposed by Madison and others.  As you recall, I lay that debate out here.

Finally, let's remember that the Senate has a formal rule not just for cloture on ordinary measures and motions, but for amending the rules of the Senate themselves.  After all, that's what the GOP would really like to do in order to move Bush's judicial nominations through.  However, the cloture rule for amending the rules is not 3/5ths of all Senators but 2/3rds.  That is, the last time the cloture rule was amended, lowering the threshold from 2/3rds to 3/5ths, the higher threshold was retained for amending the chamber's rules, including the cloture rule itself.  And that's why they are even more desperate to try this underhanded method of rewriting the rules.  They may have a little trouble getting the 50 votes they need to uphold the chair's ruling using the "nuclear option" because even a few Republicans are uncomfortable with the idea, but they are obviously nowhere near the 2/3rds the Senate rules require.

We need to keep the heat on them to follow the rules.

More Virtual Insanity

Yesterday I had written about the FBI's money pit known as Virtual Case File (VCF), first reported by the LA Times and today picked up by the wire services and other major news outlets.

The company at the heart of the scandal is Scientific Applications International Corp.  Don't know who they are?  Pudentilla breaks it down in all its gory detail.  Not surprisingly, this company has quite a history.

Bluster About the Filibuster II

Following on my defense yesterday of the constitutionality of the filibuster for judicial nominations, now I consider what the founders had to say on the subject.  Here I divide the question into two parts.  First, was there an implicit or explicit assumption that the Senate would use a simple majority?  Second, what is meant by "consent" for nominations?

Let's grant at the outset that the common parliamentary practice at the time used simple majority rule by default.  There was some dispute, however, whether that ought to be the case in the new Congress.  During the Constitutional Convention debates on June 6, 1787, Hugh Williamson of North Carolina proposed that all business in the new Congress be conducted using a 2/3rd majority, though the proposal was not seriously considered.

More significantly, Charles Pinckney's draft constitution, which was influential on the final product, included a clause which began, "Points in which the Assent of more than a bare Majority shall be necessary."  Though we do not know from the records how broad this category would have been, there is a sense elsewhere in the record that Pinckney and other believed that some business ought not be left to a simple majority.  For example, Pinckney writes in a pamphlet entitled "Observations on the Plan of Government Submitted to the Federal Convention" summarizing his views:

In all important questions where the present Confederation has made the assent of Nine States necessary, I have made the assent of Two-Thirds of both Houses, when assembled in Congress, and added to the number, the Regulation of Trade, and Acts for levying an Impost and raising a Revenue: -- These restraints have ever appeared to me proper; and in determining questions whereon the political happiness and perhaps existence of the Union may depend, I think it unwise ever to leave the decision to a mere majority; no Acts of this kind should pass, unless Two-Thirds of both Houses are of opinion they are beneficial, it may then be presumed the measure is right; but when merely a majority determines, it will be doubtful, and in questions of this magnitude where their propriety is doubtful, it will in general be safest not to adopt them.

So, too, did George Mason of Virginia object to the use of simple majorities for some business of Congress.  Admittedly, at no time during these debates over the size of majority was the question of nominations addressed directly.

What should we make of the obvious silence in the Constitution about what sort of decision rule is to be used to conduct business?  A quite reasonable reading assumes that a simple majority is to be used except where specified otherwise (e.g., veto override).  Another interpretation which is supported by Senate practice since then is that by remaining largely silent on the matter and leaving the procedures of the House and Senate up to themselves, as Article I, Section 5 states, the Constitution leaves the two chambers free to decide for themselves whether to adopt another standard.  The Senate, perhaps implicitly and perhaps in error, made such a decision when revising its rules in 1806 and abolishing a rule permitting a majority to end debate.  That, of course, opened the door for the filibuster.

Now let's turn our attention to the question of what may be considered "consent" by the Senate.  Hatch makes the strong claim that consent implies providing the opportunity for an up-or-down vote on the floor on a nomination.   Most of the debate at the Constitutional Convention over what became Article II, Section 2, Clause 2 centered on whether appointments ought to be made by the executive or the legislature, before the familiar formula was decided upon.  Madison approached the idea initially by proposing a submajority for confirmation:

Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

After Nathanial Gorham of Massachusetts suggested the shared power of his state's constitution, which was defeated on a tie vote, Madison made this proposal:

Mr. Madison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch. Mr. Govr. Morris 2ded. the motion.

The next day, he explained his thinking:

in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it.

This was, on the face of it, the inverse of his first proposal, but it put the burden on the Senate to act in the negative, to disapprove of a nomination, rather than to approve it.  Moreover, the threshold used was open to negotiation:

Mr. Madison observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Madison's proposal was, however, rejected after more discussion and for the time being the Senate retained the power to make judicial appointments itself.

Later, when the question returned to the manner of appointment, language was adopted giving the president the power to appoint and the Senate the power to confirm.  There is no record of discussion about what the size of majority ought to be as there had been previously.  That said, there was debate over whether 2/3rds ought to be required for treaties, and implicitly the alternative was simple majority.  Again, by one reading this meant that a simple majority was understood for the Senate's other powers in the clause as well.

But does that mean the Senate had a responsibility to provide a simple majority vote for all nominations?  The record appears to say otherwise.  First, return to Madison's earlier proposals.  The delegates made a clear choice to give the Senate a positive power -- consent -- rather than a negative power.  This is important because it means the Constitution does not explicitly require the Senate to record a vote to reject; the delegates clearly opted otherwise.

Second, the interpretation used after ratification indicates that they did not think such negative action was required on a nomination.  Take this letter from George Mason to James Monroe:

This gives to the President alone the Right of Nomination. And if the Senate were to refuse their Approbation of the person nominated (which the subsequent Part of the Clause puts in their Power) they wou'd have no Right to nominate another Person; the Right of Nomination being complete in the President [emphases in original].

Note that he says "refuse their Approbation," again meaning that inaction as well as active rejection would be sufficient.  In probably the clearest language on the subject, take the commentaries on the Constitution written by Supreme Court Justice Joseph Story in 1833:

[The Senate] may withhold their advice and consent from any candidate, who in their judgment does not possess due qualifications for office.

So there we are.  In requiring that someone may take the federal bench only upon confirmation by the Senate, the Constitution does not obligate the Senate to vote on every nomination, much less to record a vote for each nominee they reject.  Such a proposal was rejected at the Constitutional Convention, and the language and subsequent interpretation of the clause do not support it.

(It is true that Hamilton in Federalist 76 saw the Senate's role in confirmations as little more than a rubber stamp for the president, in keeping with his preference for a strong and energetic executive, but this was not a view shared widely by the founders as a careful reading of the convention debates shows.)

Bluster About the Filibuster

I've wanted to write about the Senate's filibuster for awhile, and now that I've started this post I have a feeling I won't be able to say everything that's on my mind in one shot.  So expect there to be more on this theme.  Reading Kevin Drum's appropriately perturbed response to Orrin Hatch's by-the-numbers attack on the Dems' implicit filibuster threat, I decided I'd had about enough.  Drum is right on target, but doesn't go far enough.  Time to break it down.

Let's leave aside the questions about Hatch's own use of the power to prevent votes on Clinton's nominees.  As Armando at Daily Kos pointed out a week ago in regards to Frist, the Senate GOP has shown a remarkable -- but altogether predictable -- shortness of memory about their own use of the filibuster.  My focus, however, is on the legal and constitutional claims they have made which are equally dubious.

Hatch makes the familiar case for exercise of the "nuclear option," to declare from the chair that because filibusters preclude the Senate from carrying out its function to confirm nominees it is unconstitutional and therefore cannot be used to prevent a floor vote.  The key constitutional provision is found in Article II, Section 2, Clause 2:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Hatch argues that the filibuster creates a "constitutional crisis" by preventing a vote on the nomination.  Here's how he elides the constitutional claim:

Democrats' new filibusters abandons this tradition and is unfair to senators who must provide the "advice and consent" the Constitution requires of them through a final up or down vote.

Er, that's it.

How does he reach the conclusion that preventing a floor vote on a judicial nomination is unconstitutional?  He doesn't say.  Nor does the plain language of the clause lead obviously to such a conclusion.  While it does say that the Senate must consent to the appointment, that implies only a positive action; failing to provide consent, whether by a majority of nay votes on the floor or by not voting at all, is sufficient to reject the appointment.

As Drum points out, a filibuster is far from the only way a nomination can be blocked before reaching a floor vote.  A favorite trick when Hatch was chair of Judiciary during the Clinton years was to bottle nominations up in committee by not putting them on the agenda.  That doesn't seem any different.

Two other methods historically have been at least as important.  One is the "hold" where a senator communicates to the Senate leadership that he or she would withhold support for a unanimous consent agreement if the matter were to come up.  The reason this has power is that, in the absence of a powerful Rules Committee like the House has, the Senate's ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments may be offered or if any may be offered at all, and when votes will take place.  The quiet threat of a hold ordinarily is enough to take an issue -- including a judicial nomination -- off the agenda, at least temporarily.

Another method is the "blue slip."  This was a custom in which a nomination would not move forward without the consent of both home state senators.  As People for the American Way describe, while the blue slip had been around before, Hatch was particularly rigorous in applying the procedure to Clinton's nominees.  On some occasions, Republican senators used the opportunity to prevent a nomination from being considered by Judiciary, let alone coming to the floor.

(For that matter, wouldn't a president who fails to consult with the Senate prior to making the nomination run afoul of the "advice" part of "advice and consent?"  I'm not sure how far I'd push that argument, but it seems no more implausible than the GOP's creative reading of "consent.")

There is another provision that Hatch, Frist, McConnell and the others conveniently overlook as well: Article I, Section 5 which says that each chamber has the power and responsibility to make the rules for its own proceedings.   The Senate can require 51 votes or 67 votes, or 13 or 79 or 43 for that matter.  It can require that all votes be held on the third Tuesday of every month and that senators speak only through ventriloquist dummies.  Above all, the Senate can decide for itself whether its business will use a filibuster rule.  Absent clear indication otherwise in Article II, the Constitution seems clear on the matter.

By the same token, Hatch has no basis to claim that the 60 votes needed for cloture satisfy the constitutional "requirement" any less than a simple majority vote on the nomination itself would.  Despite their cries to the contrary, nothing in the text of the Constitution says or implies that a vote taken by the House or Senate must be by simple majority.  That is for the chambers themselves to decide.

The Constitution does not ban filibusters for judicial nominations, and any attempt to manipulate the Senate's rules on the basis of such a claim is utterly disingenuous.

But because  the clause does not spell out the procedure, the Republicans have just enough wiggle room to make their claim.  Just.  So let's take up one of their favorite tricks and ask what the founders had to say on the subject.  When the Constitution was drafted, did they intend that the Senate vote on every nomination made by a president?  How was its role conceived?  Tomorrow's post will cover these issues.

Real Insanity

In another example of why we can't assume software will work perfectly the first time, DOD now says that the reason the missile defense system failed last month was because of a "software glitch," according to AP.

If you recall, the missile with the dummy warhead launched perfectly but the missile to intercept it never got off the ground.  Isn't that just the way it is, though?  But with Bush's vastly over-ambitious plans to get a missile defense in place, they've gone down the same road as the FBI with VCF: Assuming they could get an extremely complex system working right on the very first try.  Problem is, not only does it make an ass out of you and me, but it also costs us billions of dollars.

Like Sisyphus, they plan to continue their battery of tests scheduled for this year.  Maybe this time they'll at least get the interceptor off the ground in order to see what else is going wrong with the system, a system which the president said would be in place, oh, last month.

Virtual Insanity

The LA Times reports that a $581 million effort to upgrade the electronic files for use by FBI agents, called Virtual Case File (VCF), is so hopelessly inadequate that it may need to be scrapped.  It has been known for years that -- contrary to what you may see on 24 -- the computing capabilities of the Bureau are very 1984 not in the Orwell sense but the 5.25" floppy disk sense.  This was an area of particular concern identified in the 9/11 Commission's report.

VCF is connected with an upgrade known as Trilogy, only one part of which -- an "automated workflow manager" according to Computerworld -- was on target for deployment.  The program, which is now being investigated by the GAO at the request of the House Judiciary Committee, was begun in the late 1990s, but overhauled in 2002, according to Government Computer News.  While it appears to have been beset with design flaws from the very start, the FBI's conception of the costs and challenges were fundamentally naive.  From Computerworld:

For example, according to the NRC study, the VCF system was developed without the benefit of prototyping and testing. In addition, the bureau had no contingency plan in place for handling "mission disruptive failures" that could stem from the bureau's planned "flash cutover" from the old system to the VCF system.

The FBI, according to reports, thought that they could make up for years of IT neglect by getting the whole thing right the first time.

Excuse me, did they ever try using Windows 1.0?  Word 1.0?  And I'm sorry Mac people, but the first Macintoshes -- while pretty to look at compared to PCs back then -- were finicky in the extreme.  And those are just simple desktop software issues, a far cry from what VCF is trying to accomplish.

These are problems the Bureau has been made aware of for a year now, as you can see from a series of articles in Federal Computer Week, though only now has reached such a crisis that they feel the need to reassess their approach.  So now they are going back to the drawing board and calling in consultants to see what, if anything, they can salvage from the half billion dollars sunk so far.  The idea that they may need to write a new software package from scratch is not all that far fetched.  On the bright side, according to Government Computer News, "GAO has found that VCF has good system documentation."  Score one for the gearheads!

If you wonder why the FBI continues to bungle terrorist investigations, and so feels the need to trample on our civil rights in order to compensate, here's part of the answer.

Going Off Script

The Liberal Oasis discovers this wonderful little tidbit from one of Bush's invitation-only, completely scripted "town hall" meetings to sell Social Security privatization:

MS. STONE: I would like to introduce my mom. This is my mother, Rhoda Stone. And she is grandmother of three, and originally from Helsinki, Finland, and has been here over 40 years.

THE PRESIDENT: Fantastic. Same age as my mother.

MS. STONE: Just turned 80.

Oops, someone forgot his cue!

Further DeLay

An attentive reader has been prodding me to get back to DeLay-related posts, and I agree it's past time I do.

The latest news reported today by the LA Times is that Travis County prosecutors are breaking through the wall of silence about the Hammer's fundraising activities and convincing to donors to flip.  With the same strategy used against the mafia and Enron (at least one of which DeLay is intimately familiar with), the noose is tightening.  The two companies to flip, Sears and DCS, are among eight indicted for illegal contributions, and negotiations continue with the other six.  The Daily DeLay had told us about the softer side of Sears a couple weeks ago, and the Stakeholder noted the DCS story a month ago (which I was more than happy to make snarky comments about at the time).

By getting the cooperation of these donors, prosecutors can then turn their attention to DeLay's top and already indicted aides and offer them a similar deal -- give up your boss to avoid prosecution (or perhaps plead to a lesser charge).  The Times story makes clear their calculation:

One legal source with knowledge of the investigation said the agreements with the companies could help target "big fish" in the Republican Party by persuading the three DeLay aides to cooperate with prosecutors in exchange for leniency or dismissal of their cases. The aides face 10-year prison sentences if convicted.

"If you are looking at 10 … years in jail, are you going to take the hit for Tom DeLay?" the source asked.

Glad I don't have to answer that question.  And I look forward to hearing more explanations from DeLay about how this is a partisan witch hunt once GOP staffers become witnesses for the prosecution.

One of the other companies feeling the heat is Bacardi, a familiar name for those who have been following along.

Another is Westar.  Who is Westar? The Daily DeLay provides us several possibilities (perhaps following the tip of the same loyal reader I heard from on this topic):

• One answer is a sponsor of inauguration festivities to the tune of at least $10,000 in soft money contributions.
• Another answer is an energy company accused of bribing members of Congress.
• Yet another answer is DeLay's golf partners during a rather sketchy round for which the Hammer was nailed with an admonition from the House Committee on Standards of Official Conduct.
• And yet another answer is a company whose former executives are facing trial on "40 counts of conspiracy, wire fraud and circumventing internal corporate controls."

You don't need to be Kent Jennings to know that all four answers are correct.  Tom DeLay chooses his friends well.  And I'm sure when Bacardi, Weston and the others turn state's evidence they'll have plenty of stories to tell.

This Is Your Currency on Drugs

An all-too-familiar story: The AP reports this morning that the dollar took another slide against the euro in the currency markets.  The administration has been rather cavalier about it thus far, making equivocal claims about how long it will tolerate a weakening dollar.  As the AP story indicates, its fall is tied to the continuing deficit problem; while the administration's talk of fancy accounting might help paper over the problem with the more dimwitted in Congress and the public, currency traders will not be fooled.

The real danger, as Brad Setser has written extensively, is that countries holding many hundreds of billions of dollars in reserves -- essentially propping the currency up and keeping our interest rates low -- will no longer see it in their interest to do so.  See this Economist article excerpted by Brad DeLong and recent posts from Setser here, here and here to get a sense of the problem.  Why do they continue to do so?  It's unlikely that they do so because they expect the dollar to recover soon.  With deficits as far as the eye can see, no plan to correct them, and growing trade deficits, those who talk about "fundamentals" like Snow has begun to do really mean "weak dollar."

Reserves held by these nations also serve a political purpose, especially in the case of China (upwards of $500b in reserves) and as such do not fit neatly into the efficient markets model of currency valuation.  And that makes murkier any predictions about when or whether they might dump the dollar.  The other aspect worth considering is that for the first time in the post-Bretton Woods world there is a single viable alternative to the dollar.

Let's take seriously the reporting of Daniel Gross of Slate (also on NPR) that drug lords are dumping the dollar in favor of the euro as their currency of choice.  The story has been echoed with amusement in the blogosphere, but let me say why this is more ominous than first appears.  It won't affect the exchange markets, but it does give a clearer picture of the tipping point from dollars to euros, and so presages a similar tipping point for national banks once the political stakes become relatively less important.

I would suggest that your average drug smuggler cares about only two things when choosing a currency: Can I make transactions without being traced, and how will I make the most money?  To simplify matters (although realistically, I believe), let's say that it becomes progressively easier to keep a transaction secret the more widely held a currency is.  What a drug smuggler does not care a whit about, however, is any political consideration or national allegiance in deciding what to hold in his or her wallet.  For the drug lords (not so much the guy on the corner you buy your dime bags from) they will have reserves of their own in order to finance their operations, and so care about the value of the money they spend tomorrow as well as what they spend today.  Yes, even drug lords care about the shadow of the future.

So, in choosing among widely held currencies, they want one they can make money from now and continuing into the future.  If we believe the reporting of Gross, these relatively politics-free market actors are passing the tipping point from dollars to euros.  Rather than reacting to the story over the holidays with a chuckle, I saw it as a very bad sign.  How much longer before China does the same?  Brad DeLong wonders, too.  Call me Chicken Little, but it is past time that we take the dollar problem seriously.

(For those interested, there is an active and fascinating literature on crime and economics exploring related issues, such as testing models of labor economics using cases and data in the black market.  Some of the best work in the field is by Steve Levitt at the University of Chicago, and here is a link to an abstract of one of his papers on the subject.)

Death Squads Resurrected

At one time, I innocently thought of '80s nostalgia as an annoyance.  Family Ties reruns, Bananarama, Joe Piscopo, feathered hair.

Now it seems '80s nostalgia has taken hold among our Iraq war planners in the form of -- wait for it -- Central American-style death squads.  Faster than you can say "murdered nuns" the war in Iraq has become a sick parody of a quagmire.  Newsweek reports it, via Bill's Big Diamond Blog (not to mention DKos).

I feel ill.

The Arrogance of Power

Kevin Drum points to an article in the New Republic by former Livingston staffer Quin Hillyer about the recent excesses of the House GOP.  It is a good piece, but I think some of my fellow liberals (including a few who commented on Drum's post) are a little too quick to dismiss the arrogance House Democrats displayed, as well as one or two features of the Contract that -- gasp! -- actually were right on target.

Having talked and worked with a few House GOP staff who were around during the Gingrich days, their gripes at the time about abuse of power by the Democrats were not merely a (successful) strategic ploy but something they believed, and it was not without merit.  I'm not talking about something like the House Bank scandal, which had far more to do with bad PR than actual corruption.  It manifested itself most clearly in the very inside-baseball maneuvers like the use of closed rules to prevent amendments on the floor.

To see evidence of these gripes, take a look at the hearings and voluminous documents generated for the congressional reorganization effort undertaken in the 103rd, the Congress prior to the GOP takeover.  Complaints in many cases came not just from Republicans but from Democrats as well about a legislative process which stifled deliberation.

It was not the slow accretion of four decades of majorities, however.  What made it easier for Dem leaders to show their muscle in the late '80s and early '90s was that the boll weevil faction had faded in importance.  Without the constant threat of mass defections by conservative southern Dems to hold them in check, the leadership felt freer to exert some muscle.

Which takes me to Part II of my blasphemy: Not all of the Contract was a cynical, evil document.  Some of it took up recommendations made by the bicameral, bipartisan reorganization effort of the previous Congress, and other parts echoed common complaints about the openness of the process.  To wit, provisions to:

• Extend employment protections to Hill staff.  (For years, Congress had written exceptions to employment regulations to exempt only itself.)
• Ban proxy voting in committees.  (Proxy voting gave members an excuse to skip out on their committee duties, and gave chairs a handful of votes to use as they pleased.)
• Open all committee meetings to the public, except when matters of national security preclude it.  (Wouldn't you rather Congress subject itself to sunshine laws whenever possible?)

They also came to office with a commitment to cut drastically the closed rules in order to open up floor deliberations, and made a number of other changes which have improved the legislative process.

Friends, I come to bury the Contract, not to praise it.  As Hillyer rightly says, in only a decade the House GOP -- drunk with power -- has utterly forgotten its mission to open up the legislative process and to clean up corruption.  Yes, Gingrich certainly was cynical in the way he went after Wright and Foley, but he was also correct that Democrats had increasingly behaved as though the minority party did not exist.  The fact that most members of the Class of '94 also had more odious policy motives does not change that they did see a Congress that needed cleaning.  Given the choice, I think most Democrats in Congress like the reforms I listed above and would retain them if they win in '06

Thing is, not only have Hastert and DeLay repudiated the Contract through their actions, they have become far more autocratic than the Democrats ever were.  The ethical dalliances will make the headlines, and goodness knows I have and will continue post on them, but look more deeply and you see a legislative process that rejects open deliberation whenever the House leadership sees fit.  And they see fit a lot.

I posted on the subject several weeks ago.  There I discussed how the problem is also subtler than many realize because of how power has shifted under the GOP.  If you look only at party-line voting, it might surprise many to learn that it occurs at a lower rate under the current GOP than it did under the last Democratic majority.  As I wrote, that was primarily due to a side payoff to Dems (and junior GOP members) to make up for the almost total lack of amending opportunities on the floor.  Just one of many ways the arrogance of power has perverted the legislative process.

As with the Senate GOP's flirtation with the "nuclear option" to end filibusters on nominations, these strategies make sense either when a leadership does not anticipate returning to the minority, or when its time horizon is so limited that it would prefer the instant gratification of policies now than a longer future of compromise.  In other words, the GOP either thinks it will never lose again, or it has the patience of a three-year-old on speed.

Selling Social Security to the House

Josh Marshall noted the item in the Washington Post saying Rob Simmons, who represents a marginal district in CT, is among the House Republicans already leaning against the privatization plan.  He makes the completely rational political calculation that since the program is not in crisis, it can only hurt him electorally.

There are a few other aspects of the story worth noting as well.  First, the GOP leadership counts 15-20 votes like Simmons', but the article correctly points out that the number is likely higher than that.  In my experience, even though it is the job of the leadership to know where their membership sits, their information tends to be incomplete.  Given the history of vengeance wreaked upon those who stray from the fold under this GOP, some are likely reticent to voice their ambivalence so early.  It is also in the interest of the leadership to lowball the estimate publicly, which also guarantees that the true number is at least as high.  The Post estimates it at 40 or so.

Second, if the number of Dem defectors stays low -- Boyd, Ford and a couple others -- then even at the lower range of estimates Bush would lose a straight-up vote on the floor.  That's even without Grassley engaging in horse trading in the Senate to water the thing down, as I talked about yesterday.  The task doesn't get any easier with the likes of Bill Kristol and Newt Gingrich talking it down.

Third, more cold water is thrown on the idea that there is some kind of "mandate" for Social Security reform.  As I have written, mandates are illusory things anyway, and public opinion polling has shown consistently that few people have bought the "crisis" rhetoric.

The closer Bush gets to introducing the legislation, the more it looks like a loser for him, a classic case of a lame duck over reaching.

That Pesky Bicameralism

Late last week, the Washington Post reported on splits within the GOP about proper strategy regarding Social Security.  Some of that reflects real ambivalence among moderates and fiscal conservatives over the wisdom of pursuing privatization, which as I have argued in the past on more than one occasion, the Dems ought to capitalize on both in the legislative fight and in the '06 and '08 elections.

The article talks about another split which is just as predictable and no less fatal to privatization, and that is the split between the House and the Senate.  Here I don't mean just an ideological split or a difference in style between the two sets of leaders, but real institutional differences which produce very different legislative processes.  In fact, in most respects the leadership differences are driven by institutional features.

The sentiment in the House is that Bush should give them his privatization package and sell it to the Republican Conference.  There, majority status is everything and what matters most to Hastert and DeLay is getting 218 votes to pass the bill.  As long as the GOP is on board, they have no need to negotiate with Dems in order to get it through the House.  From their perspective, the fewer steps it has to go through to reach a floor vote the better because it would foreclose opportunities among some skeptical Republicans to soften the bill.  A pre-drafted bill which can be ushered through the Rules Committee directly to the floor would fit that strategy to a T.

The Senate, on the other hand, doesn't work that way.  The leadership and committee chairs are weaker, not just because of the cloture rule but also because of the chamber's reliance on unanimous consent to schedule their business.  The cloture rule give power to the minority party to filibuster, but reliance on unanimous consent gives implicit power to individual senators (the infamous "hold").  As chair of Finance, Grassley knows that he needs to cut quite a few side deals and engage junior and minority senators in the process in order to get the bill through the Senate.  As a result, as the Post story says, he would much rather start with a set of general principles and build a bill from there.

This congressional culture clash puts the White House in a delicate position on Social Security privatization.  On the one hand, if they follow the House strategy then a bill which is approved by the House Republican Conference is unlikely to make it through the Senate unscathed.  Moreover, with approval ratings hovering around 50% the president does not have the political clout to force everyone into line, even in the House.  On the other hand, if they follow the Senate strategy then they lose control of the process and may end up with a product very different than the one they want.  The fight is a serious one, but is very winnable for the Democrats.

Which is one reason I found it amusing that the House lifted the ban present since the days of Thomas Jefferson on calling out senators by name.  The days of bicameral respect apparently are over, and for those who care about the tone of debate in politics this is not good news.

In other words, not only has the House GOP shown itself unwilling to share the sandbox with others, now they want to shit in it, too.

Fact or Fiction

More evidence that rightwingers have no interest in science:

No doubt you have heard about Michael Crichton's latest novel, State of Fear, a pulp thriller which exposes global warming as a plot orchestrated by human-hating environmentalists.  He's been on this kick for awhile, such as in this talk two years ago at Cal Tech and then another a few months later at the Commonwealth Club in San Francisco.  (I won't dissect these speeches here, though they cry out for it; let's save that for the group discussion.)

He rests his credentials to speak authoritatively on matters related to environmental science on the fact that he's an MD and once lectured on anthropology at Cambridge, and provides footnotes and a bibliography to give his novel a sheen of authority in support of his belief that global warming is, well, fiction.  Of course, once he's pressed on his highly selective use of data to buttress his case and to defend his choice not to engage the scientific community directly, he retreats to say that he is not a climate scientist but a novelist, as he did in this interview on Talk of the Nation.  Apparently he can't make up his mind what he is.

The capper is that Senator James Inhofe, in a speech on the floor of the World's Greatest Deliberative Body, said that he was so taken with the arguments of the book, in which the National Environmental Resource Fund (NERF) sets off natural disasters which it can blame on global warming, that he recommended all his colleagues buy a copy and take it to heart.  Showing his all-too-familiar thin grasp on reality, Inhofe says:

Dr. Crichton, a medical doctor and scientist, very cleverly weaves a compelling presentation of the scientific facts of climate change-with ample footnotes and documentation throughout-into a gripping plot. From what I can gather, Dr. Crichton's book is designed to bring some sanity to the global warming debate.
....
Throughout the book, "fictional" environmental organizations are more focused on raising money, principally by scaring potential contributors with bogus scientific claims and predictions of a global apocalypse, than with "saving the environment." Here we have, as the saying goes, art imitating life.

Perhaps Sen. Inhofe, defender of torture and American patriot, would like to recommend these other Crichton novels to his colleagues as well:

• Rising Sun, which shows that evil and inscrutable Japanese industrialists are about to take over the country
• Jurassic Park, in which dinosaurs walk (and sometimes fly) on earth still
• Disclosure, in which sexual harassment is a fabrication by spurned women
• Sphere, in which an alien ship on the bottom of the ocean tells us more than we'd like to know about ourselves

Of course, all Inhofe and the rest of us need to know about Crichton's commitment to science comes from his memoir Travels, in which he equates psychics and exorcists and other paranormal hucksters with scientists.  But when you're a pulp novelist, or a rightwing senator from Oklahoma, that's all the same anyway.

Athletic Support

Apparently I'm not the only one playing catch-up after a vacation.  Today the Washington Post reported that a group called the College Sports Council has sued the GAO for a report issued in 2001 which, much to the group's chagrin, found Title IX not terribly harmful to men's sports and quite beneficial to women's sports.  The report, entitled "Intercollegiate Athletics: Four-Year Colleges' Experience Adding and Discontinuing Teams," can be viewed at the website for the National Association for Girls & Women in Sport (PDF format).

The CSC had initially filed suit in district court in 2003 and amended it in late December.  The claim the suit makes is that the GAO violated "accounting ethics" by producing misleading results, which in turn served to buttress policies they don't like.  As the Post put it, the group "has decided to sue the messenger."

The CSC bills itself as "a national coalition of sports associations devoted to the promotion of the student athlete experience."  While it says that it supports "broad-based intercollegiate athletic programs for men and women," it clearly has a bee in its bonnet about Title IX, which mandates equity in the treatment of men and women in collegiate athletics.  This should not be surprising given that its member organizations are a half dozen coaches' associations for sports like wrestling and gymnastics which -- let's face it -- have seen men's programs dropped in recent years at a few institutions.

To say the suit has no merit is like saying Bill O'Reilly has no phone manners.  The CSC claims that because the number of colleges surveyed increased at a higher rate than the number of new men's sports programs over the two decades covered in the study, the study is fatally flawed, misleading, and in violation of accounting ethics.  First, grant that the raw numbers the CSC cites are correct, that controlling for the number of institutions the number of men's programs have decreased by a small number.  That does not mean, however, that the study was flawed or misleading.  Indeed, the GAO quite openly states that very fact in the section entitled "Scope and Methodology."  Second, the report acknowledges that the trends are uneven across sports with several men's sports and a few women's sports losing participants and programs across the two decades.

The most damning response to the suit, however, is that the study does not rest on those raw numbers.  Instead, the core message is that institutions have made a variety of responses to the demands placed on them by Title IX, and most of the time improvement in opportunities for women does not result in harm to men's programs.  There is no universal response to Title IX and both the colleges and those enforcing the law at the Department of Education have been flexible in adjusting to its demands.  To object to the study based only on that small slice of data misses the whole point.

The suit isn't really about the GAO report, despite what the Post story says.  The real problem in the CSC's eyes is a report issued in early 2003 by the DOE's Commission on Opportunity in Athletics which upheld in substance Title IX and its enforcement and recommended some fine-tuning, which the department heeded.  The CSC, in the midst of two different suits to halt enforcement of Title IX (which it lost), in early 2003 tried to bully the DOE into backing down on the commission's report, citing precisely the same data from the GAO report referred to above as leading to biased and incorrect conclusions by the commission.  In the department's response (Word), it showed that the GAO report was not in itself determinative, a variety of sources were consulted, and its core claims were corroborated by others.  So, failing to undermine the report directly, the CSC has ignored the DOE's response and sought to undermine the credibility of the GAO report in court for the apparently mystical power it has over policymakers.  Oh, you know the mojo of those accountants . . .

In a mark of how the CSC has sold itself out to the rightwingers, they post a venomous diatribe by Phyllis Schlafly accusing Bush of loading the Commission with "radical feminists" and ultimately caving into their demands.  When you've stopped laughing, I'll show you why that's bunk.

The commission had fifteen members and was co-chaired by retired basketball star Cynthia Cooper and Stanford AD Ted Leland.  Other members who might be considered feminists (though "radical" is certainly debatable) were Donna de Varona, first president of the Women's Sports Foundation, and Julie Foudy, retired member of the U.S. Women's National Team for soccer and an advocate for women's sports.  If anyone dominated the commission, however, it was the athletic directors; in addition to Stanford, the other universities represented were Boston College, Iowa, Northern Illinois and Maryland, as well as the head of the Southeastern Conference.  Then throw in a college president (Penn State) and a top administrator at BYU.  Though I'm sure they were all shrinking violets.

As for the claims of Schlafly and the National Review that meaningful Title IX reform was hampered by the commission's consensus rule, after considering the composition of the commission have a look at the list of votes in its final report.  The rhetoric of the right and their new teammates at the CSC doesn't match the facts.

(It is worth noting that early press reports of the CSC's challenges listed baseball coaches as among its member organizations, but they are not currently listed.  As of this writing I could find no evidence that this is due to the group's increasingly radical and hopeless legal challenges, but it does indicate that support for it is dwindling.)

Back Like a Bad Habit

Oh yes.  Am back from my vacation in which I:

• Went to the geographic center of California (the town of North Fork, south of Yosemite)
• Stayed in the car theft capital of the country without losing my rental (Stanislaus County)
• Ate miniature whole crabs, about an inch across, at a sushi restaurant in the City (be careful the claws don't snag on your lip)

Catching up on the news, I see a few things happened in my absence.  And a few things didn't.

• Gonzalez caught some heat for the torture memos, but not enough.
• House Republicans had a change of heart under pressure about the most egregious ethics rules changes, but they're still dumping the committee's chair in favor of someone more loyal to the leadership.
• Rumsfeld ordered a security review for Iraq, though at this late date it looks more like another ass covering (a la finally signing the condolence letters) than real policy circumspection.
• Frist said he won't exercise the nuclear option in the Senate as long as Dems play along.
• Some journalists are getting the message that there may not be much of a Social Security crisis.  Sort of.
• And, finally admitting that Jon Stewart was right all along, CNN canceled Crossfire.

Among other things.  Well, I might write about some of those in the near future, but as I play catch-up with the news there are a few other items I'll focus on later today which have received just a smidge less attention in blogtopia, near as I can tell.

Glad to be back.