Friday Talking Points -- Obama's Fourteenth Option

The silly season has come early to Washington, it seems. The root cause is a simple fact of American politics these days -- sometimes, there just can't be transparency.
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The silly season has come early to Washington, it seems. The root cause is a simple fact of American politics these days -- sometimes, there just can't be transparency. That's a fairly provocative statement, so allow me to explain my reasoning in detail. Then, later on (in the talking points section of our program), we'll get into the option of the Fourteenth Amendment to the Constitution, and how Obama should be using it right about now. But for now, it's time for a sober assessment of where Washington currently stands.

Once again, national politicians are in negotiations over a key piece of legislation which, if it does not pass, will cause doom and gloom across the land. Once again, "journalists" are reduced to mere purveyors of increasingly wild and rampant speculation, for weeks on end. The key underlying fact is ignored by virtually everyone, in the midst of this frenzy: this is not some sort of aberration, this is how Washington gets anything done. At least, these days.

The term "silly season," in Washington, usually refers to the August congressional vacation... oh, excuse me, "district work period." See, right there, the actual label is inherently silly. To say nothing of what this period normally contains. When politicians go home, less news happens. Since they're not in town legislating, nothing official happens outside of the White House. Since political reporters, for the most part, don't have the will (or in some cases the resources) to get out beyond the Beltway to report what non-Washington-dwelling Americans are thinking about politics elsewhere in the country, the whole month is seen as the slowest news period of the year in the political world.

But politics, like Nature, abhors a vacuum. Here's easy proof of this notion: when did the initial Tea Party town halls happen? Did they make the news? The answers, of course, are: "August," and "Yes, indeedy." Political reporters love this sort of thing during the silly season, as it fills column inches and television minutes when there's a dearth of actual political news.

This year, however, everyone faces a deadline of August the second to produce a very complex piece of legislation. Serious negotiations are taking place at the White House. Because the deadline is looming (the actual deadline, the White House points out, is going to come even earlier -- because getting a bill written, scored, and through Congress takes some time), the politicians are now holding serious negotiations behind closed doors. Very little of the substance of these negotiations has leaked out to the press, which is obviously something the negotiators themselves agreed to before they began.

This hasn't stopped the press frenzy of wild speculation, however, as the Beltway pundits all seem to have declared their own silly season, a month early. Rumors are reported as fact, and sheer blue-sky speculation is reported as rumors -- from the usual "unnamed sources," or even using the tried-and-true "people are saying..." dodge.

The only fact of the matter is that nobody really knows what is going on in the negotiations, other than the people actually in the room. Anybody who tells you differently -- in any media -- is almost surely going to be proven sorely mistaken. Mainstream media, the partisan blogosphere, talk radio -- all are currently going berserk over this rumor or that. Virtually all of these rumors will not come to pass. It's something to keep in mind during the next week or so, as the media circus jacks up the intensity even further.

The speculation is fueled by the lack of transparency. This is a popular thing to denounce, both by politicians on the campaign trail and by political journalists hungry for facts to report. The meetings are happening in a closed room. At some point, the participants will (hopefully) emerge, and present what they've agreed upon. The real battle in Congress will begin at this point, but because of the looming deadline it's going to be a pretty short battle. Even if they don't make the deadline of August 2, they will almost surely make the deadline of the following week -- when Congress' vacation begins. They'll paper over any gap with some sort of temporary law, if they need to, but my money's on Congress not voluntarily cutting their month-long vacation short.

All of this won't stop some politicians and journalists from grousing over the closed-door nature of the agreement. But you know what? That's the only way any agreement is going to be reached. Barack Obama campaigned on "transparency," and plenty of politicians -- of both parties -- have made lots of political hay on the hustings in recent years denouncing such lawmaking in closed rooms.

[Etymological detour ahead, please skip if it bores you: These types of negotiations used to take place in what was originally called "smoke-filled back rooms" -- but of course, the rooms are now smoke-free. This leaves us with the choice of "backroom deals" (which has too many negative connotations to use as a general term), "closed-door deals," or "closed rooms." We return you now to your regularly scheduled column....]

While the concept of closed rooms is an easy target -- who likes secrecy, after all -- there's a reason Obama has given up on the idea of transparency. He famously invited Republicans to conduct all such negotiations with him on cable television -- back when he was campaigning. President Obama actually did come through on this promise for one such event during the healthcare negotiations, but because Obama gained politically from doing so the Republicans are never going to agree to such an event again. Which is beside the point -- no matter what you promise on the campaign trail, at times politicians need to close the door to the world and hash things out. Because without such closed-door meetings -- in today's political climate and with today's divided Congress -- nothing would ever get done.

The reason is that if all negotiations were taking place in the bright spotlight of television cameras, no negotiations would actually take place. Instead, we'd get lots and lots of posturing and ultimatums. What Republican leader, after all, is going to go on television and consider the possibility of raising taxes? What Democratic leader is going to publicly consider slashing entitlements, on camera? It's pretty easy to see that wrangling over details becomes possible for politicians only when they're not terrified of being attacked politically for every word they say. If negotiations were televised, nobody would ever utter the words, "Well, if we agreed to that, what would your side give?" or maybe, "We might be able to sell that to our side, if your side would agree to this."

Don't get me wrong -- I'm not saying I think this is the best way to do things. I'm not coming out in favor of backroom dealing (smoke-filled or not). I actually prefer "sunshine" laws which prevent any sort of off-the-record activity or contact among government officials. At the state level, they can work wonders in terms of keeping politicians honest. If someone proposed such a law at the federal level, I'd probably support the effort. But I wouldn't exactly hold my breath in anticipation of its passage, because Congress would have to vote to end their own backroom practices. Which I simply don't see happening any time soon.

Meaning we've got the system that we've got, at least for the foreseeable future. President Obama is running for re-election, as is the entire House of Representatives and a third of the Senate. The political atmosphere is, to put it mildly, polarized. Democrats and Republicans alike have absolutist factions within them. Politicians are pandering to these factions on a daily basis. In the midst of all of this, a bill must be passed by a certain date. Which, as I mentioned, happens all the time in Washington (although most in the media will never remind you of this fact). Negotiations are taking place behind closed doors -- which is the only way any agreement is going to happen.

I don't have to like it. In fact, I don't. But that's where we're at, whether we want to admit it or not. The price of transparency, these days, is that nothing would ever happen if the dealmaking had to be done in public. Sometimes that's a price too high, when things must get done. It's a sad fact of American politics today, but there it is.

Senator Sheldon Whitehouse has been leading the fight among Democrats in the Senate to keep Social Security safe. A few weeks ago we awarded Whitehouse an Honorable Mention for doing so, and we'd just like to point out this week that Whitehouse just wrote a plea on The Huffington Post for people to show their support. As he puts it (emphasis in original):

We, as Democrats, must stand firm against any cuts to Social Security or Medicare benefits. Period.

So I'm introducing a Senate resolution to tell the President and congressional budget negotiators on both sides of the aisle in unambiguous terms: Cuts to Social Security and Medicare benefits should be off the table.

We must unequivocally reject any cuts to Social Security or Medicare benefits. Click here to be a citizen co-sponsor of my resolution.

If Democrats can't unite to defend these hugely popular and successful programs -- and unequivocally reject Republican plans to dismantle them -- what do we stand for?

We have to hold the line. We can't keep moving the goalposts.

Keep fighting the good fight, Senator Whitehouse, and I heartily encourage everyone to click over and sign up to "co-sponsor" his resolution.

But the Most Impressive Democrat Of The Week this week goes to Governor Mark Dayton of Minnesota, who is strongly fighting his own struggle with Republicans, over his state's budget. Dayton wants to slightly raise taxes on a handful of millionaires in the state. The Republicans in charge of the legislature do not want this (no surprise there). As a result, the state now has no budget and is in the midst of a state government shutdown.

This could be the precursor for the same fight on the national level. This fight, which Republicans always laughably call "class warfare," is brewing on the national stage. President Obama, when he signed an extension of the Bush tax cuts, made sure they expired right at the end of 2012 -- meaning he plans to campaign on the issue. Look at the rhetoric he's been deploying over "corporate jet owners" and "millionaires and billionaires" recently, for instance. Even if the debt ceiling is raised, it's doubtful that the Bush tax cuts for upper earners will be part of the deal (although I certainly could be wrong about that). This will mean the fight will continue during the upcoming budget fights this year, and probably next.

Minnesota may be a bellwether in this fight. No matter whether Governor Dayton wins or loses his legislative showdown, what will actually matter is who the public will blame for the mess. If the citizens of Minnesota blame their state Republican legislators, then Dayton will win the hearts-and-minds battle even if he doesn't win the legislative battle. If the public blames the governor, then it won't matter as much even if Dayton wins the day on raising millionaires' taxes.

The jury's still out, but you can bet your bottom dollar national Democrats and Republicans are watching this fight very closely. This may be one of the key issues in the 2012 campaign, so it will matter beyond the borders of Minnesota which way the cards fall.

So far, Governor Dayton seems to be holding his own in the fight. As the shutdown continues, however, the public is going to get more and more angry at the politicians. Which way that anger expresses itself could be very important on the national stage.

No matter which way things resolve themselves, for this week, Mark Dayton is our Most Impressive Democrat Of The Week for standing up and not backing down in this particular fight.

[Congratulate Governor Mark Dayton on his official state contact page, to let him know you appreciate his efforts.]

We may have missed someone during a hectic week, but we have to say that we couldn't come up with a single Democrat this week who deserved the Most Disappointing Democrat Of The Week award. This is usually a good sign in general, but if you have any candidates you feel are deserving, feel free to suggest them in the comments.

Volume 172 (7/8/11)

I have to apologize for the somber tone of my opening segment today. I just re-read it, and it's awfully defeatist in a lot of ways. Must be the "summertime blues" or something.

To counteract this, I've decided to present some fire-breathing here, in place of our normal talking points segment.

Because the debt ceiling negotiations are indeed taking place in private, nobody knows what is really being said. This leaves us all free to imagine what is taking place in the talks between President Obama and the congressional leaders. And there's one conversation I've been fantasizing about in the past few days that I thought I'd just write down and share. Reports on whether the Obama White House is considering this option or not are not much better than rumor, at this point. The president answered a question about it during his Twitter town hall this week, but you can really read his answer two ways -- either as ruling the option out, or as simply saying he'd hate to have to get to the point where he had to use it.

I'm going to assume the president is still keeping his powder dry on the "constitutional option." Even bringing it up absolutely terrifies Republicans, for good reason. And for that reason, Obama should (at some point during the negotiations) give the following speech to the Republicans in the room.

The Fourteenth option

[Remarks by President Obama to the debt ceiling meeting, as one hopes he would deliver]

You know, Republicans have been making a lot of noise in the past few years about following the United States Constitution to the letter. So I'd like to take this opportunity to quote from the Fourteenth Amendment, if I may:

"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

This amendment was passed after the Civil War, and this particular passage goes on to state that the United States government will not be responsible for debts incurred by the Confederacy, and also that the U.S. couldn't be sued for the value of emancipated slaves by slave owners deprived of their "property" as a result.

This language was inserted into the Fourteenth Amendment for a reason -- to keep future Congresses from ever questioning federal debts. This way, even if a future Congress voted later on to actually pay the Confederate debt, this law would be unconstitutional and would not stand. It also prevents any Congress from ever questioning in any way the public debt of the United States.

If the people in this room don't come to an agreement by [insert deadline], then I am going to act. I have already informed the television networks to reserve time on that evening for a speech to the nation, where I will explain that the debt ceiling is, in and of itself, unconstitutional.

To be blunt, I will play the Fourteenth card. I will use the Fourteenth option, if on that date we have not yet announced a deal.

Now, before you say anything, let me just spin out a scenario for you Republicans, because this is the way I see the whole thing playing out, and I want you to understand where I'm coming from.

In the first place, the plain language of the Constitution backs up what I will do. After whipping the public up over keeping to the actual text of the Constitution for years now, you Republicans are going to have a tough time explaining to the public why you now can't hold yourselves to what the Constitution actually says in black and white.

In the second place, if I take this route, then negotiations over budget cutting will be at an end. I will explain to the public that we can have this whole fight over again during the budget negotiations for next year, but that I simply cannot allow Congress' refusal to act to destroy not only the American economy, but likely the entire world financial system as well. We can have this debate later, in other words, when it may mean a federal government shutdown -- but when it will most decidedly not mean the federal government defaults on its obligations.

In the third place, if I win this fight, then you will never again have the power to hold the economy hostage over raising the debt ceiling, because the debt ceiling as we know it today simply will no longer exist. Again, I will explain to the American public that when Congress passes a budget then they have incurred debts and obligations which -- according to the Constitution -- cannot be questioned. Once Congress approves a budget, it has automatically approved whatever debt is necessary to pay the debts contained within that budget. Voting on debt ceiling increases will become a thing of the past, ladies and gentleman.

Legally, I think I'm on pretty solid ground. Historically, I'm on solid ground. Politically, I'm on even more solid ground. And as a purely practical matter, I'm standing on granite bedrock. Think about it -- what would you congressional Republicans do in response? Well, you have two real options -- take me to court, or impeach me. Do you really think you'll get enough votes in the Senate to remove me through the impeachment process? I don't. As for taking me to court, who would the aggrieved party in this lawsuit be? Congress. After all, by asserting my constitutional prerogative, I would be saving the United States from the very unpalatable option of defaulting on our public debt. The only party harmed by my doing so would be Congress, who thinks they have the power to ignore the plain language of the Constitution. But don't forget that for Congress to sue me, you'd need to get both houses to agree to do so. Once again, do you think you'll be able to get that through the Senate? I don't.

Even assuming you somehow can cross that bridge, then what would you do? Ask a judge for an injunction which would -- since you hadn't passed the debt ceiling extension -- immediately put the country into default? Do you really think the public's going to rally behind that? I don't. How long do you think this legal fight would last? Do you really want this to be the key issue of next year's election? I don't think you do, personally, since you'll be on the side of immediate default, and I will be on the side of acting in the best interests of the national fiscal security of the United States of America. You'll be on the side of "higher interest rates immediately for all Americans!" and I'll be on the side of "That's insane!" And in the meantime we'll be busy mining all the Republican statements in favor of George W. Bush's concept of the "unitary executive," rest assured.

Granted, it would indeed be a political showdown, and you might possibly have a prayer of winning it. I think I'm on pretty solid ground, though. In fact, I think I'm on such solid ground that I am perfectly willing to take this route.

Don't read this as a threat, either -- read it as a promise. If the people within this room cannot come to an agreement before [insert exact time and date], then I will be appearing on every network to explain to the public why we're never going to have the debt ceiling debate ever again, because even admitting the existence of such congressional power is in itself unconstitutional.

I've positioned myself for the next election as "the adult in the room." This is only going to feed into that perception -- especially if the House begins impeachment proceedings because I refused to let the country default on its debts. I've also positioned the Democrats as being willing to compromise, while Republicans refuse to even bargain in good faith. This will also feed into that. Republicans have positioned themselves as defenders of the original text of the Constitution. I'll be on the right side of that one, too. We'll be painting Republicans as taking their marching orders from the most extreme element of their party, far outside what mainstream voters think.

Having said all of that, I'm going to swear to you right here and now that I'm going to keep all of these thoughts within this room, and not in public -- and I think you'll all agree as well that it's for the best that you not leak my position on this matter. If we can get a deal before the deadline, then nobody ever has to know about this speech. I will use my television time to announce the deal and praise the Republican leadership who helped make the deal possible. I promise you I will not mention the Fourteenth Amendment, and will answer any queries about it with some version of: "The negotiations never got to that point." I will not attempt to score political points off the possibility of using the Fourteenth option, and I will not allow anyone from the White House to do so either. I think a deal is possible, and I think we can get to the point where both parties can go back to their caucuses in Congress and sell it to enough members that it will pass both houses. I will work every minute necessary to make this happen. Right up to that deadline.

But once we pass that deadline, then these talks will be over, and I will be making the case to the American people that I must act to pay the debts that this Congress already voted to approve in their budget for this year. We can have that political fight, if you'd like, and we can push it to a real constitutional crisis which will last throughout the entire election season. I'm willing to do so, because if it becomes the only option available to me to stop a worldwide financial crisis which would doom the economy for years to come, then I will indeed take that option. So your choice is: make a deal before then, or try to explain to the American public why the words of the Constitution are not correct. I'll leave you alone for a while to think about it for a while. But don't take too long, folks. The clock is ticking.

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