Divided government is “do nothing” government

With the deep partisan split, it is appealing to think that divided government is both a check on political excess and a driver for compromise.

With no middle-of-the road influence in government, divided government should protect against extremes while forcing deals.  At least in theory.

A closer look suggests divided government doesn’t work as well as we may think.

Harry Truman, a Democratic president, faced an unyielding Republican Congress that blocked his legislation.  He used their opposition successfully in his own campaign for reelection, charging he faced a “do nothing” Congress.  He won and also got a Congress of his own party.

Republican Ronald Reagan and Democrat Bill Clinton both confronted opposition control of Congress.  Though they could sometimes make divided government work, Reagan ran into strong opposition for his illegal Iran-Contra fund shuffle, and Clinton was impeached.

Divided government works when the two sides try to meet public needs on which they both agree.  It fails when the prospect of partisan gain from blocking the other side outweighs the responsibility of carrying out the public trust.

Politicians who say they can work with the opposition almost always end up these days following their party’s line.

Even those few considered moderates, like Maine GOP Sen. Susan Collins and Sen. Joe Manchin, a West Virginia Democrat, end up falling in line with the dominant views of their parties when it comes to key votes.

These days, President Obama is unable to get the GOP-dominated House of Representatives to pass any bills that might make the Democrats look good.  So we don’t get compromise.  We get a mostly “do nothing” Congress.

The GOP won’t pass a bill on badly needed immigration reform, thought the parties largely agree, to avoid giving the Democrats the chance to take credit for the legislation. 

Much the same is true at the state level.  A Republican governor bitterly attacks a Democratic Legislature that sees itself as a check on him and not as his partner in implementing a conservative agenda.  And he sets records with his vetoes.

In short, divided government is as likely to produce no results as to come up with moderate compromises. 

By contrast, periods of one party rule have generally brought results.  Under a president and Congress dominated by the Democrats in the 1930s and 40s, a great deal of legislation was passed.  The point is not whether it was good or bad, but that it happened.  Much the same is true of the Kennedy-Johnson era in the 1960s.

More recently, Republican President George W. Bush dealt with a GOP Congress for four years and was able to gain support for his foreign and domestic initiatives.

In Maine, Democratic control of the executive and legislative branches produced results.  GOP Gov. Paul LePage got an income tax cut thanks to a Republican legislature.

Of course, if you were on the minority side during these periods of one-party rule, you might have preferred a “do nothing” Legislature.

There’s another key ingredient if divided government is to work – leadership.  Leadership relies on good communication.  Power in making deals under divided government depends on each party having the sense the other has developed major public support.

n Congress and the Legislature, members need to give their leaders the support to negotiate on their behalf.

But today, GOP House Speaker John Boehner seems to be hanging onto his power by his fingertips.   

He has little scope to deal with the president.  And negotiations seem certain to be dead if the GOP takes over the Senate after this year’s elections.

On the executive side, the same need for leadership exists.  President Obama does not communicate strength and does not stimulate wide public support.  He often frames issues academically, which may be accurate but not confidence building.

Gov. LePage is the extreme opposite.  There’s nothing academic about the way he expresses his positions.  He is blunt and sometimes rude.  That may inspire his supporters, but it undermines his chances to come to terms with the Democrats.

Obama, who leaves much of the public work of government to others, has become almost invisible in the media, leaving open the question if he is really running things.  LePage is far more visible, but often more for his gaffes and partisanship than for his political initiatives.

For voters, it comes down to considering not only a candidate’s merits, but whether his or her election would promote a functioning government.  It we want less political paralysis, maybe it’s time to abandon our belief in the virtues of divided government.

If corporations are people, why can’t they go to jail?

The Supreme Court has come up with some unusual meanings for some common words.  In the process, they have changed the nature of the American corporation at the expense of average citizens.

Because this has to do with the Court, it gets a little legalistic, but much less than you might expect.

In law, affected parties may be called “persons.”  Historically, there have been two kinds of persons – natural and artificial.  “Natural persons” are human beings.  “Artificial persons” are organizations, like corporations.

The big question raised by the Supreme Court is whether there is any difference between them.  This Court seems to be saying there isn’t.  In other words, corporations should be treated pretty much like human beings.

In a case decided less than two weeks ago, the Court ruled that, because government cannot force individuals to support contraception, it cannot force corporations, owned by individuals, to provide health insurance coverage paying for contraception.

A lot has been said about this decision applying only to “closely held” corporations, ones owned by a small group of people, not those whose shares are available for purchase in the open market by anybody who’s interested.

The Court said individual rights of human beings applied also to corporations owned by a small group of people.

What about major corporations? The majority opinion says, "it seems unlikely that the sort of corporate giants to which [the government] refers will often assert...claims" like those of the small corporations.  "Seems unlikely" may not sound like what a major Supreme Court decision should conclude about the law of the land.

It seems unlikely the Supreme Court would decide differently if a majority of any corporation's shareholders wanted it be to exempt from the contraceptive requirement.

The Court’s decision is based on the belief that a corporation is nothing more than a collection of natural persons, so it should be treated just its individual owners would be.

If that were true, there would be almost no reason for corporations to exist.  The main reason they exist is to shield their owners from legal liability.  If you want to sue a company for its wrongdoing, the corporate form keeps you from getting at the owners.

In other words, according to the Supreme Court, corporations have more privileges than people, because their owners have the rights of natural persons, but not the same exposure to liability for their actions.

It gets even better.  If you commit a crime, you can go to prison.  If a corporation commits a crime, it pays a fine that probably comes out of the pockets of shareholders who have no control over corporate actions.  In fact, the government probably won’t even bother charging it with a crime, just levy the fine.

If corporations are nothing more than collections of their individual owners, why can’t members of their boards of directors go to jail when their companies break the law?  That could be the best way to cut down on corporate lawbreaking.

But, the corporations might argue, we don’t have the most important right of individuals – the right to vote.  Individuals have votes, which should give them more power.

In a decision a few years ago, the Supreme Court ruled that corporations have the same freedom of speech as individuals.  Almost 40 years ago, in a decision giving a new meaning to common words, the Court ruled that political contributions were a form of speech.  Result: corporations can contribute freely to political campaigns.

Corporations may not the vote the way individuals do, but they have a lot more money to contribute.  And the record shows that money determines political outcomes.

Getting back to the Court’s decision on contraceptives, the majority said that the decision really would have no effect, because the government had already created an easier method for providing coverage if a company declined to participate.  Just use that method, and the decision would not harm employees of companies refusing to pay for contraceptive coverage.

That decision had a shelf life of three days.  In a new decision, the Court said that it would have to consider whether that method was legal and, in the meantime, it could not be imposed on an entity that objected.

The three female justices on the Court blew up on that one.  They had warned the original decision would lead to an expanded ability for artificial persons to exempt themselves from laws on the grounds of their religious beliefs.  The majority had scolded them for overreacting.  Then it did just what they had predicted.

Johnnie Walters dies and so does his spirit

Let us remember Johnnie M. Walters, who died last week.

He has been forgotten, though people should honor what he did.  I do. 

In 1972, he was the commissioner of the Internal Revenue Service.  He had been picked by President Richard M. Nixon for that job.  The president probably thought he should be so happy to have the title that he would follow orders.

“I want to be sure he is a ruthless son of a bitch,” Nixon said, “that he will do what he’s told, that every income-tax return I want to see I see, that he will go after our enemies and not go after our friends.”

Walters succeeded a commissioner who would not obey Nixon.  But nobody told this unknown tax lawyer from South Carolina that he had a special set of instructions from the president.

Still, the wheels were grinding.  John Dean, the White House counsel, searched for “how we can use the available federal machinery to screw our enemies.”

A good way, it turned out, was to get the IRS to carry out tax audits of “enemies.”  Dean called Walters to the White House and, in 1972, gave him Nixon’s infamous “enemies list.” As a Senate staff member and campaign official for Sen. George McGovern, Nixon’s election opponent, I was on the list.

Walters balked. The Watergate scandal involving the Nixon campaign break-in at the headquarters of the Democratic National Committee was public, and Walters warned Dean that using the IRS for political purposes would create a far bigger scandal.  But Dean insisted.

The IRS commissioner told Treasury Secretary George Schulz of his orders, and Schulz advised him to lock the list in his safe.  Three days later, Schulz was ordered to fire Walters if he did not cooperate.  Schulz’s own job was at stake.

Walters turned the list over to the staff chief of the congressional committee overseeing the IRS.  He told the staffer that he could judge that the IRS did not go after anybody on the list.

His actions halted Nixon’s audit plan.  As Nixon’s new term began, Walters was gone from the federal government. 

I have always been grateful to Walters for not exposing me to an IRS witch-hunt.  We all should be grateful to Walters, a man of great integrity in a sensitive government position, who had the courage to stand up to the president.

This story is relevant today, because efforts go on these days to “use the available federal machinery to screw” somebody’s “enemies.”  The actions are not as downright illegal as Nixon’s, but they may be as threatening to the American political system as was the “enemies list.”

Each house of Congress can freely adopt its own rules, no matter how far from the original and customary understandings that worked well for about two centuries.  In recent years, those rules have been applied to “screw” political opponents rather than to produce good government.

Senate Democratic leaders have blocked GOP proposals to amend pending legislation.  By this simple action, any possibility of compromise has been lost.

The majority Democrats could almost certainly defeat any proposed amendment, so it is difficult to justify this blocking action other than as a way to prevent possible embarrassment for their senators stemming from their opposition to an enemy amendment.

The flip side is the radically expanded use of the filibuster by Republicans who have insisted that any important matter takes 60 votes to pass rather than the simple majority set by the Constitution.

To prevent the president from avoiding the filibuster by making appointments to federal office when the Senate is in recess, the Republicans keep the Senate in phony sessions to prevent the enemy, the Democratic president, from making recess appointments

In eight years, President George W. Bush made 171 recess appointments.  All could have been blocked by the Democrats, but none was.  In almost six years, Obama has made 32.

Last week, the Supreme Court said that the Republican recess tactic was constitutional.  But the Democrats had already blunted its effect by changing the filibuster rule to require only a simple majority to end debate on most appointments.

Also last week, Speaker John Boehner announced he would ask the House of Representatives to authorize a lawsuit against President Obama for having failed to obey the law.  Because Congress cannot pass such a bill without presidential action, this move is pure harassment of the enemy.

The “available federal machinery” is certainly being used to “screw” somebody.  Unfortunately, it’s the people who suffer when the spirit of Johnnie Walters dies.