Collins not the "deciding vote" on Kavanaugh confirmation

Gordon L. Weil

The biggest issue in the campaign against Sen. Susan Collins may be her vote to confirm Brett Kavanaugh to the U.S. Supreme Court.

An increasingly conservative Supreme Court could reverse the Roe v. Wade abortion decision. Opponents of the Kavanaugh appointment believe he would vote to overturn Roe, ending federal protection of a woman's right to choose.

Recently, the Bangor Daily News reprinted an earlier report about Collins' decision not to oppose Kavanaugh's confirmation. This second look reveals the importance of the issue in this year's Senate campaign.

"After Senator Collins cast the deciding vote to confirm Supreme Court Justice Kavanaugh, her vote has remained fixed in Vacationland’s collective consciousness," the Christian Science Monitor has reported.

NARAL, the leading pro-choice group, focused on "the definitive nature" of Collins' "deciding vote on Kavanaugh's confirmation."

Collins might have reasonably opposed the nominee as unsuitable for a seat on the Court, based on his undisciplined outburst at his confirmation hearing, but she approved him. She said she was reassured by his recognition that Roe v. Wade was "settled" law.

Pro-choice voters are gravely disappointed by Collins, who had a generally favorable record on abortion-related issues, for seeming to abandon her past views to support President Trump's conservative nominee.

But her opponents are not correct when they say Collins cast the deciding or decisive vote to confirm Kavanaugh. That may have been the chosen role of another senator. Here's the story.

Of the 100 senators, there were 51 Republicans, 47 Democrats and two independents who vote with the Democrats. One of the independents is Maine's Angus King.

Before Collins announced her position, 97 senators had announced their choice. The count was 49-48 in favor of confirmation.

GOP Sen. Lisa Murkowski of Alaska, having just decided, then announced she would vote against the nomination. At that point, the vote was 49-49 on the nomination.

Only Collins and Democratic Sen. Joe Manchin of West Virginia had not yet announced their votes.

After a lengthy explanation, Collins revealed she would vote to confirm. The vote stood at 50-49 in favor.

Minutes later, Manchin announced he, too, would vote for Kavanaugh, effectively canceling the effects of Murkowski's move. Kavanaugh was confirmed.

(In effect, the vote was 51-49 for confirmation. In fact, the final vote was 50-48. Murkowski withheld her vote as a courtesy to a fellow Republican favoring confirmation, who was unable to be present.)

If Collins had opposed Kavanaugh, the vote would have stood at 49-50 against. If Manchin had then joined her, the matter would have been settled at 49-51, and Manchin would have blocked Kavanaugh.

If Manchin had voted to confirm with Collins opposed, the vote would have been 50-50. Under the Constitution, Vice President Mike Pence would have broken the tie to confirm Kavanaugh.

To believe that Collins would cast the deciding vote, you have to believe that Manchin would follow her lead. He didn't. Even if Collins knew how he intended to vote, she could not have blocked confirmation; especially when he chose to vote last.

Manchin was facing a tough re-election in what has become one of the most Republican states. He was one of only three Democrats who had voted for Neil Gorsuch, Trump's earlier Supreme Court nominee and equally a concern on abortion, as had Collins.

If he had voted with the Democrats against Kavanaugh, he would have also assured the confirmation, by leaving it to Pence. The GOP would get its judge, but he would not have cast the decisive vote. His vote for confirmation produced the same result but got him more attention back home.

If there was a senator who cast the deciding vote on Kavanaugh, it was Joe Manchin.

Here's an historic parallel. In the 1868 Senate trial of President Andrew Johnson, the Republicans failed to convict him by a single vote. Seven Republicans voted to acquit. Any one of them might have been decisive, but the only one who history counts as decisive is the one who voted last.

Democrat Manchin's tactic paid off, and he was narrowly re-elected in his overwhelmingly GOP state. Collins remains vulnerable in Maine for her vote.

On March 4, the Supreme Court will hear a case about a Louisiana law that would effectively outlaw abortions in that state. If Kavanaugh hints at an anti-abortion position at that hearing or in the Court decision, expected by the end of June, he could damage Collins' credibility.

If the Court dodges the issue on technical grounds, it might seem to be avoiding it in an election year. If it firmly rejects the Louisiana law with Kavanaugh's vote, Collins could get a boost.

Although Collins did not, in fact, cast the decisive vote on Kavanaugh, he could cast a decisive vote affecting her.

Washington's legacy wanes under self-proclaimed 'greatest' president

Gordon L. Weil

On Monday, we celebrate George Washington's official birthday.

Each year on this occasion, I remind readers that Washington's Birthday is the legal U.S. and Maine government holiday. In remembering all presidents, some outright failures, the day meant to honor Washington has become "Presidents' Day," a commercial holiday.

Upon taking office as president, Washington realized that he would set precedents for his successors and have a deep impact on his country's political evolution.

The presidency had been designed for Washington, after he had turned down the opportunity to be the new American king. He was committed to the republican form of government in which the people, not the monarch, would be sovereign.

This new form of government existed nowhere else in the world and consequently, the American system of government was considered an "experiment." It still is.

Washington was its first leader, though the founders were wary of a president with powers to rival a king. Washington set out to limit the exercise of his authority, often deferring to congressional policy initiatives. He did not believe the Constitution gave him unlimited power.

He created the presidential cabinet and believed in executive privilege when it came to his communications with department heads. Still, he said that privilege did not apply in cases of impeachment.

President Washington put people who shared his views on the Supreme Court. Long after the opposition party led by Thomas Jefferson took control of the federal government, Washington's Federalist appointees dominated the Court.

Washington believed in “big government.” During the Revolutionary War, he had depended on voluntary state financial and military contributions. The experience made him a supporter of a strong national government.

He agreed with constitutional drafters who argued that the United States could only become a great nation if powers were transferred from the states to the federal government. He advocated the expansion of the government he led.

He faced strong opposition from those worried that the national government would override states’ rights and individual freedoms. Washington accepted the Bill of Rights as an essential part of the deal to make a new country.

Washington worried about the growth of political parties that he witnessed. He predicted “the spirit of revenge, natural to party dissension ....” He concluded that strong partisanship could undermine the functioning of government.

In proposing an accord with the British, his former enemy, Washington subscribed to a view later formulated by a British statesman: "Nations have no permanent friends or allies, they only have permanent interests." Jefferson and his supporters disagreed, years later launching the disastrous War of 1812 against the British.

Jefferson attacked him openly. Though Washington would ultimately cut off contact with him, he refrained from any personal attacks on his fellow Virginian. Such values seem lost in today’s politics.

In a country populated mostly by white Protestants, he advocated equality for all groups. He even opposed the use of the word "tolerance," because it implied the superiority of one group over others.

Washington, a southern slave owner, agonized over slavery. He recognized that the country might break apart over the issue. If it did, a friend reported in 1795, "he had made up his mind to remove and be of the northern."

He believed that slavery would disappear as the nation's economy developed, though he was overly optimistic about its end. He recognized that the future lay in the development of wage labor in manufacturing, already beginning in the North.

Thus, 70 years before Lincoln's willingness to compromise on slavery to save the Union, Washington used his national standing to hold the country together. His will freed his slaves soon after his death, and, against Virginia law, he left money for their education.

He resigned as general, accepted no pay as president and declined to serve more than two terms. When Britain’s King George III, America’s old enemy, was told that Washington would walk away from high office, he said, “If he does that, he will be the greatest man in the world.”

No American has ever enjoyed more prestige in his own lifetime than Washington. But he wore the mantel of power with modesty and showed great respect for the views of others.

Perhaps above all, Washington created the aura of the presidency. As chief of state as well as partisan head of government, he believed the president should try to represent all Americans and the national interest.

Since his time, most presidents have tried to retain that dual role. But his legacy wanes in bitter partisanship promoted by the self-proclaimed "greatest" president. Washington's successor next year may face the task of restoring the presidency itself.

Trump badly erred, but Senate lets voters decide on his removal

Gordon L. Weil

Words spoken by two Republican senators fairly summarize the impeachment experience.

Sen. Lisa Murkowski of Alaska stated sadly, “Given the partisan nature of the impeachment from the very beginning and throughout, I have come to the conclusion that there will be no fair trial in the Senate.”

Sen. Marco Rubio of Florida, concluded, “Just because action met a standard of impeachment does not mean it is the best interest of the country to remove a president from office.”

The bottom line in the House was that impeachment was political.  By giving the impeachment power to the House and requiring only a simple majority, the founders well understood they were allowing for charges against the president that could be entirely partisan.

The situation is different in the Senate.  By requiring a two-thirds majority to convict, the Constitution almost mandated the agreement of members of both parties.  This requirement raises the level of the proceeding beyond simple partisan politics to an issue of the greatest national importance.

The House Democrats must have known that they could not get the Senate to convict Trump.  They may have calculated that by revealing his effort to get Ukraine to help his campaign, they would gain support in November. 

Their case suffered from being thin, based only on the withholding from Ukraine of desperately needed military aid in an effort to get its president to undermine Joe Biden, then Trump's most likely opponent.  The Democrats avoided obstruction of justice issues raised in the Mueller report or the emoluments clause, relating to his profiting from the presidency.

They tried to use the stark revelations by John Bolton, former national security advisor, of Trump's direct involvement to buttress their case, but he came forward too late.

Republican senators have become dependent on Trump's popularity and would not likely oppose him so close to an election.  The case was not flagrant enough to detach them from partisanship.

Trump has continually violated so many governmental norms that it was difficult for the Democrats to show his attempt to get political help from Ukraine was extraordinary enough to remove him from office.  To some degree, both Washington and voters had become accustomed to Trump's expansive tactics and frequent lies.

It was obvious that at least some GOP senators believe Trump is guilty of the charge made against him.  Despite their trial support, they cite technicalities to put distance between themselves and the president. 

Whatever he may claim, it is evident that Trump was not exonerated in the minds of a Senate majority.

Murkowski called his behavior "shameful and wrong."  Impeachment at least elevated the issue of foreign involvement in elections.  That alone may have been worth the effort.

Republicans claimed that the Democrats had always sought to reverse the 2016 election results and remove Trump from office.  That's an almost irrelevant argument, because an election cannot be reversed, Trump has been president for three years and the loss of the president is covered by electing a vice president as well.

 

Because both the House and Senate votes were almost purely political, the arguments for and against Trump, some bordering on the absurd, become less important in an historical context. 

Little has been done that is likely to have a lasting constitutional effect, any more than the Clinton impeachment did.  In perspective, Clinton looks purely political and almost nobody remembers the legal arguments.

The impeachment experience has educated some voters about the lengths of Trump's efforts to justify his 2016 upset win and use the 2020 election to confirm its validity.  The Democrats see his open willingness to accept foreign help in a U.S. election as a major negative that can be exploited to their advantage.

Trump's gamble, which he could win, is that voters appreciate the state of the economy, leading them to overlook his possible constitutional violation.  The GOP appears to believe that most people won't care about his Ukraine move.  It is possible many voters saw impeachment as political and boring.

With the benefit of hindsight, House Speaker Nancy Pelosi might have chosen to hold a vote of censure of the president.  Censure could have been voted by the House without requiring additional Senate action.  But it might have sparked a similar effort in the Senate, where only a 51-vote majority would be required, not the two-thirds needed for removal.

But a House vote of censure and a Senate attempt, successful or not, might have done as much politically for the Democrats as political impeachment-acquittal.  It would have also put pressure on GOP senators, like Susan Collins, who thought Trump had made a serious mistake, though insufficient for removal.

Tax cuts yield exploding Federal debt, Maine road decay

Gordon L. Weil

“You can pay me now or you can pay me later,” goes the saying.

When it comes to government budgets, if it's later, it must be Washington. If it's pay now, it's Maine.

The Congressional Budget Office, which is independent of both political parties, reported last week that the federal government will run deficits averaging $1.3 trillion dollars a year for the next ten years. That's not a typo – trillion dollars.

The government spends far more each year than it receives in revenues, mostly from taxes. Of each dollar Washington now spends, 22 cents is financed by borrowing.

Economists think governments can run up that kind of deficit when times are bad. Government becomes the major customer in the country and its spending helps restart economic activity. That's what happened ten years ago.

The economy got moving again, producing the longest sustained period of economic growth. But, instead of bringing down deficit spending, Congress cut taxes, reducing revenue, while jettisoning an earlier agreement to limit outlays.

Republicans have attacked Democrats for “tax and spend” policies. The Dems supposedly kept inventing new programs, paying for them with more taxes. The GOP say it wants to tax less and spend less.

But what has happened is even less economically responsible. Both parties are behind what amounts to “cut and spend.” Taxes have been cut as spending sharply increased. This approach is obviously aimed at pleasing voters, who get programs they like without paying for them.

Some economists even invented a justification for the policy. Piling on new debt was all right, so long as the economy kept growing. That way, the growth of the national debt could remain about the same share of the total economy over time.

The theory simply does not work, because the growth of the economy and of government spending are not as directly linked as expected.

The national debt is growing faster than the economy. By 2030, the Congressional Budget Office forecasts national debt will be at 98 percent of the total economy that year. In other words, it would take just about all of the national output to pay off the debt.

This is the ultimate “pay me later” approach. Eventually, the U.S. will have to deal with debt service payments that could swallow the underfunded federal budget. The only solution will be massive tax increases. The people who will pay the sharply higher taxes will include many who did not benefit from the spending spree.

In effect, it will amount to “you can pay me now or your children can pay me later.” That's current American budget policy.

In Maine, however, people pay now. Like almost all other states, it cannot run annual deficits, so the impact of borrowing must be covered by real revenues. If there are tax cuts, there will be borrowing cuts as well.

Gov. Paul LePage liked tax cuts, ensuring that insufficient revenue was raised to meet the cost of maintaining the state's roads and bridges. State funding for roads was essential for tapping matching federal funds.

His solution was to boost borrowing, but legislators, especially his fellow Republicans dislike increasing the state debt. Maine's public debt, equaling 12.66 per cent of the state's annual economy, is lower than in most other states.

LePage went so far as to oppose any increase in the 18 cents per gallon gas tax. In effect for a quarter of a century, it has not kept pace with the increasing costs of maintaining the roads.

The result is a network of roads and bridges that falls far below the standard of safety and comfort that Mainers should expect. Dangerous conditions may occur. But the best DOT can do is spread coating on many roads rather than maintaining them. Municipalities are told if they want better roads, they need to come up with some of the money.

LePage cut taxes. New bonding was slow and inadequate. With the prohibition of deficits, people get to pay now, not later. They pay daily in the form of badly maintained roads.

Borrowing, with its multi-year payoff, makes sense for roads and bridges that are used not only by the current population but well into the future. Later taxpayers get to use what they are funding.

But borrowing alone cannot be the solution. Its fate, subject to voter approval almost yearly, makes it difficult for DOT to have a long-term plan. Roads are an essential function of government, making reliable tax funding a reasonable way of supporting that function.

In the end, the issue of the public debt, either at the federal or state level, is a matter of taxes. If people oppose taxes now, they either pay the cost now in lost services or later when a higher tax bill must be paid.

Older presidential candidates should make V.P. choices now

Gordon L. Weil

The caucuses and primaries are on the way. Votes now matter more than debate ratings.

The seriousness of the moment became more evident when the New York Times announced its endorsements for the Democratic nomination. It supports two candidates, both senators, Amy Klobuchar and Elizabeth Warren.

Its endorsement editorial is unusually frank about what it sees as one drawback of a couple of others.

On Bernie Sanders: "Mr. Sanders would be 79 when he assumed office, and after an October heart attack, his health is a serious concern."

On Joe Biden: "Mr. Biden is 77. It is time for him to pass the torch to a new generation of political leaders."

The Times editorial covers only Democrats, and did not mention that Donald Trump is 73.

The oldest U.S. president at the end of his term was Ronald Reagan, who was almost 78. Sanders and Biden are now both older than Reagan when he left the White House.

Older people remain in reasonably good health well into old age. But aging takes a toll, reducing and changing some abilities and raising the prospect of the onset of serious illness.

Many people seek to avoid any hint of age discrimination, so they choose to ignore the possible impact of aging on a candidate's ability to carry out the heavy duties of president and commander-in-chief.

But, just as a voter might conclude that a candidate was too young to have gained enough experience to take on the presidency, a voter might take a candidate's advanced age into account. The relationship between age and health makes that a reasonable concern.

Presidents Woodrow Wilson and Reagan were considered to have lost some of their abilities due to declining health by the end of their terms in office. Four other presidents died in office for health-related reasons. These were six of the 44 people who served as president, a high enough percentage to cause people to take age into account.

It has become traditional for a major party's presidential nominee to pick a running mate only after having locked up the nomination. The assumption may be that the nominee does not want the vice presidential choice to raise any questions about the nominee's judgment before it is too late to reverse the decision.

Both Democratic Sen. George McGovern and Republican Sen. John McCain, whose choices for running mate caused them almost immediate complications, might have benefited from having made their selections well before the national conventions.

Amid all the campaign promises, the nominee's decision on a running mate is possibly the only binding, public action affecting the presidency they can make during a campaign. That decision may say more about the person than all of the promises, many of which will be impossible to keep.

As I wrote several months ago, those seeking a party's nomination should announce their running mates well in advance.

The media should ask Sanders and Biden about their running mates before people start voting in the caucuses and primaries. If voters had some reassurance that they knew who might be president if a problem arose, it could make them more comfortable voting for an older candidate.

That probably won't happen because the media is so accustomed to waiting until just before the conventions. If Sanders or Biden did not wait to be asked and took the initiative, it could attract favorable attention.

Of course, they may worry that naming a running mate might call attention to their age. Both Democrats are vigorous, so they probably don't want voters to focus on their many decades.

Without the early selection of a running mate, Sanders might improve the chances for Warren. Given the similarity of their views, liberal voters may conclude that it is safer to support Warren. Never has catching a bad cold been more of a threat to the success of leading candidate.

As for Trump, voters and the media assume he will continue with Mike Pence as his running mate. In 2016, Pence served his purpose in reassuring voters of the ticket's political experience. Trump is certainly capable of coming up with a new name even as late as the GOP Convention in August.

A late selection by Trump would get more media attention than sticking with Pence. The age insurance provided by the Vice President might not be lost, though Trump may think he doesn't need it.

In the end, both the candidates and the voters would benefit by an announcement now of a running mate at least by the three oldest candidates – Sanders, Biden and Trump.

Governor makes rare move in executive-legislative battles

Gordon L. Weil

The tug of war between the executive and legislative branches keeps taking new turns.

In theory, the legislative branch is supposed to set policy through passing laws. Legislators can submit proposals for consideration and many of their bills are adopted. The executive branch is assigned the task of carrying out the laws.

In fact, the executive has become the principal source of legislative proposals. Presidents and governors serve up a package of proposals to legislatures every year or two. Lawmakers have become dependent on these bills and expect to focus much of their effort on reacting to them.

Once laws are passed and given the complexity of issues, the executive often is assigned responsibility of adopting detailed rules to apply broad legislation. Rulemaking has become a major form of legislating

The result has been that the development of much of new legislation has passed from the legislative branch to the executive. With that shift has gone much of the power of Congress.

This transfer of legislative power may explain why President Trump apparently has seen Congress as his board of directors, whose job is to review and approve his proposals for U.S.A., Inc. Surely, Congress is not a branch of government with equal or greater weight than the executive, in his view.

At the state level, some have developed “strong” governor systems and others “weak” governor systems. The decision is made by the state constitution, the legislative body or by custom over the years.

In Wisconsin, for example, the incumbent Republican governor lost in an upset to a Democrat. Before he left office, the GOP legislature adopted and he signed new laws drastically reducing the governor's powers. In effect, they turned a strong governor position into a weak one as a way of undermining the winner..

The new governor challenged some of those laws in court and lost. The complete reversal of the historic relationship set back the principle of checks and balances.

An unusual twist on the governor-legislature relationship has just occurred in Maine.

In her State of the State speech last week, Gov. Mills openly worried that foreign corporations were operating electric utilities to put their profits before consumers' interests. She expressed concern that utility regulation might not be doing enough to ensure that “utilities are accountable and answerable to the people of Maine.”

She said to the Legislature, “I ask your guidance and your help in making sure that these foreign corporations...are answerable to Maine, not Spain or some other foreign country.” She was referring to the foreign owners of CMP (Spain) and Emera Maine (Canada).

An almost immediate reaction from some in the media was that she had failed to provide a proposal to the Legislature. Action would have to await more specifics from her.

Here was the odd situation of the governor asking the Legislature for “guidance,” just as constitutions expect, and finding herself faced with a reaction that she should have guided the lawmakers.

There is a menu of options from which policy makers might choose, and the governor seems to be open to considering a choice by the Legislature.

It could adopt the bill proposed by Rep. Seth Berry, which calls for a non-profit utility, owned by its customers, to buy out the two foreign corporations. That would exactly meet her requirements.

It could send Berry's bill to a referendum this year to let the people decide to acquire the system from the two utilities.

It could instruct the Public Utilities Commission to deny any profit whatsoever to investors in those utilities if their management failed to provide reliability at a specified standard and subject to a cap on rates set by law.

Or, it could tell the governor that she exaggerates the problem, and nothing needs to be done.

Her request opens the door to a bipartisan answer, if the two parties can agree. Certainly, it implies they ought to try.

If the Legislature in unable to respond favorably and cannot give the governor the guidance she requests, she must turn the tables and guide the lawmaking. With a Democratic majority in both houses at least until the end of the year, she would have an incentive to take clear action with the support of her party.

With her strong statement of concern about the utilities, Mills has set government on this path. She has put herself in the position that she cannot walk away from the issue. The Legislature has been invited to address it through an effort between legislative and executive branches and between Democrats and Republicans.

This situation goes beyond the future of electric utilities in Maine. It marks an unusual opportunity for the effective operation of American government as it was intended.