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March 19, 2006

Laws are for Lawyers, Politics is for Politicians

By Neil the Ethical Werewolf

Despite my anti-Feingold broadside below, I think that there is a reasonably good political case to be made for censure.  It's important that we see how this case goes. 

First let me explain how it doesn't go.  There is no great mass of voters out there who will learn the law, look at what Bush did, determine that Bush broke the law, and come to support the Democrats because they support censuring Bush for his illegal acts.  For this to happen, Americans would have to learn the law.  Any plan that involves the American people applying laws that they did not know at the end of junior high school will fail.  If we try to educate them on the law, they will not learn.  Republicans will advance bullshit interpretations of the Constitution on which Bush can invent eight new laws each day, the media will go he said/she said on everything, and the only people who will be convinced by us will be the ones who were disposed to agree with us from the start. 

So what is the political case for censure?  It depends on the American people not liking Bush very much, and being spurred to vote against candidates who protect him.  As SUSA shows us, no competitive state likes Bush very much -- Ben Nelson has no strong opponent in 49-48 Nebraska, while Montana has turned against Bush 44-49.  For Bush, it goes downhill from there.  One problem I noted with Lizza's TNR piece was that he used Bush's performance in 2004 to determine whether a state likes him -- essentially using polling data that is 16 months old.  I don't think that this is anywhere near the best issue on which to attack -- polls show that we're doing better on lots of other things than on censure, but it's one that can be tied to Bush himself an especially direct way.  Using this issue to link DeWine and Burns and Chafee to Bush is basically what we're trying to do. 

As Ezra points out in the post immediately below this one, censure isn't a big deal.  And even if we actually moved heaven, earth, and moderate Republicans to pass a censure resolution, Bush would just shrug it off and keep doing the illegal stuff that he is doing.  The idea that Feingold is actually doing something to harm Bush by pushing this resolution has no basis.  (His Patriot Act battle was, obviously, different -- there was actual policy embedded in there.)

March 19, 2006 in Electoral Politics | Permalink


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There is a good legal argument on both sides whether President Bush broke the law. If your legal case is so strong, then is there no way to sue and press this case legally? The ACLU would seem to be your best bet, but they don't seem interested. Here is the question I have: If this is such an airtight case legally against Bush, then why hasn't this been persued on leagal grounds?

Posted by: Fred Jones | Mar 19, 2006 11:24:23 AM

That's the spirit.

Why, out of curiousity, do you think we have a constitution?

With most legal arguments, I actually agree with you. With "if the President does it it's not illegal" it's pretty freaking easy. How's this for an attention-grabbing legal argument?

"It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture."

That's the same argument as the one behind the NSA scandal: unlimited executive power. You think we can't make people realize that and convince them it's a bad thing? I think you have a very low view of the American people. Which won't make you go broke, as the saying goes, but it does become a self-fulfilling prophecy.

Posted by: Katherine | Mar 19, 2006 12:06:44 PM

And this is SO much more important than the PATRIOT Act. Do you understand, at all, what they're arguing here, and what the DeWine bill does?

Posted by: Katherine | Mar 19, 2006 12:07:53 PM

Neil, is there anything Bush could do that would make you stand up against him? You always want to take a poll or do a head count first. What issues would you fight over, even if you thought you were on the losing side?

Its really very simple. The president violated the law and has openly stated he will continue to do so. Will congress rebuke him at all, or will they allow him to castrate their authority completely. Any Senator who runs from that fight (Republican or Democrat) deserves nothing but scorn.

This isn't some tax bill or a trade agreement. This is a constitutional crisis. Do the congress and the courts have any authority over the president in a time of war?
As someone who writes on political issues, shouldn't you try to drive the debate? Or are you just interested in tactics?

As for your comment that "Bush would just shrug it off and keep doing the illegal stuff that he is doing". You need to reread recent history. Bush never shrugs off criticism. He caves immediately when he thinks he might be losing. His greatest abuses of power come when he thinks no-one is looking. That's reason enough to support censure - even if it only gets 45 votes.

Posted by: Mike | Mar 19, 2006 12:22:26 PM

Any plan that involves the American people applying laws that they did not know at the end of junior high school will fail.

I'm sorry - and I know it goes to the state of education in America, which is not my point... except that it is - who knew laws at the end of junior high? High school maybe, I mean, either you'd been arrested by that point or you knew you shouldn't drive drunk... but junior high? If that's the standard, we really are in bad shape...

which, really we are. I think what's interesting is that Feingold looks like a crank until people start to examine what censure is and what it's for - contra Fred, there's considerable agreement that warantless wiretaps authorized by the President with no oversight are probably illegal; the debate has been whether his "notification" of a few members of congress (and swearing them to secrecy) constitutes oversight. Saying "let's wait for a lawsuit" is curious, since the Administration says the wiretaps will enver come up in a court proceeding. That seems unlikely, but until they do, who has standing to sue?

I'm not thrilled with how Feingold went about this, and it has seriously left me doubting his candidacy. But the result of the move has been intruiging, a tar baby that gets worse for Republicans the more dismissive they try to be about it. If this helps soften up the electorate to a more even contemplation of Republican vs. Democrat, it's probably a success in that from there, Democrats are likely to win.

Posted by: weboy | Mar 19, 2006 12:32:33 PM

Due respect Neil, this is utter bullshit.

"The rule of law" is easy as hell to sell.

"Can the President break the law?"

"No man is above the law."

Sheesh. You been talking to Marsha Wittman lately?

Your worst post ever.

Really really dumb.

Posted by: Armando | Mar 19, 2006 12:33:52 PM

Armando is more blunt than I, but I really agree that selling 'no man is above the law' doesn't take much if any explanation, selling or knowledge of the law.

IMO, even talkiing about warrantless searches, without court approval, being conducted pricks up the ears of a big majority of Americans.

This doesn't take rocket science, Rovian manipulation, or post-doctoral studies to explain. Bush has acted unlawfully. He should be reprimanded, at the minimum.

Posted by: JimPortlandOR | Mar 19, 2006 12:47:24 PM

Condescending to and insulting the intelligence of the American voter is certainly not the way to rescue the fortunes of a party already labeled as "elitist" by the Rethuglicans.

Neil's assertions to the contrary, most Americans are appreciative of a politician who takes the time to spell out the issues, evaluates them for their essential rightness or wrongness, and then takes an ethical stand for the Constitution and the rule of law.

Feingold has done just that. His presidential aspirations may or may not have played a role in shaping his call for censure, but that is beside the point. Besides, he has a reputation for doing the right thing for its own sake, which should cut him a wide swath of slack in my opinion.

It would be easy to make any decision by any presidential aspirant look self-serving as the 2008 election approaches. There will be no shortage of such accusations from the Rethuglicans. So why the rush to castigate Feingold's motives from within his own party? Could it be because he has caught other Dems flatfooted, and exposed their lack of cojones in facing down the incompetent usurper in the White House?

Posted by: zeke | Mar 19, 2006 12:50:50 PM

Well, I'll take the implicit compliment in Armando's saying that this is my worst post ever!

The trouble with the "rule of law" argument, Armando and Katherine, is that it depends on people actually knowing that warrantless wiretapping is against the law. If you say "Bush broke the law" and the Republicans say "no he didn't", you have a standoff. Then you try to explain the law, and Republicans say a bunch of bullshit to mislead people about the law. Given the media dynamic I describe above and the fact that most Americans will not go out and learn about the law, I don't think we can convince any more people beyond those who already support us (and it is a big number.) If this were a presidential campaign, things would be different -- people would be paying more attention, so we might actually get people to think about the issue, and Bush himself would be running.

The junior high point, weboy, is supposed to play up the fact that people's judgments of legality on issues like this are going to come out of gut feelings, and not actually any real knowledge about anything.

Mike, this is a strategy post, and nothing more. So I'm limiting myself to talking about where we can win votes.

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 1:00:04 PM

"Mike, this is a strategy post, and nothing more. So I'm limiting myself to talking about where we can win votes."

But you've got lousy strategic instincts here. This is the tactic that we see the Dem's play over and over. Can we win "this" vote? That's not a question a minority party can afford to ask. They have to establish a pattern of voting for a set of principles. That's what establishes the differences between the party in power and the party out of it. "We support the rule of law and the constitution" is a pretty fundamental issue and it would bring in a lot of the independant and libertarian vote. Unfortunately, the Dems haven't shown any interest in picking up that ball.

Dem's also can't sit back and try to pick and chose which battles to fight, they have to be ready to respond to issues when they present themselves. Maybe you don't like the censure resolution, but newspaper articles of Dems scurrying like cockroaches to avoid answering questions is ludicrous. Every Dem needs to be able to say publicly the president is subject to the rule of law and that congress is obligated to perform oversight. Say that much and frankly I don't care whether they'd vote for censure or not.

Posted by: Mike | Mar 19, 2006 1:14:32 PM

It'd be harder to debate to have if they said "we're complying with FISA" because the details are classified and no one knows what FISA said. It'd be somewhat harder to debate if they relied on the AUMF argument--though not impossible.

Fortunately, they AREN'T. Gonzales has acknowledged that the program would require a warrant under FISA. Specter has rejected every argument but the commander-in-chief override. Lindsey Graham has criticized the AUMF argument. Pat Roberts has argued that FISA is unconstitutional. Bill Frist has taken the same position.

They're on record as making a claim of unlimited power.

Feingold, btw, could have done a better job tying this together, but it would be nice if some other Senator would help him.

Posted by: Katherine | Mar 19, 2006 1:23:11 PM

Mike, this is a strategy post, and nothing more. So I'm limiting myself to talking about where we can win votes

Why do this? What is the point of strategy posts? Do the players in the Democratic Party take strategy cues from blogs? Although I doubt the answer is yes, the question is not rhetorical. Whether it's health care or Iraq or Bush listening in on citizens' phone calls without oversight, the idea should be to inform and move public opinion. I think that's a much more important and at the same time achievable aim than influencing political strategies.

Posted by: quietstorm | Mar 19, 2006 1:26:04 PM

Mike, there's lots of stuff to run on. We run on corruption. We run on Katrina. We run on Iraq. Locally, we run on increasing the minimum wage in states with minimum wage initiatives. The blows we can deal on these issues are much heavier, they're easier to carry through the media, and they require less explanation because Americans already buy a lot of the explanation. If there was some hope of holding high-profile bipartisan hearings where everybody had subpoena power, we might be able to do this. But none of the setup is there.

Look, I'd be real happy to be proven wrong, and learn that the American people can actually understand this stuff. But remember that in February fucking 2005, 36% of Americans believed that Iraq had WMD when we invaded. I simply don't think we can sell anything with any complexity to people like that.

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 1:28:16 PM

Katherine, I agree that the official "the president is above the law" line coming from the White House is easier to beat. But remember that we're not running against the president, or against anybody who has to say things at all consistent with what he says.

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 1:30:56 PM

quietstorm, the audience of this blog, I think, disproportionately contains influential Democratic bloggers and people who like strategy talk. So I address issues that are on their minds. If I was writing for a blog that had any significant swing-voter readership, I'd be writing completely different things.

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 1:33:10 PM

Neil, fair enough. I guess I'm an atypical member of the audience here.

Posted by: quietstorm | Mar 19, 2006 1:35:56 PM

"No man is above the law"

Hey, as I stated in the first post on this thread, it is, indeed, an easy sell.
There are only two reasons why this time it isn't.
a) The public is ignorant
b) The law may not have been broken

Now, the meme that the public is ignorant is utter bullshit. If that were the case the justice system would simply cease to function. The latter case it the more likely. Bush did not start wiretapping without lots and *LOTS* of legal counseling. He believes it and so do others, as do, I suspect, the Democratic leaders as well. At least, they know it's not a lead-pipe cinch.........Otherwise, they would be behind Feingold's bill....which they are not.

Posted by: Fred Jones | Mar 19, 2006 1:41:16 PM

"Katherine, I agree that the official "the president is above the law" line coming from the White House is easier to beat. But remember that we're not running against the president, or against anybody who has to say things at all consistent with what he says."

Well, if Feingold's censure motion had the robust support of his fellow Democrats, it would force the Republicans to "have to say things" indicating that they believe the president is indeed above the law, and further that they don't believe in the protections afforded by the Constitution or the Bill of Rights. That's a pretty big stick with which to whack them in the upcoming Congressional elections and in 2008. Talk about un-American values...

Posted by: zeke | Mar 19, 2006 1:42:28 PM

What do you mean? Congress is also directly arguing (in many cases) that the president is above the law. I mean, they don't put it in those terms but they argue for an unlimited commander in chief power. They also refuse to investigate violations of the laws. Damn straight we can make this an issue.

End corrupt, incompetent one party rule. You think this is irrelevant to the midterms?

Also, if we want to be cynical bastards about this, if we were to tie this together with the torture scandals--see the new developments in the Times by the way--and ask why every single investigation vote has failed on party lines, it would put John McCain in a distinctly awkward position. Someone who votes to strip habeas, votes against every investigation, and passes laws put ignores presidential statements and other evidence that they will not be followed, does not deserve to be portrayed in the press as the patron saint of opposition to torture. He's done more than the rest of his party and more of mine, and I really do appreciate it, but, the combined effect and his and Graham's amendments last fall might make the situation worse and I'm sick of his voting against all the investigations.

He's sincere on this issue, but he's walking a very careful line that gives him appeal to independents and some Democrats and great press coverage, without directly damaging Bush in a way that will harm him in the primaries.

Now, I'll grant you, my political arguments are influenced by my desired policy outcomes as much or more than a straight-up desire to see Democrats elected. I guess this is why I found it so plausible that Feingold was motivated by desired policy outcomes as much or more than a straight-up desire to win favor with primary voters.

Come on--use your imagination a little. If the Republicans can successfully convince millions of people who don't pay the estate tax that it's a threat to their freedom, maybe we could convince some people that allowing the President to secretly violate any law he doesn't like, jail people indefinitely without evidence, and torture people is a threat to their freedom? Just maybe?

You mention the he-said she-said coverage of the media but that can be used to our advantage: whether a position is extreme or moderate is determined mainly by the number of people saying it. If the whole Democratic party made this argument, it would be taken seriously.

This is why the short-sighted follow-the-polls method of proving electability is such a loser in the long run: the media defines the left as "what Democrats say" and the right as "what Republicans say", and it will treat the arguments as equally truthful, equally extreme, equally right, regardless of what the actual positions are. This means that if you run center, you just move the center.

(Also, I don't know if you've noticed, but a lot of editorial pages are flipping out about the torture and executive power stuff. I don't just mean the N.Y. Times, though I've certainly never seen them pull their punches less. I'm talking about the Salt Lake Tribune, the Louisville Gazette--there's a steady trickle. And this is with NO leadership from the Democrats.)

Posted by: Katherine | Mar 19, 2006 1:43:17 PM

Katherine, I still think we have a lot more powerful weapons at our disposal. But what you've said gives me somewhat more hope than I had before for this strategy to work out.

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 1:57:47 PM

I should mention that what made me particularly hopeful was the small-town editorial page stuff. If local small-town media is interested in pitching this story properly, we might actually be able to reach people. Do you have any idea how widespread the support among local editorial boards is?

Posted by: Neil the Ethical Werewolf | Mar 19, 2006 2:02:03 PM

I thought you hit the political nail on the head, when you wrote, "It depends on the American people not liking Bush very much, and being spurred to vote against candidates who protect him."

I wish you would expand on that theme. The point of pushing censure should not be to create on an opportunity to "hurt Bush" as delightful as that might be. It is not even to start the long process of removing him from office, which may yet prove necessary. It is to win in November 2006, by making Republicans defend him.

Democrats can avoid "he said/she said" by saying, from the outset, "Republicans are lying for Bush, protecting Bush, refusing to investigate Bush's corruption and incompetence, and this is just one more example. Republicans have no principles, they just have Bush." Skip the part, where you explain the law -- just assume Bush broke the law and is up to no good -- and go directly to characterizing what Republicans are "really doing", in refusing to investigate or censure him.

He said/she said, where he says, from the outset, "She's lying, obviously," and she says, "No, I'm not" ends with he saying, "There, you see, she just did it, again." Republicans invented that game, but Democrats can play, too.

Democrats, like Feingold are too scrupulous and principled for their own good. Accusing Bush of violating an abstract principle is not good enough for 70% of people, who do not think, principally, in terms of abstractions. Abstractions are too much like "technicalities" and Republicans scarcely have to flex a muscle to spin that around on the "we do whatever we have to do, to protect the American people" dime. Democrats have to say, Bush is hiding things from the judges and Congress, "hiding illegal things illegally, and the Republicans will not investigate or censure this illegal conduct."

"Bush is hiding his corruption and incompetence, and the Republicans are protecting him." is potentially a powerful and effective them, which will generalize across all kinds of things. It is an opportunity to list all kinds of scandals and misbehavior, every time a reporter or anchor asks a Democrat a question. Long, long lists!

We do not actually know if Bush is hiding anything, since we have no idea what he is hiding. But, we are fools if we scruple to accuse him of hiding something, just because he will not reveal what it is. In the absence of actual knowledge of the specifics of what he is hiding with his warrantless wiretaps, we can supply plenty of concrete examples of scandals hiding in plain sight. Bush may not be guilty of anything serious in the case of the warrantless wiretaps (really, he may not, on the basis of what we actually know), but he is guilty of plenty. This is politics, not a court of law; we do not get extra points for "convicting" Bush in the court of public opinion for something he actually did. The goal is, or ought to be, to convict his "accomplices" in the Republican Party, who are actually running for office, of being Bush accomplices. Just assume Bush is guilty of something, of many things -- hell, assume he is guilty of everything, and accuse the Republican "accomplices" of protecting his incompetence, corruption and criminality.

Posted by: Bruce Wilder | Mar 19, 2006 3:10:54 PM

I agree with Neil.
Also, I'd like to point out the email address stated in Armando's comment. It's "[email protected]". without the l in dailykos. A typo or someone pretending to be the real guy?

Posted by: maybevroomfondel | Mar 19, 2006 3:28:49 PM

On second thought, maybe he just has frequent problems with the l key:
(from his comment to ezra's post immediately before this one):
"That's great Ezra - more meaningless analysis of Feigold's motives.

How about considering what the OTHER Dem Senators should do, which is what actually matters POITICALLY here"

Posted by: maybevroomfondel | Mar 19, 2006 3:38:24 PM

this should not surprise anyone.

The lovely thing is, we actually do have a decent idea of some of the stuff they're covering up. Huge gap between what's been reported on once, somewhere and what is publicly known and acknowledged.

Posted by: Katherine | Mar 19, 2006 4:16:23 PM

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