Editorial August 1, 2014



‘The Nation has “no right to expect that it will always have wise and humane rulers,’

As you know, House Republicans, minus five, passed HRES 676 authorizing the Speaker of the House to sue the President “the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.”

This resolution, while put forth by supporters to save the Nation from an imperial president putting us in a handcart to Hell, is seen by opponents as a non-starter, nothing more than a political ploy to rally the base.

The legal arguments seem weighed against a suit, the resolution now authorizes, gaining any traction in the courts because the courts have traditionally shied away from political conflicts between the branches. Scholars see no reason to believe such a suit would prevail if it were even heard and cite one opinion or case or another where what Obama is accused of is just normal tweaking of a complicated law, not a violation of anything.

But the real passion surrounding this resolution comes from supporters who, one after another, presented the need for the bill as an almost desperate attempt to stop a president who is writing his own laws, going his own way and who is only a few steps away from a fascist president inclined to take away our rights on any whim.

Whichever is true, or if both or neither are true, the resolution stirs some old contentions in both parties; that of a president ignoring the will of Congress expressed in legislation. That is a real issue about separation of power and one to be scrutinized, but to assign such a significant action as authorizing a lawsuit against the president over his waiving the employer mandate is not the vehicle. Certainly not when the issue of presidential power has been discussed regarding the behavior of just about all presidents since George Washington and was concerned with major issues like war and other tense foreign policy matters.

Politics catered to from the House and Senate floors is an easy thing to do with passion and hyperbole. Such a bully pulpit can make a president taking even minor initiatives look like a demon aiming to destroy the country. Americans, though, were not so influenced by the fear and loathing such rhetoric inspires. As Arthur Schlesinger, Jr. wrote 40 years ago in his book The Imperial Presidency, Americans seem to have held that the electoral and political party process would weed out any potential bad presidential candidate actors. But confidence in those processes has waned sharply in the past several years of partisan divide when all one has to do to be seen as Satan incarnate is be attached to an issue one party or the other opposes.

That might be exactly what we need to watch out for, though. An earlier Supreme Court Justice Davis wrote in ex parte Milligan, ‘The Nation has “no right to expect that it will always have wise and humane rulers, sincerely attached to the principals of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”

HRES 676 opens the door to discussion of a serious matter but the triviality of the issue bringing it to the floor (Obama’s waiver) leaves separation of powers an issue that continues unaddressed in any sober and practical way.


Why Incumbents Keep Getting Reelected

By Lee H. Hamilton

“…nearly three-quarters of Americans want to throw out most members of Congress, including their own representative, yet the vast majority of incumbents will be returning to Capitol Hill in January.”



It’s no news that Congress is unpopular. In fact, at times it seems like the only real novelty on Capitol Hill would be a jump in its approval rating. In June, a Gallup poll found members’ standing with the American people at a historic low for a midterm-election year. Which might have been notable except, as The Washington Post pointed out, that “Congress’s approval rating has reached historic lows at least 12 times since 2010.”

Here’s the interesting thing: nearly three-quarters of Americans want to throw out most members of Congress, including their own representative, yet the vast majority of incumbents will be returning to Capitol Hill in January. In other words, Americans scorn Congress but keep re-electing its members. How could this be?
The first thing to remember is that members of Congress didn’t get there by being lousy politicians. They know as well as you and I that Congress is unpopular, and they’re masters at separating themselves from it and running against it — appearing to be outsiders trying to get in, rather than insiders who produce the Congress they pretend to disdain. They’re also adept at talking up their own bipartisanship — which is what most general-election voters want — when, in fact, they almost always vote with their own party’s leadership, especially on the obscure procedural votes that can decide an issue before the actual up-or-down vote is taken.
Just as important, incumbents enjoy an overwhelming advantage in elections: a large staff, both in Washington and at home, whose jobs focus on helping constituents. They find lost Social Security checks, help get funding for economic development projects, cut through red tape to secure veterans’ benefits. At election time, voters remember this.
That’s not the only help members can expect. They’re buttressed in ways challengers can only dream about. They’re paid a good salary, so they don’t have to worry about supporting their families while they campaign. They get to spend their terms effectively campaigning year-round, not just at election time, and they are able to saturate their state or district with mass mailings. The nature of their work allows them to build ties to various interest groups back home — which quite naturally seek out the incumbents and ignore challengers.
Incumbents receive invitations to more events than they can possibly attend; challengers have trouble finding a meeting interested in having them. Incumbents get the honored place in the parade, the prime speaking position, the upper hand when it comes to raising money; challengers have to fight for visibility and money. And the news media seek out incumbents, often ignoring the challengers.
In fact, challengers are at a disadvantage at almost every point in a campaign. From building name recognition to arranging meetings to building credibility with editorial boards, donors, and opinion leaders, they’re trudging uphill. They do get one leg up — they’re in the district all the time, while the incumbent has to be in Washington regularly — but that’s a small advantage compared to the obstacles arrayed against them. Especially when districts are gerrymandered, as they often are, to protect incumbents. This means that in primaries, incumbents generally need to focus just on the most active voters, while in general elections the vast majority can consider themselves on safe ground.
But there’s another reason incumbents keep getting re-elected that’s also worth considering: voters — that’s you and me. Most Americans don’t vote, which means that a U.S. senator or representative might be elected by only 20 percent of the eligible voters. And those who do vote often cast their ballots for narrow or unusual reasons. They like the way they got treated by the incumbent’s staff, or they shook his or her hand at a county fair, or they like his or her stand on a particular social or economic issue, or perhaps they just recognize the name. Whatever the case, they don’t look at an incumbent’s entire record: votes on a cross-section of vital issues; willingness to work with members of different ideologies and backgrounds; ability to explain Washington back home and represent home in Washington; skill at forging consensus on tough policy challenges.
It’s really no mystery that incumbent members get re-elected. Their advantages are baked into the system.

Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.