Why the Democratic Congress is Sabotaging Its Own Civil Liberties Agenda
Saturday May 5, 2007
See also: My 10 Early Predictions for the Democratic Congress
From a distance, it might look as if the new Democratic Congress' four primary concerns were withdrawal from Iraq, progress on the pro-choice agenda, progress on LGBT rights, and humane immigration reform.
Unfortunately, a closer look reveals the disturbing possibility that all four of these agendas are being sacrificed for political reasons.
This might seem counterintuitive. What's the point of proposing legislation with the specific intent of preventing it from becoming law? The answer: It frustrates the base, increasing donations and voter turnout in subsequent elections. If Bill Clinton vetoes a ban on live intact D&X, he can be portrayed as a monster to both abortion opponents and moderates, scoring Republicans points on the abortion issue. If Bill Clinton vetoes a tax cut for the wealthy, he can be portrayed as a tax-and-spend liberal, scoring Republicans points with deficit hawks and fiscal conservatives.
The danger, however, is that if President Clinton were to sign a piece of legislation that bans a specific abortion procedure in a non-oppressive way, or cut a few taxes in a sensible manner, it would backfire. Moderates might think "Hey, he's not so bad," and the Republican Party would have a harder time demonizing the opposition. So bills written for a veto have to be very carefully written--they have to be just offensive enough to the sensibilities of the other party that they won't become law, but just benign enough that the public won't understand why they didn't.
It didn't work out well for the Republicans because President Clinton actually made a good many concessions in the area of civil liberties that allowed him to come across as a "moderate."
Last week, President Bush vetoed a bill that would have required him to start withdrawing troops from the country until the end of the year. Before the bill was even drafted, President Bush made it clear that he would veto it. Authors of the bill knew quite well that they would not be able to secure a two-thirds majority in Congress to override that veto. So why did they make it the centerpiece of their policy agenda? I think it was for two reasons:
At the very beginning of the legislative session, congressional Democrats proposed a brilliant piece of legislation: The Prevention First Act. This bill would ensure that rape victims have access to emergency contraception, that Title X/Medicaid family-planning services receive additional funding, that private health insurance companies that provide prescription coverage also provide coverage for contraceptives, that $20 million in additional grants be extended to teen pregnancy prevention programs, and that funding for non-"abstinence only" sex ed programs be increased. The effect of this legislation is clear: It would reduce the number of unwanted pregnancies, and subsequently the number of abortions, while at the same time giving women more freedom to make decisions affecting their reproductive health.
President Bush has gone months without taking a position on this legislation because it puts him in a bind. Does he support it, and alienate the anti-contraception crowd, or veto it, and alienate moderates? And what happens if the bill actually a generates a veto-proof majority in Congress and becomes law anyway? Fortunately for President Bush, Democrats in the U.S. Senate have found a way to ensure that he can veto the legislation with no political risk.
Two weeks ago, in the wake of Gonzales v. Carhart, members of the U.S. Senate proposed the Freedom of Choice Act. Although the Act is most likely unenforceable, it was written under the pretense of guaranteeing elective abortion rights for the first two trimesters, and abortion rights for the third trimester if the woman's health is at risk. For his entire political career, President Bush has opposed abortion rights. Barring a shocking overnight conversion, there is no way he would have signed this bill--and there is no two-thirds pro-choice majority in either house of Congress.
So what does this bill really accomplish? It does two things: It allows Democratic legislators to pretend to be shocked when President Bush vetoes the legislation, and it gives President Bush and his allies in Congress the political cover they need to kill the Prevention First Act. This was demonstrated clearly two days ago, when President Bush sent a letter to Speaker Pelosi and Majority Leader Reid reiterating that he's not going to "allow taxpayer dollars to be used for the destruction of human life." NARAL immediately released a response connecting President Bush's letter to the Freedom of Choice Act and, inexplicably, to the Prevention First Act as well.
Why would Democratic legislators want President Bush to veto the Prevention First Act? Maybe it's because any advancement of the pro-choice agenda that takes place under President Bush has the potential to make Republicans look like moderates on the issue--which could harm Democrats running in next year's election. It is better, from that vantage point, to sacrifice small pro-choice gains now in order to increase the size of the Democratic majority later.
It's a gamble, but it's the same gamble ultraconservative legislators use with respect to socially conservative voters: Propose right-wing legislation that is designed to fail, such as the Federal Marriage Amendment, and then use that legislation's failure as evidence that a larger Republican majority needs to be elected before the socially conservative agenda can be advanced.
Well, some of them probably don't, but that isn't really what this bill is about. The bill would federalize all hate crimes investigations, effectively giving local law enforcement the opportunity to pass along the workload associated with bias-motivated crimes and put federal investigators in charge of them. This might still be a great idea if the bill also included substantial increases in the federal law enforcement budget to accommodate the increase in new cases, but it doesn't. End result? The federal law enforcement apparatus becomes even more overworked and less able to deal with the cases it already has to deal with, such as counterterrorism, racketeering, cybercrime, and drug policy cases. And the effect on victims of hate crimes? Bias-motivated crimes could be prosecuted even less effectively under the new bill than they are now.
But the co-sponsors got what they wanted: The promise of a veto from President Bush, and a majority that is far too narrow to allow that veto to be overriden. As a result, they get to paint the Republican Party as callous and homophobic for next year's elections. Actually securing protection for LGBTs? Obviously not the number one priority right now.
There's another bill in the works, the Employment Non-Discrimination Act (ENDA), that would prohibit private-sector anti-LGBT discrimination under the same terms that prohibit racial discrimination. President Bush has never rescinded President Clinton's executive order banning anti-LGBT discrimination in the federal government, so there's a possibility he might sign it.
But homophobes shouldn't be worried: Given recent history, I have little doubt that the Democratic Congress will find some way to kill the legislation and blame it on the Republicans. After all, wouldn't it be a terrible development for Democrats if our right-wing president were the first in U.S. history to extend full civil rights protection to LGBTs?
But when immigration reform legislation was proposed last year, President Bush had a problem: His own party. Demagogues in the House pandered to anti-Latino sentiment and passed the horribly draconian HR 5537, prompting the largest immigration rallies in our nation's history last May. Now he's working with Democrats, who have a history of sharing his priorities on the issue--and the Democrats are working with a president who has a history of sharing theirs. It isn't an election year, so everybody can afford to take more risks than they might otherwise take. It is the best opportunity the current Congress will have to actually get things done on this issue.
So why doesn't the Democratic Congress take advantage of this unprecedented opportunity to secure immigrants' rights through humane, long-term immigration reform?
If you've been following the Democratic Congress' behavior on Iraq, abortion rights, and LGBT rights, you can probably guess the answer to that question. Not that President Bush has been angelic on the matter himself--"leaking" a draconian proposal several months ago that was obviously tailor-made to make him look more stingy on the issue than he has traditionally been--but Democrats have an opportunity to make real progress. What are they doing with that opportunity?
So far, they're doing nothing at all. And call me crazy, but something tells me that if and when they do eventually produce an immigration reform proposal, they will find a way to ensure that it, too, does not become law. Why? Because it's unacceptable for a Republican president to take credit for progressive reform.
But if the Democratic Congress wants real support from civil rights voters in next year's election, they will have to begin exercising their power now. Experience indicates that putting the fear of Republican totalitarianism into voters isn't enough; voters need to see the presence of good legislators, not merely the absence of bad ones. As civil libertarians, we need to pressure Congress to put aside their political games and try to get things done. Voters did not put Democrats in power just so that we could have a two-year vacation from the Republican majority. We need whatever we can get in terms of substantive, long-term policy reform, and we need it now.
From a distance, it might look as if the new Democratic Congress' four primary concerns were withdrawal from Iraq, progress on the pro-choice agenda, progress on LGBT rights, and humane immigration reform.
Unfortunately, a closer look reveals the disturbing possibility that all four of these agendas are being sacrificed for political reasons.
What We Learned from Clinton and the Republican Congress
Right now, we have a Republican president and a Democratic Congress. During the 1990s, the partisan situation was reversed. Republicans took advantage of this to propose legislation--most notably the "partial-birth abortion" ban--designed specifically to generate (a) a veto and (b) a less than two-thirds vote in at least one house of Congress, so that the veto would not be overriden. In other words, the bills were specifically tailored to be just offensive enough to the sensibilities of the president, and/or to the sensibilities of moderates, to fail.This might seem counterintuitive. What's the point of proposing legislation with the specific intent of preventing it from becoming law? The answer: It frustrates the base, increasing donations and voter turnout in subsequent elections. If Bill Clinton vetoes a ban on live intact D&X, he can be portrayed as a monster to both abortion opponents and moderates, scoring Republicans points on the abortion issue. If Bill Clinton vetoes a tax cut for the wealthy, he can be portrayed as a tax-and-spend liberal, scoring Republicans points with deficit hawks and fiscal conservatives.
The danger, however, is that if President Clinton were to sign a piece of legislation that bans a specific abortion procedure in a non-oppressive way, or cut a few taxes in a sensible manner, it would backfire. Moderates might think "Hey, he's not so bad," and the Republican Party would have a harder time demonizing the opposition. So bills written for a veto have to be very carefully written--they have to be just offensive enough to the sensibilities of the other party that they won't become law, but just benign enough that the public won't understand why they didn't.
It didn't work out well for the Republicans because President Clinton actually made a good many concessions in the area of civil liberties that allowed him to come across as a "moderate."
Making a Meal Out of the Iraq War
We're witnessing that same strategy right now with respect to the new Democratic majority's policy on Iraq.Last week, President Bush vetoed a bill that would have required him to start withdrawing troops from the country until the end of the year. Before the bill was even drafted, President Bush made it clear that he would veto it. Authors of the bill knew quite well that they would not be able to secure a two-thirds majority in Congress to override that veto. So why did they make it the centerpiece of their policy agenda? I think it was for two reasons:
- The Iraq War is extremely unpopular. If it can be made clear and unambiguous that President Bush supports continuing it and the Democratic Congress supports ending it, that's great. On the other hand...
- Democrats share President Bush's concerns regarding the potentially catastrophic regional effects of an immediate withdrawal from Iraq, so they don't want to actually pass legislation that would end the war right now. If the Democratic Congress were to actually end the war in Iraq, against President Bush's wishes, then they would be blamed for any ill effects of that withdrawal.
- Read more: Public Agrees with Progressive Weariness of Timidity in Democratic Party (About.com: U.S. Liberal Politics)
"What Do We Want?" "Choice!" "When Do We Want It?" "January 2009!"
This approach to legislation is also hurting the Democrats' civil liberties agenda. For a good example of exactly how, let's look at the abortion debate.At the very beginning of the legislative session, congressional Democrats proposed a brilliant piece of legislation: The Prevention First Act. This bill would ensure that rape victims have access to emergency contraception, that Title X/Medicaid family-planning services receive additional funding, that private health insurance companies that provide prescription coverage also provide coverage for contraceptives, that $20 million in additional grants be extended to teen pregnancy prevention programs, and that funding for non-"abstinence only" sex ed programs be increased. The effect of this legislation is clear: It would reduce the number of unwanted pregnancies, and subsequently the number of abortions, while at the same time giving women more freedom to make decisions affecting their reproductive health.
President Bush has gone months without taking a position on this legislation because it puts him in a bind. Does he support it, and alienate the anti-contraception crowd, or veto it, and alienate moderates? And what happens if the bill actually a generates a veto-proof majority in Congress and becomes law anyway? Fortunately for President Bush, Democrats in the U.S. Senate have found a way to ensure that he can veto the legislation with no political risk.
Two weeks ago, in the wake of Gonzales v. Carhart, members of the U.S. Senate proposed the Freedom of Choice Act. Although the Act is most likely unenforceable, it was written under the pretense of guaranteeing elective abortion rights for the first two trimesters, and abortion rights for the third trimester if the woman's health is at risk. For his entire political career, President Bush has opposed abortion rights. Barring a shocking overnight conversion, there is no way he would have signed this bill--and there is no two-thirds pro-choice majority in either house of Congress.
So what does this bill really accomplish? It does two things: It allows Democratic legislators to pretend to be shocked when President Bush vetoes the legislation, and it gives President Bush and his allies in Congress the political cover they need to kill the Prevention First Act. This was demonstrated clearly two days ago, when President Bush sent a letter to Speaker Pelosi and Majority Leader Reid reiterating that he's not going to "allow taxpayer dollars to be used for the destruction of human life." NARAL immediately released a response connecting President Bush's letter to the Freedom of Choice Act and, inexplicably, to the Prevention First Act as well.
Why would Democratic legislators want President Bush to veto the Prevention First Act? Maybe it's because any advancement of the pro-choice agenda that takes place under President Bush has the potential to make Republicans look like moderates on the issue--which could harm Democrats running in next year's election. It is better, from that vantage point, to sacrifice small pro-choice gains now in order to increase the size of the Democratic majority later.
It's a gamble, but it's the same gamble ultraconservative legislators use with respect to socially conservative voters: Propose right-wing legislation that is designed to fail, such as the Federal Marriage Amendment, and then use that legislation's failure as evidence that a larger Republican majority needs to be elected before the socially conservative agenda can be advanced.
The Democratic Party Sacrifices Gay Rights...Again
We've just witnessed a similar tactic with the hate crimes bill, which was passed by a narrow margin (213-199) last week. If you believe its proponents, what it mainly does is add sexual orientation, gender identity, and disability status to the list of criteria for bias-motivated crimes. Why did 199 legislators vote against the bill? Do they not believe that LGBTs deserve to be protected from violence?Well, some of them probably don't, but that isn't really what this bill is about. The bill would federalize all hate crimes investigations, effectively giving local law enforcement the opportunity to pass along the workload associated with bias-motivated crimes and put federal investigators in charge of them. This might still be a great idea if the bill also included substantial increases in the federal law enforcement budget to accommodate the increase in new cases, but it doesn't. End result? The federal law enforcement apparatus becomes even more overworked and less able to deal with the cases it already has to deal with, such as counterterrorism, racketeering, cybercrime, and drug policy cases. And the effect on victims of hate crimes? Bias-motivated crimes could be prosecuted even less effectively under the new bill than they are now.
But the co-sponsors got what they wanted: The promise of a veto from President Bush, and a majority that is far too narrow to allow that veto to be overriden. As a result, they get to paint the Republican Party as callous and homophobic for next year's elections. Actually securing protection for LGBTs? Obviously not the number one priority right now.
There's another bill in the works, the Employment Non-Discrimination Act (ENDA), that would prohibit private-sector anti-LGBT discrimination under the same terms that prohibit racial discrimination. President Bush has never rescinded President Clinton's executive order banning anti-LGBT discrimination in the federal government, so there's a possibility he might sign it.
But homophobes shouldn't be worried: Given recent history, I have little doubt that the Democratic Congress will find some way to kill the legislation and blame it on the Republicans. After all, wouldn't it be a terrible development for Democrats if our right-wing president were the first in U.S. history to extend full civil rights protection to LGBTs?
- Read more: Hate Crimes: House Oversteps Authority, Discriminates
- See also: Anti-Gay Workplace Discrimination
Overlapping Borders
There is only one issue on which President Bush more-or-less consistently thinks like a Democrat: Immigration reform. Unlike President Clinton, he said that the deportation of 12 million undocumented immigrants is not an option. He supports a guest worker program. He supports a citizenship track for undocumented immigrants. He comes from a Mexican border state, speaks decent Spanish, and seems to have far more support among American Latinos than most Republicans could even dream of having.But when immigration reform legislation was proposed last year, President Bush had a problem: His own party. Demagogues in the House pandered to anti-Latino sentiment and passed the horribly draconian HR 5537, prompting the largest immigration rallies in our nation's history last May. Now he's working with Democrats, who have a history of sharing his priorities on the issue--and the Democrats are working with a president who has a history of sharing theirs. It isn't an election year, so everybody can afford to take more risks than they might otherwise take. It is the best opportunity the current Congress will have to actually get things done on this issue.
So why doesn't the Democratic Congress take advantage of this unprecedented opportunity to secure immigrants' rights through humane, long-term immigration reform?
If you've been following the Democratic Congress' behavior on Iraq, abortion rights, and LGBT rights, you can probably guess the answer to that question. Not that President Bush has been angelic on the matter himself--"leaking" a draconian proposal several months ago that was obviously tailor-made to make him look more stingy on the issue than he has traditionally been--but Democrats have an opportunity to make real progress. What are they doing with that opportunity?
So far, they're doing nothing at all. And call me crazy, but something tells me that if and when they do eventually produce an immigration reform proposal, they will find a way to ensure that it, too, does not become law. Why? Because it's unacceptable for a Republican president to take credit for progressive reform.
- Read more: Top 10 Immigrants' Rights Blogs
Seeking Power, Exploiting Fear
If Democratic legislators waste the remainder of the legislative session on symbolic vetoes, then that suggests a very disturbing possibility: That we will see no significant progress on civil liberties between now and January 2009. The agenda of the Democratic majority seems to be a larger Democratic majority--based on an assurance that, if given more power, they will exercise it well.But if the Democratic Congress wants real support from civil rights voters in next year's election, they will have to begin exercising their power now. Experience indicates that putting the fear of Republican totalitarianism into voters isn't enough; voters need to see the presence of good legislators, not merely the absence of bad ones. As civil libertarians, we need to pressure Congress to put aside their political games and try to get things done. Voters did not put Democrats in power just so that we could have a two-year vacation from the Republican majority. We need whatever we can get in terms of substantive, long-term policy reform, and we need it now.
- Read more: How to Become an Activist
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