Blog No 69. Surprise: Republicans May Know How to Govern After All

It is still early days, but there are some encouraging signs that Republican leaders in the Senate and House have found the ability to get things done—actually legislate—despite Democratic opposition and the Oozlums of the right gnawing at their ankles.

The first major milestone came two months ago when Republicans abandoned the quixotic attempt to block the President’s executive actions with respect to immigration. While we had disapproved of those actions, the response of holding up funding for Homeland Security seemed to us to make as much sense as treating a toothache by hitting yourself on the head with a hammer.

A second achievement came in the bill that Senator Corker fashioned to provide for Congressional review of the Iran Nuclear Agreement. The bill, which passed the Senate 98-1, has now been overwhelmingly passed by the House and it will be signed by the President. Inevitably, the bill had its critics on left and right. The New York Times complained that “Congress has formally muscled its way into President Obama’s negotiations with Iran, creating new and potentially dangerous uncertainties for an agreement that offers the best chance of restraining that country’s nuclear program.” The Wall Street Journal, on the other hand, lamented that the bill still gives the President “a nearly free hand” and that “[b]y making the accord an executive agreement as opposed to a treaty, and perhaps relying on a filibuster or veto to overcome Congressional opposition, he’s turning the deal into a one-man presidential compact with Iran.”

Our own view was closer to that of the Journal than the Times, and we preferred the Corker bill as originally introduced. Nevertheless, even as amended the Corker bill (joined by Senator Cardin as co-sponsor) was a constructive compromise as the Journal grudgingly, and somewhat dyspeptically, acknowledged:

Until the U.S. elects a President who is serious about stopping Iran’s nuclear bid, Corker-Cardin is the best bet for censuring Mr. Obama’s misbegotten diplomacy, and giving his successor a fighting chance to reverse it.

Obviously, the merits of the Corker-Cardin bill cannot be fully appraised until the process that it created plays out. In the meantime, however, it represents a heartening example of bi-partisanship and is a testament to Senator Corker’s legislative skill. Indeed, we will digress for a moment to note that, while Corker has shown no presidential ambitions, he would seem to be an outstanding potential candidate for Vice-President, particularly if the Republicans should nominate a governor with little or no direct experience in foreign relations.

A bipartisan compromise was also reached in the matter of the Trade Promotion Authority (TPA) bill. That bill still has more hurdles before it is finally approved by both houses and signed by the President. Nevertheless the turning point appeared to be reached when a compromise was developed that allowed the bill to come to the floor of the Senate for debate and a vote.

Just one year ago, in Blog No 36, “Free Trade Agreements: Good Policy—and Good Politics for Republicans”, we discussed the issues and urged Republican support for TPA. We also urged support for the Trans-Pacific Partnership (TPP), the trade agreement which is likely to be reached only if Congress provides the “fast-track” authority granted by the TPA. We will not reprise those arguments here but simply note that we have seen no reason in the ensuing twelve months to change our view.

It has long been clear that there was more support among Republicans than Democrats for free trade generally and TPA in particular. In Blog 37 we had observed:

Ironically, President Obama’s best chance for passage of his trade agenda may lie with Republicans increasing their majority in the House and gaining control of the Senate. (There would be historical precedent for such a result. In passing the two signal accomplishments of the Clinton Administration, Welfare Reform and NAFTA, support by Republicans outnumbered that of Democrats in both instances.)

Nevertheless, it was still a bit stunning when, on May 12, the motion to bring TPA to the floor was supported by every Republican (except for Senator McConnell who voted no for procedural reasons) and opposed by every Democrat save one (Senator Carper of Delaware). Accordingly, the measure failed to reach the 60 votes required to cut off debate and was defeated.

The resulting deadlock was resolved only two days later by a compromise that involved passage of a separate measure dealing with currency manipulation. That measure is opposed by the White House and its fate in the House is uncertain, but passage in the Senate was helpful in allowing the TPA to go forward. The compromise also included a renewal of Trade Adjustment Assistance (TAA), a federal program dating to the 1960s that helps retrain workers who have lost their jobs because of import competition or companies moving production overseas. That program is opposed by many Republicans, who consider it ineffective. Reflecting the compromise, Senator McConnell stated, “There are many members on my side of the aisle who have real reservations about TAA. I do as well. But I expect that at the end of this process, after the Senate works its will, that TAA will be a part of the package the Senate sends to the House.”

From a political standpoint, debate over TPA within the Democratic Party gave Republican presidential hopefuls a partial respite from the focus on their own intramural elbowing. Thus, the media gave considerable attention to the increasingly sharp debate between President Obama and Elizabeth Warren and also to the conspicuous absence from the discussion of Hillary Clinton. Ms. Clinton declined to enter the fray except to express some “concerns” about the bill, which seemed not to impress anyone on either side of the debate. Robert Kagan, writing in The Washington Post noted, as had others, that as Secretary of State, Clinton had given strong support to the TPP but was now taking a different tack:

Yet now, when the trade agreement hangs in the balance, when the all-important question of “trade promotion authority“ was voted on in the Senate, Clinton has been silent, or worse, has quietly indicated her concerns about the agreement. Whether or not this is posturing to avoid offending her party’s left wing, only Clinton can know for sure. But it is an interesting departure from her statements as the nation’s top diplomat.

Whether Clinton is ultimately damaged by her retreat to an “undisclosed location” (politically if not physically) remains to be seen, but it is a failure of leadership that should not be allowed to pass unnoticed.

McConnell’s next imperative for compromise will come in the form of the USA Freedom Act (UFA) which significantly modifies NSA’s program for data collection. The act was supported by the White House and passed by the House by a large margin. Under UFA, NSA would no longer collect megadata but could obtain access to it through telecommunications companies such as ATT, Verizon and Sprint. The urgency of Congress taking action stems from two facts. First, the statute under which the NSA program has been conducted, Section 215 of the Patriot Act, will expire on June 1. Second, a federal appeals court, the Second Circuit in New York, held on May 7th that the NSA program was not authorized under the terms of Section 215.

Senator McConnell and others in the Senate, including Marco Rubio, have expressed a preference for continuing the program in its present form, and that would also have been our preference. That option, however, was always difficult because of strong bipartisan support in the House for changing the law. And it became even more difficult in light of the decision by the Second Circuit. The ruling meant that to continue the program, Section 215 would not only have to be extended but strengthened, a prospect that, given the position of the House, seems out of the question. In short it appears that Senator McConnell and the Senate will have to approve the UFA as passed by the House.

Finally, a continuing need for bipartisanship and legislative skill lies in the case of the President’s nearly-forgotten request of an Authorization for Use of Military Force Against the Islamic State. The request has been languishing since the President made it in mid-February and no action appears to be in sight. The President got consideration of his request by Congress off to a poor start, first by denying for months that he needed such an authorization, and then submitting a proposal that was so ambiguous it could not command a consensus even as to what it meant. (See Blog No. 61 “The National Security Strategy, the Islamic State and Ukraine”). Moreover, since submitting the request, the President appears to have done little or nothing to muster support for it.

In April, returning from a trip to the Middle East, Speaker John Boehner said that action on a resolution appeared to be at an impasse:

Until the president gets serious about fighting the fight, until he has a strategy that makes sense, there’s no reason for us to give him less authority than what he has today, which is what he’s asking for.”

We sympathize with Speaker Boehner’s view, but a lack of leadership from the President does not relieve Congress of the responsibility to perform its Constitutional function on a serious issue of national importance. It is probably wishful thinking, but one might hope that the bi-partisan and pro-active steps taken by Congress on the Iran Nuclear Agreement would inspire similar movement with respect to the AUMF.