Personalities and Institutions
Jonathan Chait rips into the notion that congressional dysfunction is just the result of viewing politics “as a zero-sum game where one side wipes the floor with the other side.”
Except politics is a zero-sum game. [...] Democrats lost from [Sen. Evan] Bayh’s retirement and Republicans won, which is why they’re celebrating.
Now, public policy isn’t a zero sum game. But to expect politicians to put aside their political interests for the good of the country is wildly unrealistic. A well-designed system is supposed to align politicians’ interests with the greater good, to the highest degree that’s possible. The best way to do that is to give the majority the power to implement its agenda in the belief that this agenda will create positive real-world conditions that the voters choose to reward it with continued support. You can’t count on the minority party to lay down its most powerful weapon so that the majority party can rack up bipartisan achievements.
The belief that the filibuster is okay, but minority parties should just use it less often and start acting nicer is the equivalent of the belief that the financial system was totally fine, there just needs to be less greed and more caution. Of course, there are people on Wall Street who believe that, too — you don’t need to change the incentive structure that rewards taking on systemic risk, they say, you just need people to listen to their better angels. This sort of misguided notion is probably endemic to people who sit on the inside of any institution and see it in personal rather than systemic terms. The belief among official Washington that moral restraint can persuade politicians from ignoring their political interests is exactly such a fallacy.
I don’t think it makes much sense to treat institutional problems with anything less than institutional solutions. You can change the rules of the Senate, or you can change the two-party system. Good across-the-aisle relationships among individual senators will not reliably produce bipartisanship unless undergirded by systemic forces (like southern racism in the mid-20th century) strong enough to outweigh partisan ideology on election day.
The Heisenberg Principle of Public Policy
There’s a tendency among wonks, pundits, journalists, academics, and members of the political minority to favor more theoretically “pure” policies than are advanced by those in power. Those who have the actual responsibility of governing do not often try to achieve doctrinal purity, because they do not have the luxury of ignoring public attitudes (skepticism, mistrust, fear, etc.) about the effects of implementing the policy.
Many critics of the Democrats’ health reform plan think we need to radically shake things up—drastically cut spending; restructure incentives for both consumers and providers; end the employer-based insurance system; institute single-payer over night; etc. Matt Yglesias chastens proponents of the Wyden-Bennett approach (which would end the tax exclusion for employer-provided health benefits) for excesses in this vein:
Wyden-Bennett fans in the commentariat…have developed a habit of massively understating the transformative potential of the Obama administration’s health care proposals. It’s true that Obama shies away from a Wydenesque sudden shock to the employer-based system. But Obama does that because even though journalists and think tankers tend to favor such a sudden shock the public hates that idea and is terrified of it and nothing any politician says is going to change that. What Obama’s plan does accomplish, however, is to set the stage for a phased transition to a system in which employers are cut out of the loop.
Shock-and-awe punditry is entertaining and useful for framing issues in public discourse, but the responsibility of actually governing changes how policy is evaluated, as feasibility conditions and dynamic public attitudes feed back into the substantive development of the policy. This amounts to a kind of political Heisenberg effect, whereby public perception of a policy may alter its substance and its merit as policy.
The upshot is that, even when radical change is called for, phased transitions are really the only prudent course.1
- Probably. [↩]
The Ontology of Obstructionism
Ezra Klein has an interesting post today about the conceit of “philosophical differences” between the parties that was repeatedly trotted out at the healthcare summit on Thursday.
It’s true, of course, that there are some philosophical differences between Democrats and Republicans. But Republicans did something interesting yesterday: They turned a lot of policy differences into questions of first principles. And it’s harder to compromise on a first principle.
When [Rep. Eric] Cantor pointed out his philosophical differences, for instance, he was talking about how “the Secretary defines what a health benefit package should be.” That overstates the role the secretary of health and human services has in setting a floor for insurance in the exchanges, but nevertheless: When Republicans created health savings accounts, they had the government define what the package would be. And when they created the Medicare Prescription Drug Benefit, they had the government define what the package would be. And when Rep. Paul Ryan created his proposal, he set the minimum value of a benefit package. “You need to define what insurance is,” Ryan told me. “I agree with that.”
There seems to be a tripartite ontology at work here. There are philosophical differences, which deserve respect and which neither side should be expected to compromise. There are “legitimate” policy differences, which are respected but should be subject to reasonable compromise. And then there is low-down dirty politics. Spit.
The Republican strategy, abetted in good measure by President Obama, has been to take refuge in philosophical differences wherever possible, so as to avoid the appearance of being unwilling to compromise on a sensible middle-ground policy. Unwillingness to make policy compromises is tantamount to dishonorable partisanship. However, refusing to compromise one’s core beliefs is heroic and patriotic. So if you are the minority, and you don’t want to play along with the President’s program in a way that will advance the electoral interests of the President’s party, your best bet is to refuse to compromise on philosophical grounds. That way, we will all know to politely turn our heads when you resort to naked partisanship in pursuit of electoral advantage at the expense of the health and welfare of the nation.
Time to Reconcile with Reconciliation
Just as everyone expected, today’s bipartisan healthcare summit did not alter the basic political landscape facing reform. Both parties showed a united front, and all that’s left to do is for the party with more votes to pass identical legislation in both houses of Congress for the President to sign into law. It’s not clear who the crucial votes are in the House, or what they want, as Jonathan Bernstein has noted, so it’s not clear if the summit reassured them in any way. But as soon as the Democrats have thoroughly braced themselves for victory, it will be theirs.
There’s just one question left to resolve. Who goes first, the House or the Senate? That is, must the House first pass the Senate bill (H.R. 3590) before both chambers pass a reconciliation bill to patch the Senate bill up? A lot of people think that’s the only option. After all, it would seem to be some sort of procedural paradox to pass a reconciliation bill to amend the Senate bill before the Senate bill itself has been passed. But, says David Waldman, there is another way. Waldman contends that Congress can first pass the reconciliation bill but hold it—that is, not send it to the President for signature—until after HR 3590 has been passed by the House and signed by the President. The trick is to recognize that neither bill “does” anything until it becomes law, and it doesn’t become law until signed by the President (or, if he doesn’t sign, until ten days, not counting Sundays, elapse after the bill is presented to him). So the “paradox” would arise only if the President were to actually sign the reconciliation amendments to HR 3590 before signing HR 3590 itself.
Jeff Davis, writing at The Treatment, has a good reconciliation primer for health reform, also suggesting that the bills could be passed in any order.
The major obstacle with a reconciliation bill, in whatever order, is compliance with the Byrd Rule (2 U.S.C. 644), as Tim Jost explains here:
Before the rule on the reconciliation bill was reported in the House, the substitute amendment would have to be carefully vetted with the Senate Parliamentarian to make certain that it would comply with the Senate reconciliation rules, which are much more complex than those in the House. In particular, it would need to comply with the “Byrd Rule,” 2 U.S.C. 644, which provides that an “extraneous” provision in a reconciliation act can be challenged. A provision is extraneous under the Byrd Rule if it does not produce a change in outlays or revenues, is inconsistent with the committee’s instructions, outside the jurisdiction of the committee that submitted it, produces a change in outlays or revenues that is “merely incidental” to the provision, increases the deficit for a fiscal year beyond the “budget window,” or changes Social Security. If a challenge to a provision is upheld by the Senate Parliamentarian, it must be overridden by a 60 vote margin. According to Davis, any provision must also be upheld by a 60 vote margin that is successfully challenged as increasing the deficit over a five- or ten-year period, increasing the deficit by more than $10 billion in any one year over the next five years unless covered over the five year period, or increasing the deficit by more than $5 billion in any ten year period over the next 50 years. The CBO will need to score reconciliation amendments to assure compliance with these requirements.
(Emphasis added.) The final difficulty, then, is to determine whether compliance with the Byrd rule is possible if the reconciliation bill does not propose to amend current law, but only the hypothetical law of HR 3590. The CBO score, for example, might not strictly satisfy the rules with respect to existing law. Then again, it might. My understanding is that it all comes down to the Senate parliamentarian1, and the Senate parliamentarian doesn’t do hypotheticals. So there’s only one way to find out if it will work: try it.
Or, the House can take a not-so-blind leap of faith and actually pass the damn Senate bill, then pass the reconciliation patch when HR 3590 is law. Would that be so hard?
- However, it is technically possible for the Vice President, who is of course the president of the Senate, to overrule the parliamentarian. [↩]
Public Option Re-Dead
The public option appears to be dead again, but odds are it will not rest in peace.
As I’ve mentioned before, the weak version of the public option was not likely to be a big policy success. Its allure was largely that it would serve as a placeholder for future structural improvements that could really make a difference, such as pegging reimbursement to Medicare rates. In fairness, the public option might have provided better access and benefits than its private competitors. But even its advantages might have become liabilities if the PO winded up underperforming on cost control, as CBO analysis suggested it probably would, because of the likelihood that the public plan would serve a higher-risk population than would its competitors.
Against limited real rewards on the policy side, the public option presents serious risks on the politics side. Even if the leadership could drum up the votes for the public option, collateral damage from that discussion could imperil the whole bill. Again. Better to stick it in a drawer and come back to it when we’ve put the other reforms firmly in place.
Reviving the Medicare buy-in is another possibility. It would be much simpler to implement; the politics are not quite as perilous; it could easily pass muster under the reconciliation process; it would be a much more effective policy in terms of serving populations in need of health insurance; and it would make more direct progress toward the rational, universal system so desired by the left. But it would almost certainly stoke the opposition and hang conservative, red-state Democrats out to dry. Right now, Democrats need to dig deep, find some discipline, and . . . you know what’s coming . . . pass the damn bill.
Madame Speaker
I just want to briefly register my admiration and approval of House Speaker Nancy Pelosi. Pelosi’s job is not easy, but in case you haven’t noticed, she’s pretty darn good at it. Last year, as Norman Ornstein noted here, the House passed a cap-and-trade energy bill, a financial regulatory reform bill, and a comprehensive health reform bill.
That’s in addition to the bills that both chambers passed and were signed into law by the President, including a major economic stimulus bill, CHIP reauthorization, and an expansion of FDA regulatory authority to cover tobacco products. That’s not bad.
Pelosi has the right attitude about getting things done. Namely, she believes in getting things done. This quote, which made the rounds on blogs a while back, captures that attitude perfectly:
You go through the gate. If the gate’s closed, you go over the fence. If the fence is too high, we’ll pole-vault in. If that doesn’t work, we’ll parachute in. But we’re going to get health care reform passed for the American people.
Sounds right.
Save the California Fog
A new study shows declining levels of fog on the California coast, a development which means trouble for the giant redwoods. Brad Plumer explains:
[R]edwoods rely very heavily on moist air hitting their needles and dripping down onto the ground; this fog drip provides anywhere from 25 percent to 40 percent of the trees’ water. Indeed, that’s a big reason why redwood roots are relatively shallow but often extend out over one hundred feet from the base—so they can collect the dripping fog.
Now, the reason for the fog decline seems to be that the temperature difference between the coast and the California interior has been narrowing. The researchers stressed that they’re not certain whether the vanishing fog is part of a natural cycle or due to broader climate-change trends—to do that, they’ll have to look more closely at redwood tree-ring data to reconstruct the region’s climate over the past century, as well as analyze fog patterns elsewhere in the world. This study’s mainly notable because the redwoods have enough problems as is (only about 5 percent of the original forests survive today), and they certainly don’t need a dry spell on top of it all.
“Only 5 percent of primary growth redwood forests survive today; the rest has been logged or developed,” reports Jeremy Hance. “According to Save the Redwoods League, eighteen percent of the remaining coastal redwood forests are protected, the rest lies either on private land or in natural forests, which could be logged in the future. Save the Redwoods League, along with Berkeley Atmospheric Sciences, funded the study.”
The study was published in the Proceedings of the National Academy of Sciences. Via Brad Plumer.
Passing the Damn Bill?
Good news. Harry Reid says we will have a reconciliation bill to patch the Senate bill within 60 days. Looks like we might pass the damn bill after all.
Public Option Undead
The public option is again in the news, gaining steam toward inclusion in a potential reconciliation bill that would patch the Senate health reform bill. Jon Cohn and Ezra Klein are worried that bringing it back could derail the already sensitive and complicated backstage maneuvering to get a bill to the President’s desk. On the other hand, it could reinvigorate progressive support, in the public and in the House of Representatives, which could improve the chances of success and improve the substance of the bill.
It seems to me the thing to do is count the votes with and without the public option, and then go with the bill that gives you more votes.
Size Is Not Our Problem
Ezra Klein disagrees with Kurt Andersen’s suggestion that the problem with Congress is that the ratio of constituents to reps is too large and somehow leads to an excess of anti-government populism, particularly in the Senate.
The framers worried about democratic government working in a country as large as this one, and it’s possible that we’ve finally reached the unmanageable tipping point they feared: Maybe our republic’s constitutional operating system simply can’t scale up to deal satisfactorily with a heterogeneous population of 310 million. When the Constitution was written and the Senate created, there were around 4 million people in America, or about one senator for every 150,000 people. For Congress to be as representative as it was in 1789, we’d need to elect 2,000 senators and 5,000 House members. And so I wonder, as I watch Senate leaders irresponsibly playing to the noisiest, angriest parts of the peanut gallery, if the current, possibly suicidal spectacle of anti-government “populism” in Washington isn’t connected to our bloated people-to-Congresspeople ratios. As the institution grows ever more unrepresentative, more numerically elite, members of Congress may feel irresistible pressure to act like wild and crazy small-d democrats.
(Emphasis added.) Ezra ably dispenses with Andersen’s odd take on senatorial temperament. But Andersen’s ultimate suggestion here is that the problem with American democracy is that America is too big for the constitutional design. And that thesis fares no better.
Some of the framers did worry about effectively governing a country so large. But a crucial argument of the Federalist Papers (No. 10, by Madison) was that the greater size and diversity of the country would actually increase the stability of the government by decreasing the sway of factions and local interests over the general government. The size and heterogeneity of the nation were in fact integral elements of the intended design. The one concern about the scalability of the design was the danger that reps would become too detached from the varied experiences of their constituencies when those constituencies become too large for any one representative to know and understand.
As for our own experiences, it’s really hard to make much sense of the notion that the dysfunctions of Congress are the result of a defective scale of representation. It is not the size of the country that causes congressional failure to enact legislation that suits majority preferences. It is malapportionment and supermajority rule in the Senate. The former is not a departure from the framers’ design, but the realization of it. And the latter is a consequence of the Senate’s own rules. Those rules may be crazy, but they’re not small-d democratic.
Two Arguments for the Filibuster
There are two arguments in favor of the filibuster that are reasonable and merit consideration. I’m not persuaded by either one, but they do give me pause. Each in its own way advocates the filibuster as a tool that promotes rather than obstructs democratic or just outcomes in the legislative process. Each addresses special cases where simple majorities in the Senate are less likely to yield the desired democratic outcome.
1. The argument from intense minorities
The first argument, summarized here by filibuster expert Greg Koger, takes aim at simple-majority rule for inadequately accounting for the quality of support for a measure, rather than just the quantity of votes for it. Koger:
For some policy questions, some voters have a deeper stake than others. Last November, Californians voted on whether to allow same-sex marriage; isn’t it fair to say that people in same-sex relationships had a deep, personal stake in the question while heterosexual voters had an abstract (and typically less intense) interest in the issue? In a perfect world, we might recognize this asymmetry and attach special weight to the preferences of intense voters.
This is pretty much on a par with other anti-majoritarian arguments. There’s certainly a healthy strain of this thinking in constitutional law, where supermajority requirements can be justified as entrenched protections of minority rights. In general, I’m really not sure there’s a content-neutral way to resolve the debate. That is, such arguments tend to be dependent on evoking your sympathy for the minority. But flip the status quo to favor an unsympathetic minority (like Jim Crow racists), and the supermajority requirement doesn’t look so good anymore. (The First Amendment context is different, because, you know, that whole thing about sticks and stones….)
There’s a lot more to it, but I’ll just say this: I’m deeply skeptical that there could be an even remotely satisfying, policy-neutral justification of supermajority requirements.
I suppose there would be more to say for this view had the filibuster not evolved (as it appears to have now) into a straight supermajority requirement. If the process allowed for differentiation of substantive policy-based obstruction and partisan politics-based obstruction, then resorting to a filibuster might reflect intensity. Maybe. But surely there is not inherent democratic value in the intensity of views per se. It is only intense views that are “right” or “just” by our standards that deserve protections that depart from majoritarian norms.
2. The argument from malapportionment
The second argument, offered by Ben Eidelson at Slate, posits the filibuster as a democratic corrective against the inherent malapportionment of the Senate. Eidelson finds that the filibuster often serves to enforce the preferences of electoral majorities.
In fact, in 40 percent of the filibusters since 1991, the senators making up the “obstructionist” minority represented more people than the majority they defeated.
The traditional debate over the filibuster—which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative—entirely misses this fact. Democratic filibusters against President Bush’s judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of “majority rule filibusters.”
I guess that makes this argument a Democratic corrective as well as a democratic corrective. But the obvious problem is, again, there seems to be no way to distinguish in principle between good and bad filibusters. They might correct malapportionment, or make it worse. I’m willing to live with the constitutional bias against electoral majorities if we can get rid of the excessive institutional ones like the filibuster.
Beg Your Pardon, Follow-Up
Jonathan Bernstein has a good follow-up on his pardon-then-commission proposal. “The question,” says Bernstein, “is not whether Cheney (or Bush, or Yoo, or CIA operatives) deserve to be in jail,” but rather, “What remedies now will make future torture less likely?”
If Obama and Holder decide to prosecute, there’s little question of the results: Republicans of all stripes would rally around their now-persecuted friends from the Bush administration. [...] So the commission might demonstrate some of the truth, but would achieve no reconciliation at all. The deterrent factor for the future would rest on one thing alone, the ability of the Justice Department to obtain convictions and serious sentences, although such sentences would be gone, at least for policy makers once the next Republican president was sworn into office. And yet even then, the more Republicans solidify into the torture party, the more they would be likely to change the law and treaty obligations once they win the White House. In my view, a not at all unlikely result of prosecutions is withdrawal from Geneva during the next Republican administration.
Would pardons avoid this result? I can’t guarantee it, but I think it radically changes the incentives. [...]
* * *
Basically, I think criminal sanctions on past war criminals are far less likely to prevent future war crimes than would a restoration of the American consensus against torture. I can’t guarantee that pardon plus commission would achieve that, but every bit of political instinct that I have says that prosecutions would prevent it. If one is really against torture, it seems to me that preventing future torture is far more important than punishment of the torturers — the latter should only happen if it is a means to an end, not for revenge, and not even for justice. The current best path toward that end is a generous pardon, as hard as that might be to swallow for opponents of torture. Separate the acts from the actors, and the chances of preventing future acts are much, much, better.
Read the whole piece.
Congressional Approval
John Sides at the Monkey Cage shares some interesting bits of analysis from Alan Abramowitz about congressional approval. It seems that, oddly enough, the electoral fortunes of members of Congress bear little relation to what the public thinks about members of Congress. More important is what the public thinks about the President.
The data show that when the president is more popular, Congress tends to be more popular and when the president is less popular, Congress tends to be less popular. Moreover, this is true even when Congress and the presidency are controlled by different parties.
* * *
Discontent with Congress does not lead to a general tendency to kick out incumbents. Occasionally voters do get upset and give the boot to a large number of incumbents—but they almost always take out their dissatisfaction on the members of only one party—the president’s party.
* * *
This brings up the most important point about evaluations of Congress. They have very little influence on how Americans vote in congressional elections. When it comes to choosing candidates for Congress, it is opinions of the president’s performance that matter.
This, I think, suggests that the accountability crisis I’ve been harping on should be especially intense when the majority party in the Senate also holds the White House—because then the Senate minority has the greatest incentive (assuming they grasp the implications of this dynamic) to grind the legislature to a halt, because gridlock will be bad for the President’s party. Conversely, the minority should think twice about obstructionism in Congress if it holds the presidency.
Would that mean that congressional majorities are in a stronger position when their party is not in the White House? I seriously doubt it. In that situation the minority party holds the ultimate weapon of obstruction: the presidential veto.
Why Bills Are Long
Staged antics on the Capitol steps by Rep. Pete Hoekstra (R-MI). Via OpenCongress.
Conservatives have been grousing about the length of the health-reform bills for months. As I see it, there are only two charitable ways of interpreting this critique.1 Either (A) you could think the bill is so long that there must be something nefarious hidden in there somewhere, or (B) you could think that more legislative language equals more government (and more government is always bad). There’s not much to say about (A), except that the GOP has had months to read the bills and find secret Bolshevik plots, and that GOP legislators sat on all five of the congressional committees that contributed to the legislation. And (B) is, I think, misguided—even if you buy into its ideological premises. That is, even if you are a small-government conservative, the length of legislation is simply irrelevant to any conclusion about its merit.
It is true that both the Democratic health bills are long. According to numbers from Donny Shaw at OpenCongress, both bills are about 100 times longer than average. But several bills from the last decade were of comparable length, and five of the ten longest were written by Republicans.
Christopher Beam provides some historical perspective:
Over the last several decades, the number of bills passed by Congress has declined: In 1948, Congress passed 906 bills. In 2006, it passed only 482. At the same time, the total number of pages of legislation has gone up from slightly more than 2,000 pages in 1948 to more than 7,000 pages in 2006. (The average bill length increased over the same period from 2.5 pages to 15.2 pages.)
Bills are getting longer because they’re getting harder to pass. Increased partisanship over the years has meant that the minority party is willing to do anything it can to block legislation—adding amendments, filibustering, or otherwise stalling the lawmaking process. As a result, the majority party feels the need to pack as much meat into a bill as it can—otherwise, the provisions might never get through. Another factor is that the federal government keeps expanding. Federal spending was about $2.7 trillion in 2007. That’s up from $92 billion 50 years ago. And as new legislation is introduced, past laws need to be updated. The result: more pages.
So why is legislation so long? Ezra Klein writes, “Legislation is written for lawyers, not for people.” (Ouch!) I wouldn’t put it quite that way, but I agree that it is the technical style of legislative language (and page formatting) that makes bills so long. There are the huge margins; triple-spaced lines; nested, block-indented subsections, paragraphs, subparagraphs. There’s inoperative language: titles, subtitles. And there’s the dense Legalese, cross-referencing, and instructions for codification.
But I would add a few thoughts to Ezra’s observations. One thing that makes legislative language so cumbersome is that it must be (or attempt to be) exhaustively explicit. You can’t “just say” what you want to say in a statute as you would in ordinary circumstances. You have to define the operative concepts and terms. And you have to hedge—in a refined, structural sort of way. A lot. Think how much harder it is to say what you want to say if you are constantly trying to head off potential arguments against your point. And not just the arguments of the person you’re talking to—but any possible argument that anyone could conceivably raise against you based on any semantic nuance, syntactic ambiguity, or substantive inconsistency with anything you’ve ever said at any time in your life. Sound hopeless? It is. But that’s what drafting statutes is all about.
- There are of course less charitable ways to interpret this line of critique from the GOP. As anti-intellectual demagoguery, for example. [↩]
Beg Your Pardon
The Obama administration is navigating Scylla and Charybdis on the issue of Bush administration officials’ responsibility for the torture of alleged terrorists. On the one hand, the President needs to get things done and move the country forward on, well, everything. He desperately needs some Republican cooperation to advance his legislative agenda and therefore must maintain a conciliatory posture. On the other hand, the President must “take care that the laws be faithfully executed.”1 The Attorney General is in a particularly tight spot, as it is precisely his duty to enforce the laws of the land, including those laws and treaties that ban torture.
There’s serious tension here. And as much as the administration hopes it will go away, it’s not going away. But Jonathan Bernstein suggests a way forward:
The way out — the only way out that I can see — is to offer a full pardon to everyone involved, followed by a [truth and reconciliation] commission. The president should make a statement that is as generous as possible to the motives of the previous administration, while as harsh as possible to the specific acts at issue. [...] Obama can claim (whatever the truth actually might be) that he believes that every act was motivated by a sincere and commendable desire to protect the American people, and that whatever mistakes were made were just understandable overreaction in the heat of battle.
Pardon is preferable from the president’s perspective to a road that could involve prosecutions. It’s also necessary to get a Truth and Reconciliation Commission to work…. Part of the problem from the point of view of Republicans right now is that for them to oppose torture is to betray their fellow party members to the possibility of prosecution and prison. It really is understandable (I feel as if I’m using that word a lot here, but with good reason) that they would be reluctant to do that. Of course, that applies even more to those who were peripherally involved in illegal activities, or were somewhat aware of things that were probably illegal…right now, there is little incentive and quite a bit of danger from coming forward. Pardon, at least, reduces the danger.
[...]
So, that’s the argument. A pardon, as generous as possible, followed by a commission that would conduct a full investigation, including whenever possible public hearings. While it’s possible that such a commission might find that torture is necessary in extreme cases, I doubt it; the more likely result would be to discredit various stories about the successes of such methods, or more to the point to publicize that the “success” stories have in most cases already been discredited. But, if there are findings in the other direction, then the commission could recommend changes in law or treaty. More likely, the commission could establish as fact what happened, and document as plainly as possible that torture and abuse are both morally and practically terrible policy. There is, however, nothing wrong with stacking the commission with people who begin with a bias against torture. After all, the United States of America is committed to oppose torture, so one would expect that a government commission would have tend to support that position.
(Emphasis added.) This strikes me as a constructive suggestion. The President’s pardon power is sweeping, and use of it in this manner would ensure that the current administration’s actions are by the book. It would preserve good will with the innocent partisans of those responsible. And it would permit us to learn fully the lessons of the recent past, and indeed to lay blame where blame should be laid, but with both eyes toward the country’s future. Always pragmatic, never vindictive.
- U.S. Const. Art. II, § 3. [↩]
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