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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, March 13, 2006

Sen. Feingold's censure resolution is moderate and reasonable

By Anonymous Liberal

On Sunday Senator Russ Feingold called for President Bush to be censured by Congress for authorizing extensive and ongoing violations of a criminal statute, FISA. There is nothing at all radical about Feingold's proposal. The administration has admitted that it circumvented FISA and there is broad agreement across party lines that the President did not have the authority to do so (hence, the move by Congressional Republicans to pass some sort of legislation making the President's actions legal, at least going forward).

Despite this broad bipartisan consensus, Feingold will undoubtedly be labeled as a rabid partisan by the GOP, someone "extreme" and "out-of-touch." And if history is any guide, this characterization will be reinforced by Feingold's Democratic colleagues who will immediately try to distance themselves from his proposal in order to be seen as "reasonable." On Sunday, Glenn did a great job describing this same phenomenon in the context of the relationship between the Democratic establishment and the blogosphere.

They [most Democrats politicians] don't want to go anywhere near the citizen activism in the blogosphere because Tim Russert and Chris Matthews will no longer think they're a moderate, serious, responsible Democrat, and Republicans might accuse them of being an extremist or a liberal. They'd prefer to avoid that disapproval even it means losing (as it usually does), than be criticized and win. The reason they run away from their own allies in the blogosphere is the same reason they so often run away from taking a real stand against the Bush Administration -- it's because they are petrified that the establishment media and even Republicans will criticize them as being too combative, too liberal, extremist, etc.

What Democratic politicians fail to understand--and this is particularly ironic given the Democratic party's historical association with the labor movement--is that this is fundamentally a collective action problem. The term "reasonable" has no objective meaning, at least in the realm of politics. Whether an idea is deemed "reasonable" has little to do with the merits of the idea and everything to do with the prevailing political climate as interpreted by our national media. GOP strategists like Karl Rove long ago realized that the national media will treat any talking point that is repeated by enough people as ipso facto "reasonable," and conversely, will treat any idea that is not repeated by a sufficient number of people as "unreasonable" or "extreme," no matter what its objective merits. It's a very crude calculus and one that is easily manipulated by shrewd partisans.

A textbook example of this phenomenon--if you'll pardon a brief digression--is the debate over the repeal of the Estate Tax. A decade ago, the idea of repealing the Estate Tax--a tax which applies only to the inherited wealth of the super-rich--was a complete and utter fantasy. Indeed, it's hard to imagine a proposal that, on its face, is more objectively unreasonable--from both a political and policy perspective--than repealing a tax which only affects the Paris Hiltons of the world. But through sheer collective will, the GOP came very close to doing just that this past year, and at a time of exploding deficits and a prolonged, expensive war. What Republican strategists have learned is that when a party speaks in unison, it has the power to define what is considered reasonable in the eyes of the national media, and in turn, the American public.

Democrats, however, cannot seem to internalize this idea. They approach politics as if the rules of reasonability and civil discourse are immutable or have been set by some neutral referee. When someone like Howard Dean steps over this arbitrary line, Democrats join the GOP in immediately calling "foul." When a Republican steps over the line, however, more often than not his Republican colleagues act collectively to move the line. Suddenly we find ourselves in a debate over whether outing a CIA agent is actually a good thing, or whether a law that has been on the books for three decades and repeatedly reaffirmed by this President should be violated. It doesn't matter what the consensus was five minutes ago. Talking points that would have seemed totally absurd days earlier suddenly become credible and reasonable, and for no other reason than they are being repeated by a chorus of Republican politicians, pundits, and bloggers. In this way, the definition of "reasonable" can be changed dramatically overnight.

Senator Feingold's call for Congressional censure is an eminently reasonable response to the NSA scandal by any objective measure. Just eight years ago, Congressional Republicans impeached a president for lying about a private consensual affair in the context of a frivolous civil suit which was financed and litigated by the president's enemies. We are now faced with a president who is engaged in ongoing violations of a criminal statute intended to protect the constitutional rights of the American people. There is agreement that extends well beyond party lines that the President does not have the constitutional or statutory authority to do what he is doing. This administration has repeatedly ignored, misled, and marginalized Congress. If such facts do not warrant censure, it's hard to know what does.

And as I've written in detail before, the Democrats have the law, the polls, and righteousness on their side. If they were to stand up as a party and support Feingold's motion for censure, they would have the full-throated support of virtually every left-leaning and centrist blogger, numerous prominent pundits and commentators, the majority of constitutional lawyers and legal professors, and a significant number of conservatives. In the face of such a chorus, the national media would be forced to cover Feingold's proposal as the reasonable, non-extreme measure that it is. For once, the Democratic party could show that it has a backbone and not allow the GOP to define the limits of reasonableness for them. If ever there was a time for collective action, it's now.

UPDATE (by Glenn): One of the problems which A.L. is referencing here is quite vividly illustrated by this article from The New York Times, which reports that Sen. Carl Levin, when asked about Feingold's resolution on CNN's Late Edition yesterday, said this:

"I think what the president did was wrong," Mr. Levin said. "But even though I think he was wrong, I would rather wait until the investigation is completed, which has now been started by the Intelligence Committee, before I go beyond that."

In fairness to Levin, it seems that Feingold told nobody about his Censure Resolution until he announced it with George Stephanopolous, and so Levin wasn't prepared to address it yesterday when he was asked about it. Still, Levin's response, which was both frightened and incoherent, illustrates a serious instinct problem which so many Democrats have (and, just incidentally, someone really ought to tell Sen. Levin that waiting "until the investigation [of the Senate Intelligence Committee] is completed" before deciding what to do is going to be a very long wait, since that Committee voted last week not to investigate).

Rather than use the opportunity he had to aggressively condemn the Bush Administration's law-breaking, Sen. Levin did the opposite: he mentioned just in passing -- in the most cursory, reluctant and obligatory manner possible -- that "what the president did was wrong," but then he devoted the bulk of his answer to fearfully warning that we shouldn't do anything about it, that we should wait, that we should think more about it, that we should just impotently and quietly stand by and remain cautious, stagnant, non-committal and unsure.

How is it even possible for a Democratic Senator to conclude that the President broke the law but then -- three full months after the law-breaking is revealed -- counsel that nothing should be done about it? That is the mentality we need to fight against in order to generate as much support as possible for Sen. Feingold's resolution.

UPDATE II: Sen. Feingold's office has posted the Censure Resolution on his site (.pdf).

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