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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.

Wednesday, March 15, 2006

A stirring defense of indecision and inaction

(updated below)

Since Democratic Senators are afraid to talk about Sen. Feingold's censure resolution, Kevin Drum provides a public service by trying to explain and defend the "rationale" for Democrats not to support the resolution. Since many people have been having a hard time fathoming what possible rationale could motivate Democrats not to support Feingold's resolution, Kevin's post is worth examining in order to gain some insight into that thought-process.

Kevin -- just like the Democratic Senators whose evasiveness and indecision he appears to admire -- never actually says whether he favors the censure resolution or not. Instead, he begins by dismissively assuring us that he has no substantive problem with censuring Bush ("Sure, censure away. God knows Bush deserves it"), only to then give one reason after the next why Democrats shouldn't censure Bush. Kevin begins his argument with a moving declaration of defeat, followed by an inquiry into the "theatrics" of Feingold's opposition to George Bush's law-breaking:

Second, politically: I'm not so sure on this score. Anytime a congressman introduces a measure that's certain to fail, it's done for reasons of political theater: to make a point, to get some attention for an issue that's being ignored, or to reach out to some constituency or other. So the relevant question is: is this good political theater?

Kevin's assurance that Democrats will lose is nice conventional wisdom (and the standard beginning premise for many Democrats), but it's actually completely baseless. If the public became convinced as part of the debate that is finally happening that the President broke the law and that such law-breaking is intolerable, does Kevin actually think that it's impossible to find 6 Republican Senators to vote for the Resolution? Congressional Republicans defied Bush on the port deal for only one reason: because public opinion demanded it.

If public opinion begins to move even more than it already has to the view that Bush broke the law, it is far from certain that the Censure Resolution will fail. As I've noted many times, polls showed for two consecutive years that the public thought Watergate was a meaningless scandal and Nixon's popularity remained sky high throughout those years. The arc of that scandal ended up changing only because tenacious politicians and journalists continued to pursue the story and the public finally became educated and angry about it. If Democrats had followed Kevin's advice in 1972, Richard Nixon would have retired as a popular two-term President.

But even if the Censure Resolution ultimately fails, the rationale for pursuing it is self-evident. Kevin frequently frets about (among other things) the fact that Democrats are perceived as being weak. The reason for that is because Democrats often are weak, precisely when they do things like abandon their own Senators and refuse to take a principled stand against a President who got caught breaking the law.

People like Kevin -- who believe that Democrats must "prove" to the country that they can be strong -- should most understand the value in having Democrats take a stand regardless of whether they ultimately prevail. Strong and resolute people fight. Weak and spineless people run away from fights -- or fight only when their victory is guaranteed in advance. The Democrats have been running away from fights for five years now based on the Kevin Drum theory that fights are only worth fighting if you know in advance that you will win. It is beyond irrational to think that the Democrats are going to look strong by simply crawling away meekly and allowing George Bush to break the law.

Anyone with doubts can just ask themselves: Who appears stronger and more resolute right about now -- Russ Feingold or the Democrats described by the Washington Post and New York Times as literally hiding behind each other to avoid reporters and beating a full "retreat"?

Kevin, after arguing that Harry Reid's shutdown of the Senate last year was "good theater," continues:

Conversely, it's not clear what Feingold hopes to accomplish with his censure motion. Bush's shortcomings are already getting plenty of attention, so he's not galvanizing any new media attention. He obviously didn't bother telling his fellow Democrats about his plan, which has had the result of making the party look muddled and stupid. And Republicans, far from being nonplussed by his censure motion, are having a field day with it.

There are so many sad and destructive myths all packed into this one little paragraph. First, Kevin seems to be suggesting that because some of Bush's "shortcomings are already getting plenty of attention," there is no reason to bother spending energy on the fact that he broke the law when engaging in warrantless eavesdropping on Americans. That's like saying that everyone already knows that the guy down the street is a cheapskate, so why bother calling the police and reporting his burglaries and muggings?

What is a more serious political crisis than having a President who believes he has the power to break the law and who exercises that power repeatedly and enthusiastically - and who, by the way, is still defiantly breaking the law as we speak? What possible rationale could exist for passing up the opportunity to educate Americans that George Bush is breaking the law and claims he has the power to do so?

Second, whether Feingold told other Senators about his resolution in advance is not confirmed one way or the other, but even if he didn't - so what? Kevin seems to be arguing: the President broke the law and it would be OK if we condemnend him for it, but Russ Feingold breached some Senatorial courtesy so we should just forget about the whole thing. To describe that argument is to illustrate its absurdity.

Third, Kevin claims that Republicans are "having a field day" with the Censure Resolution. That's true. They are. And why is that? Because other Democrats, like Kevin, are transparently afraid to support it. The mockery from the Republicans is not about the Censure Resolution but about the fact that most prominent Democrats seem petrified to death of confronting George Bush even when he gets caught breaking the law. That conduct mocks itself.

As usual, Kevin internalizes false Republican propaganda by believing that Republicans love this scandal and think they can benefit from it. But the Republicans' conduct since this scandal began proves that the opposite is true. They tried to kill every investigation. They have tried to sweep it all under the rug. And just this week, Sen. Frist tried to force an immediate vote before anyone had a chance to even read, let alone debate, the Resolution, precisely because the last thing Republicans want is the spotlight on the fact that the President broke the law and the GOP-controlled Congress is doing nothing about it.

Republicans began having a "field day" with this issue only once it became clear that Democrats would be guided -- yet again -- by the instincts Kevin loves and would equivocate and say nothing because polls didn't guarantee them a sweeping victory in advance. If Democrats had stood with Feingold and forcefully articulated to the country why this behavior on the part of the Administration presents such a severe crisis -- or if they do that now -- the only ones having a "field day" will be those Americans who believe in the rule of law.

Kevin concludes his stirring defense of inaction and indecision with this "postscript":

It's this: all the people complaining about Democratic senators who are waffling on Feingold's motion even though they voted to censure Bill Clinton need to lighten up. As I hope everyone knows, the censure motion against Clinton was an attempt to derail the impeachment proceedings, not a genuine expression of censure. And Feingold, as I hope we also remember, was the only Democratic senator to side with Republicans and refuse to vote for dismissal of the impeachment charges. So let's keep the holier-than-thou stuff down to a dull rumble, shall we?

Kevin says that he "hope(s) everyone knows" that "the censure motion against Clinton was an attempt to derail the impeachment proceedings, not a genuine expression of censure. " I hope nobody "knows" that, because it's just false. As Elton at BusyBusyBusy points out:

Commenter markbernstein suggests that Sen. Feinstein's proposed censure resolution against President Clinton should not be held against her because it was offered as an alternative to impeachment. Alas, this was not the case. A completely different censure resolution proposed by House Judiciary Committee Democrats in early December 1998 was, in fact, intended to substitute for impeachment (it was voted down in committee). But the quotes above are from a resolution of impeachment censure Sen. Feinstein attempted to introduce on January February12, 1999, after President Clinton's impeachment had already ended in acquittal.

I'll look for Kevin's correction on that. Beyond that error, Kevin's attempt to smear Feingold by pointing out that he was the only Democrat to vote against dismissal of the impeachment proceedings against Clinton - as though that makes Feingold some sort of a hypocrite - is truly incoherent. Feingold voted against dismissal (and then voted in favor of acquittal) because he wanted to hear the evidence before deciding what he thought about the charges. That vote reflects the same exact values as underlies his Censure Resolution -- namely, a respect for the rule of a law and a steadfast belief in his principles regardless of political pressure.

Feingold's actions in each case couldn't be more consistent. The hypocrites are those who favored censure for Clinton's "inappropriate relationship" but can't get themselves to even talk about censure for George Bush's deliberate and ongoing illegal eavesdropping on Americans. Although Kevin can't think of any reason for Democrats to support the censure resolution, the reason is really quite obvious and compelling -- the core principles of our constitutional republic are threatened by the seizure of the President of the power to break the law, and anyone committed to their country and willing to fight for it would do whatever they can to publicize that crisis and to take a stand against it.

UPDATE: In response to a few e-mails, I will make this clear: at the end of his post, Kevin said this: "So while I'd vote for Feingold's motion, I don't think I'd hire him as a political theater consultant." So while Kevin did not say if he supported the introduction of Feingold's censure resolution or Feingold's efforts to bring the resolution to a vote -- and, in fact, wrote a post with multiple arguments against the political wisdom of that resolution -- he did say (in passing) that he'd vote yes on the resolution if he were to vote on it.

Additionally, Kevin has now added an Update to his post which acknowledges that Feinstein's anti-Clinton censure motion was introduced after Clinton was acquitted on impeachment charges. Thus, the Senators who supported Feinstein's censure resolution (which includes 19 Democrats who are still in the Senate) were urging that Clinton be censured on the merits of that issue, not as a tactical alternative to impeachment. It is simply indefensible for Senators who favored censuring Clinton not to support censure of Bush, whose law-breaking is repeated, ongoing, and relating to much more serious matters than what Feinstein's resolution called Clinton's "inappropriate relationship."

UPDATE II: Digby thoroughly analyzes, and thoroughly decimates, the rationale being peddled by inside Beltway consultant types as to why they think that Feingold's censure resolution might be politically harmful. Many of them seem particularly miffed that Feingold announced it without first telling them about it. I don't know why Feingold announced the resolution without consulting other Democratic Senators, but I can guess what the reasons might be.

Feingold is likely unhappy about the fact that even in the middle of all that is going on (with Bush's plummeting popularity and lawless surveillance on Americans), he could get only 9 other Democrats to join him in opposing the renewal of the Patriot Act. More specifically, it hasn't exactly been a secret that Beltway Democrats have been petrified of the NSA scandal from the start, worried that they'd be depicted as best friends of The Terrorists if they opposed the notion that the President has the power to break the law. I have no doubt that had Feingold consulted with them about his intent to introduce the resolution, they would have urged him not to do it. In any event, Digby's post is highly worth reading on the complete tone-deafness of these fear-embracing Democrats and the utter lack of merit of their concerns (they are always so "concerned") over Feingold's resolution.

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