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The Election—I

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Charles Ommanney/Reportage by Getty Images
Mitt and Ann Romney at the Republican National Convention, Tampa, August 28, 2012

Michael Tomasky

Mitt Romney’s clear win in the first debate shifted the momentum in the race and arrested the talk of his campaign’s incompetence. But the most interesting aspect of his performance—completely unexpected by observers, pretty obviously including the president—was the way Romney appeared to position himself as a moderate, contradicting the main positions he’d taken for the previous sixteen or so months of campaigning.

This abrupt shift on his part emphasized, to me, the central fact of this election: that the Republican Party is—has made itself into—a party that is (in all likelihood) too far to the right to win national elections. Romney demonstrated at the debate that he understands this, and that the only way for him to avoid the drubbing he saw coming is by running away from the party and denying its agenda of tax cuts, deregulation, decimation of the domestic budget, and global belligerence. The big question of the campaign’s final weeks is whether he can continue to pull this off.

During Romney’s September swoon, when he lost ground to the president in key states owing to a series of large and small errors, blame was laid on his campaign. But as I’ve argued in The Daily Beast and elsewhere, the core problem hasn’t been his team, or his oft-noted lack of charisma. It’s the Republican Party’s radicalism and the endless gauntlet of litmus tests its factions have forced Romney to pass. Consider: Romney’s biggest blunder in September was revealed by David Corn of Mother Jones, in the form of the now famous video, that Romney believes 47 percent of Americans to be in essence freeloaders. If he does lose this race, that event will have been decisive.

This was commonly called a Romney error or miscalculation. But in fact it was just the opposite. Romney’s remarks were carefully calibrated to reassure two key conservative factions that he shares their view of the world and would enforce it as president. To the rich donors to whom he was speaking in Boca Raton, he clearly felt he had to pick up and develop the theme about the people who pay no income taxes, an argument that sprang to life on The Wall Street Journal’s editorial page in 2002 and has subsequently taken hold as a right-wing article of faith via Fox News, talk radio, and the many we-hate-liberals books that roll off the conservative presses. Every step of the way, Romney had made a show of placating these factions.

As a result of this insistent fanati-cism, Republicans—the right-wing base and the tremulous politicians who live in fear of it—have minimized their own chances in a number of states, representing a large chunk of electoral votes, where the party was once dominant at the presidential level but where it’s now struggling to scratch out narrow wins. Notable among these are Ohio, Virginia, and Colorado (now totaling forty electoral votes). They tightened up after the first debate—Ohio less so than the other two—but the fact remains that they are states the GOP once won with little effort. Going farther back, to Ronald Reagan and George H.W. Bush’s time, Republicans were winning states where the idea of them investing even a dime today seems laughable: New Jersey, Illinois, Maryland, and the biggest prize of all, California.

This didn’t just happen. While these states were moving to the left demographically—with more nonwhite voters and more white, progressive-minded, information-age professionals—the GOP was pushing farther and farther to the right, antagonizing and alarming both groups. The electoral effect is that today, the built-in Democratic advantage in the electoral college among states that aren’t contested is thirty votes. That is, virtually any Democratic nominee is assured of 221 electoral votes, while a generic Republican is assured of just 191.

My tally of 221 excludes Michigan and Wisconsin, a combined twenty-six electoral votes, simply because the Republicans are trying to contest those states this year. But they’ve both gone Democratic for many elections now (Michigan since 1992, Wisconsin since 1988). Some polls showed that the race became closer in these states after the first debate, but nearly all experts continued to rate them as at least “leaning Obama.” In sum, then, the Democrats are quadrennial favorites in states totaling 247—just twenty-three short of the needed 270.

What Romney managed at the first debate was that he at once distanced himself from GOP extremism and won the extremists’ approval while doing so, because what mattered to them was that he pummeled Obama so thoroughly. The right-wing base, which has demanded purity up to this point, will now probably let him say whatever he needs to say to win. The Democrats’ job is to remind voters of the pre- debate Romney.

Of course politics doesn’t end with an election result. Indeed, that’s when it all begins again. If Obama wins, we will see a battle within the Republican Party the likes of which we’ve not witnessed in modern history. Many will note that Romney’s eleventh-hour attempt at moderation failed. Did we lose, they will ask, because Romney was a squish—someone who never truly was a conservative, never really believed; or have we perhaps gone off the deep end?

Most of them will decide that it’s the former. William Kristol pined in mid-September for “the Ryan-Rubio ticket we deserve,” referring to Florida Senator Marco Rubio, and most conservatives will take the view that the defeat was Romney’s, not the party’s, because he wasn’t a real conservative. But there will be a few who will, however quietly and sheepishly, push the alternative view. Jeb Bush, who undoubtedly knows the electoral math I laid out above and who is surely hoping that his last name does not by 2016 carry the baggage it does now, will probably become the de facto leader of this tendency. He said on Meet the Press the Sunday before the Republican convention was gaveled to order: “This is going to be a close election, but long-term, conservative principles, if they’re to be successful and implemented, there has to be a concerted effort to reach out to a much broader audience than we do today.”

With the next presidential election four years away, the forum in which all this will be immediately contested—and closely watched—is Congress, in its relations with Obama. Assume, as polls now suggest, that the Republicans will retain control of the House and add seats in the Senate, though not enough to capture the majority. Will they be willing to cut a deal with Obama in advance of the January 1 deadline for the expiration of the Bush tax rates and the beginning of the harsh cuts to all domestic and defense programs? That is, will they agree to a tax increase on the upper brackets in order to consummate a “grand bargain” on spending, taxes, and the deficit?

Whatever the Republicans in Congress decide to do, the intraparty war will continue. We can already project forward to the likely roster of GOP candidates who will strive for the party’s nomination next time if Romney loses: Paul Ryan, Bush, Rubio, and Chris Christie in the top tier; Sarah Palin leading an unlikely second echelon that might also include Mike Huckabee, South Carolina Senator and Tea Party favorite Jim DeMint, Kentucky Senator Rand Paul, grabbing the reins from his father, and others. Six of those eight are hard right. The GOP will probably need to experience one more drubbing—at the hands, possibly, of no less an enemy than Hillary Clinton—to get the message.

And if Romney wins, which Romney will govern? It seems reasonable to assume it will be the one who campaigned for sixteen months and not just for one.

Elizabeth Drew

Close observers of President Obama’s style of governing expect that a second term of his presidency, were that to come about, will likely embolden him in his dealings with Congress. Reelection may be sweet but it doesn’t guarantee that Obama will be a profoundly changed man. He accomplished a lot more in his first term than is generally understood—in part because it took him a long time to figure out how to talk about his successes. At times his rookiness showed. A reelection—a confirmation by the country—and a continuing economic recovery would provide him with a changed landscape, and opportunities to extend his reach.

His reluctance in his first four years to fight as hard for his programs as his allies thought he should—and in their view his willingness to cede too much ground to his opponents—were the most oft-voiced criticisms on Capitol Hill. There’s an abundance of speculation about what he will try to do in his second term, but history tells us that priorities tend to be sorted out on the run. Retrospective critiques of what Obama—or any president—should have done rarely take into account the flurry of information he was presented with, the quiet pressures applied by congressional leaders of his party, or the quality of the advice of his staff. One piece of advice or information that seems in hindsight the right thing to have done didn’t necessarily stand out; no flashing lights or buzzers went off.

Some second-term issues are inescapable, in particular the looming “fiscal cliff”: if Congress and the president don’t agree on a new federal budget by the end of the year, spending on every federally funded program will be subjected to a deep, mindless, across-the-board cut—or sequester of funds. At the same time, the Bush tax cuts and certain other breaks—for example the temporarily reduced payroll tax—are set to expire. This calamity, which Congress imposed on itself because it could not reach an agreement with the president, may be postponed beyond the lame-duck Congress. Meanwhile a number of proposals waft about, none of them easy—or the country wouldn’t be in this fix.

But on this issue the reelected president has an advantage. Unlike other legislation, the budget needs the approval of only a majority in the Senate. Filibusters not allowed. Through the all-encompassing budget Obama can put his stamp on the shape and obligations of the federal government. He is also expected to try to at last win an immigration program, both because he owes the Hispanics for their strong support and also because it needs to be done. This would be his own civil rights achievement. He will undoubtedly try to create more jobs, especially in infrastructure, and take other steps to recreate opportunity for the devastated middle class. The list will grow.

A more important question than what Obama will try to do is, how will he try to do it? Will his manner of governing be very different than it was in the first term? He will still be Barack Obama, a contradiction of ambitious and cautious. He’s simply different from the conventional politician. He’s more self-contained, less needy, than almost any president in modern times. (Certainly less so than Bill Clinton or Lyndon Johnson.) He’s quite evidently not displeased with himself—and there’s much to be pleased with himself about. And Obama’s unique personality affects his political dealings. He conducts the business of politics but keeps a certain part of himself in reserve, holds it back.

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David Burnett/Contact Press Images
Barack and Michelle Obama during a campaign stop in Cedar Rapids, Iowa, August 2012

Why this matters is that Obama’s reserve can come across as aloof, be off-putting to other politicians, and translate into a reluctance to get his hands dirty by working with them. It can irritate businessmen who do not understand why he isn’t falling at their feet, doing whatever he can to win their approval.

Obama’s standoffishness can move to disdain and, unfortunately for him, in the first presidential debate he did little to hide his disdain—for the situation he found himself in and for his opponent. He has never liked debates, regarding them—with validity—as artificial tests of qualities that have little to do with governing. He resisted preparation in 2008, and this time he was up against a slick, hyper opponent who would twist the facts, say anything that seemed useful at the moment, determined to get under his skin, and disrespectful of the office of the presidency. Since he was obviously tired—preparation for a debate takes an absurd amount of time away from the responsibilities of governing—Obama’s dislike of Mitt Romney and debates, and his pride, caused him to seem to have checked out.

He did miss opportunities to confront Romney on some of his more preposterous statements. But his responses to questions made a lot more sense and if his resentment was set aside, his performance was a lot better than the second-guessers and those who rushed to judgment gave him credit for—just as the dubious nature of many of Romney’s statements was largely overlooked in the awe at his energetic performance. But debates have long been judged more by style than substance, one of the reasons Obama disdains them, so he has a lot to get past for the next ones. His campaign the next day, making fun of “this very spirited fellow who claimed to be Mitt Romney” and “what the real Mitt Romney has been running around the country for the last year” saying, showed that he knew that he had messed up.

Discussions of what Obama will do or should have done in his first term often overlook the fact that there was a Republican Party implacable in its opposition to virtually everything of any significance he proposed. This was without precedent in modern American politics; the system of governing came very close to not functioning at all.

Obama didn’t have the opportunity that Bill Clinton had to work with a dozen or so Republican senators to get things done. Republican senators with a modicum of responsibility, who have—or would have—cooperated with the president at all, are nearly extinct or living in terror of a Tea Party challenger to their nomination for another term. Republicans more inclined to work with Obama found themselves isolated, and some were bumped off in the primaries in 2010 and this year. After a while Obama found ways to work around Congress, for example with his executive order earlier this year allowing young people who had entered the country illegally with their parents to stay for two years if they met certain qualifications. He also took his own steps to make changes in the implementation of welfare and education laws. There are numerous ways a president can interpret or administer legislation to reflect his political position.

Since the congressional Republicans paid a price for their negativity over the last four years—their poll ratings have been barely off the floor—one would think that they would make a rational decision to work with the president and display a soupçon of responsibility. But the House Republican caucus, in the grip of the Tea Party, has veered off into the irrational. There have been inklings that some Republicans get it, and whispers on Capitol Hill that maybe they won’t fight unto death to maintain the Bush tax cuts for the wealthy.

Other realities shape what a reelected Obama would be able to do. Those who have charged that he should have got more done in his first two years, when the Democrats nominally had sixty votes in the Senate—theoretically enough to break a filibuster—fail, deliberately or not, to take into account that in reality sixty votes were not really at his disposal on major issues. At least two or three Senate Democrats were truly conservative or truly scared of reelection challenges and so didn’t support him when it mattered most. He had to win the votes of at least a couple of Republicans, who usually exacted a price—or played the prima donna until they announced that they were going to do what they were going to do anyway.

No amount of speechifying on Obama’s part would have got him more votes on certain issues about which he has been attacked, particularly on the left, for not having fought harder; the senators involved had their own overriding exigencies. There simply weren’t the votes for adding a public option to the health care program. There weren’t the votes for a larger stimulus program, not to mention a second one.

Obama’s failure was larger, and here is where he can change the nature of his presidency in a second term: he offered no overriding vision; he didn’t inspire; he didn’t lead. His soaring campaign rhetoric in 2008 was tantalizing, suggesting that when he got to Washington he would mobilize the public and with them behind him he would smash the old “system.”

But faced with an economic crisis and having decided that providing health care to virtually all citizens would be his highest domestic priority, he immersed himself in dealing with the details of the matters before him—and lost his tongue. He never quite grasped the importance of governing rhetoric, which requires concrete explanation wrapped in larger purpose. He has acknowledged shortcomings in this respect, but whether he will adapt is another matter.

And so, quite remarkably, Obama lost the definition of the health care bill he was battling to get through Congress. The White House set up a special health care “message” shop that did little good. Though the president rattled off the key provisions of his proposal, from time to time, he didn’t do it in a forceful way, or with the stagecraft that is essential to the presidency—if it is got right. (Even if it is as simple as the “fireside chat.”) This failure on Obama’s part had consequences in the smashing success of the Tea Party in 2010, which changed the face of American politics.

Obama has been defending the health care law more effectively in this presidential campaign but he lost precious time and also the aura of leadership. A second term will show us how much he learned from his first one.

Cass R. Sunstein

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Pete Souza/White House
President Obama with Justice Elena Kagan and Chief Justice John Roberts before Kagan’s investiture ceremony at the Supreme Court, October 2010

It is not exactly news that there are big differences between judges chosen by Republican presidents and judges chosen by Democratic presidents. Of course the most visible differences involve constitutional law. For all the high-flown talk about the Constitution’s original meaning, the role of precedent, and the virtues and vices of the “living Constitution” (the idea that the meaning of the Constitution changes over time), the fact is that the views of Republican and Democratic appointees on questions of constitutional law tend to overlap with the views of Republican and Democratic presidents on questions of public policy.

In predictable ways, Republican judicial appointees differ from Democratic judicial appointees on all of the great constitutional questions of the day, including affirmative action, campaign finance regulation, gun control, abortion, and sex discrimination. On many issues, the positions of Republican and Democratic judicial appointees look uncomfortably close to their respective party platforms.

However fundamental, the debate over the Constitution misses a problem that may well be even more important in American life. Many of the most significant judicial decisions do not involve the Constitution at all. Most people never hear about those decisions. But they determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws—including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces, and much more.

Here as well, Republican judicial appointees differ dramatically from Democratic judicial appointees, and along predictable partisan lines. The outcome of the election will help determine the ultimate fate of these rules in court.

To understand this point, we need to step back a bit. Every year, federal agencies issue thousands of rules and regulations. The most important of these (usually about six hundred to seven hundred per year) go through the process overseen by the White House Office of Information and Regulatory Affairs (OIRA), which I was privileged to head from September 2009 to August 2012. Before their significant rules can see the light of day, all executive agencies have to submit their drafts to OIRA for approval.

In any administration, the OIRA process tends to be lengthy and painstaking. OIRA does not merely offer its own comments. It elicits the views of a wide range of departments and agencies, including the Department of Justice (on legal issues), the Department of State (on issues with a foreign policy component), the Council of Economic Advisers and the National Economic Council (on economic issues), the Office of Science and Technology Policy (on scientific issues), and many more. The rules that emerge from this process count as some of the most important work done in any administration.

For example, much of the Affordable Care Act cannot go into effect until the Department of Health and Human Services issues rules that actually implement its provisions. Governor Romney has repeatedly said that he would like to repeal the act (and to eliminate or scale back many other regulations). Among other things, recent rules (1) prevent the denial of coverage to people with preexisting health conditions; (2) eliminate annual and lifetime limits on coverage; (3) limit the percentage of premium dollars that can be used for purposes other than health care; and (4) ensure that parents can keep children on their plans until the age of twenty-six. The Obama administration has also issued rules designed:

• to increase fuel economy requirements for cars and trucks, saving consumers billions of dollars while reducing dependence on foreign oil;
• to protect food safety, with one rule preventing up to 79,000 cases of salmonella every year;
• to prevent hundreds of deaths and injuries on the highways, among other things by reducing the distance in which trucks are required to be able to come to a full stop;
• to protect workplace safety, among other things by requiring new and clearer hazard warnings;
• to ensure fair dealing and to avoid exploitation of college students, with new rules preventing abuses by for-profit colleges;
• to promote energy efficiency with new standards for refrigerators, clothes washers, clothes dryers, small motors, and more;
• to reduce the health risks associated with smoking, among other things by requiring graphic health warnings on cigarette packages;
• to prevent discrimination on the basis of disability and sexual orientation;
• to reduce air pollution, among other things by ensuring that states are not prevented from meeting federal air quality requirements because of pollution from other states (the “cross-state air pollution rule”).

These regulations, like almost all others, can be challenged in a court, which is typically a federal court of appeals consisting of a three-judge panel. As it turns out, a lot depends on whether the panel consists of Republican or Democratic appointees.

Here is a simple way to test whether political convictions matter in legal disputes over regulations. Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president?

If you know the answers to these two questions, it turns out that you know something important about the likely outcome.* Here are three facts:

1. When the affected industry challenges a rule, Republican appointees are significantly more likely than Democratic appointees to vote to strike down that rule.
2. When a public interest group challenges a rule, Democratic appointees are significantly more likely than Republican appointees to vote to strike down that rule.
3. Judges’ likely votes are greatly affected by the positions of their colleagues. Sitting with two fellow Republican appointees, a Republican appointee becomes even more likely to side with industry. Sitting with two Democratic appointees, a Democratic appointee becomes even more likely to agree with a public interest group.

Of course the law imposes constraints; judges cannot strike rules down simply because they dislike them. But there is no question that the ultimate fate of rules protecting health, safety, and the environment may ultimately depend on whether the judges on the panel were appointed by a Republican or a Democrat.

We have very recent examples. I mentioned the Environmental Protection Agency’s important cross-state air pollution rule, which is expected to prevent, each year, 13,000 to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 hospital and emergency room visits, and 400,000 cases of aggravated asthma. On highly technical grounds, the court of appeals for the District of Columbia Circuit invalidated that rule just this August, by ‘a majority vote of 2–1. (You can guess the political affiliation of the president who appointed the two judges in the majority.) Also this August, a different panel of the same court invalidated the graphic health warnings for cigarettes, again by a majority vote of 2–1. (Yes, the judges in the majority were appointed by Republican presidents.)

What this evidence suggests is that many of the biggest battles of the day—over health care reform, financial reform, environmental protection, workplace safety, civil rights—will ultimately be settled in court by lower-court judges in rulings that will get little public attention. The Supreme Court has upheld the Affordable Care Act, but some of the rules that are necessary to implement it may turn out to be vulnerable.

Unlike presidents, judges often stay in their jobs for decades, and any president is in a position to shift the judiciary in major ways. Of course it is true that the 2012 presidential election will help to establish the meaning of the Constitution. Perhaps equally important, it will help to establish the fate of numerous rules designed to protect public safety, health, and the environment.

  1. *

    See Thomas Miles and Cass R. Sunstein, “Do Judges Make Regulatory Policy?,” The University of Chicago Law Review, Vol. 73 (Summer 2006). This study focuses on decisions in the areas of environmental law and labor law over a recent ten-year period. The results are consistent with other empirical studies in many areas. See, for example, Stefanie A. Lindquist and Frank B. Cross, Measuring Judicial Activism (Oxford University Press, 2009). 

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