|
How the NSA and FBI End-Run Around Weak Oversight |
|
|
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=26783"><span class="small">Yochai Benkler, Guardian UK</span></a>
|
|
Wednesday, 16 October 2013 14:20 |
|
Benkler writes: "Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it."
(photo: file)

How the NSA and FBI End-Run Around Weak Oversight
By Yochai Benkler, Guardian UK
16 October 13
Unless Congress imposes new limits on state surveillance, it's inevitable agencies will go on abusing our liberties and privacy
ver 20 congressional bills aim to address the crisis of confidence in NSA surveillance. With Patriot Act author and Republican Congressman Jim Sensenbrenner working with Vermont Democratic Senator Patrick Leahy on a bipartisan proposal to put the NSA's metadata program "out of business", we face two fundamentally different paths on the future of government surveillance.
One, pursued by the intelligence establishment, wants to normalize and perpetuate its dragnet surveillance program with as minimal cosmetic adjustments as necessary to mollify a concerned public. The other challenges the very concept that dragnet surveillance can be a stable part of a privacy-respecting system of limited government.
Pervasive surveillance proponents make two core arguments.
First, bulk collection saves Americans from foreign terrorists. The problem with this argument is that all publicly available evidence presented to Congress, the judiciary, or independent executive branch review suggests that the effect of bulk collection has been marginal. Perhaps, this paucity of evidence is what led General Alexander and other supporters to add cyber security as a backup exigency to justify the program.
The second argument that defenders of mass surveillance offer is that detailed, complex and faithfully-executed rules for how the information that is collected will be used are adequate replacements for what the fourth amendment once quaintly called "probable cause" and a warrant "particularly describing the place to be searched, and the persons or things to be seized". The problem with this second argument is that it combines two fundamentally incompatible elements.
Mass surveillance represents a commitment to near-universal all-seeing gaze, so as to assess and respond to threats that can arise anywhere, at any time. Privacy as a check on government power represents a constitutional judgment that a limited government must have limited power to inspect our daily lives, and that an omniscient government is too powerful for mere rules to restrain. The experience of the past decade confirms this incompatibility. Throughout its lifetime, NSA dragnet surveillance has repeatedly and persistently violated any rules in place meant to constrain it.
After 11 September 2001, and until 2004, the President's Surveillance Programs (PSP) simply operated outside the law. The 2009 inspectors general report (pdf) on these programs explained that, initially, the White House obtained a veneer of legality by soliciting an opinion from the Office of Legal Counsel. It then deployed security clearance strategically to insulate the OLC lawyer who had blessed the illegal program from the scrutiny of OLC's normal internal review processes. After 2004, professionally conscientious lawyers at the Department of Justice forced the White House to modify some of the programs and shift others to collection based on National Security Letters (NSL).
The victory of legality proved shortlived and imperfect. A 2007 inspector general report on NSLs disclosed that, from 2003 to 2005, the FBI created an alternative basis for dragnet surveillance by issuing over 140,000 NSLs that were under-reported to congressional oversight. Most damningly, the FBI abused "exigent letters" as the reported noted:
[By making] factual misstatements in its official letters to the telephone companies either as to the existence of an emergency justifying shortcuts around lawful procedures or with respect to the steps the FBI supposedly had taken to secure lawful process.
These violations were so serious they became the subject of a separate damning report. Later reports (pdf) established that the violations continued unabated through 2006, and that redress measures from 2007 were only partially and imperfectly applied. By the time the last NSL report came out, the Fisa Amendments Act of 2008 had recreated the powers of the original PSP and more, subject to detailed constraints and judicial review. But foreign intelligence surveillance court (FISC) opinions since then suggest that the new rules have also failed.
A 2009 FISC opinion, evaluating the process from 2006 to 2009, dedicated a whole section to "misrepresentations to the court", and stated that the government has "repeatedly submitted inaccurate descriptions" of the process the FISC was reviewing. The court ordered a series of procedural fixes; the NSA solemnly undertook to follow these, and the court permitted it to continue dragnet surveillance subject to the new rules.
Two years later, a 3 October 2011 opinion (pdf) noted:
The court is troubled that the government's revelations regarding NSA's acquisition of internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.
In a by-now-familiar pattern, the NSA was contrite and implemented new procedures, which the court then blessed.
As the Edward Snowden revelations have been accumulating, we see that the pattern has continued unabated. This very week, we learned that the NSA is collecting millions of email address books around the world, producing even richer and more invasive portraits than telephony metadata likely offer.
The NSA continues to evade oversight. This time, it relies on the kind of jurisdictional arbitrage familiar to so many lawless sites the world over: because its technical collection points are physically outside the US, it does not require authorization from either Congress or the Fisa court, even though the dragnet inevitably captures large amounts of data from Americans. The official response, predictably says "we have checks and balances built into our tools". But really, after a dozen years of repeated violations even when the Fisa court or Congress were in the loop, why would we expect these self-monitored procedures to work?
It would be a mistake to imagine that these failures represent faithless or incompetent civil servants. To the contrary, we should assume that these failures come because NSA and FBI counterterrorism agents are faithful and competent civil servants, but are faced with incompatible demands.
Technology has enabled government to have investigative and situational awareness on a scale and scope that were science fiction when the Stasi shut its doors. The "state of emergency" mindset necessary to justify the program in the first place drives those charged with assuring the safety of Americans to always use this technology to its full potential; it also gives them an independent source of legitimacy for their actions – the fierce urgency of necessity.
Their mission clashes with the fundamental premise of privacy as a civil right: that state power is best contained by making the overwhelming majority of what goes on in society invisible to the state. As Justice Alito put it in the supreme court's decision to strike down GPS tracking:
[Historically] the greatest protections of privacy were neither constitutional nor statutory, but practical.
Once the state knows about behavior, it is hard to rely on rules alone to bear the full burden of preventing overreach by those who wield its awesome power. Often, the arguments will be genuine and plausible. How could you possibly justify limiting pervasive surveillance to foreign terrorism and cyber attacks, but not use it to track down a missing child or shut down a ring of pedophiles?
The new power that comes with near omniscience, however, extracts a heavy cost. The ACLU's report on FBI abuses, such as hounding whistleblowers or domestic advocacy groups, documents that the opportunities for abuse are as many as there are officials, subjects, and felt necessities. Rules alone cannot hold back the millions of potential abuses of an omniscient state.
Whether it be the banality of analysts stalking ex-lovers, the inhumanity of careerist prosecutors hounding hacktivists under vague computer laws or using impossibly broad laws like the "material support" statue to pressure innocents to become informers, the crooked timber of humanity – armed with the power of the state and restrained only by the seven fresh bowstrings of superficial legality – will bring failure for constitutional freedoms, predictably, inevitably, tragically.
Congressional critics of bulk collection need to stand firm. Their current plans aim to do away with bulk collection of telephony metadata, and fix some of the loopholes associated with internet bulk collection. Their fight is critical for anyone concerned about pervasive surveillance becoming the new norm, and deserves our solidarity. But we need more.
As long as government is allowed to collect all internet data, the perceived exigency will drive honest civil servants to reach more broadly and deeply into our networked lives. Bringing an end to mass government surveillance needs to be a central pillar of returning to the principles we have put in jeopardy in the early 21st century.

|
|
FOCUS | Fascism With a Democratic Face |
|
|
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=20877"><span class="small">William Boardman, Reader Supported News</span></a>
|
|
Wednesday, 16 October 2013 13:20 |
|
Boardman writes: "The democratic process was kidnapped by Republicans (and seven Democrats) in the U.S. House of Representatives on October 1."
The Republican Party's Congressional leadership (left to right): Senate Republican Minority Leader Mitch McConnell, House Majority Leader Eric Cantor, and House Speaker John Boehner. (photo: Alex Brandon/AP)

Fascism With a Democratic Face
By William Boardman, Reader Supported News
16 October 13
"There is no distinctly native American criminal class – except Congress." ~ Mark Twain
Republican legislative coup d'etat creates government shutdown czar
f one person suddenly seized the sole power to decide whether the United States government should shut down or stay open, according to his personal, partisan preference, Americans would be up in arms over the kidnapping of the democratic process, right?
Wrong.
The democratic process was kidnapped by Republicans (and seven Democrats) in the U.S. House of Representatives on October 1. Just as the government shutdown began, House Republicans carried out a legislative coup against the usual House rules, taking the government hostage and choosing Rep. Eric Cantor of Virginia as their hostage-taker in chief. Republicans passed House Resolution 368, which, in a single opaque sentence, made Cantor judge, jury, and executioner for any possible reopening of the federal government.
Yes, it really is pretty much that simple, and almost nobody noticed at the time. Yes, Democrats (all but seven) voted against it, but quietly, very quietly. The president paid it no public attention at all. And none of the capitol's self-important "journalists," whose job once-upon-a-time was reporting, said a mumbling word. The public, usually the last to know about anything except natural disasters, went on about its business in its normally sullen way, disgusted with government and not all that eager to know all that much about what pain our leaders would inflict upon us next.
Only now, for reasons that are beyond mysterious, is the story getting much attention, though the attention – as in the Washington Post – is sometimes more about a viral video on the internet than the corruption and dysfunction in government the video illustrates.
In a fight you can't win, it helps to rig the rules
Here's what happened, in outline form:
- The standing House Rules (48 tightly-packed pages) include a rule about bringing some controversial bills to the floor for a vote. Traditionally, any member would be allowed to bring such a bill to a vote, free of any amendments.
- The Senate had passed a budget bill to extend unimpeded government operation past October 1. That bill, sometimes referred to as the "continuing resolution" was without amendment as it awaited the House vote. It was the "clean" budget bill. But Republicans wanted to dirty it up with amendments to undermine Obamacare and their other obsessions, so the last thing they wanted was a clean vote on a clean bill, a vote that any House member could call for, as of September 30. Conventional wisdom then was that the bill would pass.
- The House Rules Committee, controlled by Republicans as the majority party, met in the evening of September 30 and adopted a brief bit of legislation titled House Resolution 368 (H. Res. 368). The first section, referencing the Senate budget bill ("continuing appropriations for fiscal year 2014"), resolved that the House "insists on its amendment" and "requests a conference with the Senate thereon." (The resolution does not mention that House Republicans had been refusing to go to conference for months, why should it?)
- Sec. 2 of H. Res. 368 says, in its entirety: "Any motion pursuant to clause 4 of rule XXII relating to House Joint Resolution 59 may be offered only by the Majority Leader or his designee." Clause 4 allows any House member to call for a clean vote. Resolution 59 provides for "continuing appropriations" for FY 2014 (there are six versions). The Republicans' Majority Leader is Eric Cantor.
- Translated, Sec. 2 means: Only Eric Cantor or someone he chooses has the power to call for a vote on a clean budget bill; the rest of the House members have been stripped of their traditional privilege in that respect. In other words, on October 1, whatever Republicans were saying about negotiating to keep the government from shutting down was bogus. What they were busy doing was passing legislation (228-199) that formally told Democrats they could pound sand.
When you don't have the votes, it helps to make the votes useless
Also around October 1, there was much public speculation by House members and journalists that the continuing budget resolution from the Senate would actually pass the House, with some 20 Republican votes for it, if only House Speaker John Boehner, the Ohio Republican, would bring the bill to the floor for a vote. Boehner refused to do that, maybe because he thought, or wanted to think, that he couldn't do it, at least not without saying "please" to Eric Cantor.
And so, with a majority of both houses of Congress and the president all wanting to keep the government running, an apparent minority of the House shut the government down. And that was the plan all along.
At the House Rules Committee meeting less than two hours before the government shutdown began, Republicans first presented Democrats with their rule change to give Eric Cantor dictatorial authority in H. Res. 368. It took a few minutes for the committee's ranking member, New York Democrat Louise Slaughter to recognize the con. (Even C-SPAN missed the point, captioning video of the committee meeting as "Rule to Appoint Conferees to Continuing Resolution," a caption that was, as best, only the cover story.)
"Tonight we are once again considering a resolution designed to prevent a government shutdown," said the committee chair, Republican Pete Sessions of Texas, in his opening statement, a statement demonstrably dishonest in that the resolution called for a conference committee with less than two hours before the shutdown was to begin.
More honestly, Sessions added: "The bottom line is House Republicans still desire to delay or defund or dismantle Obamacare, and we're going to stick to this effort."
At first Louise Slaughter expressed surprise that the resolution called for a conference committee, when Republicans had been refusing a conference committee for months. She noted that the government was undoubtedly about to shut down and no one knew how long a conference committee process would take.
"We just now saw this [H. Res. 368], as you know," Slaughter said and Sessions acknowledged. Referring to the House Republicans' style of one-party rule, Slaughter added, "To be really informed is something that would have been very helpful to us."
After some thought, the sandbagged sometimes get angry
After yielding back her time, and hearing Sessions refer to the conference process as "this rain dance that's going to have to take place now," Slaughter spoke up again, the penny having dropped, that Republicans were changing the rules in the middle of the game:
"It was just pointed out to me that under regular order of the House any member can call for a vote on the Senate proposal, but you've changed that regular order under the resolution that only the majority leader can do it. Can you tell us why you did that?"
Sessions explained his party's duplicity with remarkably calm candor:
"What we're attempting to do is to actually get our people together, rather than trying to make a decision, we're trying to actually have a conference…. Under those rules that you know, that you were in reference to, there could be a motion as early as tonight, and Congress would be avoided…. We took it away and the reason why is we want to go to conference."
"Oh, mercy," said Slaughter. "It just gets deeper and deeper…. And in spite of the fact that every one of you said over and over, ad nauseum, you didn't want to shut the government down…. I think it's really shortsighted, I think it is an atrocity to the rules of the House, and I think that you're putting this whole country through this angst and this aggravation that we did not need to go, this one we could have done without. And I must tell you that I'm more and more angry, now that I understand what you've done is take away our ability to really make a motion for that Senate vote."
And there it ended for awhile.
If it's worth a fuss now, why wasn't it worth a fuss then?
Slaughter did not take her anger to the media or the public. None of the other Democrats took their anger to the media or the public. Apparently no one paid significant attention to C-SPAN. The government went ahead and closed and life went on, just as if the authoritarian boot had not actually come down hard on the House rule that might have spared the country the shutdown.
And that's the way America's mediated reality remained until October 12 when House Democrat Chris Van Hollen of Maryland, in a patently artificial bit of political theatre, belatedly raised a complaint on the House floor. While he's not part of the Democratic leadership in the House, Van Hollen is the ranking Democrat on the House Budget Committee and has been touted by some as "the next Democratic Speaker of the House," after Nancy Pelosi.
Staged almost two weeks after the Republicans' draconian rule change, Van Hollen's performance came complete with crude props including an oversize poster of House Rule XXII, Clause 4, large enough for easy reading on TV. Van Hollen's ploy was to use the traditional rule to move that the House vote on the clean budget bill "and concur in the Senate amendment to open the government now." As Van Hollen well knew, that motion could have been made any time since October 1, and would have been ruled out of order under the Republicans' new rule allowing only Eric Cantor to make such a motion.
On October 12, the acting House Speaker, Republican Jason Chaffetz of Utah, predictably shut Van Hollen down, but not before he'd spoken long enough to create a 5-minute YouTube video walking the viewer through the facts of the Republicans' legislative coup. "Democracy has been suspended," Van Hollen says at the end of the clip that had 2.2 million views in its first four days online.
Van Hollen posted his clip under the disingenuous title, "The GOP's little rule change they hoped you wouldn't notice." Somehow, it's not all that encouraging to learn that Democrats respond to a fascist pre-emption first by ignoring it, then by turning it into a sideshow, everyone rearranging deck chairs on the Titanic.
On the other hand, as Mark Twain also said, "Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself."
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.
Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

|
|
|
BREAKING | Stop Fretting: The Debt-Ceiling Crisis Is Over! |
|
|
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=10204"><span class="small">Jonathan Chait, New York Magazine</span></a>
|
|
Wednesday, 16 October 2013 11:50 |
|
Chait writes: "Democrats win a huge victory by standing strong and foxing the Republicans to release their hostages."
In 1981, one day after their release, American hostages safely landed at Rhein-Main U.S. Air Force base in Frankfurt, West Germany. (photo: AP)

Stop Fretting: The Debt-Ceiling Crisis Is Over!
By Jonathan Chait, New York Magazine
16 October 13
f you're reading the newspapers just now to get caught up on the debt-ceiling crisis, you may have the impression that events are now spinning utterly out of control. "A day that was supposed to bring Washington to the edge of resolving the fiscal showdown instead seemed to bring chaos and retrenching," reports the New York Times. "A campaign to persuade House Republicans to lift the federal debt limit collapsed in humiliating failure Tuesday, leaving Washington careering toward a critical deadline just two days away, with no clear plan for avoiding a government default," warns the Washington Post.
This is the opposite of what is going on. In fact, the events of yesterday amounted to utter success. The debt ceiling will be lifted, the crisis is over, and so, too, may be the larger Constitutional struggle it unleashed.
The mistaken impression of chaos and collapse was left by the collapse of the House Republican plan. But the House Republicans are the hostage-takers. It's good that their plan collapsed. Their plan was to insist on winning at least some concession from President Obama, testing his resolve not to be extorted, and, at least, pushing the crisis until the last moment.
The House bill failed because it relied entirely on Republican votes, which requires near-unanimity from the Republican caucus. A small number of Republicans so fanatical they refuse to even work within existing political constraints, and therefore regularly undermine the right's leverage, refused to support any bill. Having spent the day trying to cobble together even a tiny ransom demand, House GOP leaders simply gave up. "It's all over. We'll take the Senate deal," a senior Republican aide told National Review's Jonathan Strong.
[Update: per multiple sources, the House leadership has agreed to bring the Senate bill to a vote first, expediting its passage.]
The Senate bill is a deal to lift the debt ceiling and reopen the government, without a ransom payment. That agreement is set to be announced, but the contours, which were described to me by an aide, will satisfy the Democratic demand not to make concessions for raising the debt ceiling or reopening the government. The House leadership, as everybody on Capitol Hill now expects, will quickly take up the Senate bill and put this debacle behind them. Rounding up the votes should not be a problem. The entire Democratic caucus will support it if needed, leaving Republicans to find just a handful of votes, well within the number that never wanted to shut down the government to begin with.
Why aren't we more elated? One reason is that the crisis has exerted such a heavy toll so far. Consumer confidence has plunged and the government shutdown has thrown sand in the gears of the recovery. Ending the crisis puts one in the mind of Pulp Fiction's Marcellus Wallace after being liberated from rapist kidnappers:
http://www.youtube.com/watch?v=65F6lRdUU_c
We are pretty far from okay, but it beats spending the rest of your life getting raped in a dungeon, which is more or less what the House Republicans had planned. The Republican debt-ceiling gambit was meant to force Obama to accept the GOP agenda without any Republican concessions - a depressing enough outcome on its own. But it also would have dragged in a reordering of the Constitutional order and the institutionalization of endless crises and panics. We can't be certain Republicans will never hold the debt ceiling hostage again; but Obama has now held firm twice in a row, and if he hasn't completely crushed the Republican expectation that they can extract a ransom, he has badly damaged it. Threatening to breach the debt ceiling and failing to win a prize is costly behavior for Congress - you anger business and lose face with your supporters when you capitulate. As soon as Republicans come to believe they can't win, they'll stop playing.
Most of the analysis has focused on the mind-boggling stupidity of Republicans in Congress, who blundered into a debacle that failed in exactly the way they were warned it would. The episode will be retold and fought over for years to come, perfectly emblemizing the party's internal disorganization, mindless belligerence, and confinement within an ideological echo chamber that sealed out important warnings of failure. A grassroots revolt forced Republicans to shut down the government two weeks before the debt ceiling deadline, serving to weaken the party's standing at the moment they hoped to hold the default gun to Obama's head. (It's possible they lesson they'll take away from their failure will only be not to shut down the government and threaten default at the same time, requiring another showdown.)
But it also represents a huge Democratic success - or, at least, the closest thing to success that can be attained under the circumstances. Of the Republican Party's mistakes, the most rational was its assumption that Democrats would ultimately bend. This was not merely their own recycled certainty - "nobody believes that," a confident Paul Ryan insisted of Obama's claims he wouldn't be extorted - but widespread, world-weary conventional wisdom. Democrats would have to pay a ransom. Republicans spent weeks prodding for every weakness. Would Senate Democrats from deep red states be pried away? Would Obama fold in the face of their threat?
Part of what undergirded Democratic unity went beyond a (correct) calculation that it would be dangerous to pay any ransom at all. Democrats seemed to share a genuine moral revulsion at the tactics and audacity of a party that had lost a presidential election by 5 million votes, lost another chance to win a favorable Senate map, and lost the national House vote demanding the winning party give them its way without compromise.
Probably the single biggest Republican mistake was in failing to understand the way its behavior would create unity in the opposing party. Not until the very end, when the crisis was well under way, did any conservatives even acknowledge the Democratic view that the GOP had threatened basic governing norms. Ted Cruz and his minions may have undertaken a hopeless crusade, but they dragged along the Paul Ryan Republicans who all along seemed to think their extortion scheme was a simple business deal. Its collapse is one of the brightest days Washington has seen in a grim era.

|
|
The Furies Never End |
|
|
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=6853"><span class="small">Frank Rich, New York Magazine</span></a>
|
|
Wednesday, 16 October 2013 09:30 |
|
Rich writes: "Implicit in this bipartisan gallows humor was an assumption shared by most of those listening."
Sen. Ted Cruz (R-TX) is the latest in a long line government saboteurs. (photo: AP)

The Furies Never End
By Frank Rich, New York Magazine
15 October 13
The shutdown crisis is nothing we haven't seen before.A good portion of America has been trying to sabotage the government for almost our entire history.
he great government shutdown of 2013 was barely a day old, and already blue America was running out of comic put-downs to hurl at the House's wrecking crew. Not content with "morons" and "dunderheads," Jon Stewart coined new epithets for the occasion (e.g., "bald-eagle fellators"). Politicians you wouldn't normally confuse with Don Rickles joined in too—not just the expected Democrats like Harry Reid, who had opted for "banana Republicans," but blue-state Republicans like Devin Nunes of California, who dismissed his own congressional peers as "lemmings with suicide vests."
Implicit in this bipartisan gallows humor was an assumption shared by most of those listening: The non-legislating legislators responsible for the crisis are a lunatic fringe—pariahs in the country at large and outliers even in their own party. They're "a small faction of Republicans who represent an even smaller fraction of Americans," as the former Obama speechwriter Jon Favreau put it in the Daily Beast. By this line of reasoning, all that kept them afloat was their possession of just enough votes in their divided chamber to hold the rest of America temporarily hostage to their incendiary demands.
Would that this were so, and that the extralegal rebellion against the Affordable Care Act, a Supreme Court - sanctified law of the land, would send the rebels, not the country, off a cliff. Off the cliff they may well have gone in this year's failed coup, but like Wile E. Coyote, they will quickly climb back up to fight another day. That's what happened after the double-header shutdowns of 1995 - 96, which presaged Newt Gingrich's beheading but in the long run advanced the rebels' cause. It's what always happens. The present-day anti-government radicals in Congress, and the Americans who voted them into office, are in the minority, but they are a permanent minority that periodically disrupts or commandeers a branch or two of the federal government, not to mention the nation's statehouses. Their brethren have been around for much of our history in one party or another, and with a constant anti-democratic aim: to thwart the legitimacy of a duly elected leader they abhor, from Lincoln to FDR to Clinton to Obama, and to resist any laws with which they disagree. So deeply rooted are these furies in our national culture that their consistency and tenacity should be the envy of other native political movements.
Yet we keep assuming the anti-government right has been vanquished after its recurrent setbacks, whether after the Clinton-impeachment implosion or the Barry Goldwater debacle of 1964 or the surrender at Appomattox. A Democratic victory in the 1982 midterms was all it took for David Broder, then the "dean" of Beltway pundits, to write off Reaganism as "a one-year phenomenon." When polls showed a decline in support for the tea-party brand last year, it prompted another round of premature obituaries. But the ideological adherents of tea-party causes, who long predate that grassroots phenomenon of 2009, never went away, whatever they choose to label themselves. In recent months, both The Wall Street Journal and the Washington Post had to scramble to assemble front-page stories spotting a tea-party comeback. Even so, it took only one week into the shutdown for a liberal pundit at the Post to declare that we were witnessing "the tea party's last stand."
That last stand has been going on for almost 200 years. At the heart of the current rebels' ideology is the anti-Washington credo of nullification, codified by the South Carolina politician John C. Calhoun in the 1830s and rarely lacking for avid followers ever since. Our inability to accept the anti-government right's persistence is in part an astonishing case of denial. The Gingrich revolution, the Ur-text for this fall's events, took place less than twenty years ago and yet was at best foggily remembered as the current calamity unfolded. There's also a certain liberal snobbery at play: We don't know any of these radicals, do we?
In truth we do. The name of David Koch, among the bigger bankrollers of the revolution, is plastered over half of Manhattan, it sometimes seems. And beyond New York, the distance between the crazies and the country as a whole is not quite as vast as many blue-state Americans assume. The rebels' core strongholds are the 80 Republican districts whose House members signed an August letter effectively calling on John Boehner to threaten a government shutdown if Obamacare was not aborted. Analysts have been poring over these districts' metrics for weeks looking for evidence of how alien they are to the American mainstream. The evidence is there, up to a point. The 80 enclaves predictably have a higher percentage of non-Hispanic whites than the nation (75 percent vs. 63 percent) and a lower percentage of Hispanics (10.8 vs. 16.7 nationwide). But even those contrasts aren't quite as stark as one might have imagined, especially given that most of these districts have been gerrymandered by state legislatures to be as safely Republican as possible. To complicate the picture further, fifteen of the offending districts have a larger percentage of Hispanics than the country does, and 24 have a proportionately larger black population. The 80 districts also come reasonably close to the national norm in median household income ($47,535 vs. $50,502) and percentage of college graduates (24.6 vs. 28.5). The percentage of high-school graduates in the rebel districts is actually a smidgen higher than that of the country (86.6 vs. 85.9).
Of course, the gang of 80 who fomented this revolt are predominantly white men, and their districts are mostly clustered in the South, the Sun Belt, and the Midwest. But the same could be said of most of the GOP caucus. For Republicans to claim that this cabal of 80 legislators represents a mutant strain—"a small segment who dictate to the rest of the party," in the words of a prominent GOP fund-raiser, Bobbie Kilberg—is disingenuous or delusional. (Kilberg herself has raised money for Paul Ryan and Eric Cantor.) This "small segment" accounts for a third of the 232 members of the House Republican caucus. Lunatics they may be, but the size of their cohort can't be minimized as a fringe in the context of the wider GOP. And they wield disproportionate clout because the party's so-called moderates let them—whether out of fear of primary challenges from the right, opportunism, or shared convictions that are not actually moderate at all.
According to Robert Costa of National Review, the go-to reporter on internal GOP congressional machinations, there are more than a hundred moderates among the party's House ranks. Where are they, exactly? Even Peter King, the Long Island Republican who sees himself as their standard-bearer, has essentially called them cowards. "They will talk, they will complain," he says, "but they've never gone head-to-head" with the rebels. If the recent events couldn't rouse them to action—assuming they exist—it's hard to imagine what ever would. Costa's estimate notwithstanding, the fact remains that until the middle of last week only 24 Republican members of the House publicly affirmed they would vote for a "clean" resolution to reopen the government—a head count even smaller than the 49 who bucked their party to vote for Hurricane Sandy relief. It's the sad little band of vocal moderates, not the gang of 80, that is the true "small segment" of the GOP.
The radicals' power within the party has been stable for nearly two decades. The current ratio of revolutionaries to the Republican House caucus is similar to that of the 104th Congress of 1995 - 96, where the revolt was fueled by 73 freshmen out of a GOP class of 236. For all the lip service being paid this fall to memories of Gingrich's short-lived reign as the Capitol's Robespierre, some seem to forget just how consistent that Washington train wreck was with this one in every way. On MSNBC, Andrea Mitchell went so far as to categorize the current House insurgents' Senate godfather, Ted Cruz, as a rare new pox on the body politic—the adherent of "a completely different strategy than almost anyone we've ever seen come to Washington." Really? The political tactics and ideological conflicts are the same today as they were the last time around. Back then, the GOP was holding out for a budget that would deeply slash government health-care spending (in that case on Medicare) and was refusing to advance a clean funding bill that would keep the government open. The House also took the debt ceiling hostage, attaching a wish list of pet conservative causes to the routine bill that would extend it. That maneuver prompted Moody's, the credit-rating agency, to threaten to downgrade Treasury securities, and Wall Street heavies like Felix Rohatyn to warn of impending economic catastrophe. The secretary of the Treasury, Robert Rubin, juggled funds in federal accounts to delay default much as his protégé Jacob Lew was driven to do in the same Cabinet position now. Leon Panetta, then Clinton's chief of staff, accused the Republicans of holding "a gun to the head of the president and the head of the country" and likened their threats to "a form of terrorism." (And this was before terrorism became an everyday word in America.) The internal political dynamics in both parties were similar as well. Gingrich has a far stormier temperament than Boehner, but like the current speaker, he could have trouble keeping control of his own caucus and waltzed into a shutdown scenario without having any idea of an endgame, let alone an escape route. President Clinton, like President Obama, held firm rather than capitulating to the House's extortionists, betting that public opinion would force them to cave.
To fully appreciate the continuity between then and now, one need look no further than the Third District of Indiana. It is currently represented by the most conspicuous goat of the 2013 uprising, Marlin Stutzman, whose declaration in the shutdown's early going was a ready-made Onion gag: "We're not going to be disrespected. We have to get something out of this. And I don't know what that even is." Those who think Stutzman represents a new breed minted in the Obama era would be advised to recall his immediate predecessor in the same seat, Mark Souder. "We didn't come here to raise the debt limits," Souder said during the 1995 shutdown, insisting that "some of the revolution has to occur," for "otherwise, why are we here?" (This is the same northeastern-Indiana constituency, by the way, that gave America Dan Quayle.)
The midterm elections of 1994 were in retrospect the tipping point driving American politics today—not because of the shutdowns that ensued in the next two years, however, or the fact that Republicans took control of the House for the first time in 40 years. Rather, it's that 1994 marked the culmination of the migration of the old Confederacy from the Democratic Party to the GOP. That shift had started in 1964, when Barry Goldwater pried away states from the old solid Democratic South with his opposition to the Civil Rights Act, and it accelerated with the advent of Richard Nixon's "southern strategy" of pandering to racists at the end of that decade. But for an interim quarter-century after that, the old Dixiecrats were dispersed in both major parties, rather than coalescing in one. The 1994 election was the first since Reconstruction in which the majority of the old South's congressional representation went into the Republican column.
This shift wasn't fully appreciated at the time. When the Gingrich gang staged its sequel to the shutdowns of '95 and '96—the self-immolating overreach of the Clinton impeachment in '98—Dan Carter, a preeminent historian of the civil-rights era, told the Times that he was "surprised that there's been so little discussion" of how "the southernization of the Republican Party" had shaped events. "Maybe it's like the purloined letter," he said. "It's sitting there on the shelf right in front of you, so you don't see it."
What southernization brought with it was the credo of Calhoun, the "Great Nullifier," whose championing of states' rights and belief in a minority's power to reject laws imposed by a congressional majority (whether over taxes or slavery) presaged the secessionism of the Civil War (which Calhoun didn't live to see) and the old southern Democrats' resistance to desegregation a century later. It's Calhoun's legacy that informs the current House rebels' rejection of Obamacare and their notion that they can pick and choose which federal agencies they would reopen on a case-by-case basis.
When Calhoun's precepts found a permanent home in the GOP in the nineties—under the aegis of a new generation of southern Republican leaders typified by Gingrich and Trent Lott (a typical Democratic convert)—the animus was directed at Bill Clinton, a president who happened to be both white and southern. It was inevitable that when a black president took office, the racial fevers of secessionist history would resurface and exacerbate some of the radicals' rage. One of the House's current nullifiers, Lynn Westmoreland of Georgia, called the Obamas "uppity" during the 2008 campaign, smeared Huma Abedin as a Muslim Brotherhood mole, and voted against a new Justice Department initiative to investigate unsolved crimes of the civil-rights era. Another, Jeff Duncan, a former Strom Thurmond intern who represents the patch of South Carolina that was Calhoun's ancestral home, has likened what he sees as slack border control to "allowing any kind of vagrant, or animal, or just somebody that's hungry, or somebody that wants to do your dishes for you, to come in." This kind of thinking is all too representative of that small but effective racialist-nativist subset within the GOP rebel bloc that will doom immigration reform and is working furiously to erect new barriers to minority voting in a swath of states.
But to brand this entire cohort as racist is both incorrect and reductive. It underestimates their broader ideological sway within their party. The unifying bogeyman for this camp is the federal government, not blacks or Hispanics, and that animus will remain undiminished after Obama's departure from the White House. Though Andrew Jackson—under whom Calhoun served as vice-president—dismissed the ideology of nullification as "subversive" of the Constitution, it has always been wrapped in patriotic rationalizations, as it is now. In Ecstatic Nation, a new book about the decades bracketing the Civil War, Brenda Wineapple writes that even the South's secessionists "saw themselves as protecting the Constitution, not tearing it apart." Or as Jefferson Davis, speaking like a born tea-partyer, claimed: "We are upholding the true doctrines of the Federal Constitution." Whatever the bottom line of Washington's current battle, the nullification of federal laws is growing as a cause at the grass roots. Of the 26 states that are refusing the federal Medicaid expansion—at the price of denying their poorest citizens health care—23 of them have GOP governors. That's a bigger slice of America than can be found in the map of the 80 districts of the defund-Obamacare brigade.
How and where will this rebellion end? After a week of shutdown, Gallup found that the GOP's approval rating had dropped to the lowest level (28 percent) for either party since the question was first asked in 1992. But there is no political incentive for the incumbent rebels in safe districts to retreat. "They may think of us as extremists here," said Mark Souder when serving as a foot soldier in the Gingrich rebellion of 1995, "but none of us are extremists at home." Playing Russian roulette with the debt ceiling of the despised federal Leviathan is even more of a plus in such overwhelmingly Republican enclaves today. A current House freshman, Ted Yoho of Florida, thinks nothing of publicly cheering on the "tsunami" of a default as a follow-up to the mere "tremor" of the shutdown. Now, as over the past century and a half, these revolutionaries aren't going to disappear no matter what short-term punishment may be visited on their national party in 2014 or 2016 or both. Nor is their money going to run out. A donor like Kilberg may not write them checks, but the Koch brothers will.
Some Democrats nonetheless cling to the hope that electoral Armageddon will purge the GOP of its radicals, a wish that is far less likely to be fulfilled now than it was after Goldwater's landslide defeat, when liberalism was still enjoying the last sunny days of its postwar idyll. This was also the liberal hope after Gingrich's political demise of 1998. But his revolution, whatever its embarrassments, hypocrisies, and failures, did nudge the country toward the right: It's what pushed Clinton to announce in his 1996 State of the Union address that "the era of big government is over" and to adopt policy modulations that tamped down New Deal - Great Society liberalism. The right has only gained strength within the GOP ever since. Roughly half of the party's current House population was first elected in 2010 or 2012, in the crucible of the tea-party revolt. While it's Beltway conventional wisdom that these Republicans don't know how to govern, the real issue is that they don't want to govern. That's their whole point, and they are sticking to it.
Dwindling coastal Republicans of the nearly extinct George H.W. Bush persuasion like Peter King nonetheless keep hoping that the extremists will by some unspecified alchemy lose out to the adults in their party. Tune in to Morning Joe, that echo chamber of Northeast-corridor greenroom centrism hosted by Joe Scarborough, a chastened former firebrand of the Gingrich revolution, and you'll hear the ultimate version of this fantasy: Somehow Chris Christie will parlay his popularity in the blue state of New Jersey into leading the national party back to sanity and perhaps even into the White House.
To believe this you not only have to believe in miracles, but you also have to talk yourself into buying the prevailing bipartisan canard, endorsed by King and Obama alike, that the radicals are just a rump within the GOP ("one faction of one party in one house of Congress," in the president's reckoning). In reality, the one third of the Republican House caucus in rebel hands and the electorate it represents are no more likely to surrender at this point than the third of the states that seceded from the Union for much the same ideological reasons in 1860 - 61. Unless and until the other two thirds of the GOP summons the guts to actually fight and win the civil war that is raging in its own camp, the rest of us, and the health of our democracy, will continue to be held hostage.

|
|