Sasse's Options on Kavanaugh

September, 2018

Washington -- The Kavanaugh hearings are now over. Senator Ben Sasse (my Nebraska senator) has captured headlines with his condemnation of the confirmation process. He blames Congress for not doing its job of legislating, forcing the Supreme Court to be politicized over issues that should rightly be dealt with by the legislative branch.

That is a valid criticism. Sasse also correctly notes that Congress has been giving away its powers to the the executive as well as the judicial branch.

There is a remedy, of course, and that is for Congress to exercise its Constitutional powers rather than to shrink from them vis-a-vis both other branches.

By pointing all this out, Sasse has either built a powerful case for his no vote on Kavanaugh or painted himself into a corner as to why not. Sasse's no vote would simultaneously strike a blow against a nominee who champions the expansion of executive power and a blow for Congress's assertion of its advice and consent powers over judicial nominees.

Sasse has essentially asked himself to put up or shut up. Could a no vote from Sasse be in the offing?

Beyond the Sasse disquisition on the failures of Congress, there are other reasons why traditional conservatives – if Sasse is one – would vote against Kavanaugh. He is an activist judge who has shown minimal respect for stare decisis and has demonstrated scant regard for Madisonian checks and balances. I am not the first to note that Kavanaugh was a late addition to the list of potential nominees with more traditionally conservative credentials, likely because his expansive view of executive power could be the deciding factor in the struggle of the President against the Special Counsel.

There is another reason Sasse might vote no, and be joined by one or two other Republicans. That is to put the Kavanaugh nomination in the hands of Democratic senators from red states, forcing their hands to support the Trump nominee or face defeat at the polls. (It is the conventional wisdom that Senators Manchin, Heitkamp, Donnelly, and McCaskill are in trouble if they do not vote for Kavanaugh.) This scenario could come to pass even without political chicanery behind it, so it is worth exploring. I am inclined to think that these senators' votes for Kavanaugh would be more likely to spell their demise than their votes against him, as they would lose Democratic votes and enthusiasm. So it is not beyond the pale to think that devious minds (like Senator McConnell's) are thinking of how both to confirm Kavanaugh and hold the Senate in Republican hands through the Kavanaugh vote.

That might be too much for Sasse. His record shows he talks a good line but seldom, if ever, follows through with action, either on principle or on politics.

Farm Bill Now In Doubt

September, 2018

Washington -- Congressional Farm Bill conferees met September 5th to see if enough House-Senate compromises had been made over the summer so as to pass the bill before the September 30th deadline, when previous farm program legislation (from 2014) expires.

Unfortunately, big roadblocks remain. The situation was not helped by coordinated tweets on the day of the meeting from the President, Vice-President, and Speaker trying to politicize the Farm Bill over work requirements for SNAP (food stamp) recipients. They know the Senate will not pass such a bill. Most SNAP recipients are already subject to such requirements and the Senate, on a bipartisan basis, has already rejected the idea.

The coordinated tweets from the nation's three top elected officials signaled, however, that trying to rile up the Republican base before the mid-term elections is more important to them than passing a Farm Bill.

The conferees are also far apart on the conservation title. House Republicans want to kill the Conservation Stewardship Program (CSP), the nation's largest conservation program for working farms.

There is still no progress on adopting the Grassley (R-Iowa) Amendment, a bipartisan effort in the Senate that would put limitations on farm subsidy payments. The amendment would fight waste, have the effect of lowering farm property taxes, and allow more young farmers to enter agriculture, but House Republicans want to move in the opposite direction, to remove subsidy limitations.*

It is hard to believe that farm state Republicans in either house want to miss the deadline for a Farm Bill at a time when the President's tariff policies are hurting crop prices and when agricultural income, percentage-wise, is forecast to decline this year by double digits. It is hard to believe that farm state Republicans are turning deaf ears to pleas from rural America for "trade not aid" but are in thrall to presidential tweets trying to politicize the Farm Bill, historically a bipartisan effort.

Yet that is the situation.

* Current law contains substantial waste in the farm safety net. See this GAO analysis.

Potential Roadblocks for Kavanaugh

September, 2018

Washington -- This week hearings begin on the nomination of Brett Kavanaugh for the Supreme Court. Conventional wisdom suggests that there will be party line votes and he will be confirmed.

We're not there, yet, for two reasons.

First, Kavanaugh has a troubled background, having been a partisan leaker of substantive grand jury information for the Office of Independent Counsel under Kenneth Starr. By conveniently moving between the OIC and a private law firm, he has avoided making sworn statements that he did not provide grand jury leaks to reporters. He may also have to overcome embarrassing information about his personal conduct and judgment. There is also the matter of some 100,000 documents that are being kept under wraps, not to mention his prominent role in turning the Starr investigation into salaciousness.

Second, the timing of the nomination may become more of an issue. The country is headed into a Constitutional crisis over executive powers. Confirming a justice whose views show little appreciation for the Madisonian checks and balances that restrain such powers may strike many voters as the wrong thing to do. That includes traditional conservative voters, who are looking for one or two Republican senators with sufficient backbone to call for a slowdown to assess what is at stake.

Hearings may bring out a better understanding that the "originalism" jurisprudence favored by Kavanaugh is hardly conservative. It has been responsible for much recent judicial activism, as it has been used to undermine stare decisis, fundamental to judicial restraint. As the conservative writer George Will has suggested, originalists have a lot of explaining to do when it comes to the 14th Amendment's equal protection clause, let alone other matters.

If Kavanaugh is to be stopped, it will likely be that voter sentiment will start to inform senators that he is the wrong man at the wrong time. One Constitutional crisis at a time, please, voters may well tell their senators. The country does not need a cheerleader who sees the president above the law while in office, while at the same time re-writing the meaning of equal protection clause so as to undo voters' ability to throw the rascal out.

There was a time, not so long ago, when prudent Republican senators would have intervened. John Chafee would be appalled at what a Kavanaugh appointment would do to his lifelong work for responsible environmental protection. Robert Stafford, after whom the federal student loan program is named, would think it utter nonsense that a nominee supported by the Federalist Society would countenance stripping states of consumer protection in the case of student loans. (That would be a good question for the hearings.) Nancy Kassebaum, who bolted from her party over the nomination of John Tower for Secretary of Defense, would be a voice of caution about moving too quickly on Kavanaugh.

If backbone is lacking among today's senators, whatever happened to old-fashioned leverage? A Nebraska citizen has publicly asked in a letter to an editor why the state's two Republican senators don't demand a more responsible trade policy to save their state's farmers as a condition of their support of Kavanaugh? It isn't as if there are not at least a dozen other potential nominees cleared for the nomination, without Kavanaugh's baggage. There is a clear precedent: Nebraska Senator Ed Zorinsky* broke with the Democratic Party in 1985 over the vote on the federal budget resolution. He used his leverage to cast the deciding (50-49) vote in favor of the Republican resolution after securing funding for a trade policy that would benefit Nebraska farmers.

May the Kavanaugh hearings explore all this, and more, with the hope that senators will put country and Constitution ahead of party.

* Professor (and former USDA assistant secretary) Bruce Gardner recounts the Zorinsky move in his NBER chapter at

"...[A]s the 1985 farm bill deliberations groups had refined their general support for export promotion to more concrete proposals, and U.S. wheat exports had declined still further while the EC’s grew. In this situation the administration’s desire to continue ad hoc export subsidies without binding legislation was no longer politically tenable.

"...In May 1985, the administration (represented by the Office of Management and Budget [OMB] and the USDA) and the Senate leadership (principally Dole and Senator Edward Zorinsky [D-Nebraska]) agreed to implement, under existing USDA authorities, an Export Enhancement Program.

"Politically, the EEP was given the breath of life by a conjunction of interests...: Senator Zorinsky’s strong desire, as the ranking Democrat on the agriculture committee and representative of Nebraska, for a substantial export subsidy program; [and] budget director David Stockman’s need for Democratic votes on key economic legislation....

"Stockman agreed that the administration would implement an export subsidy program, in exchange for Zorinsky’s vote on the budget resolution containing the Reagan administration’s fiscal proposals, with the subsidies to take the form of unwanted CCC surplus commodities with a zero budget score.

"The agreed-upon program committed $2 billion worth of CCC-owned commodities to be made available as a bonus to U.S. exporters to expand sales of U.S. agricultural commodities in targeted markets. The objectives stated were to increase U.S. farm exports and to encourage trading partners to begin serious negotiations on agricultural trade problems."

Remembering John McCain

September, 2018

Washington -- Today is John McCain's funeral and an occasion to reminisce. McCain's life intersected with mine several times.

The first was in the South China Sea in late July, 1967. His ship, USS Forrestal, crossed paths with mine, USS Rainier, during the night after the disastrous Forrestal fire that claimed 134 lives when a Zuni rocket accidentally discharged and hit McCain's bomb-laden aircraft on the flight deck. Forrestal was returning to Subic Bay in the Philippines for repairs; Rainier was outbound from Subic to resupply it and other ships operating in the Tonkin Gulf. Signalmen exchanged messages by flashing light. We advised Forrestal we would re-direct its many bags of mail via other ships.

McCain was shot down over North Vietnam soon thereafter, flying off USS Oriskany, and became a prisoner of war. In Hanoi, he joined my friend, NU classmate, and fellow Navy officer Dick Ratzlaff, who had been captured in 1966. They were both released in 1973. Dick Ratzlaff died in 1981, never fully recovering from his mistreatment at the hands of the North Vietnamese.

The next career-crossing was in the U.S. Senate in 1979, when McCain, now a Navy captain, staffed the Navy liaison's office in the Russell Senate Office Building. Senator Jim Exon, for whom I worked as legislative director, was a member of the Armed Services Committee. His legislative assistant for national defense issues, Greg Pallas, worked closely with McCain. I had recommended Greg* for the position partly because he had also been a Navy officer. He and McCain hit it off. From his Navy liaison position, McCain also developed close relationships with Senators John Tower, Gary Hart, William Cohen, John Breaux, Sam Nunn, Scoop Jackson and their staffs. Other key staff included Arnold Punaro (Nunn) and Richard Perle (Jackson).

Jim Exon considered himself a Scoop Jackson Democrat and usually followed Jackson's lead, until Jackson died in office in 1983. Greg Pallas succeeded me as legislative director for Senator Exon after I left the position in 1984. In 1986, McCain was elected Senator from Arizona.

In 1989, relationships were strained over the nomination of John Tower to be Secretary of Defense. Senators Nunn and Exon led the opposition; McCain supported Tower, who was defeated. Senator Exon retired in 1996.

I became congressional liaison for higher education at the U.S. Department of Education in the 1990s, but had little to do with Senator McCain officially. Greg Pallas remained a part of the bipartisan McCain-Breaux social circle; I was an occasional guest. Greg Pallas died in 2003 at the age of fifty-one. John McCain attended his funeral in Annapolis.

Senator McCain did not involve himself in higher education affairs much beyond advocating for the interests of the University of Phoenix. His efforts, in my opinion, were misguided, although perhaps understandable in the context of constituent services. McCain walked out** of a 2010 hearing chaired by Senator Tom Harkin, also a former Navy pilot, because he thought Harkin was being too hard on for-profit colleges.

Although McCain presented himself as a friend of veterans, he was notably absent when it came to protecting them from higher education fraud under the GI Bill. With others, I have been involved in setting up protections for veterans, especially with Veterans Education Success (VES); we could have used McCain's help.

But McCain rose to the occasion on other matters at least three times in his life, and for those he will be remembered as a hero. One was when, as a prisoner of war, he refused a North Vietnam propaganda move to release him as the son of the U.S. Commander in Chief of the Pacific (CINCPAC). Another was when, as a presidential candidate in 2008, he would not be drawn into race and religion baiting against his opponent. The third was his principled death-bed stand for America as a country based on values and ideals, not blood and soil tribalism.

McCain, a Republican, worked easily across political boundaries because at his core he was a follower of Alfred Thayer Mahan's geopolitical theories of sea power, as are many Democrats. He was an implacable foe of Russia, the heartland country destined under the theories of Sir Halford John Mackinder to dominate the world. His antipathy to Donald Trump was firmly rooted in geopolitical theory as well as personal dislike.

* A native Californian, Greg Pallas stood out in his 1978 employment interview with chief of staff Bill Hoppner and me. Among several defense experts, he was the only one who had done his homework on Nebraska. He went on to adopt Nebraska wholeheartedly, forging lasting relationships with close associates of Jim Exon like Norm Otto and Chuck Pallesen. When Jim Exon retired, Greg Pallas had the senator's office, including his desk, recreated as a small museum on South 27th Street in Lincoln.

** The moment is memorialized in the award-winning documentary movie "Fail State", which had its Washington premier on September 4, 2018.

Foreign Financial Account Reporting; Chemnitz Unrest

August, 2018

Berlin -- This week four members of American Voices Abroad (AVA) sat down for dinner in Berlin. One of our discussion topics was tax reporting of foreign financial accounts to the IRS.

We all have faithfully reported our accounts at German financial institutions, even when there has been no otherwise reportable need for it. This requires a separate form with a separate due date. The reported information can be used by the IRS to match up account reporting the U.S. requires of German institutions. The paperwork is sufficiently onerous that some German banks just refuse American customers.

But it was all worth it, we felt, in order to catch money-launderers and international criminals.

Then along comes the Paul Manafort trial. Indeed, his failure to report on the FBAR did him in, according to one juror who explained the jury's reasoning for convictions on eight counts of fraud. But the juror also said that Manafort would not have been discovered had it not been for the Robert Mueller investigation. She took a dim view of the Mueller probe and had actually hoped that Manafort could have been found not guilty.

So much for the little fish filling out all our paperwork to catch the big fish. Manafort brazenly flouted the law and the IRS let him do it. It's remarkable there was a conviction at all, given the presiding judge's rulings to prevent the prosecution from presenting evidence of Manafort's ostentatiously high-living. This does not inspire confidence in our tax-collection system.

Another discussion topic was the neo-Nazi uprising in Chemnitz and the role of Facebook in organizing it. Meanwhile, all over Berlin, in the streets and subways, Facebook is putting up posters that it is all about family and friends, not fake news. Events in Chemnitz, however, belie the advertising campaign. I wonder if those ads are appearing in Chemnitz as well.

It is no longer unthinkable to put controls on social media for national security purposes. Of course, more than neo-Nazis can use social media to organize. Around Hermannplatz in Berlin, thousands are gathering to protest the violence in Chemnitz. Good for our neighbors in Neukölln.


August, 2018

Berlin -- In the neighboring state of Saxony-Anhalt, the Elbe River at Barby is low because of drought. The ferry is not running, perhaps because of low water. Barby is one of the villages where, in 1945, Russian and American soldiers met at the Elbe, days before Berlin fell to end WWII in Europe. American forces remained on the left bank as German civilians and soldiers alike tried to cross the river to escape Russian attacks.

Westward the drought shows itself along the Autobahn as dust lowers visibility. Farmers working stubble fields for next year's wheat crop create huge dust clouds. (I hope the farmers are wearing masks.)

At Quedlinburg, at the foot of the Harz Mountains, a fountain in a town square is still. Up in the mountains, autumn is arriving prematurely as leaves are falling. One hopes that when the witches dance, they'll be careful with their fires.


August, 2018

Berlin -- It is cloudy today, and smoky from the wildfires that are burning south of the city. The summer has been extremely hot with no rain.

The forests surrounding Berlin are dry. The wildfires are difficult to fight because unexploded WWII ammunition poses a danger to firefighters on the ground. As fire progresses, explosions are set off.

Surely the fires will not reach Beelitz, a favorite place with a tree-top walkway over an abandoned sanitarium. But they could, and farther. Three villages have been evacuated.

Berlin's parks are brown and dusty. They are as hard as the cobblestone streets.

Germany and the Facebook Disease

August, 2018

Berlin -- An unsettling new research paper links Facebook usage in Germany with acts of violence against refugees. When Facebook usage is one standard deviation or more than average, such violence is fifty percent higher.

The findings do not apply to general internet usage, only Facebook.

There is no suggestion in the paper that this is unique to Germany. In fact, Germany has been more welcoming of refugees than most other countries.

Chancellor Merkel, known for her support of an accommodating refugee policy, survives under duress in part because she has no obvious successor. As a local Kreuzberg resident expressed it, "Who? Not anyone from the SPD, they have nothing to offer," and as for the CSU and Horst Seehofer, "that's just impossible."

If only there were an immunization for the Facebook disease.

Humboldt amid the Hohenzollerns

August, 2018

Berlin -- This city is full of ironies and contradictions: war and peace, ugliness and beauty, superstition and science.

Add another contradiction as the new Humboldt Forum is being completed. It is the centerpiece of the reconstruction of the massive old palace of the Hohenzollern royalty on Unter den Linden, in the heart of Berlin. The Humboldt Forum will house antiquities and artifacts acquired by German expeditions and colonizations.

The irony is that Alexander von Humboldt, among the world's greatest scientists and a native of Berlin, was anti-colonialist. When he met Thomas Jefferson in 1803, in Washington, at the end of Humboldt's exploration of the Americas, they agreed that the colonial system was destructive of peoples and their habitats. Humboldt was appalled at what Spanish colonial governments were doing to South and Central America. He soon would meet with Simon Bolivar in Europe and inspire him to revolution.

Humboldt gave us a unified view of the natural world; he was the "inventor of nature," as the title of a new biography* of Humboldt suggests. He is, of course, honored in Berlin with the eponymous university and around the world with countless Humboldt-named places. But when the Humboldt Forum opens next year in Berlin, it would be well to remember his anti-colonialist convictions.

* The Invention of Nature: Alexander von Humboldt's New World, by Andrea Wulf.

Germany, Turkey, Russia

August, 2018

Berlin -- The atmosphere here seems tense, and not just because the German government coalition could break apart at any moment. Added to the problem are new strains on the Turkey-Germany relationship, what with a popular soccer star enflaming the sport's fans about national loyalties and a drastic drop in the value of Turkey's currency. Will Berliners of Turkish heritage be called upon to send Euros to their relatives in Turkey? Will that be seen as propping up Turkey's leader Erdogan?

Then there is the meeting this weekend, just north of Berlin at Meresburg, between Chancellor Merkel and President Putin, hastily called. Surely one topic will be Turkey's financial condition. Merkel will press Putin not to make it worse; Putin will say he won't, if Germany relaxes sanctions against Russia. Sensible American guidance will not be forthcoming.

I remember less tense days, south of Berlin at Wünsdorf, when Russians, Germans, and Americans mixed easily at the Soviet Officers club. It was 1991; I was invited to lunch along with other members of a local historical club. Was Putin present? I've often wondered, since he was posted back then as a KBG agent in East Germany. The Russians were about to depart Germany, their relocation paid for by the German government.

Putin has said the breakup of the Soviet Union was a calamity, a humiliation. That will be the backdrop of the Meseburg meeting.