Fatally Flawed

There are some problems that cannot be solved. No one is ever going to come up with that perpetual-motion machine – the laws of physics, which every scientist from Newton to Einstein has carefully observed and documented, preclude that. It’s a matter of thermodynamics of course, and no one is going to be travelling at warp speed either, like in Star Trek. Einstein noted that mass increases with speed, which others have confirmed through careful observation, and thus when an object approaches the speed of light its mass approaches infinite mass. It’s not going anywhere, because at the speed of light it’s so damned heavy, infinitely heavy – and it’s certainly not going to go beyond the speed of light, in warp-multiples. Sorry, but you’ll just have to slip through a worm-hole to get to that planet filled with green-skinned sexy women in skimpy outfits. That might work. No one’s quite figured out worm-holes yet, if there are such things. It’s the same with time travel. That’s nonsense too, even if an amusing idea. No one will be going back to the future, but there’s no need to talk of science when one talks of problems that cannot be solved, of ideas that are fatally flawed. We all know about those. Everyone gets old. Everyone dies. There is no fountain of youth or elixir of life. Dress how you will, listen to whatever pop music you’d like, learn the latest jargon and work on being devastatingly hip – it doesn’t matter. You’re not getting any younger. No one gets any younger. That’s the core problem that cannot be solved. Life itself is fatally flawed.

No one wants to believe any of this, except for the French existentialists of the fifties perhaps. There’s always hope – if there’s a problem there must be a solution. There’s no such thing as a fatal flaw, just stuff no one has worked out yet, in spite of all evidence to the contrary.

Isn’t it pretty to think so? Of course it is, but sometimes there’s no getting around the evidence at hand, and there’s something in the air now in America, at the end of the second day of the first government shutdown in seventeen years.

This one feels different. It may be a problem that cannot be solved.

To recap, Republicans didn’t have the votes to stop the Affordable Care Act from passing in 2010. They didn’t have the votes to repeal it in 2011. They didn’t have the votes to win the presidency and the Senate by campaigning against it in 2012, explicitly. The law was passed fair and square, long ago, by both houses of Congress, and survived a Supreme Court challenge too. The rules of the system were followed, scrupulously, and there are explicit rules for repealing a law. You find the votes to pass something else in its place. If you don’t have the votes, you don’t have the votes – but this time the Republicans have been willing to shut down the government, crippling the economy, and soon force the United States unto default, collapsing the world’s economy for a generation or two, unless the Affordable Care Act, already being implemented, is defunded or delayed for a year, or two, or three or forever. They seem to want to change our system of government, to change it to a new system where laws duly enacted and upheld in the courts can just go away, if a small group of people in just the right place can mount a credible and deadly threat about something else entirely.

This would end the great American experiment in democracy that began in the late eighteenth century – a government of the people, by the people, and yes, for the people. Now, what most people want would no longer matter. The few, strategically positioned, could determine everything – but then the system allows that too. All spending is authorized by Congress, which is allowed to determine its own procedural rules, and thus a very few, who can find a clever way to turn spending off and on, end up with all the power. They can take over, no matter what the majority of the public, however they vote, wants done. That’s the fatal flaw in the system and it’s structural. Our set of rules for how our democracy is supposed to work, our Constitution, explicitly allows the opposite of democracy to develop over time – and this simply had to happen. The system is set up to destroy itself.

That’s why we’re stuck:

After weeks of talking past each other, congressional leaders and President Barack Obama talked to each other Wednesday evening – only to emerge evidently no closer to a deal to halt the government’s budget stalemate.

The White House meeting, coming a day after the start of the federal government shutdown, served at least one purpose, in that key players in the debate gathered together in the same room for over an hour: Obama called it “useful,” House Minority Leader Nancy Pelosi said it was “worthwhile,” and House Speaker John Boehner cast it as a “polite conversation.”

But while the sides talked, there was no indication they agreed on anything or even shifted their views.

Senate Minority Leader Mitch McConnell, for instance, went so far as to call it “unproductive.” Neither side discussed any potential compromises, with Obama and Vice President Joe Biden doing most of the talking and Boehner making clear he won’t go forward with a “clean” funding bill – with no Obamacare amendments – a GOP congressional source said.

The law was passed fair and square, long ago, by both houses of Congress, and survived a Supreme Court challenge, so the people have spoken. John Boehner holds that that’s not the issue. Congress authorizes all government spending, and there will be none unless that Obamacare thing is gone. He has the constitutional right to stop all spending for any reason he chooses, and this is the reason he chooses. Those are the rules too, and this will also escalate:

With the U.S. government shutdown in its second day on Wednesday and no end in sight, a worrisome reality is sinking in on Capitol Hill: The standoff is merging with a much more complex fight in mid-October over raising the federal debt limit.

“We think the issues are converging,” Republican Representative Paul Ryan, chairman of the House Budget Committee, told reporters on Wednesday.

Ryan, last year’s Republican vice presidential candidate, sees the development as positive, forcing two deadlocked adversaries to come to the negotiating table in the face of a bigger threat than a partially shut-down government.

This raises the stakes:

A first-ever U.S. default on debt or other payments could trigger a massive drop in global stock markets, push up borrowing costs sharply and cause businesses to stop hiring and consumers to stop spending, grinding the economy to a halt, analysts say.

During the 2011 fight that skirted default by a day or two, the blue-chip stocks in the Dow Jones industrial average fell some 17 percent and the United States lost its top-tier Standard and Poor’s credit rating. The episode cost the Treasury $1.3 billion in higher interest costs that year, according to a government study.

It’s a bit worse than that. Without the authority so borrow a little more to cover at least the interest payments on what we owe the rest of the world, all of our treasury bonds, held by all the nations of the world, the one fixed benchmark in the world’s financial system, will be of indeterminate value – no one will quite know what they’re worth, if anything. This is parallel to what happened with all the mortgage-backed securities back in 2008, when no one knew what anything was worth and the entire financial system seized up – but then Congress does have the authority to refuse to raise the debt limit. Those are the rules too.

Bill Clinton, who’s been down this road before, with the Newt Gingrich government shutdown of 1995, said in this interview with The National Memo when Obama faced this problem in 2011, that if faced with default he would single-handedly raise the debt ceiling using the Fourteenth Amendment. He’d do it “without hesitation, and force the courts to stop me” – because that’s what he would have had to do. He said he thought that the fact that Congress is allowed to appropriate funds and then gets a second vote on whether to pay for what they directed to be spent, and was spent, is “crazy.” He knows that from experience:

Having faced down the Republican House leadership during two government shutdowns when he was president – and having brought the country’s budget from the deep deficits left by Republican presidents to a projected surplus – Clinton is unimpressed by the GOP’s sudden enthusiasm for balanced budgets. But he never considered invoking the Fourteenth Amendment – which says “the validity of the US public debt shall not be questioned” – because the Republicans led by then-Speaker Newt Gingrich didn’t threaten to use the debt ceiling as a weapon in their budget struggles with him.

According to Clinton, the Gingrich Republicans thought about that tactic before rejecting it – and Treasury officials who served under Clinton commissioned legal research on the president’s power to raise the debt ceiling without congressional approval. While some legal scholars believe the Fourteenth Amendment requires Congress to fund the debt that results from its appropriations, and therefore empowers the president to raise the debt ceiling, others vehemently disagree.

There’s a flaw in the system, and this one has never been resolved. Obama could raise the debt limit all by himself tomorrow, and he’d be impeached for overstepping his authority. He’d be breaking the rules, usurping Congress like any common tyrant – but he also could be impeached if he didn’t act to assure that “the validity of the US public debt shall not be questioned” – impeached because he didn’t do his job to assure what’s right there in the Constitution. He did swear an oath to uphold the Constitution. He’d be screwed either way.

Let’s say Obama followed Clinton’s advice, risking impeachment. Then what? In an email from Rick, the News Guy in Atlanta, who often comments here, there’s this:

I’m sure that’s a chance Obama didn’t want to take in 2011, but times have changed. If push comes to shove today, he might consider it a risk worth taking, especially since he’d unlikely be convicted in the Senate, and I’m not even sure the impeachment would even go through in the House.

But along the way, we’d rid ourselves of this debt-limit weapon being used against us. That is, assuming the Supreme Court would back him up on the question of constitutionality. That’s trickier.

Yes, it is, and Rick adds this:

But what I also find interesting is hearing what Newt Gingrich has been saying about all this recently, especially in light of Bill Clinton’s saying back in 2011 that Gingrich and his people apparently themselves looked into holding the debt-ceiling hostage, but rejected the idea. Yet several times over the past week, I heard Newt saying the debt-limit bill has been linked to other issues lots of times over the years, all the way back to (I think) Eisenhower or someone.

Wishing I had been there as I listened to him, I would love to tell him that I’m willing to bet that none of those let’s-keep-government-open bills was “weaponized” – loaded down with a poison pill or two. Chances are whatever were in those bills were things both sides didn’t mind that much signing into law; otherwise, we’d all have heard about the fights. In fact, based on what Clinton said about his experiences with Gingrich, the guy who famously started all this playing hardball crap, not even Newt in his prime sunk as low as today’s crowd.

That’s why something is different this time. The inevitable happened. That’s what this long item by Dylan Matthews argues, that the government shutdown is James Madison’s fault. No, really. This seems to have to do with one of Madison’s Federalist papers on separation of executive and legislative powers and thus the strong possibility of divided government, which Madison didn’t realize wouldn’t work very well unless we have non-ideological political parties, not absolutists:

Cases like the current shutdown are exactly why highly divided societies like ours end up endangered by presidential systems. There is an inherent conflict between the president’s and the Senate’s claims to popular legitimacy, and the House’s too, and because of the Constitution’s design, none of those bodies has formal supremacy over the others.

Article I doesn’t have “tie-breakers” in case we’re in danger of shutting down the government or defaulting on our debts. If Congress and the president can’t agree on spending or on a debt level, then the fallback option is that we don’t have a government and we turn treasuries into junk bonds.

The obvious question here is why, if America’s form of government is so precarious, it’s worked so well for so long. The answer is that America’s party system has been unusually weak and diffuse. Through much of the 20th Century, both the Democratic and Republican parties provided a home to both liberals and conservatives. Since the parties didn’t agree internally it was easier for them to come to a deal and much, much harder for them to threaten brinksmanship. The Republican Party of the 1960s wouldn’t be threatening a default over Obamacare because many of them would’ve voted for Obamacare – just as they voted for Medicare.

The flaw in the system was waiting to be exposed. When the Republican Party decided to toss out its moderates and those who believe in science and all the rest, and the Democrats, as usual, didn’t, this had to happen, although Ed Kilgore adds this:

I would note in passing that those non-ideological parties were also the reason America was so late to enact the laws partially made possible by bipartisanship (but also a large Democratic supermajority) in the early 1960s, and tolerated first slavery and then Jim Crow for so long. There are worse things than polarization.

Nothing is simple, and Matthews also has a few things to say about accountability:

If voters expect their leaders to deliver favorable economic outcomes, then those leaders should actually be able to control favorable economic outcomes. That’s how the United Kingdom works. David Cameron and George Osborne have complete control over the government’s fiscal policy lever, through the coalition’s total control over the budget and tax rates, and have a great deal of control over monetary policy through their ability to appoint the governor of the Bank of England and members of the Monetary Policy Committee without a U.S.-style confirmation conference. Leaders before 1998, when the Bank became formally independent of political control, had even more power.

So when Britons go to the polls and judge Cameron and Osborne (and their Liberal Democrat coalition-mates) on their economic management, they’ll be holding accountable the people who are in fact responsible for their economic situation.

That doesn’t happen in the United States. In 2010 the economy was garbage, so, as political science would predict, the American people punished the party in power, the Democrats.

But the diffusion of power throughout the political system made it impossible to know for sure who was responsible for the state of the economy. Maybe it was the fault of Susan Collins and other moderate senators who used filibuster threats to cut the stimulus. Maybe it was the fault of the rest of the Republican caucus for imposing a 60-vote threshold for stimulus and not cooperating. Maybe it was the Bush-appointed Federal Open Market Committee’s fault for not loosening rates in 2007 and 2008.

Maybe it was the janitorial staff at the Dirksen Office Building. No one knows, and that is another fatal flaw in the system, as Kilgore notes:

This diffusion of power works prospectively, too: divided government makes any sort of coherent long-range economic policy very difficult, at least at a time when the two major parties hold to entirely incompatible theories of how to make the economy work.

To the extent that democracy depends on accountable government, long periods of divided government represent a large problem – as large as the difficulty we have in measuring government’s effectiveness. …. And the more we know that institutional factors (the wildly unrepresentative nature of the Senate and to a lesser extent even the House) produce divided government rather than some invisible hand of the people restraining either party from supremacy or excess, the more its persistence seems irrational and dangerous.

We now find ourselves in that time of political supremacy or excess. There’s no invisible hand of the people restraining anyone now. Jonathan Chait sees that in a kind of Republican blindness:

Conservative discourse on the debt ceiling is a chorus of cheering belligerence. I’ve seen no conservatives consider the possibility that Democrats actually believe their stated position, which is that giving in to debt-ceiling extortion would pave the way for endless future extortion and an eventual debt breach. They assert over and over that Democrats will fold, and seem to believe this.

There’s no reason at all to believe that – Obama learned his lesson and he’s now made himself more than clear, and Mathew Yglesias explains that lesson:

From the standpoint of the country as a whole, a debt ceiling breach in 2013 is no more disastrous than a breach in 2017 or 2022. And the problem with “cutting a deal” with Republicans is that it essentially makes an eventual breach inevitable. If the hostage-taking gambit works, then it will be used over and over again until it goes wrong.

The flaw in the system – vote to borrow money for this or that, then have the administration spend all that money, every bit of it, and then vote again on whether you really want to pay back your creditors, or not – doesn’t have to be a fatal flaw. Denmark is the only other nation in the world that has a debt limit system like that. Bypass it and let the courts sort out whether you’ve done what you were supposed to do – or, for now, don’t get drawn into power games about secondary unrelated nonsense.

Ed Kilgore thinks Obama should just have a serious chat with John Boehner:

Now I don’t know anything about the president’s relationship with Boehner. But it’s becoming a matter of national security for him to find some way to take him aside, maybe give the Speaker a cigarette from his secret stash, and say: “I will see you in Hell before I negotiate over the debt limit. And if you let a default happen, I will devote the rest of my presidency to making sure you, personally, bear the blame, and go down in history with our most despised traitors and criminals. For generations, little school children in Ohio will cross themselves and make hex signs when your name is mentioned. So do not, do not, go back and tell your crazy people they can win if they just stick together.”

That’s not going to happen. Boehner is perfectly within his rights, even if what he’s up to now pretty much ends democracy in America. It’s not Boehner’s fault. Our Constitution explicitly allows the opposite of democracy to develop over time – the system really was set up to destroy itself, and it finally has. Sometimes there are fatal flaws, and problems that cannot be solved.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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3 Responses to Fatally Flawed

  1. Rick says:

    I wonder if we shouldn’t at least initiate a public discussion on whether or not anyone threatening harm — but especially intentionally doing harm — to this country and its economy, ought to be arrested and put in jail, maybe for the rest of their lives. Maybe we should at least all discuss the possibility.

    After all, whenever al-Qaeda threatens to harm America, or succeeds in harming America, we send drones after them. If we don’t let foreigners harm us, why should we let Americans to do it? In essence, when you overpower the constitution, when you override our system of government because it doesn’t do what you want it to, this means you’re overthrowing the government — which, in my dictionary, is one definition of treason.

    And just what is the punishment for Congressmen who violate their oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”? These people, I think, are maybe guilty of treason.

    Yeah, I know. I do think it might actually be dangerous to not only do this, but even just to talk about it in public. After all, we’re talking about arresting the very people in this country who carry guns specifically to prevent they’re ever being arrested when they commit treason.

    Still, I do wish there were some way to let these people know how serious this all is, and to scare them straight.


    • Alan says:

      There is no “treason” here. Our constitutional system was set up to allow one small group in one chamber of one part of Congress to stop all funding, for whatever reason they’d like. That this might give these few people a way to nullify the results of an election, or in this cause multiple elections, and nullify a law that has been passed by both chambers and signed into law, and render pesky court decisions about that law entirely moot, might be a fatal flaw in the system – but that’s how our system was designed way back when. Maybe the founders didn’t think this through, but we have what we have. Boehner and crew are playing by the rules.

      • Rick says:

        Yeah, yeah, yeah — but no.

        You make a good point, but I disagree with it.

        First of all, if there is “treason” here, it is not really that the Republicans have found some extra-constitutional way of getting their way, with extortion rather than legislation, it’s that their extortion involves threatening to bring down the economy, and thereby, the nation with it. And that’s the essential point. Just because it’s legal to own a gun in this country doesn’t mean you can’t be arrested for using it to knock over a convenience store.

        But secondly, whatever objection I might have to someone thinking it constitutional for “one small group in one chamber of one part of Congress to stop all funding, for whatever reason they’d like”, one could assume that small group would try to do it through legislation, but that is not what’s happening here. What’s happening is the small group is threatening to send the country into ruin, and is making these threats through methods not found, nor prescribed, in the Constitution. In fact, they are replacing the Constitution that We, the People, agreed to, with terroristic threats to bring down the country. Where in the Constitution does it say it’s okay to do this?

        In fact, here’s the definition of “treason” spelled out in the Constitution itself (Article 3 Section 3 Clause 1):

        “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

        Does bringing down the economy fit this? Since it’s not really “levying War” against the states, probably not — although it certainly would be “adhering to their Enemies, giving them Aid and Comfort”, even if not specifically by design. So who knows what would be considered “treason” by one house of Congress that, not too long ago, impeached a president for jay-walking, or whatever the hell he was accused of.

        But my original point was not that we should actually arrest them and charge them with treason, but only that we need to find some way to make them understand the seriousness and danger to us all of what they’re doing, and hopefully make them stop.


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