How to use this Page

Tweet

By Peter J. Henning

A report filed by the Special Counsel to the Senate Select Committee on Ethics accuses former Nevada Senator John Ensign of a number of violations related to the end of an affair he had with the wife of a top aide who was also a long-time friend of his family. The aide, Douglas Hampton, was indicted on charges of violating the federal conflict of interest rules this past March, and there is a good chance Mr. Ensign will also be targeted by federal prosecutors.

Much like his former Senate colleague John Edwards is a target of an investigation based on payments to a former mistress, as I discussed previously, Mr. Ensign’s problem was not so much the affair but how he tried to keep it quiet through a secret pay-off. After ending his intimate relationship with Cindy Hampton, who worked as treasurer of his campaign committee, Mr. Ensign terminated both Hamptons and arranged for them to receive $96,000 from a trust fund controlled by his parents. How that payment should be characterized will be crucial in determining whether the former senator will be indicted by prosecutors from the Public Integrity Section of the Department of Justice, who have been investigating him for over a year.

The Special Counsel’s report reads almost like a prosecution memorandum, setting out the facts of the relationship between Mr. Ensign and the Hamptons, and offering assessments of whether his conduct constituted a violation of federal criminal laws. The former senator does not appear to have set out to purposely violate federal law, but his efforts to keep the affair quiet by placating the Hamptons with money and work for Mr. Hampton may well have led to Mr. Ensign to commit criminal acts.

The charges against Mr. Hampton involve alleged violations of 18 U.S.C. § 207(e)(2), which makes it a crime when a highly-paid member of a senator’s staff within 1 year of leaving the position “knowingly makes, with the intent to influence, any communication to or appearance before any senator or any officer or employee of the Senate, on behalf of any other person” in which the former staffer seeks action by a senator or staff member. Mr. Hampton had numerous contacts with Mr. Ensign, who assisted him by contacting government officials on behalf of Mr. Hampton’s clients.

While Mr. Ensign might try to plead ignorance of what Mr. Hampton was doing, the Special Counsel’s Report goes into great detail about how the former senator pressured companies to hire his former aide, all part of an effort to keep Mr. Hampton from speaking out about the affair with his wife. There does not appear to be much “plausible deniability” here for Mr. Ensign, so proving his knowledge and intent to provide assistance to Mr. Hampton would not appear to be difficult. In addition, a charge of conspiracy is quite possible, based on the interactions of Mr. Ensign and Mr. Hampton.

A more difficult issue, and one with much greater potential ramifications, is characterizing the $96,000 payment to the Hamptons after being terminated from their jobs with the Senate office and campaign. The money came from an Ensign family trust controlled by t

Tweet

By Elvin Lim

When the dust has settled on the electioneering frenzy of these final days, 2010, the third “change” election in a row, will better be read as an equilibrium restoring election.

In the Senate, Democrats are about to hand back just over half of their recent wins (5 seats in 2006, and another 8 in 2008) to the Republicans. Most predictions for the number of seats the Republicans will pick up in the House hover around 50 because there are currently 49 Democrats occupying seats in districts that voted for McCain in 2008, and they are about to relinquish these seats. Put another way, Democrats picked up 31 seats in 2006, and another 21 in 2008, and they’re about to return just about every one of them back to the Republicans.

This is not coincidence. It is the revealed majesty of the Newtonian system that the Framers of the Constitution set up, and our subliminal internalization of its logic. The Founders weren’t too fond of waves of popular passion, which is why they applied “a new science of politics” and created institutions arrayed alongside each other with the specific principle that “ambition must be made to counteract ambition.”

The invisible constitutional hand appears to be working. Now that Barbara Boxer has pulled ahead of Carly Fiorina in California, as has Joe Manchin over John Raese in West Virginia, it is likely that the Democratic firewall will hold just enough to prevent a Republican takeover of the Senate. To take over the Senate, Republicans must take the seats in CO, IL, NV, PA, and WA. Indeed, because Republicans are polling ahead in each of these last 5 races, a nearly perfect partisan equipoise is likely to occur in the Senate. That means the 112th Congress which starts business on January 3, 2011, will likely see a slim Republican majority in the House, and an even slimmer Democratic majority in the Senate.

Another way to think about this election as equilibrium restoring is to observe the net neutral effect of the Tea Party movement. In some places, Tea Party candidates are giving seasoned politicos a run for their money. Marco Rubio and Rand Paul now look like shoos-in for the senatorial seats in Florida and Kentucky, and Sharron Angle is in a statistical dead-heat with Senator Majority Leader Harry Reid of Nevada – which means, given the enthusiasm gap in favor of Republicans this year, Reid has a mountain to climb in the next two days.

Other Tea Party candidates, however, have turned out to be poor candidates. Principally, they don’t know how to handle the media and the rough-and-tumble of electoral politics. Some, like Joe Miller, think it’s OK to hand-cuff journalists; others, like Christine O’Donnell failed to realize that telling us “I’m not a witch” does not kill a rumor but sustains it. Others who have been inducted into office, like Scott Brown from Massachusetts, have long since forgotten their patrons. Like all third party movements since time immemorial, the Tea Party movement – now a flick of sunshine on a strange shore – is not likely to last more than one or two more electoral cycles.

All told, the Republicans are going to regain the seats they lost in 2006 and 2008. But, the electoral tsunami would most likely not be enough, as it was in 1994 or 2006, to flip both houses of Congress. And because of the truncated constitutional calendar, this year’s wave will stop short of the White House. The greatest prize of them all will stay in Democratic hands (a prize that will become especially valuable now that the Vice-president’s tie-breaking vote in the Senate will likely be activated in the months to come.)

A tsunami which converts half a branch is, arguably, no tsunami at all. For this to be a really significant wave that is more than equilibrium restoring, Republicans would need

The education funding bill that relates to the National Writing Project (NWP) will be marked up in the Senate Appropriations Subcommittee this week.  Please contact your senators to request continued support for NWP funding in the Fiscal Year 2011 Labor, Health and Human Services, Education and Related Agencies (LHHS and ED) Appropriations Bill.  If your [...]

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at quid pro quo. See Lim’s previous OUPblogs here.

A quid pro quo refers to a relatively equal exchange of goods and services. In the emerging controversy over whether or not the White House had attempted to bribe Congressman Joe Sestak, the quid would be the White House job offer and the quo would be the return favor that Sestak drop out of the Pennsylvania Senate Democratic Primary.

The White House has four ways of getting out of the legal trouble of having potentially offered a bribe. The first two are inconsistent, the third is persuasive, and the fourth is circular, but an utterly unassailable argument.

1. There was no quid.

The White House has centered its response on saying that there really was no quid offered, because only an uncompensated board membership was offered. White House Counsel Robert Bauer issued a memo on the Joe Sestak “job” talks on Friday, saying “Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board … The advisory positions discussed with Congressman Sestak, while important to the work of the Administration, would have been uncompensated.”
What is interesting is that while the White House is admitting that a quo was suggested, a quid was never offered. An uncompensated advisory position, according to the White House, is not a job or at least no one that rises up to being a premise for a quid pro quo.

2. There was no pro quo.

In contrast, Congressman Sestak has acknowledged that while a job offer was made, he has thus far not claimed that attached to it was an explicit and directly connected White House request which he was bound to honor should he accept this job.
The Congressman realizes that he has spoken out of line and angered many Democratic Party leaders, because he has given fodder to the Republicans to create a potential Obamagate. That is why, he felt compelled to justify himself. On Meet the Press last Sunday, he said, “I felt that I needed to answer that question honestly … I was offered a job, and I answered that.” Importantly, he did not say that he was offered a job in return for not running for the Senate. If no quo, then no quid pro quo.

3. Quid pro quos are not illegal.

US Code Section 600 reads:
“Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.”
The fact is no

The election seems like old news at this point and yet we are still over a month away from inauguration day.  Donald Ritchie, author of Reporting from Washington: The History of the Washington Press Corps, Our Constitution, and The Congress of the United States: A Student Companion, looks at this lag in historical perspective. Ritchie, who has been Associate Historian of the United States Senate for more than three decades, explains why a President-elect may need this time prepare to take over.

Many Americans, and the rest of the world, wonder why so much time elapses between the U.S. presidential election in November and the inauguration on January 20. Why not reform the system and reduce the interval? The answer is we did reform it–the interregnum used to last twice as long.

Under the original Constitutional scheme, the new president took office on March 4, four months after the November elections. The new Congress would not convene until the first Monday in December, thirteen months after the election. This made sense to the framers in the eighteenth century, when transportation was slow and treacherous. The incoming president would call the Senate into special session for a week in March to confirm his cabinet, and then have the rest of the year to get his administration underway free from congressional interference.

By the twentieth century, the old system had grown obsolete. The second session of every Congress did not meet until after the next election had taken place, meaning that senators and representatives who had been defeated or retired came back as lame ducks. They proved especially susceptible to lobbyists, and since the short session had to end at midnight on March 3, they could easily filibuster to block needed legislation. George Norris, a progressive Republican from Nebraska who chaired the Senate Judiciary Committee, led the effort to amend the Constitution and move the presidential inauguration from March 4 to January 20, and the opening of Congress from December up to January 3. By staggering the closing dates of the terms of the president and Congress, the amendment also eliminated the need for outgoing presidents to spend their last night on Capitol Hill signing and vetoing last-minute legislation.

Beyond getting rid of most lame duck sessions, Norris’ amendment halved the transition between presidential administrations, from four months down to two. Transitions had grown increasingly awkward. During peaceful and prosperous times, the incoming president had to keep out of the way of his predecessor. Herbert Hoover, for instance, sailed off to South America after the 1928 election to avoid upstaging Calvin Coolidge’s final months in office. During periods of conflict and crisis, however, the interregnum cost the nation needed leadership. Outgoing presidents tried to coerce their successors into continuing their policies, as James Buchanan attempted with Abraham Lincoln in 1861, and Herbert Hoover did with Franklin D. Roosevelt in 1933. Lincoln and Roosevelt wisely avoided committing themselves to failed ideas, but these impasses did nothing to resolve the crises they faced, which grew worse by the time they took office.

The transition between Hoover and Roosevelt took place against a dramatic collapse of the American financial system, with the nation’s banking system shutting down, credit drying up, and unemployment soaring. Congress had passed the Twentieth Amendment in March 1932 and sent it to the states, but the necessary three quarters of the states did not ratify it until January 23, 1933, three days after the new date for inaugurations, making it too late for that year. The first inauguration on January 20 took place in 1937.

That last long interregnum convinced everyone that a shorter transition was preferable, but is the current system still too long? In a parliamentary system such as Great Britain’s, the new prime minister can move into 10 Downing Street the day after the election and the new cabinet can show up ready for work. The American system of separation of powers, however, makes no provision for a shadow cabinet in waiting. The president-elect needs time to select cabinet members and a host of other executive branch nominees who will be confirmed by the Senate. It may not do the new president any favor to shorten the interregnum further, although when times are tough the inauguration still looks awfully far away.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Zelinsky argues that President-elect Barack Obama should hope that Democrats do not obtain the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster. A filibuster-proof Senate will make it more difficult for Obama to hold together the disparate coalition which elected him.

One important question remains from the 2008 election: Will Democrats occupy the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster? Two Republican incumbents, Coleman of Minnesota and Stevens of Alaska, are still locked in tight battles for re-election. One Republican incumbent, Chambliss of Georgia, must win a run-off election in December to retain his Senate seat. Independent Senator Lieberman of Connecticut has reportedly indicated that he will join the Republican caucus if the Democrats punish him for his vocal support of Senator McCain’s presidential candidacy. Democrats now occupy fifty-seven Senate seats including Lieberman and independent Sanders of Vermont, who caucuses with the Democrats. If the closely-contested seats in Alaska, Minnesota and Georgia all go Democratic and if Lieberman stays in the Democratic caucus, the Senate Democrats would have the magic sixty votes to squelch a Republican filibuster.

One person in particular should hope that the Senate Democrats don’t reach this talismanic number: President-elect Barack Obama. A filibuster-proof Senate will make it more difficult for him to hold together the disparate coalition which elected him.

As James Madison famously noted, a majority in a large democracy invariably consists of different interests (what Madison called “factions”) assembled into an inherently unstable, tension-filled coalition. President Bush’s Republican majority included social conservatives, economic conservatives, libertarians, neo-conservatives – all of whom had some things which united them but many things which did not.

Similarly, the Obama coalition includes unions, minorities, social liberals, and economic moderates who agree on some things but not on others. Holding that majority together will require careful balancing. If the Democrats hold a sixty seat majority in the Senate, elements of the Obama coalition will credibly demand measures which other parts of that coalition oppose. In contrast, if the Republicans can sustain a filibuster, Mr. Obama can better finesse the tensions in his coalition by pinning failure on the G.O.P.

Consider, for example, the union demand that federal labor laws be changed to require recognition of unions without secret votes by the affected workers. No less a Democratic icon than Senator George McGovern has made clear that many Democrats oppose this proposal. If the Senate Democrats have the sixty votes which can stop the Republicans from filibustering this measure, the unions will demand that the new president deliver for them on this issue.

This, however, will alienate those parts of the Obama coalition who were persuaded that he is an economic moderate. If, in contrast, the Republicans can sustain a Senate filibuster, the President-elect has the perfect out: He can support the unions’ demand while counting on the Republicans to successfully filibuster and thereby save him from his commitment.

Or consider gay marriage. The voting results from California reflect the tension on this issue within the Obama coalition. As Californians voted overwhelmingly for Mr. Obama, they also voted against same-sex marriage. This result indicates the fissure between, on the one hand, those social liberals who supported Mr. Obama and favor gay marriage and, on the other, minorities and economic moderates who also supported Mr. Obama but oppose gay marriage. After their California defeat, gay marriage advocates may seek federal action to advance their cause. Mr. Obama can finesse this issue which divides his majority if he can point to the filibustering Senate Republicans as the barrier to federal recognition of gay marriage.

It may be true that to the victor belongs the spoils. But, under our system, to the victor also belongs the problem of holding together his winning coalition. And if the victor is too victorious, that problem can be severe.

The President-elect cannot openly say that he is better off with a Senate which the Republicans can successfully filibuster. But the political reality is that he is. Mr. Obama can control his unruly coalition more easily with external opposition in the form of a Republican minority capable of sustaining a Senate filibuster. President-elect Obama should want the Senate Republicans wounded, not down for the count.