Wise Legal Advice Biden May Not Be Getting and Possibly Good News About Russia

As is often the case, there is a golden mean between paying no attention to politics and paying too much. Since I don’t have President’s Biden ear, I’m guilty of the latter (I’m pretty sure the messages I’ve sent him didn’t made it to his desk).

Nevertheless, here is some brief discussion of the debt ceiling I read today that I want to share:

From Josh Marshall of Talking Points Memo:

Even though this won’t come as new news to many of you, the following is still a clarifying prism. A negotiation is usually two sides haggling to get things they want. Leverage is often unequal…. But in this negotiation, Republicans are getting various policy priorities and Democrats are “getting” Republican agreement not to create a global financial crisis. That’s extortion, not negotiation. A government can’t operate in any consistent or sustainable way when policy deliverables go to the party willing to credibly threaten the most damage to the country.

And from two law professors with fancy titles who work at respected universities:

Our advice has always amounted to a version of the now-overused mantra: “Keep calm and carry on.” The best thing to do in a debt ceiling crisis is to continue to raise the money necessary to pay the government’s bills. If Republicans block action on the debt ceiling, the President would indeed break the law by issuing new debt. But among his options at that point, all of which would be bad, that would be the closest thing to a plain-vanilla response. We would not see the government stiff its creditors.

Instead, the Treasury Department would do what it always does: go into the financial markets and raise funds from willing lenders. Those lenders would almost certainly demand higher interest payments than otherwise, which would offer the irony that the Republicans’ vows to “do something about the debt” will result in more debt, not less. But in a world of their making, borrowing money as it is needed, in as close to the normal way as possible, will be President Biden’s best (and least unconstitutional) option.

Elsewhere, there’s evidence that some Russian soldiers are switching sides and actually taking back territory from the Russian army. It isn’t a surprise that some of the troops don’t care for Putin at all. This is a good sign, combined with the fact that Ukraine is offering special treatment for soldiers who surrender, including care overseen by the Red Cross and no requirement to ever return to Russia. We used to think high-level officials might be the ones to do something about Putin. Maybe the uprising will start in the lower ranks. After all, the Russian Revolution began with mutiny in the army.

Biden Needs To Be Ready To Act

“extort”: to obtain from a person by force, intimidation, or undue or illegal power.

In other words, if you don’t give me what I want, something very bad will happen to you. This is not the same as negotiation.

 “negotiate”: to confer with another so as to arrive at the settlement of some matter.

You’ll get something you want, I’ll get something I want, and neither of us will be too worse off.

Which brings us to the debt limit or debt ceiling:

Management of the United States public debt is an important part of the macroeconomics of the United States economy and finance system, and the debt ceiling is a limitation on the federal government’s ability to manage the economy and finance system. The debt ceiling is also a limitation on the federal government’s ability to finance government operations, and the failure of Congress to authorize an increase in the debt ceiling has resulted in crises, especially in recent years.

Prior to 1917, the United States did not have a debt ceiling, with Congress either authorizing specific loans or allowing the Treasury to issue certain debt instruments and individual debt issues for specific purposes. Sometimes Congress gave the Treasury discretion over what type of debt instrument would be issued.

Between 1788 and 1917, Congress would authorize each bond issue by the United States Treasury by passing a legislative act that approved the issue and the amount.

In 1917, during World War I, Congress created the debt ceiling with the Second Liberty Bond Act of 1917, which allowed the Treasury to issue bonds and take on other debt without specific Congressional approval, as long as the total debt fell under the statutory debt ceiling. [Wikipedia]

The story of the debt limit “crises, especially in recent years” begins in 2011. From Brian Beutler of Crooked Media:

Just as clear-eyed political analysts knew well before President Obama that Republicans would abuse the filibuster rule in an unprecedented way to stymie his agenda, they also recognized before the Democratic leadership that, after crushing Democrats in the 2010 midterms, Republicans would take the further unprecedented step of extorting Obama under threat of default. That’s why reporters asked then-Senate Majority Leader Harry Reid why Democrats, with their huge 2009-2010 majorities, wouldn’t neutralize the threat before Republicans took power. 

“Let the Republicans have some buy-in on the debt,” Reid said

This was the beginning of a fateful error that culminated in a significant shock to the economy, still hobbling out of the great recession, followed by years of indiscriminate, across-the-board discretionary-spending cuts, which Obama paid the Republicans in ransom.

This was supposed to be Obama-era Democrats’ biggest regret, one that they were committed never to relive. For the rest of Obama’s presidency he rightly refused to make unreciprocated concessions for further debt limit increases, and each time Republicans eventually caved. 

But it isn’t foreordained that Republicans will always cave, every time a Democratic president refuses to be extorted, from now through eternity. Republicans never forswore weaponizing the debt limit. Neither was their lurch further into extremism a piece of forbidden knowledge. Right out in the open, through the Obama and Txxxx years, Republicans have become significantly more aggrieved and vandalous, and because of that, permanently disarming the debt limit has become a matter of greater and greater urgency….

If Democrats were like Republicans, they would’ve treated turnabout as fair play, and held the debt limit hostage for ideological policy concessions after Txxxx took office. Of course, the parties aren’t similar, and Democrats never considered this, nor should they have: Extortion is extortion, and every bit as anti-democratic as stealing court seats, or elected offices. 

But I did think that when Republicans came to Democrats for help increasing the debt limit, Democrats should have made one demand: that in exchange for their votes, Republicans would have to relinquish the debt limit as a tool of extortion forever. This could have taken many forms: Outright debt-limit abolition, indefinite debt-limit suspension, a debt-limit increase of effectively infinite size, or the permanent delegation of authority to increase the debt limit to the executive branch. Either way, the idea was that Democrats should have had enough dignity to insist the parties be bound by a single set of rules, and make it the price of bailing Republicans out of a jam. 

Democrats instead gave their votes away for free….

By the end of the last Congress, with Republicans poised once again to control the House under a Democratic president, the idea that Democrats should use their narrow, lame-duck majorities to moot the debt limit grew into something like a clamor…. Democrats thus had to respond to it, and their response was: sorry, no. This time, they seemingly just didn’t have the votes. But Democratic leaders expended almost no public effort trying to whip them up. Instead they and their loyalists treated supporters to excuses ranging from ‘we don’t have enough time’ to ‘we are leaving the doomsday device armed and ticking on purpose!’ How better to force Republicans to produce a budget, which will contain unpopular policies, the better to run against?

So House Republicans have produced a budget. It’s filled with unpopular proposals they could never get implemented through the normal budget negotiations with the president and Senate that take place every year.

Their position is: give us all or much of what we want or we’ll create a financial crisis as bad or worse than the one in 2008. The government won’t have enough money to function and all hell will break loose. Extortion.

Biden’s position is: raise the debt limit, as Congress has always done before, and then we’ll negotiate the budget like we always do. Negotiation.

You might think it’s fine for Republicans to finally force Democrats to cut the spending Republicans want to cut and leave alone the spending Republicans want to leave alone. Do you think it would be fine for Democrats to do the same thing when there’s a Republican president? Regardless, letting a minority compel the government to meet its demands is not how a representative democracy is supposed to work. Democrats gave in to extortion before and they shouldn’t do it again.

Back to Mr, Beutler:

Democrats find themselves at a choosing moment once again, only this time, they lack the means to disarm the debt limit with new law. Their choice is between caving to Republicans and maneuvering aggressively to disempower them….

Biden should be prepared to leave Tuesday’s meeting with Congressional leaders and announce that if Republicans attempt to default on the national debt, his administration will protect the country.

… He can instruct the Treasury to continue auctioning bonds, and if Republicans then choose to sue the country into default, and the Republican-controlled courts choose to order the country into default, it will be on them. Biden could further justify this decision by referencing the 14th amendment, which holds the sovereign debt inviolable. [Other options have been proposed and are supposedly being considered.]

… We need Democrats who will stop treating the Republicans’ serial default threat as a prompt to outmaneuver them, and instead simply overturn the game board… Republicans are the minority, trying to impose their will on the whole country by threat of mass harm, and that isn’t compatible with freedom or self-government. It isn’t hard bargaining, it’s terrorism.

Anything less than continued, complete refusal to negotiate would, in a profound and troubling sense, represent a violation of the oath of office. In a more partisan sense, it would breach the trust of millions of voters who view the Democratic Party as the last line of defense against extremist depredations. It’s hard to imagine a clearer way to signal that, when push comes to shove, they’ll appease bullies, instead of standing up for us—and they’ll do it by handing over our lunch money.  

The country can’t survive in the long run if one shameless faction wields power in a consequence-free realm, while the other quietly acclimates itself to the mounting extremism. Eventually the trespasses will be incompatible with self-rule, and it will bring the whole republic down. 

Note: In a TV interview, when asked if he might cite the 14th Amendment in order to bypass the debt limit (the amendment says the nation’s debt should not be “questioned”), Biden said he’s “not there yet”.

They Want Biden to Negotiate with Extortionists

That’s not how the story is being reported, but it should be. From Dan Froomkin of Press Watch:

House Republicans are refusing to let the government keep paying its bills unless the Biden administration rolls back some of its signature achievements.

It’s a demand that neither the Senate nor Biden will ever agree to.

Raising the debt limit is a procedural move that allows the Treasury to make good on existing commitments. It’s not a budget bill.

But House Republicans appear to be ready to default on the debt if they don’t get their way. Such a default would be catastrophic for the U.S and world economies, and could permanently damage the dollar’s status as the de facto global currency.

Explaining it that way is simply good journalism.

But as usual, extremist Republicans have been enabled by media coverage that tries to split the difference, and treats what is essentially a hostage crisis created exclusively by one side as a normal, two-sided partisan squabble.

Indeed, our top political reporters now insist that the onus is on Biden to solve the problem.

Under the headline “Biden Faces His First Big Choice on Debt Limit,” New York Times reporter Jim Tankersley writes today that the issue “has put President Biden on the defensive, forcing him to confront a series of potentially painful choices at a perilous economic moment.”

Sure, Biden says he won’t negotiate, but “business groups, fiscal hawks and some congressional Democrats” want him to make a deal. So Biden, Tankersley writes, “faces a cascading set of decisions as the nation, which has already bumped up against its $31.4 trillion debt limit, barrels toward default.”

But the nation is not “barreling toward default,” nor is it “careening,” or even “drifting” there. It is being pushed there by Republicans.

Washington Post reporter Jeff Stein set off Internet pundits and the Post’s own readers over the weekend with his article headlined “Biden is running out of time to avoid calamitous debt ceiling outcomes.”

Talking Points Memo editor Josh Marshall tweeted: “Has there ever been a clearer example of the ‘[Republican Party] has trained us to take their legislative terrorism as a given’ mentality so clear in so much MSM [mainstream media] reporting?”

Post commenters put it so well:

This is a vapid article that begins with a false premise. Biden is not the one who needs to be doing something right now. That’s Congress. Also, none of Biden’s options to resolve the problem unilaterally are “running out.” They all are still available. Click bait that isn’t even good click bait.

Also:

Yes, I am sick and tired of articles that seem to absolve the Republicans of their own idiocy and then blame the Democrats for not protecting us from the harm caused by Republicans.

Both Tankersley and Stein know better. They are both highly competent at times. What pressure are they under to produce such garbage? Which editors is this coming from? It’s a mystery.

And it’s not just them. The notion that this is a problem that both sides needed to solve has been endemic to corporate political reporting for months now.

The Associated Press has consistently been advocating for some sort of compromise — in its news stories. Josh Boak wrote that, “staring down a fast-approaching deadline,” both sides “have to find some version of common ground.”

Washington Post reporter Michael Scherer glibly predicted (in January!) that “Joe Biden and Kevin McCarthy, wary opponents, prepare to work together“.

Biden and McCarthy haven’t spoken about the debt ceiling once since then, with Biden continuing to insist on a clean debt-ceiling bill with no strings attached…..

A key distinction that gets conflated in much of the coverage is between raising the debt limit — a procedural issue — and passing a budget. Of course there will have to be negotiations about the next fiscal year’s budget – eventually, once the fractious Republicans have come up with their own proposal, which could be a long time.

If just one major news organization were willing to buck the trend and tell its audience  what is really going on, without the false equivalence, that might be enough. The others might follow.

But it’s not going to happen. Political reporters and editors love brinksmanship. They were fascinated by McCarthy’s months-long attempt to whip his fractious caucus into some sort of agreement, which finally resulted this week in passage of a bill by a 217 to 215 vote….

Journalists hailed it as a “major victory” for McCarthy. The AP’s Kevin Freking quoted McCarthy after the vote, without a rebuttal, saying of Biden “He either has to negotiate now or we’re the only ones that have raised the debt limit.”

All along, reporters have been casting McCarthy as an embattled protagonist, rather than the antagonist. One throughline has been that McCarthy had no choice but to bow to the far-right members of his caucus….

Under the headline “Staring Down a Debt Crisis, McCarthy Toils to Navigate [Republican] Divisions,” Jonathan Swan and Annie Karni wrote sympathetically about how McCarthy is surrounded by people he considers incompetent and “faces his most consequential test: reaching a deal with President Biden to avert a catastrophic default on the nation’s debt as soon as this summer.”

If holding the country hostage is a MAGA priority that McCarthy is only going along with grudgingly, then reporters should make that clear – and stop treating it like it’s normal.

It’s not only awful governance, it may also be unconstitutional, as Jamelle Bouie argued in his New York Times opinion column in January.  The 14th Amendment of the Constitution states that “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned”….

Even the best stories about the [Republican] position understate the extent of the fraud.

Tankersley wrote last week that [their] bill “would only modestly change the nation’s debt trajectory. It also carries a second big objective that has little to do with debt: undercutting President Biden’s climate and clean energy agenda and increasing American production of fossil fuels.”

The lede should have been more direct. Something like: “Much of what McCarthy is now demanding in return for not tanking the economy has nothing to do with debt, it’s doing the bidding of the fossil fuel industry.

I’ll end with what I wrote ten years ago (!) about the egregious press coverage of the then-ongoing shutdown caused by Republicans demanding that President Obama abandon Obamacare:

How can democracy self-correct if the public does not understand where the problem lies? And where will the pressure for change come from if journalists do not hold the responsible parties accountable?

Unquote. From Merriam-Webster:

To extort is literally to wrench something out of someone. Extortion is a mainstay of organized crime. Just as the school bully extorts lunch money from the smaller kids in exchange for not beating them up, thugs extort “protection” money from business owners with threats of violence. But that’s only one kind of extortion; a mobster might extort favors from a politician with threats of revealing some dark secret, just as you might extort a favor from a brother or sister by promising not to tell on them.

Republicans threatening to create a financial crisis in order to force Democrats to meet their demands is also extortion. Journalists should say so.