Obama Can Pursue Ambitious Agenda Without Congress's Help
If President Obama wants to pursue a progressive agenda in the next two years, there are plenty of ways he can do that even without any help from Capitol Hill.
At his post-election news conference on Wednesday, Obama offered more lip service to the notion of compromise. But the fact remains that the next Congress looks to be hopelessly gridlocked. The opposition party is more radicalized than ever. And the only thing the resurgent GOP seems prepared to even discuss with Obama is cutting taxes.
So the big question will be what lesson Obama takes from Tuesday's election results. If he and his advisors are finally ready to acknowledge that the source of voter unhappiness was government ineffectiveness -- rather than government overreach, or a general economic malaise -- then there's plenty of room for him to maneuver on his own.
Indeed, progressives are urging him to seize the opportunity to take a more muscular approach with his executive powers, starting by getting much tougher on banks. They also hope Obama will use his regulatory authority, his enforcement powers, and his prerogatives as commander in chief to make decisive moves that can't be sabotaged by Congressional Republicans.
The basic message: So much for the prime minister routine, it's time to act like a president.
"The most important thing the president has to communicate is strength," said Neera Tanden, a top official at the Center for American Progress. "One of the lessons of history is that the president stands apart from Congress... He has to think about ways he can lead the country without his fate being tied to the Hill."
"There's tons of things that can be done," said Damon Silvers, policy director of the AFL-CIO. "The administration has a vast capacity to act to improve the lives of ordinary Americans, regardless of what happens in Congress."
The worry, however, is that Obama will be so focused on reaching out to Republican leaders that he will be either uninterested in or afraid of being confrontational in his executive actions.
"The question is not can Obama do things," Silvers told HuffPost. "The question is will he? Will the administration do the things it can do?"
First Thing: Take On the Banks
The president of the United States oversees a massive regulatory apparatus that, when wielded appropriately, can help level the playing field for the middle class.
And nowhere it that more necessary right now than in the financial world. The recent financial reform legislation, known as Dodd-Frank, created a Consumer Financial Protection Bureau and gave regulators new authorities they have yet to use.
"Under the Dodd-Frank Act, they have a huge amount of executive power to press banks to give relief to people with underwater mortgages," author and editor Robert Kuttner told The Huffington Post.
Regulators could go in and do real audits of the banks, he said, instead of "conspiring in the fiction that a lot of toxic mortgage paper is worth 100 cents on the dollar, when everyone knows it isn't."
Those real audits would find many big banks insolvent, allowing the regulators (under the new rules) to dissolve them -- or, at the very least, force them to do such civic-minded things as write-down mortgage principals and increase lending to small businesses.
There's also the issue of pursuing possible criminal charges. "You could do an enormous amount with prosecutions in banking," said Robert Borosage, co-director of the Campaign for America's Future. "That would help both politically -- in terms of showing which side you're on -- and in terms of accountability in the financial sector, by curbing the tendency to go back and reopen the casino."
Fill In Dodd-Frank's Blanks
"Because Dodd-Frank left so many things to the regulators, in truth much of the bill has yet to be written," Damon Silvers told HuffPost.
"There is very significant delegation to the administrative agencies to figure out how they're going to carry out the spirit of the law," said Robert Weissman, president of Public Citizen. And because regulatory implementation "plays to the strength of the insiders," as Weissman puts it, the process "will require a commitment by the administration to stand up to powerful corporate interests"
"Dodd-Frank is being lobbied to death all over again," Kuttner said. "You've got a handful of labor and consumer lobbyists going against hundreds of industry lawyers. If you were willing to be publicly tough on Wall Street, you could turn that into decent politics."
Climate Change and Immigration
Cap and trade legislation and comprehensive immigration reform are two of the most obvious casualties of the rise to power of House Republicans. But some progressives think Obama could unilaterally make progress in both areas.
"I think there will be a lot of action on the executive front," said longtime Washington observer Norman Ornstein, the American Enterprise Institute's house liberal. And at the head of his list is the area of carbon emissions.
"The Supreme Court has basically given the EPA the authority to regulate carbon emissions," Ornstein explained. In theory that means Obama could impose a cap and trade system solely by executive authority.
"It won't work that way," Ornstein said. But Obama's EPA could go part way, by focusing on regulations for utilities -- or the president could use the threat of EPA action as leverage on getting some kind of energy bill through Congress after all.
At his press conference on Wednesday, Obama certainly kept his options open, noting that greenhouse gases are now considered to be under EPA's jurisdiction, then expressing his desire to find some agreement with Republicans.
But, he said: "I think it's too early to say whether or not we can make some progress on that front. I think we can." Then he added: "Cap and trade was just one way of skinning the cat; it was not the only way. It was a means, not an end. And I'm going to be looking for other means to address this problem."
The president could even usher in a new era of more humane immigration policy on his own. Deportations of undocumented immigrants have actually increased since he took office.
Robert Borosage thinks the president should not only reverse that, but should make big changes simply by tweaking enforcement.
"You could try to carve out new rules," Borosage said, "so that if you were paying taxes, you wouldn't be deported, or if you were in school, you wouldn't be deported."
In other words, Obama could create a path to de facto legalization. "That," Borosage said, "would be controversial."
Even Campaign Finance?
There's zero chance a Republican House is going to limit money in politics. But Obama on his own could roll back some of the excesses of the 2010 election.
The Supreme Court's January decision in Citizens United allowed, among other things, for nonprofit groups to spend unlimited amounts of anonymous money on campaign ads.
Obama can't oveturn that ruling -- but he could clamp down on the abuse of nonprofit rules that fueled this year's explosion of secret money.
"You could have the IRS revamp its regulations involving 501(C)4s and 501(C)6s," suggested Ornstein. Some of the most controversial political spending this year came from groups organized under those sections of the tax law.
"A good part of the problem goes way beyond Citizens United," Ornstein said. "There have been very fuzzy regulations about what these non-profit organizations that are supposed to be educational are actually supposed to do." According to the rules, 501(c)4s must spend their money exclusively on "charitable, educational, or recreational purposes."
"There's simply no doubt that organizations like American Crossroad GPS are basically thumbing their noses at the clear intent of the law," Ornstein said. Were the IRS to classify them properly, he said, "donors could theoretically be held liable for at least a gift tax -- as well as disclosure of who they are."
Enforcement and Rulemaking
"The main thing I would recommend is enforcement -- much more vigorous enforcement," said Rena Steinzor, a law professor at the University of Maryland and president of the pro-regulation Center for Progressive Reform. "The laws are so under-enforced that you could make a lot of progress in terms of health and safety hazards through tougher enforcement."
More aggressive civil and criminal prosecutions would have particularly dramatic effects, she said, in areas like mine safety, imported food, Clean Water Act violations and dirty coal-fired power plants.
And Obama also needs to stop his White House's Office of Information and Regulatory Affairs (OIRA) from crippling his own regulatory agenda; Steinzor points the finger at OIRA director Cass Sunstein, who she said "frets more about cost-benefit analyses than about regularly capture."
Public Citizen's Weissman, similarly, is hoping for an uptick in the "everyday enforcement of everything from meat inspection to FDA review to workplace safety monitoring.
"One interesting case is what happens with BP," he said, "including what kind of criminal charges are leveled against it, and what fines it has to pay, and whether the government will seek to debar BP from holding federal contracts."
Weissman would like to see the government throw the book at the rogue oil company. "The full weight of the law ought to be brought to bear against BP. We'll see what happens."
Foreign Policy and the Commander In Chief
One area where a Republican House doesn't put a crimp on Obama's plans is foreign policy -- and some progressives are hoping the president rededicates himself to some of the agenda he described during the 2008 campaign.
Steve Clemons, a senior fellow at the New America Foundation, is hopeful that Obama will reinvigorate the Israeli-Palestinian peace process, ideally by getting rid of the "status quo incrementalists" currently on his national security staff. "He's got to do something other than this tired, constantly defeated set of negotiations," Clemons said.
As for Afghanistan, congressional Republicans "are going to complain about whatever he does, so he might as well do the smart thing," Clemons said. "He should realize he's in a Vietnam War moment, and reduce and refocus the mission."
Ornstein adds: "If you can't do treaties, there's a lot that you can do through executive agreements."
And human rights activists are hoping Obama will unilaterally stop the military's "Don't Ask Don't Tell" ban on openly gay soldiers -- something he could easily do in his role as commander in chief. While only Congress or the courts can actually overturn the law, Obama could nevertheless halt the discharges. "He could actually suspend enforcement," said Borosage.
Trade policy is one of the few things Obama can affect unilaterally that could have a direct impact on job creation. He could, for instance, insist on stricter enforcement of trade accords and could demand that exporting countries including China adjust their currencies and economies. "The big thing is the bully pulpit," said Borosage. "I think it's really important."
Odds and Ends
Robert Kuttner recently advocated in the American Prospect on behalf of two presidential measures: Stepped up enforcement of existing labor laws that prohibit such things as phony classifications of workers as temps or contract hires; and the establishment of new rules for government contracting to reward good labor practices and punish scofflaws.
Taking a stand on behalf of decent wages for workers, Kuttner said, isn't just good policy. "It also has the virtue of getting him on the side of ordinary people, which he doesn't seem to be too good at the optics of."
And CAP's Tanden pointed out that presidents can accomplish a lot simply by forcing people to be in the same room with them. "President Clinton did a lot of things where he essentially used the convening power of the president to push an agenda," Tanden said, "literally using the power of the president to push and goad."
That's how Obama got auto executives to agree to increased fuel standards.
Next up, he could conceivably set up meetings with major business and financial leaders, and try to jawbone them into taking some of the mounds of money they are sitting on and spend it or invest it in ways that would create jobs.
A New Crew
And of course Obama could clean house.
"The single best thing he could do is fire [Treasury Secretary Tim] Geithner," Kuttner said. "Get some people in there who speak for Main Street."
Even if he doesn't fire anyone, there are plenty of resignations to deal with. "The question is going to be: Are they trying to send a message by bringing in business executives and insiders and maybe a smattering of Republicans?" Weissman asked. "Or are they bringing in independent voices who will aggressively enforce the law against corporate wrongdoers and deal with the very serious problems the country's facing?"
The Limits Of Executive Power
There is, then, an awful lot Obama can do without having to strike a deal with speaker-to-be John Boehner. But there are limits to his executive power.
Congress, after all, controls the purse strings. And aside from what can be accomplished through changes in trade policy and jawboning, as noted above, job creation generally costs money.
"I think the big challenge for the president is that he has to focus on the economy, and that's a concern that requires a lot of bigger items than you can do just through executive authority," Tanden said.
"The urgency around action to create jobs just grows with every passing day, and that's going to require engaging with Congress and having a plan for engaging with Congress," said Silvers.
"But engaging with Congress doesn't mean engaging at the lowest common denominator level," he said. "Anything that's going to be effective in addressing the country's economic pain, Congress will not be open to doing, at least not the first day in session."
It's bad enough that the Republicans are bound to oppose stimulus measures of the kind and scale that economists agree are necessary to jump-start the economy and fuel job creation. But they actually want to shrink government and cut spending -- at exactly the wrong time.
How hard Obama will fight them on that is still not clear. "My fear," Kuttner said, "is that he's going to decide that the way to win the hearts of the American people is to restore austerity."
The best-case scenario, ultimately, may be that Obama will no longer be the only one taking the blame for continued high unemployment.
"The very brutal math the president has faced is that he pushes a progressive agenda, the Republicans obstruct at every opportunity, and he's the only one held accountable for its failure," Tanden said.
"Now that math will shift. Republicans will determine what happens in the House, and if things don't happen, they'll own part of the responsibility for failure."
Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to his RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.