12/12/2014 08:04 pm ET Updated Dec 06, 2017

Friday Talking Points -- How Bad Laws Get Made

Before we begin, a quick program note is necessary. This column will go on hiatus for the next two weeks, as we bring you instead our traditional year-end "best of/worst of" columns. So join us back here in the new year, after the holidays, when Friday Talking Points resumes on the second of January.

There were two big things going on in the political world this week: the release of the Senate torture report, and the cromnibus bill which kept the government open. For the most part, we're going to cover the torture report at the end, in a very unusual talking points section.

Which leaves us with the subject of how bad laws get made. How do bad laws get made? Quickly, for the most part.

No, that's not a joke. The worst laws nearly all have one thing in common: they are rushed through very quickly, usually because Congress is facing some self-imposed deadline (which is being generous, because what that last bit really should read is: "because Congress wants to scarper off to enjoy yet another multi-week vacation."

This week is no different. Congress wants to leave for the rest of the year. Unfortunately for them, they have something like an entire year's worth of business to take care of, that they've been studiously avoiding, all year long. So in one week, a political debate that should have been spread out over months was squeezed in.

What this means -- what it almost always means -- is that some very bad laws will be enacted under the guise of the must-pass budget bill. There are a whole lot of stinky riders on this cromnibus, to put it in more urban terms. Many of these bad ideas won't fully see the light of day for awhile. This is by design. Remember when Republicans got so upset because a Democratic bill was "too long" and they weren't given enough time to read it to figure out everything that was in it? Well, they seem to have gotten over such whiny behavior, because that's exactly what the House did this week. They produced a monster bill, with many unrelated gifts in it for people with effective lobbyists. They hustled it through because they knew that Democrats wouldn't likely shut the government down over each little odious addition to the main bill. They were right, too.

Of course, Democrats aren't a whole lot better. Harry Reid could have passed all the regular budget bills in the Senate -- or, at the very least, put them up for a vote and forced Republicans to filibuster them. He had all year to do so, and he didn't. He didn't because he didn't want any "contentious votes" in an election year. This is nothing short of political cowardice. If Democrats truly do believe they are acting in good faith for the people of America, then they should be proud to toss their markers on the table before an election, to show the differences between the parties' priorities. They did not do so, and Harry Reid hasn't done so for many years. So there's plenty of blame to go around.

The stinkiest of the cromnibus riders -- the two issues some Democrats did actually mount a defense against -- are a big giveaway to Wall Street, and a provision that essentially guts one of the few remaining limits on campaign contributions. These were the high-profile items, but there are plenty of other bad ideas which will now become law contained within the monster bill. Cutting funding for women, infants, and children, for instance. We'll all be learning about the full breadth of the bad new laws in the coming days and weeks, no doubt. The answer to the future question: "How the heck did that become law?" will be: "It snuck on the cromnibus."

One particular rider worth mentioning is a blatant effort to overturn the will of the voters. D.C. voters, in particular, who just voted to the tune of 7-in-10 in favor of legalizing recreational marijuana. That's a pretty hefty margin of support, wouldn't you say? But Republicans -- even those who normally rant and rave about "states' rights" -- decided that the federal government needed to step in and ban this new law from taking effect.

There is a new debate, however, about whether the cromnibus rider will actually do so or not -- a debate which will likely swiftly move into federal court. It all hinges on the word "enact."

D.C.'s marijuana legalization measure was specifically designed to be separate from city funding. This is the reason why it didn't deal with legalizing sales, just possession. The city government was willing and able to fill in the legal cracks afterwards, by passing some commonsense rules and regulations. Congress -- specifically, one angry Maryland House Republican -- is moving to preclude the city government from doing so. But they're using the power of the purse strings to do it -- by banning any funds for implementing the new law. This may not mean that the law won't be implemented, however, since it costs nothing to legalize possession of marijuana. What it will mean is that the city won't be able to do so in any sort of intelligent fashion.

Congress is simultaneously stomping all over the will of the D.C. voters, while also instructing the D.E.A. not to interfere with other states' new marijuana laws. The disconnect is mind-boggling. I asked Tom Angell, the chairman of Marijuana Majority, to comment on all of this. His reaction to the states' rights rider:

Congressional leaders seem to have finally gotten the message that a supermajority of Americans wants states to be able to implement sensible marijuana reforms without federal interference. This legislation greatly reduces the chances that costly and senseless D.E.A. raids will come between seriously ill patients and the doctor-recommended medicine they need for relief. Now that Congress has created political space by taking this important legislative step, there are no remaining excuses for the Obama administration not to exercise its executive power to reschedule marijuana immediately. The attorney general can begin that process today with the stroke of a pen.

Angell was not so positive about the D.C. rider, though:

While it remains to be seen whether the technicalities of this language ultimately prevent marijuana legalization from coming into effect in the District, the effort by some Republicans to overturn the law puts them at odds with not only an overwhelming majority of D.C. voters but with most voters across the country, including their own constituents. Several national polls have shown that even among people who oppose legalization there is still a strong consensus that the federal government should not stand in the way of local marijuana reforms.

While it appears Congress is ready to give states more leeway to implement medical marijuana laws without federal interference, it's not yet ready to give D.C. full autonomy when it comes to legalization. While some of this may have to do with the distinction between medical marijuana (in the case of the amendment concerning states) versus outright legalization (as in D.C.), I think that much of it stems from a general lack of respect for D.C. that Congress has long displayed. The "states' rights" mantra often espoused by Republicans in particular has usually not been extended to the District, as evidenced by past intrusive riders concerning not just marijuana but also issues like abortion and gun control.

Independent of Congress, the Justice Department made their own marijuana news this week, issuing a memo which will allow Native American tribes to decide on their own how to legally treat marijuana. This will doubtlessly lead to some reservations legalizing marijuana on their own, even in states where it is not legal yet. This new federal policy could certainly shake things up in the next few years, and not many people have realized the full implications yet.

But that's a subject for another week. For now, let's get back to the two main issues from the past week.


Both Senator Elizabeth Warren and House Minority Leader Nancy Pelosi earned an Honorable Mention this week, for fighting the good fight against the Wall Street giveaway. While early in the week it appeared that Democrats were going to go down without a fight, Warren took the lead in trying to strip out the worst of the Republican riders on the cromnibus. The provision Republicans added in would allow Wall Street to use taxpayer-guaranteed funds to gamble on things like default credit swaps. In case you've forgotten, this is what almost crushed the American economy a few years back, when things got wildly out of control. The Dodd-Frank legislation reined it in, by forcing the banks to use their own money (and take all of their own risk) to gamble on such things. Now they'll be able to fail spectacularly once again, and have the taxpayers bail them out for bad bets. I mean, what could possibly go wrong with that idea?

Warren whipped up what has been called "the Democratic wing of the Democratic Party," and mounted an effort to stop such a stupid thing from becoming law. Nancy Pelosi also joined in and provided leadership, but Warren is fast emerging as the strongest Democratic voice for Progressive issues on Capitol Hill. While the effort ultimately failed, it did serve a very important purpose: educating the American public about what was going on in the back rooms of Congress. This issue certainly wasn't being covered by the mainstream media before Warren spoke out, but by the end of the week it was in the spotlight in a big way. That is no small accomplishment, in and of itself.

But the Most Impressive Democrat Of The Week this week belongs to Senator Dianne Feinstein. She not only held a years-long investigation of what the C.I.A. had done in all our names, but she pushed very strongly to release a 600-page summary of the report to the American public. She will be losing her committee chairmanship in January, so this was the last chance she had to get the report out there. She had to overcome Republican resistance as well as a White House that wanted to black out so much of the report as to make it meaningless.

What Feinstein accomplished will likely become her namesake in the very near future. Much like the "Church Committee" (named for its chairman Frank Church), we will likely all start referring to the "Feinstein Torture Report" from now on. Dianne Feinstein is no raging liberal (ask any real raging liberal, they'll tell you), and regularly disappoints lefties on many national security issues. But this was her week to shine, and the Feinstein Torture Report has certainly earned her this week's Most Impressive Democrat Of The Week award.

Well done, Madam Chairwoman, well done. The American people deserved to know what had been done in their name. We would not have, without this report.

[Congratulate Senator Dianne Feinstein on her Senate contact page, to let her know you appreciate her efforts.]


Nancy Pelosi and Elizabeth Warren were on one side of the fight to stop a big giveaway to Wall Street this week. But the odd thing is who they were butting heads with, because it was not so much John Boehner or Mitch McConnell as it was President Barack Obama.

Obama normally disdains getting involved with the workings of Congress, to the point where even Democrats regularly complain of his aloofness in legislative matters. This time around, however, Obama used a full-court press. He was personally calling up House Democrats to beg them to vote for the Republican-written cromnibus bill, complete with the Wall Street bonanza. This completely undermined the efforts of Warren and Pelosi to get it removed from the final bill.

The entire process had many Democrats scratching their heads. This is the bill that Obama finally called them up about? This is where he chose to draw his line in the sand? After ignoring many other contentious bills he could have fought for, now he's getting involved, to help John Boehner save face?

Democrats focused on one issue, and they fought hard against it. If they had just a few more votes, they likely could have forced Republicans to drop it from the bill. The more media attention a "Wall Street giveaway" got, the weaker the Republican position became (since the public certainly wasn't clamoring for such a measure). They might have backed off in embarrassment, if the White House didn't twist so many arms in the House.

But that's not how it all played out. Now, this isn't a split in the Democratic Party as large as the divide with the Blue Dogs was, in times past. But it does show an emerging Progressive wing of the party with a few strong voices speaking up for Main Street over Wall Street. Unfortunately, one of those voices is not Barack Obama's. Instead, for fighting against Main Street this week, Obama is unquestionably our Most Disappointing Democrat Of The Week.

[Contact President Barack Obama via the official White House contact page, to let him know what you think of his actions.]


Volume 330 (12/12/14)

This is going to be the most unusual talking points section in a long while, because each and every one of these came from the mouth of Senator John McCain -- who is not exactly a notable Democrat.

McCain gave an extraordinary Senate floor speech this week, laying out his support for the Feinstein committee report and swatting down all objections -- to both releasing the report and its contents.

McCain's experience with torture is unique, to say the least. He was a prisoner of war in Vietnam. He was tortured by his captors. It's hard to argue that McCain doesn't know what he's talking about on torture, because he is the one man in Washington who really does know the subject far better than anyone else, from his own personal experience.

So, this week, all Democrats need to do is to preface any of these talking points with: "I'd like to quote Senator John McCain, just to see if you agree with this prominent Republican on the issue," or something similar. McCain made the strongest case possible, so there's really no need to re-invent the wheel this week -- quoting McCain is all that is necessary for Democrats to make the anti-torture argument.

His entire speech is well worth reading. These are merely the strongest excerpts. Without further ado, allow me to turn this week's Democratic talking points over to none other than John McCain.


   We are entitled to the truth

The truth is sometimes a hard pill to swallow. It sometimes causes us difficulties at home and abroad. It is sometimes used by our enemies in attempts to hurt us. But the American people are entitled to it, nonetheless.


   Yes, it is torture

I have long believed some of these practices amounted to torture, as a reasonable person would define it, especially, but not only the practice of waterboarding, which is a mock execution and an exquisite form of torture. Its use was shameful and unnecessary; and, contrary to assertions made by some of its defenders and as the Committee's report makes clear, it produced little useful intelligence to help us track down the perpetrators of 9/11 or prevent new attacks and atrocities.


   Torture produces lies

I know from personal experience that the abuse of prisoners will produce more bad than good intelligence. I know that victims of torture will offer intentionally misleading information if they think their captors will believe it. I know they will say whatever they think their torturers want them to say if they believe it will stop their suffering. Most of all, I know the use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights, which are protected by international conventions the U.S. not only joined, but for the most part authored.


   They don't need an excuse

Will the report's release cause outrage that leads to violence in some parts of the Muslim world? Yes, I suppose that's possible, perhaps likely. Sadly, violence needs little incentive in some quarters of the world today. But that doesn't mean we will be telling the world something it will be shocked to learn. The entire world already knows that we water-boarded prisoners. It knows we subjected prisoners to various other types of degrading treatment. It knows we used black sites, secret prisons. Those practices haven't been a secret for a decade. Terrorists might use the report's re-identification of the practices as an excuse to attack Americans, but they hardly need an excuse for that. That has been their life's calling for a while now.


   The C.I.A. lied to us

What might come as a surprise, not just to our enemies, but to many Americans, is how little these practices did to aid our efforts to bring 9/11 culprits to justice and to find and prevent terrorist attacks today and tomorrow. That could be a real surprise, since it contradicts the many assurances provided by intelligence officials on the record and in private that enhanced interrogation techniques were indispensable in the war against terrorism. And I suspect the objection of those same officials to the release of this report is really focused on that disclosure -- torture's ineffectiveness -- because we gave up much in the expectation that torture would make us safer. Too much.


   We can do better

The most important lead we got in the search for bin Laden came from using conventional interrogation methods. I think it is an insult to the many intelligence officers who have acquired good intelligence without hurting or degrading prisoners to assert we can't win this war without such methods. Yes, we can and we will.


   We are better than our enemies

We have made our way in this often dangerous and cruel world, not by just strictly pursuing our geopolitical interests, but by exemplifying our political values, and influencing other nations to embrace them. When we fight to defend our security we fight also for an idea, not for a tribe or a twisted interpretation of an ancient religion or for a king, but for an idea that all men are endowed by the Creator with inalienable rights. How much safer the world would be if all nations believed the same. How much more dangerous it can become when we forget it ourselves even momentarily. Our enemies act without conscience. We must not.


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