SALON

Howard Dean

Thursday, May 12, 2005 10:31 PM UTC

Everything you wanted to know about the “nuclear option”

If the Republicans are as good as their word, it's going to be much uglier than you think.

By

To hear the partisans on either side describe it, the coming debate over Bill Frist’s plan to kill the filibuster is a thing of apocalyptic proportions. Focus on the Family’s James Dobson says the ground in Washington is “almost too hot to walk on” right now, that the faithful are in their “foxholes” and the “bullets are flying overhead.” Democratic National Committee chairman Howard Dean says Republicans are fixing to “blow up 200 years of Senate history” just because they’re not getting their way on a handful of “radical” judicial nominees. On Capitol Hill, the threat of the “nuclear option” has created a sort of political ground zero, and activists on both sides believe that the way this thing plays out will control the shape of the federal judiciary — and with it, the interpretation of the U.S. Constitution — for decades to come.

Out there in America, it’s a different story. The latest Gallup Poll reveals that only 35 percent of the country admits to following the filibuster fight closely — more than will fess up to watching the Michael Jackson trial closely, but a little fewer than the percentage who claimed to be paying attention to the situation in Kosovo in 1999.

So if you haven’t been giving your undivided attention to Priscilla Owen, Abe Fortas — he’s dead, but he plays into this — and the intricacies of Senate Rule XXII, you can feel proud that you’re right in the middle of the American mainstream. But now it’s time to pay attention. A vote on Frist’s “nuclear option” may come as early as next week, and we’re here to help you get up to speed.

Call it a primer on the judicial confirmation process. Call it what you get when you spend way too much time reading Riddick’s Senate Procedure. Just don’t call it the “nuclear option” — at least not when Bill Frist is around to correct you. The Senate majority leader doesn’t want his plan to sound so explosive, but be forewarned: Unless somebody blinks first, we’re in for a mind-warping set of unprecedented Senate maneuvers that could put Dick Cheney in charge of deeming the filibuster “unconstitutional” — without a word from those folks in black robes across the street — and grease the way for each and every right-wing extremist George W. Bush ever cares to put on a district court, an appellate court or the U.S. Supreme Court.

OK, let’s begin at the beginning. What’s the “nuclear option”?

It’s Frist’s plan to change the Standing Rules of the Senate in order to prohibit Democrats from using the filibuster to block votes on Bush’s judicial nominees. Under the current rules, senators in the minority can indefinitely delay a floor vote on judges — or on just about anything else, for that matter — by engaging in extended debate.

The Senate’s rules have allowed unlimited debate, or filibusters, since 1806, when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. For the next 111 years, there was no way to stop a filibuster once it had started. But in 1917, when filibusters were blocking Woodrow Wilson’s plans for World War I, the Senate adopted Rule XXII, which allowed senators to end a filibuster by a two-thirds vote on a motion to cut off debate — a procedure called “cloture.” In 1975, the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today’s 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters.

With the nuclear option, Frist and his supporters would effectively change that rule so that filibusters on judicial nominees could be cut off by a simple majority vote.

Why is it called the “nuclear option”?

The Republicans don’t call it the “nuclear option” — well, at least they try not to call it that anymore. Trent Lott, who is a Republican if there ever was one, was the first to apply the term to the GOP plan, a recognition that killing the filibuster would be an explosive move in the Senate — a body that has always prided itself as a place that cools the passions of the House of Representatives and keeps an eye out for the rights of the minority. The name stuck, and Republicans used it frequently.

But at some point along the line, the usually masterful GOP message mavens figured out that a “nuclear” option didn’t sound very appealing. So Frist began correcting reporters who used the term, urging them to use the more palatable “constitutional option” instead.

The tactic has worked. As Media Matters has noted, reporters now frequently say that the “nuclear option” is what “Democrats call” the attempt to kill off the filibuster. And NBC’s Chip Reid got himself so spun around the other day that he said that the “nuclear option” refers to the steps Democrats might take to retaliate if Republicans kill the filibuster. Frist spins things a different way still: He says the “nuclear option” is what the Democrats “did to me last year when they changed the precedent” on the handling of judicial nominees.

What did the Democrats do to Bill Frist?

Frist is upset that Democrats have used the filibuster to block a handful of Bush’s judicial nominees. Democrats have allowed 205 of Bush’s judicial nominees to be confirmed, but they have used the filibuster — or, more accurately, the threat of the filibuster — to prevent floor votes on 10 others. Bush offered all 10 of the nominees who were stalled in the last session of Congress the chance to be nominated again. Seven accepted, Bush renominated them, and Democrats have indicated that, except as some kind of compromise on the nuclear option, they’ll block them again this session.

Democrats have allowed 205 to be confirmed and now are blocking only seven? That’s not so bad, is it?

No, it isn’t. According to an analysis by the nonpartisan Congressional Research Service, Bill Clinton nominated 443 judges to U.S. district and appellate courts, and only 372 of those nominees were confirmed. George H.W. Bush got only 192 of his 242 nominees confirmed. Ronald Reagan went 375 for 403.

President Bush’s numbers look pretty good by comparison. But the Republicans say those are the wrong numbers to consider, that one should consider the confirmation rate only for the judges that Bush has nominated to the U.S. Court of Appeals, the level of the federal judiciary one step above the district courts and one step below the Supreme Court.

So let’s look at those numbers. Bush has nominated 52 judges to appellate courts, and the Senate has confirmed 35 of them. (Democrats used the filibuster or the threat of filibuster to block 10, and seven other nominations were returned to the White House for other reasons.) How does that compare with, say, Clinton’s record? It’s almost identical. In his second term, Clinton nominated 51 appellate court judges. The Republican-controlled Senate confirmed 35 of them. Overall, the Congressional Research Service says that Clinton went 65 for 91 on nominees to appellate courts — a .714 batting average that’s not a whole lot different from Bush’s .673. And Bush would actually out-hit Clinton if Frist and other Republicans accepted a nuclear option-averting compromise plan now under discussion on Capitol Hill.

But there must be something different in the way that the Democrats are blocking Bush’s nominees, right? The Republicans say that what the Democrats are doing is “unprecedented.”

Oh, yes they do. Just the other day on Fox News, Utah Sen. Orrin Hatch, the former chairman of the Senate Judiciary Committee, proclaimed: “We’ve never had a filibuster of judges in the history of this country.” In a myth vs. fact sheet, the Republican National Committee says that “having to overcome a filibuster (or obtaining 60 votes) on judicial nominees is unprecedented.”

But that’s not a fact. In 1968, Republicans led a filibuster against Lyndon Johnson’s nomination of Abe Fortas as chief justice. And that isn’t the only Republican attempt to filibuster a judicial nominee in recent history. During the Clinton years, the Congressional Research Service says, Democrats were forced to bring cloture motions on six judicial nominees. While the existence of a cloture motion doesn’t always mean that a filibuster is in effect, in at least some instances it has meant just that: In 2000, Frist himself voted to support a filibuster against Richard Paez, Clinton’s nominee to the U.S. Court of Appeals for the Ninth Circuit.

What do Frist and the GOP say about that?

They’ve become more and more specific about what it is they’re calling “unprecedented.” Now, instead of saying that filibusters are unprecedented, Frist says that a judicial nominee “with majority support” has “never been denied” an up-or-down vote. That formulation is closer to accurate, but it’s still not quite there. Paez had “majority support,” but Frist and other Republicans tried to filibuster his confirmation anyway.

What gives? Frist would say that the Republicans didn’t succeed in blocking the Paez nomination, so their efforts shouldn’t count against them. It’s a sin to succeed in blocking a nomination by filibuster, Republicans say. But trying to block a nomination by filibuster — as Republicans did repeatedly during the Clinton years? That doesn’t count, and to say otherwise would be, in the words of the conservative Committee for Justice, “Orwellian.”

Isn’t that a little like an attempted murderer lording his morality over a murderer who actually succeeds?

You said it, not me.

Do all Senate Republicans go in for this way of thinking?

Not all of them. Arizona Sen. John McCain and Rhode Island Sen. Lincoln Chafee have already said that they’ll vote against the nuclear option, and there are at least six other Republicans who could go either way. Over the weekend, Nebraska Sen. Chuck Hagel seemed to be saying he wouldn’t go nuclear, explaining that Republicans’ “hands aren’t clean” on judicial nominees, either.

Does that mean Republicans didn’t always provide up-or-down votes on Clinton’s judicial nominees?

That’s right, they didn’t. As Hagel noted, Republicans prevented approximately 60 of Clinton’s judicial nominees from ever getting a hearing from the Senate Judiciary Committee. They didn’t have to use filibusters to block floor votes on the nominees because they never let them get that far in the first place.

Why can’t Democrats do the same thing to Bush’s nominees?

In large part because Hatch changed the rules of the Judiciary Committee. When Clinton was president and Hatch controlled the committee, a judicial nomination could be put on permanent hold if a single senator from the nominee’s home state objected to its going forward. But in 2003, Hatch changed the rules to make it harder for a single Democrat to block a Bush nominee. Under Hatch’s new formulation, “blue slips” couldn’t stop a nomination unless both senators from the nominee’s home state submitted one — and he wavered on whether he should consider himself bound by the “blue slips” at all.

Now Arlen Specter is the chairman of the Senate Judiciary Committee, and he has started to move some of the stalled nominees through the committee so that they’ll be teed up for floor votes — or at least for filibusters over floor votes. And unless somebody blinks before then, that means the nuclear option could come to a head as early as next week.

But aren’t there rules about changing the rules in the middle of the game?

Yes, there are. Senators may amend the Standing Rules of the Senate by a simple majority vote. But — and you saw this coming, didn’t you? — proposals to change the Senate’s rules are subject to filibuster, too. So if Republicans simply followed the rules about changing the rules, and if Democrats filibustered the rule change, as they surely would, then Republicans would need to cobble together enough votes to prevail on a cloture motion.

That’s 60, right?

Well, no. While it takes three-fifths of the Senate, or 60 votes, to cut off debate on most things, the Senate has previously recognized that changing the rules of the game should require something more. Thus, Senate Rule XXII says that debate on a “a measure or motion to amend the Senate rules” can’t be cut off without an “affirmative vote” from “two-thirds of the Senators present and voting.” That means that Frist would need 67 votes to cut off debate on a change in the Senate’s rules. With only 55 Republicans in the Senate, and at least two of them unequivocally opposed to the nuclear option, Frist can’t possibly get 60 votes to change the Senate’s rules, let alone the 67 that Rule XXII requires.

Is that the end of it, then?

Well, it would be if Frist and the Republicans who are with him on this were inclined to follow the Standing Rules of the Senate. But they’re not.

So how will Frist go nuclear?

It’s hard to say for sure. As the Congressional Research Service says, “Exactly because the point of a ‘nuclear’ or ‘constitutional’ option is to achieve changes in Senate procedure by using means that lie outside the Senate’s normal rules of procedure, it would be impossible to list all the different permutations such maneuvers could encompass.” But here’s how the Congressional Research Service and interest groups on both sides say that it could work.

First, Frist brings one of the stalled judicial nominees to the Senate floor for an up-or-down vote. The Democrats filibuster. The Republicans try to cut off debate through a cloture motion brought under Rule XXII, which requires the support of 60 senators. The cloture motion fails. At that point, the Congressional Research Service says, one of at least two things could happen.

In the first variation, the man presiding over the Senate at that moment, probably Vice President Dick Cheney or Senate President Pro Tempore Ted Stevens, could declare Rule XXII unconstitutional and rule that, when it comes to judicial nominations, debate can be cut off by a simple majority vote. Democrats could appeal that ruling, which would then set off another round of filibustering. But a Republican senator could move to table the appeal — a move that’s not subject to filibuster — and then Republicans could vote by a simple majority to do so. That would effectively dismiss the appeal, allowing the ruling from the presiding officer to stand. Rule XXII would be declared unconstitutional, and the majority could end debate on any judicial nominee with a simple majority vote.

In the second variation — and this part is required reading only for the Robert’s Rules of Order fetishists among us — a Republican senator, fresh off the loss on the initial cloture motion, could raise a point of order arguing that the requirement of a three-fifths vote to cut off debate on judicial nominees is unconstitutional. The presiding officer could submit that question to the full Senate for a vote. Under the Standing Rules, that vote would be subject to a filibuster, too. But the presiding officer could simply declare that it wasn’t. That would lead, as in the first variation, to another appeal, another tabling motion, and then another simple majority vote on the question whether Rule XXII is unconstitutional.

In either variation, the end result is that Frist — with 50 Republican votes and a tiebreaker from Cheney — could get the Senate to declare that the usual cloture rule is unconstitutional when it comes to judicial nominees. All nominees could henceforth be confirmed with simple majority votes — i.e., with the support of Cheney and just 50 of the Senate’s 55 Republicans.

Wait a minute. Cheney gets to declare unconstitutional — a power usually left to the courts — a rule of the Senate, the authority for which is vested in the Senate, to get the president’s judicial nominees through Congress? What about the separation of powers?

You catch on quick. As McCain has said, “It’s not called ‘nuclear’ for nothing.”

But can they really do that? Can Frist and the Republicans who support him just change the rules of the Senate in the middle of the game?

Yes and no. Yes, they can; and no, they can’t without breaking Senate precedent. As the Congressional Research Service explains, each of the variations set forth above “would require that one or more of the Senate’s precedents be overturned or interpreted otherwise than in the past.”

In the first variation, the presiding officer — Cheney or Stevens — would take it upon himself to declare Rule XXII unconstitutional. Riddick’s, considered the bible of Senate procedure, has this to say about that: “Under the precedents of the Senate, the presiding officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision.” By unilaterally deeming Rule XXII unconstitutional, Cheney or Stevens would be violating that precedent.

If the presiding officer chose the second variation instead — that is, if he submitted the question of the constitutionality of Rule XXII to the full Senate for a vote — the Congressional Research Service says he’d still have to break with Senate precedent by declaring that the question isn’t subject to debate and therefore isn’t subject to a filibuster by the Democrats.

But forget the procedural stuff for a minute. Is Rule XXII — or what the Democrats are doing with it — really unconstitutional?

That’s a hard case to make — and one that no federal court is likely to touch. Frist argues that the Framers “concluded that the president should have the power” to appoint judges “and the Senate should confirm or reject appointments by a simple majority vote.” But the Constitution doesn’t say that exactly. Article II, Section 2, Clause 2 says only that the president shall nominate judges “by and with the advice and consent of the Senate.”

The right argues that the “simple majority” requirement should be read into that provision of the Constitution by reverse implication: The Constitution explicitly requires super-majority votes in only a few situations, including the ratification of treaties, the overriding of vetoes, the approval of constitutional amendments and the expulsion of a member of Congress; because the Constitution doesn’t say anything about a two-thirds majority when it comes to judges, the right argues, it must require that judges be confirmed by a simple majority vote.

Democrats, on the other hand, cite Article I, Section 5, Clause 2 of the Constitution, which grants each house of Congress the right to “determine the rules of its proceedings.” Under that provision, the Senate could make decisions on judges by rochambeau if 50 senators voted to make that the rule and 67 senators were around to kill off the filibuster that would follow.

In the end, however, the question of the filibuster’s constitutionality is pretty academic. A federal court is unlikely to rule on the legality of the Senate’s procedural rules, both because courts generally refrain from making such decisions under what’s called the “political question doctrine” and because the Constitution expressly leaves the right to “determine the rules” of Congress to Congress — which is to say, not to the federal courts.

But even if it’s not unconstitutional, isn’t the filibuster a little undemocratic?

Fair point. If democracy is all about the will of the majority, then the filibuster is undemocratic because it thwarts the majority’s will. But the Senate isn’t the most democratic of institutions, and it wasn’t meant to be. Senators are like eyeballs; everybody gets two, no matter how big or small you are. New York gets two senators, but so does Wyoming. Thus, as E.J. Dionne Jr. has noted, the 52 senators from the 26 least populous states “could command a Senate majority even though they represent only 18 percent of the American population.” If “democratic” vs. “undemocratic” is the test in the Senate, we’ll be waiting for Kansas to cough up its seats to California.

And aren’t the Democrats being just a little hypocritical now? They sure screamed when Republicans were holding up Clinton’s judges.

Fair Point No. 2. As the Christian Science Monitor recently put it, there isn’t much “partisan consistency in how the filibuster has come to be viewed.” You hate the filibuster when you’re in the majority; you love it when you’re not. Nineteen Democrats tried to kill the filibuster in the mid-1990s, and fact sheets from Republican opposition researchers are overflowing with quotations from this Democrat or that expounding on the evil of the filibuster when it was a tool in the other side’s hands. But the hypocrisy game can be played both ways: When Bill Clinton was president, Orrin Hatch and Bill Frist weren’t exactly jumping up and down about each nominee’s right to an up-or-down vote on the Senate floor.

So how is this going to play out?

No one knows yet. A group of senators in the middle are trying to work out a compromise: A handful of Democrats would agree to allow four of the seven stalled nominees to come to an up-or-down vote on the Senate floor and promise not to filibuster future nominees except in “extremely controversial” cases; in exchange, a handful of Republicans would promise to vote against the nuclear option. But the deal isn’t done yet, and Frist appears to be unyielding: There has to be an up-or-down vote on every single Bush nominee or he’s going nuclear.

Meanwhile, Senate Minority Leader Harry Reid on Tuesday seemed to be calling Frist’s bluff. While Reid urged Frist to find a way around a nuclear showdown, he said: “I want to be clear: We are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principles of checks and balances.”

It sounds like Reid thinks Frist doesn’t have the votes.

Right. But that doesn’t mean that Frist won’t proceed anyway. He wants to run for president in 2008, and he wants the religious right at his side. People like Rush Limbaugh are now declaring that whether Republicans force a vote on the nuclear option — not whether they get more judges confirmed — should be a litmus test for the party faithful. So with the stars lined up like this, maybe Frist wins either way. If he calls for a vote on the nuclear option and wins, he will have brought home a victory for the religious right. If he calls for a vote and loses, he will have gone down fighting. And God knows, the religious right loves a martyr.

Tim Grieve is a senior writer and the author of Salon's War Room blog. More Tim Grieve.

Friday, Sep 2, 2011 12:01 PM UTC

Howard Dean responds to Salon

And we respond to his spokeswoman's dismissal of our story about Dean's paid advocacy work

By Howard Dean

Howard Dean’s spokeswoman, Karen Finney, has responded to my story on Dean’s turn into paid advocacy work, accusing me of engaging in “lazy journalism.”  I think the adjective is not accurate.

Salon has nothing personal against Dean. But we felt that a liberal champion’s reliance on paid advocacy work reveals something significant about our political culture, and possibly about Dean himself. Finney’s statement is presented here in its entirety, along with my responses.

While there may be fair criticisms to be made, its a sham that Justin knowingly ignored a number of relevant facts because they didn’t fit the premise of the story he wanted to write. Criticism of one’s positions or activities is one thing, lazy journalism is quite another.

On the issue of biologics, one that he’s known and had an opinion on long before he was DNC Chairman. For example, Justin did not mention Gov. Dean spent most of his time during the healthcare debate working with DFA and other grassroots organizations advocating for the public option as one of the most outspoken advocates. During that debate he was very transparent about his position on and support for biologics legislation sponsored by Reps. Anna Eshoo (D-Calif.), Jay Inslee (D-Wash.) and Joe Barton (R-Texas) in the House (H.R. 1548) and in The Biologics Price Competition and Innovation Act introduced by Sens. Edward Kennedy (D-Mass.) and Mike Enzi (R-Wyo.).

Here’s the rest of what he said at the time about a commonsense and fair approach:

“A commonsense and fair approach, similar to the process and timeline currently in place for generic versions of chemical-based medicines, would allow the original developer of the biologic to protect the proprietary data used to develop the medicine for at least 12 years. A shorter exclusivity period would prematurely rob biotech innovators of their intellectual property and destroy incentives to develop new cures. Most firms would be unable to recoup their investments in new medicines, which ordinarily top $1 billion and involve 15 years of research and development. If we discourage investment, we jeopardize the development of the next generation of breakthrough medicines and cures.”

On the issue of the MEK, he is not a paid advocate. He was paid for a handful of speeches, but has not been paid for his advocacy. His focus has been on the human rights issues. In an op-ed on Huffington Post he outlined some of the facts he felt had been ignored in recent articles, but his key point is that there are 3400 unarmed men, women and children currently in Camp Ashraf who should not be left for slaughter after having been promised they would be protected. Here’s an excerpt:

“There are key facts, which have been obscured, omitted or ignored in recent articles written about these 3,400 unarmed people. First, a lot has changed since the MEK was classified as a terrorist organization in 1997. In recent testimony to Congress by Martin Indyk, former U.S. Ambassador to Israel and Assistant Secretary of State for Near East Affairs under Clinton, it was revealed that the motivation behind the ’97 classification was to help open a dialogue with the ruling party of Iran.

Second, in July 2010, the U.S. Appeals Court in Washington DC ruled that the group was actually not given due process in 1997 and ordered the State Dept. to reevaluate the terrorist designation. Notably the governments of France, Britain and the EU have already ruled that the MEK is not a terrorist organization. Currently the only two nations that remain in agreement on what is now a discredited classification are America and Iran.

Third, in 2003 the U.S. military peacefully disarmed the inhabitants of Camp Ashraf. American FBI agents visited Ashraf and questioned all of the 3,400 residents. None were found to be associated with terrorists or terrorism. The US military made a promise in writing that each resident would be protected against outside threats.

Fourth, in 2009, and again in 2011, American troops were ordered to leave the vicinity of Ashraf by the Iraqi Government — then led by Prime Minister Maliki. Iraqi troops went into Ashraf and killed 47 unarmed civilians in cold blood. Most of the hundreds who were wounded were denied medical care as American troops stood idly by just a few miles away.

Fifth, while the residents of Ashraf are currently asking to be re-located to other countries, the plan currently being pushed by Lawrence Butler from the US State would instead relocate them to another area in Iraq and “guarantee” their safety. Yet neither the American or Iraqi governments have thus far kept their word to the residents of Ashraf.

“America gave its word to the MEK that we would protect them. We believe that allowing 3,400 people to be murdered in cold blood and breaking that promise is wrong. We believe that in the end this debate is about America, not the people in Ashraf. America is a country that values freedom and the rule of law. We must keep our word and help the people of Ashraf get out of Iraq. We must support those who peacefully and through democratic means fight for their freedom. If we fail and again stand by as 3,400 unarmed men, women and children, in Ashraf are murdered by the Iranian Government or its Iraqi proxies, we diminish ourselves as a great nation. Its time for America to keep its word to the people in Ashraf.”

My response:

On the issue of biologics, Finney contends Dean has “known and had an opinion on long before he was DNC Chairman.” Finney said as much on background to me, but in my reporting I found no evidence that Dean had weighed in on biologics before 2009, when he joined the D.C. lobby shop McKenna Long and Aldridge. McKenna works for the biotech industry’s trade group. 

Finney did not allude to the facts she presents here when I originally emailed with her. If she had, I would have reported them. Since it’s always possible that I missed something, yesterday I invited Finney to provide a citation for Dean’s involvement on the issue before he was a paid advocate for the industry. She declined to do so.

Remember, the issue here was how long a certain class of drugs — biologics or biopharmaceuticals — would be protected from cheaper generic competitors. Consumer groups wanted a shorter period (five years) while Dean and the industry wanted 12 years of protection. So it’s worth noting that back in 2002, Dean was active in a similar debate — but back then he was arguing in favor of generic competition against brand-name drugs.

“It’s unconscionable how they’re exploiting patent-extension loopholes,” Dean told Forbes, speaking of Big Pharma. He actually founded a coalition to lobby Congress to make it easier for generics to enter the market sooner, thereby lowering prices for consumers.

It is true that the biologics industry is different from the traditional pharmaceutical industry but the fundamental issue is the same. By taking money from the industry, Dean has created the appearance of a conflict of interest.

When it comes to the MEK, Finney argues that “he is not a paid advocate. He was paid for a handful of speeches, but has not been paid for his advocacy.” That seems like a distinction without a difference.

Dean has publicly acknowledged he had never even heard of the MEK until his agent was contacted with a paid speaking opportunity for the group in Paris. (And, remember, the group is known for paying astronomical speaking fees.)

Finney also quotes Dean’s HuffPost column on the MEK and Camp Ashraf. A couple of notes here: First, Dean has misrepresented Martin Indyk’s comments on the MEK, as Indyk himself pointed out in a comment on HuffPost.

The full passage from Indyk’s book on the MEK is both a succinct argument for why the group should be classified as a terrorist group and a refutation of the idea that it was added to the terrorism list purely as (in Dean’s characterization) a way to “open a dialogue with the ruling party of Iran”:

[The MEK] in its early actions had killed Americans. After its expulsion from Iran, Saddam had provided it training bases in Iraq and logistic support for terrorist attacks in major Iranian cities. The MEK returned the favor by helping Saddam crush the Shiite revolt in southern Iraq after the Gulf War. The MEK clearly deserved to be on the terrorism list, but as an anti-Irani­an organizati­on it had managed to gain support from some influentia­l congressme­n through the sophistica­ted political operations of its front organizati­on, the National Council of Resistance of Iran … He­re was one instance when Clinton could show that he applied the same standards to groups that used terrorism against our foes as well as our friends. We hoped it would be perceived in Tehran as a goodwill gesture.

I won’t quibble here with the broad strokes of Dean’s explanation of the situation at Camp Ashraf, where several thousand MEK members are holed up in Iraq. Finney asserts that Dean’s “focus has been on the human rights issues.”

In fact, his advocacy for the MEK has gone well beyond the question of human rights of the residents of Ashraf. Dean has at least twice argued publicly that Maryam Rajavi, one of the longtime leaders of the MEK, should be recognized as the president of the nation of Iran. That’s a remarkable position that is rarely heard even among MEK’s strongest supporters.

Finally, there are two areas in which Dean could be more transparent. As I noted in the story, he sits on the board of advisors of a venture capital fund, Vatera Health Partners, that invests in biopharmaceuticals. But neither Finney nor Vatera responded to my inquiries about when he took the position.

Why does it matter? Because Dean was doing public advocacy for the industry during the healthcare fight in 2009, and, if he was on Vatera’s board back then, that means he had a personal financial stake in the industry, a time when he was seeking to shape his future. I’m not saying he did. I’m saying he should disclose whether he did.

More important, Dean has declined to reveal whom he has worked for in his capacity as a senior strategic advisor at McKenna Long and Aldridge. It is possible that my story, which covered only advocacy work that has occurred in the public domain, understates Dean’s paid advocacy positions.

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Justin Elliott

Justin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin More Justin Elliott.

Thursday, Sep 1, 2011 12:01 PM UTC

The seduction of Howard Dean

The liberal firebrand succumbs to Washington's money culture

By Howard Dean

Howard Dean has long cultivated an image as the plainspoken doctor who speaks for the left wing of the Democratic Party, a role he still plays as a pugnacious pundit on TV. But since his term as chairman of the Democratic National Committee ended in January 2009, Dr. Dean has taken on a less-noticed role: paid advocate for interest groups that would find few fans among the progressive voters once energized by Dean’s 2004 presidential bid.

Dean may not be the worst of the “buckrakers,” those prototypical capital characters who exploit their name and connections without regard for principle. But his recent political forays seem to have diverged from his trailblazing left-liberal past.

As senior strategic advisor at McKenna Long & Aldridge, a heavyweight Washington lobbying firm, Dean played a prominent role representing the biotech industry during the healthcare bill debate, staking out a position on biopharmaceutical drugs that was decried by consumer groups.

“Gov. Dean was very helpful to us,” biotech CEO Jim Greenwood told a trade publication “As a physician clearly focused on healthcare, a Democrat leader and clearly to left of center, his efforts were impactful.” Greenwood is the head of the Biotechnology Industry Organization (BIO), a trade group that lobbies for the industry in Washington.

Dean is also currently one of the most prominent paid voices in a public-relations campaign on behalf of the Mujahedin-e Khalq (MEK), an obscure and controversial Iranian militant group that is aggressively lobbying the Obama administration to remove it from the official list of terrorist organizations.

Dean arrived in the comfortable K Street offices of McKenna Long & Aldridge shortly after his term as DNC chair ended in January 2009. He had been passed over by President Obama for the secretary of health and human services Cabinet post, and he needed a paying job.

In announcing his appointment, the firm said Dean would “provide guidance to clients, particularly in the areas of healthcare and alternative energy resources.”

Dean has been careful not to register as a lobbyist, a designation that would prompt legal disclosure requirements. Both McKenna and the governor’s spokeswoman declined to reveal which clients he has worked for.

Dean took on a very public role during the 2009 healthcare reform battle, specifically going to bat for the biotech industry — whose trade association is a client of McKenna.  

At stake was how the government would regulate a growing class of drugs called biologics or biopharmaceuticals and their generic competitors. The industry argued for a longer period — at least 12 years — in which expensive brand-name biologics would face no competition from less costly generics. Consumer groups argued that, to keep costs down, the period of exclusivity should be just five years.

Dean jumped into the fight on the side of the industry, writing an Op-Ed in the Hill in 2009 arguing that a “commonsense and fair approach” would be to bar generics for “at least 12 years.”

“If we discourage investment, we jeopardize the development of the next generation of breakthrough medicines and cures,” he wrote, echoing a key industry talking point.

Liberal admirers were disappointed.

“It was devastating to have him involved because of his reputation,” says James Love, director of Knowledge Ecology International, a public interest group that fought for a shorter period of exclusivity. “He’s considered to be independent of industry and on the left, so it was really shocking to us when we first saw this. But there it was.”

Greenwood, the trade group CEO, said at the time that Dean’s work had involved talking to members of Congress about the issue. Dean never registered as a lobbyist, a legal category that involves spending at least 20 percent of one’s time for a client lobbying lawmakers or government officials.

One common dodge on K Street is for former elected officials to work for lobbying firms without actually registering as lobbyists. At McKenna, for example, former Sen. Zell Miller, the conservative Democrat from Georgia, and former Colorado Rep. David Skaggs hold the same title as Dean: “senior strategic advisor and independent consultant.”

Dean is not exclusive in his services. He currently serves on the board of advisors at Vatera Health Partners, a New York-based venture capital fund whose mission is “to support and grow emerging biopharmaceutical companies.”

It’s not clear from the public record how long he has served in the position. But his presence on the Vatera board indicates that he has a personal financial stake in the biopharmaceutical industry.

At the time of the biologics fight on Capitol Hill — which the industry won — Dean told Time that “I wouldn’t do this if I didn’t believe it.”

Dean has invoked the same argument when it comes to his work in support of the MEK, the Iranian militant group. Dean and other luminaries from across the political spectrum have been paid vast sums of money by the group — as much as $20,000 for a 10-minute speech — to appear at events pushing the Obama administration to remove the MEK from the official list of terrorist organizations. 

Dean himself has acknowledged being paid but has not disclosed specific sums.

Critics of the MEK, including the State Department, say the group displays cult-like qualities; it has been led by the same husband-and-wife couple, Masoud and Maryam Rajavi, for decades. They also point to the fact that it killed Americans in Iran in the 1970s and the lack of support for the group among the people of Iran. Among the most enthusiastic supporters of delisting MEK have been neoconservative strategists who believe the group can help destabilize the Iranian regime.

Dean, for his part, has been distinguished by his particularly aggressive advocacy for the MEK. Not only has he argued for delisting MEK in print and in speaking appearances, he has also said that Maryam Rajavi should be recognized as the president of Iran. The Christian Science Monitor reported on a recent trip by Dean to Berlin:

“Madame Rajavi does not sound like a terrorist to me; she sounds like a president,” Mr. Dean said, gesturing toward the MEK leader from the dais. “And her organization should not be listed as a terrorist organization. We should be recognizing her as the president of Iran.”

While Dean has passionately argued he is on the right side of the MEK issue, he acknowledged to the Washington Times that he got involved through his agent.

“I got asked by my agent to go over to Paris to speak to a group I knew nothing about. I spent a lot of time on the Internet learning about them, and then I met them,” he told the paper.

Dean spokeswoman Karen Finney said that, besides paid advocacy work, the former governor spends his time on a range of other activities, including appearing as a paid contributor to CNBC; traveling as a board member for the National Democratic Institute, which promotes democracy around the world; giving paid speeches; teaching a class at Hofstra University; and serving on the board of Extendicare, a Canadian long-term care company. Finney said he also continues to do some work for Democracy for America, a political action committee Dean founded that is run by his brother, Jim.

Whom else does Dean work for as a paid advocate?

In January, he waded into another high-stakes healthcare fight, this one being waged in New York state between foreign medical schools and their American competitors. The issue was whether foreign-trained doctors would have access to hospitals in New York for their residencies. Dean wrote an Op-Ed in the Albany Times-Union, “N.Y. needs its foreign-trained doctors,” that repeated talking points of foreign medical schools, which, Dean’s bio blurb noted, are clients of McKenna Long & Aldridge.

While the firm won’t say whom Dean has worked for, his bio page on McKenna’s website offers some clues.

“Respected for his fiscally moderate policies as Governor, he understands first-hand the severe budget constraints that are challenging state and municipal governments,” it reads. “With an extensive set of contacts nationally, Governor Dean is uniquely positioned to develop partnerships between industry stakeholders and local governments.”

Dean is indeed uniquely positioned: Between his former followers and his current clients, between his idealist liberal past and the cynical culture of K Street, between independence and cooptation.

UPDATE: Read Howard Dean’s response to Salon here.

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Justin Elliott

Justin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin More Justin Elliott.

Thursday, Nov 4, 2010 4:01 PM UTC

Today’s most inane 2012 speculation

Politico's Roger Simon imagines Howard Dean challenging the president

By Governor Howard Dean, physician and former chairman of the Democratic National Committee, speaks during the "American Technophile: "How Technology is changing Politics, Governance & Healthcare" panel at the Fortune Tech Brainstorm 2009 in Pasadena, California July 22, 2009. REUTERS/Phil McCarten (UNITED STATES BUSINESS)(Credit: © Phil Mccarten / Reuters)

Will Howard Dean challenge Barack Obama in 2012? Politico columnist Roger Simon, who drew Dean from a hat full of cards that he’d written the names of various Democrats on, says probably!

First, Simon lays out the history: Reagan and Clinton were only reelected because they did not face serious primary challenges. But Jesse Jackson almost ran against Clinton, and he would’ve made Clinton lose, because of Whitewater, NAFTA and Troopergate. Thankfully, Rahm Emanuel and Harold Ickes made Jackson not run, thus saving Clinton from being Jimmy Carter.

But will Howard Dean seriously be Obama’s Ted Kennedy? The Speculative 2012 Primary Challenge Column Hat does not lie. Howard Dean is going to run against Obama and lose to the Palin/O’Donnell ticket. Simon proves this with facts:

  • Howard Dean sounded defiant on the phone.
  • “Obama’s people have long been thinking — grimly — about Dean.”
  • “Some of the most influential members of Team Obama do not like or trust Dean and have long feared he would challenge Obama for the presidency if only given an opportunity.”
  • Howard Dean has run for president before!
  • “Young people” and “liberals” like Howard Dean, because of “his pioneering use of the Internet as a political tool.”
  • Obama wants to compromise, which will make the left mad.
  • Howard Dean hates Barack Obama because he did not get a Cabinet position.
  • Howard Dean himself said no one should challenge Obama in 2012 but on the other hand he also said something mildly critical of the White House.

Bam. QED.

Congratulations to Roger Simon for writing a column about the 2012 race that somehow manages to be even dumber than the hundreds of columns about Michael Bloomberg and Sarah Palin.

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Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene More Alex Pareene.

Thursday, Aug 26, 2010 6:19 PM UTC

Harry Reid and Howard Dean: Fox News enablers

This is what happens when Democrats cave in to right-wing fear campaigns

By Governor Howard Dean, physician and former chairman of the Democratic National Committee, speaks during the "American Technophile: "How Technology is changing Politics, Governance & Healthcare" panel at the Fortune Tech Brainstorm 2009 in Pasadena, California July 22, 2009. REUTERS/Phil McCarten (UNITED STATES BUSINESS)(Credit: © Phil Mccarten / Reuters)

Harry Reid and Howard Dean had their reasons for coming out against the Park51 project in lower Manhattan last week. Well, at least Reid, who is locked in a tight reelection campaign in Nevada, did. Dean’s motives are a little harder to discern.

But whatever they hoped to accomplish, one thing is indisputable: Reid and Dean both did an enormous favor to the right-wing fear-mongers who have been pushing the “ground zero mosque” hysteria, equipping them with a compelling talking point for the cable news circuit. Here’s a sampling of how Reid and Dean have been invoked in the past few days, often (but not always) on Fox News:

Rick Santorum (“On the Record With Greta Van Susteren,” Aug. 23):

I suspect Howard Dean and others have been saying this to the Obama administration for quite some time that the arrogance and the dismissiveness of the American public’s opinion on a whole variety of things, including this one, is starting to corrode not just support for him but for the Democratic Party generally and is hurting candidates across this country.

And that’s why you see Harry Reid stepping out and saying what he said. They are walking away from him because he doesn’t seem to care what America thinks, and that is not good news for Democratic candidates across the country. 

Rich Lowry (“Fox News Watch,” Aug. 21)

I think what’s complicated the simple media narrative here, which would ordinarily be, and to some extent, has been that everyone opposed to the project at this particular place must be a bigot, as the fact that President Obama pointedly refused to endorse the wisdom of that location. And you had Harry Reid and Howard Dean coming out and saying they don’t think it’s a good idea to be there. So that’s really complicated. 

Bill O’Reilly (“The O’Reilly Factor,” Aug. 19):

Now, if you’re keeping score, it is Senator Harry Reid and Howard Dean against the mosque. Speaker Nancy Pelosi and the president okay with it. That is a Civil War within the Democratic Party, no matter how they try to spin it. 

Chris Wallace (“The O’Reilly Factor,” Aug. 19):

I think the issue will be a sense that the president and a lot of Democrats, including Nancy Pelosi, we need to discuss what she said this week, that they are out of touch with the mainstream. They’re out of touch with the prevailing opinion in this country.

I mean, you had Nancy Pelosi on Tuesday say that we need to look into the funding of the opposition to the mosque. I mean, to the best of my knowledge, we’re talking about Americans who are exercising their First Amendment right of free speech to say they don’t like the mosque. They think it is as Howard Dean said an affront. 

Clifford May (National Review, Aug. 26):

Mr. Horowitz informs us that the planned Islamic center has become “the prime target of national conservatives who, after years of disparaging New York as a hotbed of liberal activity, are defending New York against a mosque that will rise two city blocks from Ground Zero.”

The hypocrisy! Have they no shame?

Mr. Horowitz was no doubt so busy reporting this big story that he missed the bulletins about Senate majority leader Harry Reid and former Democratic National Committee chairman Howard Dean — no nasty national conservatives, they — also opposing the Ground Zero Islamic project. 

NYC blogger and construction worker Andy Sullivan (CNN, Aug. 20):

ANDY SULLIVAN: Well, I’m familiar about what he said. And it’s kind of profound, actually, Howard Dean, very much the Democrat liberal, being on the side of moving the mosque. I find that pretty moving.

DON LEMON: What’s your response to those who have said that — who think this is a left-vs.-right issue or a conservative-vs.-Democrat issue?

SULLIVAN: Oh, I completely disagree. Just look at — you have got the top Democratic guy, Harry Reid, saying it’s not a good idea to put it there.

And then you have Obama saying, they should have the right to put it there. So, I think this goes beyond left-right, Democratic- Republican lines. 

James Pinkerton (“Fox News Watch,” Aug. 21)

Let’s just focus on the pundit sector. There’s been a chance for them to demonstrate their moral superiority over the average American by taking this enlightened multicultural position. Now that’s fine for the Democrats until they notice that Obama and Harry Reid and Howard Dean were not on board. And now, they’re slamming them too. So they’re living in their little isolated world — ivory tower, where they reign. 

Unknown reply to Juan Williams (“Fox News Watch,” Aug. 21)

WILLIAMS: You can speak out against it if you like, but what I’m saying is the opposition, Chris, is coming from one place, the right wing in the country. It’s coming from Sarah Palin. It’s coming from Newt Gingrich.

(UNKNOWN): And Howard Dean and Harry Reid. 

Rick Lazio (“Hardball,” Aug. 24)

MATTHEWS: You said this is an issue of security. Well, they don’t agree with you.

LAZIO: How about Howard Dean? How about Harry Reid?

 

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Steve Kornacki

Steve Kornacki writes about politics for Salon. Reach him by email at SKornacki@salon.com and follow him on Twitter @SteveKornacki More Steve Kornacki.

Thursday, Aug 19, 2010 7:30 PM UTC

Heroes, villains and cowards of the so-called “ground zero mosque”

Who's defended religious liberty, who's been too scared to, and who truly hates our founding principles?

By Top left, clockwise: Mayor Michael Bloomberg, Sarah Palin, Newt Gingrich, Sen. Chuck Schumer, Sen. Harry Reid, President Obama

The bizarre, ginned-up controversy surrounding the Park51 project — a proposed Islamic community center, like the 92nd Street Y, including a space for worship, to be built at the site of an old Burlington Coat Factory (which is a store, not a factory) on Park Place in lower Manhattan, near, but not in sight of, the site of the World Trade Center — has exposed not just the blatant Islamophobia (and cheerful willingness to exploit bigotry) of many luminaries of the right, but also the cowardice of many supposed liberals. Just so we know where we stand, and using, as criteria for placement, my own inexact impressions of their public statements, I present the official War Room lists of “ground zero mosque” heroes, villains and cowards.

Heroes

It’s not a particularly hard case to make: The Constitution guarantees the right of the Cordoba Initiative to construct a house of worship on private land without any interference from the government, “Muslims” as a whole did not attack “us” on 9/11, Feisal Abdul Rauf is a well-respected, progressive imam with a history of performing outreach for the Bush administration, and even if the project was a “ground zero mosque,” celebrating its construction would demonstrate an admirable commitment to the founding ideals that we are supposedly fighting for Over There. At a time when Islamophobia appears to be on the rise, in part because xenophobia always tends to get louder during periods of economic uncertainty, liberals and progressives should be forcefully making the case for tolerance and liberty. But only a couple have bothered. Still, we should celebrate them!

Rep. Jerry Nadler, whose district actually includes ground zero, has been a loud and unflinching supporter of the project. He makes the case well, and without tossing in wishy-washy qualifications:

Mayor Michael Bloomberg’s speech in support of the Park51 project has been rightly celebrated as a courageous moral and intellectual defense of religious freedom.

Outside of New York, Sen. Russ Feingold accused mosque opponents of “gutter politics” and affirmed his support for “freedom of religion,” the simple answer that all Democratic politicians and candidates should give. Minnesota’s Al Franken also attacked opponents, and even cracked a joke.

I think the best response for a non-New York politician to give is probably Sherrod Brown’s. Brown said, first of all, that it’s a local, New York issue, which it is, and also said, “We’re not at war with a religion,” which is the sort of thing that needs to be said, constantly, by people with consciences, in order to rebut assholes like Gingrich.

Pennsylvania candidate Joe Sestak has been accused of “dodging” the question, but his answer seems straightforward to me: He believes it’s a New York issue and he supports the Constitution. (He has received the endorsement of Michael Bloomberg.)

Some perhaps surprising heroes include Grover Norquist, who makes the political case for supporting the project, and Ted Olson, a longtime Republican attorney whose wife died on 9/11. Olson forthrightly said, “We don’t want to turn an act of hate against us by extremists into an act of intolerance for people of religious faith.”

Cowards

The coward’s usual formulation of wishy-washy nonsupport is to proclaim that “they have a right to build it, but …” While I’d argue that even if you don’t feel like issuing a spirited defense of the specific project being debated, you can simply stop at “they have a right to build it” and retain some dignity, these politicians seem to think that they have to balance their respect for the Constitution with a healthy dose of skepticism about Muslims and acknowledged sympathy for hysterical opponents whipped up into a frenzy by lying propagandists.

Harry Reid decided to point out that while the First Amendment protects the rights of religious minorities to practice their religion, that doesn’t mean that they should practice it where it might upset someone.

Howard Dean, too, thinks that religious minorities should respect the wishes of majorities of Americans and not go around building houses of worship in places where Americans don’t want them. (Memo to Gov. Dean: One of the reasons so many Americans polled about the subject are opposed to it is because right-wing liars defined the entire debate from Day One. If you’d polled everyone in the nation back in, say, March, and asked, “Should there be an Islamic community center with a pool and an auditorium in lower Manhattan near City Hall and, yes, the WTC site?” I’m guessing it would’ve been a three-way split between support, oppose and don’t give a shit. And even if “oppose” had still won that theoretical poll, it still wouldn’t have been a good reason for the organizers to be more “sensitive” and find a new building.)

Some New York Democrats are just completely punting on the issue. Anthony Weiner refused to say anything about it for weeks, then issued a baffling letter that says nothing. Chuck Schumer, a man who stands no chance of losing reelection, and from whom a defense of religious liberties would’ve been celebrated and important, will only say he isn’t opposed to the project.

Villains

They are mostly the obvious ones: Sarah Palin, Newt Gingrich, Rudy Giuliani — all Republicans with a history of exploiting racial and ethnic tensions and resentments without regard for the consequences.

New York Democrats John Hall, Tim Bishop, Mike McMahon and Mike Arcuri all decided their best shot at reelection was joining the chorus against the project. Cowardice may have inspired them, but Arcuri’s move, in particular, seems more villainous.

Rand Paul, supposed libertarian, thinks Muslims should give money to 9/11 memorials, presumably because of collective guilt, rather than construct community centers in their communities. (His opponent, Jack Conway, is a simple coward.)

Supposed Democrat Jeff Greene proved his independence from the party bigwigs by being grossly bigoted in the name of sensitivity to 9/11 victims he invented, in his head, while mangling the geography of lower Manhattan.:

The proposed $100 million Muslim center offered one such contrast. Greene echoed President Barack Obama’s recent defense of religious freedom but said, “When those families go to mourn their losses, they shouldn’t be looking at a mosque right there.”

(His opponent, Kendrick Meek, merely said he wouldn’t “step in front of a decision that’s already been made in New York City,” which is halfway between cowardly and acceptable.)

The Confused, and Confusing

I think New York politicians have a responsibility to defend the project itself, while I’ll let most non-New Yorkers off the hook for stopping at a defense of the principles involved (as long as they don’t add a Reid-ian “but …”) and an acknowledgment that it’s a “New York issue.” But what about New Jersey politicians?

Well, who can even say where Chris Christie stands. The Republican New Jersey governor was celebrated for seeming to support the mosque, but his statement was actually just a defense of how independent and awesome Chris Christie is with a stupid and nonsensical “pox on both houses” line thrown in.

New Jersey Sen. Robert Menendez supports the Constitution, but then changes the subject to jobs, the economy, etc.

Back in New York, Carolyn Maloney and her primary opponent, Reshma Saujani, both signaled their support for the project, but Saujani (a born panderer) supports it super hard, and claims Maloney only kinda supports it. I’m not convinced by Saujani’s argument, but you can read Maloney’s statement for yourself.

I might need to invent a separate “I think he actually means well but what the hell” category for Gov. David Paterson, who is, I think, trying very hard to be a peacemaker, as part of his “fuck it, I’m out of office soon anyway” tour ’10. But his claims that he will give state land to the developers (which would be constitutionally iffy) and his repeated insistence that he’s meeting with Cordoba Initiative representatives about moving the site (which they keep disputing) are just serving to support the idea that there’s some compelling reason why they should move.

Kristen Gillibrand’s support for the project seems halfhearted and overly cautious, but it’s there.

And, yes, then there’s the president. Had he stopped at his Friday night statement, a simple defense of religious liberty, I’d happily put him in the heroes category. But his Saturday non-clarification, stressing the fact that he doesn’t explicitly support the project, completely muddied the issue. Was it a walk-back? Sort of! But also not quite! His response is a Rorschach test, and interpretations of it necessarily depend on impressions of the president himself.

The heroes list is depressingly short, the cowards and villains lists populated with people I wish weren’t included, and while I understand that defending the project could be interpreted as “politicizing” the issue, I’m still depressed at how few “progressive” leaders are unable to mount simple, surprisingly necessary defenses of the fundamental rights of Americans to worship, or not, as they see fit.

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Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene More Alex Pareene.

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