New York, April 26, 2013—A distinguished group of scholars and current and former government officials discussed and debated the principal legal and policy challenges facing the nation at the inaugural conference of Columbia Law School’s Center for Constitutional Governance. Created in 2012, the Center is devoted to the study of the government’s structure, relationships, and powers and seeks to bring together government officials, legal academics, and others to engage on governance issues.
| Professor Gillian E. Metzger '95, co-director of the Center for Constitutional Governance
The April 12 conference, “The Next Four Years: Major Issues in Constitutional Governance,” focused on the contested policy issues facing the Obama administration and the nation: fiscal and budget challenges, domestic policy concerns, national security and foreign policy, and campaign finance and voting rights.
Professor Gillian E. Metzger ’95, the Center’s co-director and a vice dean of the Law School, described the conference as providing a unique opportunity for open and interactive discussion of key governance issues among a wide range of government leaders, private practitioners, nonprofit advocates, and legal scholars. The conference was especially timely, as the contours of federal, state, and private sector authority, and the role of the government itself, are at the forefront of national debate.
The Federal Budget and Fiscal Issues
The first panel, moderated by Michael J. Graetz, the Columbia Alumni Professor of Tax Law and Wilbur H. Friedman Professor of Tax Law, focused on the federal budget and fiscal issues. Panelists weighed in on some of the most pressing political and public policy debates of our time. “Budgets are not just about numbers,” Graetz said in his introduction. “They are about priorities.”
The panelists, from varied and often ideologically opposite perspectives, hotly debated President Barack Obama’s new budget proposal and the best way to get the nation’s economy back on track. G. William Hoagland, senior vice president of the Bipartisan Policy Center, described a time of budget surpluses in the late 1990s. But, “almost overnight, we went from surpluses to deficits,” he said, due to tax cuts, the expansion of Medicare through the addition of a prescription plan, two wars, and the battle against terrorism.
Interest payments alone are eating up more and more of the budget, he added. When Treasury bill rates come off their historic lows, those payments will rise dramatically. “That’s the where the focus has to be,” he said at the end of his presentation.
Jason Furman, the principal deputy director of the National Economic Council, which advises the president on economic matters, provided a more upbeat message. “We really are getting our deficit down very quickly,” he said. In 2009, the annual deficit totaled 10.1 percent of GDP; this year, it will be around 6 percent. The ideal target, he added, is for a deficit of 3 percent of economic output.
Furman provided some insight on Obama’s strategy in ongoing budget negotiations with House Republicans. “He’s going the extra mile to get an agreement,” Furman said, explaining how several of the president’s benchmarks were close to the stance taken by House Speaker John Boehner during budget talks in December.
Maya Rockeymoore, president and chief executive officer of Global Policy Solutions, a policy firm that works to create and advance social change strategies, was far more critical of Obama’s budget priorities. “What we’re really prosecuting here today is the grand bargain,” she said, referring to the effort to bridge the gap between Democrats and Republicans on the federal budget. “The question becomes: is this a fair bargain for the American people?”
|Maya Rockeymoore, president and chief executive officer of Global Policy Solutions
Rockeymoore blamed two unfunded wars and Bush-era tax cuts for the current budget shortfalls and warned against looking to non-defense spending to restore the nation’s fiscal health. “Budgets are about our vision for the future,” she said, characterizing Social Security, Medicare, and other social programs as “pillars” of our society. “The grand bargain,” she concluded, “threatens these pillars.” Rockeymoore was particularly critical of Obama’s endorsement of the “chained CPI” and his willingness to take up many Republican positions in order to finalize a deal.
The final speaker of the first panel, Eduardo Porter, an economics columnist at The New York Times, proposed a series of ideas missing from the current budget conversation in Washington. Many of his thoughts originated from comparisons of tax systems in America and other industrialized nations.
He pointed out that many countries rely on a Value Added Tax, which has seen little implementation in the United States. Though it’s a regressive tax that imposes a larger tax burden on lower-income earners, he saw the VAT as an effective way to deal with the fiscal crisis.
The most unique aspect of the American system is low tax rates. Federal, state, and local revenues make up about 25 percent of GDP compared to about 35 percent in other industrialized nations, Porter noted.
Domestic Policy Issues
The conference’s second panel, moderated by Metzger, tackled a variety of issues under the rubric of domestic policy. “The three north stars of the Obama administration” are job creation, job training, and more ladders of opportunity for the middle class, said the first panelist, Danielle Gray, cabinet secretary and assistant to Obama.
|Danielle Gray, cabinet secretary and assistant to President Obama
Gray explained how the administration carries out such a wide array of initiatives in addition to the daily responsibilities of the executive branch. “You have to take advantage of the moment,” she said, pointing as an example to the push for gun control in the wake of the Newtown shooting.
Cristina M. Rodríguez, a professor at Yale Law School and former deputy assistant attorney general at the Office of Legal Counsel, described the contentious dynamic between the president and Congress. “The last four years have reflected a moment of high polarization” characterized by ideological partisanship and obstructionism, she said.
The president will have to contend with efforts to “clip executive authority,” she added, as House Republicans increase oversight over executive agencies and Republican Senators derail nominations through filibusters. She explained that a consequence of partisan Congressional scrutiny is an inclination by the executive agencies to be less forthcoming and transparent.
Jay P. Lefkowitz, a partner at Kirkland & Ellis who, like Gray, served as a presidential advisor, also described the impact of a Congress controlled by the opposing party. Though hailing from a different political party, he agreed with Rodriguez’s characterization of extreme political polarization in Washington. The former deputy assistant for domestic policy to President George W. Bush who also worked for President George H.W. Bush, explained that regulatory discretion taken unilaterally by the president or the executive agencies can only get a president so far in changing governmental policy without Congressional cooperation.
The signature issue of the day, Lefkowitz opined, is immigration reform. He said Republicans were willing to meet the president halfway to come up with a legislative solution but was less optimistic about gun control.
The final speaker on the panel was Benjamin Lawsky, the superintendent of the New York State Department of Financial Services, which regulates the insurance and banking sectors. He switched gears to discuss state regulatory enforcement and the relationship between the state and federal governments. Until the passage of Dodd-Frank, he said, the federal government had little involvement in the insurance industry while states have always been “junior partner to federal regulators” on banking.
“We’re a walking federalism law school hypothetical,” he said, referring to the relationship between the states and the federal government in addressing the complexities of the financial sector. He pointed out that individual states have at times negotiated with foreign governments over regulatory issues because of the authority they maintain over key industries. But with increased globalization, Lawsky called for greater national coordination, particularly on issues that involve foreign regulators.
Lawsky argued states can serve as incubators for ideas that can be transferred to other states or the federal government. At the same time, he encouraged a form of “collaborative federalism” between the states and the federal government that relies upon expertise and resources at all levels.
National Security and Foreign Policy
In the first afternoon panel, several leading national security experts gave their perspectives on topics including U.S. authority to use lethal force against increasingly disparate terrorist groups, the legal framework for detainees at Guantanamo Bay, and cyber threats from state and non-state actors.
Panelists included James B. Comey
, a senior research scholar at Columbia Law School and former deputy attorney general of the United States; Michael Gottlieb, former associate White House counsel; Hina Shamsi
, a lecturer-in-law and director of the ACLU’s National Security Project, Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and legal adviser to the U.S. Department of State from 2009 until January 2013; and Mona K. Sutphen, managing director of UBS AG and former White House deputy chief of staff for policy. Sarah H. Cleveland
, the Louis Henkin Professor in Human and Constitutional Rights and faculty co-director of the Human Rights Institute moderated the discussion.
|Sarah H. Cleveland, the Louis Henkin Professor in Human and Constitutional Rights and faculty co-director of the Human Rights Institute
Koh kicked things off by describing how difficult it is to address complex constitutional questions when so many parties want to participate in the debate.
“We are no longer in a three-branch world,” Koh said, “We’re in a six-branch world.”
Besides the executive, judicial, and legislative branches that make up the U.S. government, he went on, there are also journalists, major foreign powers, and organized non-state actors. “The fact of the matter is, we’re going to have to come up with an approach that addresses these other branches,” he said.
Much of the discussion centered on how the U.S. can protect its borders and comply with domestic and international law. Comey devoted his remarks to the Authorization for Use of Military Force (AUMF), passed by Congress in the days following 9/11. The resolution has been used to justify both long-term detention and the targeted killing of people the United States considers enemies. But as Al-Qaeda, the group responsible for the 9/11 attacks, continues to be weakened, Comey said the U.S. must consider what authority it has to pursue groups whose connection to Al-Qaeda is tenuous as best.
|James B. Comey, senior research scholar and Hertog Fellow in National Security Law at Columbia Law School
“There is no easy answer to this,” he said. “So much of the authorities and the uses of force currently at the core of our counterterrorism strategy may have trouble finding a strong footing.”
Voting Rights and Election Law
The last panel of the day addressed election law and voting rights. Nathaniel Persily
, the Charles Keller Beekman Professor of Law and Professor of Political Science, moderated a discussion between two of the country’s leading election law attorneys: Benjamin L. Ginsberg, a partner at Patton Boggs and counsel for the Romney presidential campaign; and Robert Bauer, a partner at Perkins Coie and general counsel to President Obama’s re-election campaign.
The pair answered questions from Persily and the audience on campaign finance and voter identification laws, litigation challenging election results, and Super PACs.
Though they disagree on most issues and have been on opposite sides in election law for decades, Bauer and Ginsberg are friends. They also co-chair Obama’s Presidential Commission on Election Administration, which was created to promote the efficient administration of federal elections and to improve voters’ experience at the polls.
“There is a space where I do believe the parties can cooperate,” Bauer said. “No Democrat, no Republican, no independent will say that it’s acceptable for a voter in this country to stand in line for 4, 5, 6, 7, hours. This is a fundamental question of public administration that I think we can remove from the area of contention and do something productive in.”