The Art of the Possible

In the first year of his presidency, Barack Obama had two ways to make significant progress toward the platform for which Americans voted. One avenue involved cross-partisan legislative negotiations; the other involved a pure exercise of the partisan power of a 60-40 Senate majority. By the anniversary of his inauguration, both avenues seemed blockaded: the first by near-total Republican intransigence, the second because that intransigence led to delay and ugly wheeling and dealing with marginal Democrats on health care, which in turn led to a Democratic defeat in a Massachusetts special election and pulled the Democratic majority below the magic number of 60.

Fortunately there are other ways to govern, and many of the lasting achievements of presidents past have come not from the high-profile legislative battles like this winter's fight over health care but in quieter moves. From Ronald Reagan's firing of the air-traffic controllers in 1981 (the beginning of the end of organized labor) to Bill Clinton's protection of millions of acres of wilderness land in the Mountain West, executive orders and regulations have changed the direction of policy. Even a change of emphasis within an executive-branch agency, or the installation of midlevel staffers who believe in the mission of, say, the Occupational Safety and Health Administration, can have lasting consequences that affect the lives of millions. Finally, there are areas of policy where enough bipartisan support is already established that an initiative can bypass the usual congressional deadlock.

Obama has already begun to exercise power through these alternative means, but in the second and perhaps later years of his administration, they are likely to be central to getting anything done. This might seem less exciting than sweeping reforms enacted with the help of both parties in Congress, but have no doubt -- big changes are possible without big showdowns.

-- The Editors


What: Make appointments during a congressional recess to send qualified nominees to their posts as soon as possible.

How: Republican obstructionism, recalcitrant moderate Democrats, and White House foot-dragging have left scores of key leadership positions vacant. Despite having over 200 pending nominations at the beginning of the year, Obama refrained from making any recess appointments during the first year of his presidency. Bush, by comparison, had 70 pending nominees by the end of year one. But now it seems that Obama has finally warmed up to the idea. In February, shortly after Sen. Richard Shelby of Alabama placed a ham-fisted hold on 70 executive-branch nominees, Obama said for the first time that he would consider bypassing the politically deadlocked Senate.

There are many noncontroversial, qualified nominees who have been held up by Republicans for purely tactical reasons. Even after he released his hold on most of Obama's appointees, Shelby continued to block three Department of Defense nominees to draw attention to parochial spending demands for his home state. Obama could clamp down on such maneuvering by putting these kinds of nominees through straightaway. He could also use recess appointments for candidates who have needlessly become political lightning rods. Erroll Southers, for example, withdrew his nomination for head of the Transportation Security Administration when Republicans hyperventilated that he would "unionize" the agency. Obama could consider renominating Southers and appoint him during a recess. Similarly, Dawn Johnsen's appointment to the Office of Legal Counsel has been delayed for more than a year because of conservatives' concerns about her pro-choice views. Obama could be much more assertive about defending qualified nominees whose views are well in line with the administration's overall ideology -- after all, he has many ways to put them through.

Why: Far too many federal agencies have been languishing without leadership, and recess appointees can serve for up to two years. -- Suzy Khimm

Wall Street

What: Tighten the rules on banks -- -and see that regulatory agencies improve their enforcement of those rules -- so we don't have another major financial crisis.

How: Obama could start by holding people accountable. He could fire Comptroller of the Currency John Dugan and use a recess appointment to put a real reformer in his place. Dugan's history as an opponent of regulation was revealed during the crisis, and recently he has spoken out against reforms advocated by fellow regulators like Federal Deposit Insurance Corporation Chair Sheila Bair and Securities and Exchange Commission Chair Mary Schapiro. At the FDIC, Bair has put forward new rules that could link bank-executive compensation to risk and make packaging loans into securities safer and more transparent, while new SEC proposals would regulate so-called dark pools that operate as a shadow banking system. By endorsing these rules and getting rid of Dugan, Obama could encourage these regulatory agencies to keep doing their jobs.

The president can also further increase funding to regulatory agencies under his purview -- the SEC and FDIC as well as the Financial Crimes Section at the FBI -- and task them with increasing their focus on the financial sector. These agencies are plagued by a shortage of talented personnel and resources, which seriously undercuts their ability to perform effectively. Putting real muscle behind their regulation efforts would make for better enforcement and send a deterrent message across Wall Street.

Why: Keeping the financial system from taking on too much unhealthy risk will protect the entire economy in the short term and lay the ground work for real financial-reform legislation in the long term. Plus, changing the bank's focus from quick-profit trades to loans will help economic recovery. -- Tim Fernholz


What: Strengthen industry reporting requirements to bolster regulation of toxic substances.

How: There are immediate steps that the Obama administration could take to reverse the federal government's decades-long inaction on regulating chemicals that are hazardous to the environment and public health. Of the 80,000 chemicals in the federal government's database, the Environmental Protection Agency only requires testing on about 200 substances and has regulated a grand total of five. Within its existing authority under the 1976 Toxic Substances Control Act (TSCA), the EPA could issue rules requiring that manufacturers provide all the information they have about certain high-volume industrial chemicals, as few companies have chosen to disclose such information under its current voluntary program.

The EPA could also require new companies that start manufacturing select hazardous chemicals -- or use them in a new fashion -- to report these activities. Such requirements would enhance the EPA's ability to pinpoint the hazardous materials that need greater regulation, particularly if the agency allotted greater resources to its woefully incomplete toxic-chemical database. The EPA has already laid out action plans for regulating four hazardous chemicals at the end of 2009, but it needs the full support of the White House to expedite the process. Though public concern is growing -- witness the recent widespread panic about Bisphenol A -- comprehensive TSCA reform is likely to be a protracted legislative battle. In the meantime, the Obama administration could take the lead by demanding that industry manufacturers disclose what they know about the hazardous substances they use.

Why: Countless numbers of Americans are regularly exposed to toxic chemicals, whether because of environmental hazards or ordinary consumer products. Research suggests chemical exposure could be contributing to the rise of certain chronic diseases, elevating medical costs. As a result, broad coalitions of consumer and environmental advocates have formed to push for stronger regulation, and such efforts could have widespread popular appeal. -- S.K.


What: Ramp up efforts to deal with the predicted glut of foreclosures, which exacerbate economic hardship and drive home prices even lower.

How: The administration's current anti-foreclosure effort, Home Affordable Refinance Program, has failed to provide long-term solutions to troubled borrowers even as their numbers grow. The Treasury Department uses Troubled Asset Relief Program funds as an incentive for lenders to modify home loans so that borrowers can have more reasonable monthly payments, but slow--moving banks and worsening economic conditions have left millions without aid. Those who do receive help often find themselves with a loan that can't be sustained over the long term. Now, with more banks leaving TARP, the program could be adapted to provide more aggressive assistance to borrowers.

The Obama team could change the program's focus to writing down the principal of a borrower's loan to better match its real, pre-bubble value, forcing banks to absorb a partial share of the loss on the loan. They could also put money behind programs that help homeowners who owe more than their house is worth walk away from their loan while receiving an incentive payment and access to rental housing to ease the transition. To encourage the banks' cooperation, the administration could endorse legislative proposals that would give homeowners a right to rent their home instead of being kicked out of it, and another that would allow bankruptcy judges to modify mortgages that have become unreasonable.

Why: If the administration successfully adapts its program, homeowners would have more security. Protecting borrowers from a sudden foreclosure will bring meaningful economic benefits from increased consumer spending and a stabilized housing market. And making the banks share homeowner sacrifice can't hurt the president's image. -- T.F.


What: Expand high-speed Internet access to rural and underserved communities by incorporating broadband infrastructure into federal highway construction and public--housing projects.

How: The Obama administration has already committed to closing the digital divide by pledging $7.2 billion to high-speed Internet projects in its stimulus package. But officials have been inundated with over 2,000 applications for the funds since then, while large telecom companies have challenged many of the proposals as intruding upon their existing broadband plans. The bureaucratic bottleneck has meant that only a fraction of the funds have been distributed so far, and the government needs to figure out the best way to build upon its existing investments and cut down on the procedural hurdles.

First the administration could commission a more comprehensive map of expected broadband-access gaps, which would include both underserved areas that have no access and communities where broadband is still prohibitively expensive. The government could then help fill those gaps by incorporating broadband conduits into the $4 billion investment in transportation infrastructure projects that Obama included in his 2011 budget. "We can leverage other federal investment that's happening anyway," says Michael Calabrese, director of the Wireless Future Program at the New America Foundation. As more than half the cost of installing broadband conduits entails ripping up roads and digging trenches, the broadband fiber could be added at a relatively minimal cost. The government could also require that public housing that is newly built or renovated include the capability for high-capacity broadband. These reforms would require congressional approval, but they could be bundled into infrastructure-building programs that already have broad-based support.

Why: Both underserved families and small businesses would stand to gain from this federal push: One recent Columbia University report estimates that as many as 10 million households will have inadequate broadband access in 2013 without additional outlays. And telecom companies would be able to pursue "last mile" projects to connect households to the Internet once the costly step of creating broadband conduits is completed. -- S.K.


What: Overhaul the country's detention system for those held in immigration custody by supporting detention alternatives for low-risk immigrants and more robust, independent monitoring of the rights of detainees.

How: In August the Obama administration announced its plans to reform the country's immigrant-detention system, where individuals are held while the government decides whether to deport them. Currently, at a cost of nearly $2 billion, more than 400,000 people are being detained in a patchwork of county jails, federal centers, and privately run prisons. Recent high-profile exposés of violations within the detention system -- ranging from lack of medical care and legal counsel to forcible drugging and inhumane treatment of children -- have created new urgency for reform. As a result, the Department of Homeland Security has begun to revamp its regulatory standards for the facilities and reorganize its Immigration and Customs Enforcement Agency to create more centralized oversight. But part of the problem is that officials within ICE and its contracted detention facilities have also been complicit in perpetuating systemic abuses, and more independent regulation is necessary.

The DHS could empower its Office of Civil Rights and Civil Liberties -- which operates outside of ICE -- to conduct periodic audits and investigations into suspect facilities. Doing so would increase accountability and strengthen enforcement. In addition, DHS could allocate funds to detention alternatives for non-criminals who pose little flight risk. Currently, asylum-seekers, human--trafficking and torture victims, children, and other vulnerable groups are regularly thrown into criminal detention facilities when electronic monitoring, parole, shelters, or other community-based facilities could be more appropriate options. Undocumented presence is a civil violation, not a criminal offense, and the Obama administration needs to find better ways to ensure its detention system conforms to the law.

Why: Such reforms would create more humane conditions for detainees. The changes would also encourage a more levelheaded approach to comprehensive immigration reform that considers the entire spectrum of immigrant groups in the U.S. -- S.K.

Gay Rights

What: Expand Title IX, a 1972 law that bans sex discrimination in federally funded education programs, to prohibit discrimination on the basis of sexual orientation.

How: Title IX protects students against sex stereotyping as well as harassment that creates a "sexually hostile environment," which are both provisions that could be interpreted to include anti-gay discrimination. In January, the Department of Justice took the bold step of intervening on behalf of an openly gay ninth-grader who was beaten up and bullied. In joining the lawsuit, the department argued that the law's sex-discrimination statute should also cover discrimination based on gender stereotypes, opening the pathway for a broader interpretation of Title IX. While this court case is pending, the Justice Department could pursue other Title IX anti-gay discrimination cases, as well as launch a public-advocacy and awareness campaign to encourage schools to protect students against sex stereotyping, according to Hayley Gorenberg, deputy legal director for Lambda Legal. Such concerted efforts would help ensure that this expanded interpretation of Title IX becomes enshrined both in law and in practice.

A big push by the Obama administration on this issue would also add momentum to Rep. Jared Polis' Student Nondiscrimination Act, which would explicitly prohibit discrimination against LGBT students in federally funded education programs. The bill, introduced in the House in late January, has 65 co-sponsors, including one Republican. In the wake of the White House's turnaround on the policy of "don't ask, don't tell," Polis' bill now stands a better chance.

Why: In addition to protecting the civil rights of LGBT students, such victories would help bolster support for the administration among gay-rights activists and help energize a disenchanted liberal base. -- S.K.

Criminal Justice

What: Make a large-scale federal push for parole, probation, and sentencing reform that would revamp the country's needlessly draconian criminal-justice system and reduce the prison population.

How: The growing economic and social costs of mass incarceration have encouraged officials across the political spectrum to embrace pragmatic alternatives like Hawaii's Opportunity Probation with Enforcement. Citing the Hawaii program as a model, Democratic Rep. Adam Schiff of California and Republican Rep. Ted Poe of Texas jointly introduced a bill that would create federal grants for states to experiment with "graduated sanctions," which deliver quick, moderate punishment to those who violate the terms of their probation instead of automatically putting them back into jail. Obama could throw his support behind the bill.

The Obama administration could also take executive action to address the crack/powder cocaine sentencing disparity. Since the passage of the 1986 Anti-Drug Abuse Act, a federal conviction for possessing 5 grams of crack results in a five-year prison sentence -- the same sentence for possessing 100 times that amount of cocaine. With the support of the White House, Sen. Dick Durbin has introduced the Fair Sentencing Act, but the bill has since stalled in committee.

In the meantime, the attorney general could require crack cases that involve more than 5 grams -- but less than 500 grams, the five-year mandatory sentencing trigger for powder cocaine -- to receive clearance with the Justice Department before U.S. attorneys can proceed with indictments. "It's a way to make sure that low-level players are not doing five-year federal prison terms," says Mark A.R. Kleiman, a public-policy professor at the University of California, Los Angeles.

Why: These reforms could alleviate state budgets, reduce recidivism among offenders, and combat the negative social effects of over-incarceration on poor communities. Eliminating the crack/powder cocaine sentencing disparity would help close the racial gap that has put a disproportionate number of black Americans in jail. -- S.K.