NOVEMBER 16, 2010
Please join Jeffrey Rosen for a live conversation about Al Franken and the Democratic Senate "after the shellacking," at 3p.m. EST, on Friday, November 19.
In July 2009, after a cliff-hanger of an election and an ugly court battle over the results, Al Franken finally arrived in the United States Senate. Eager to lay the groundwork for legislative accomplishments, the author of Rush Limbaugh is a Big Fat Idiot looked for common ground with his new GOP colleagues. In the case of Orrin Hatch, the Utah Republican, that common ground was music. In addition to his senatorial career, Hatch is a prolific songwriter—he has written odes to John McCain, America, Hanukkah, and Princess Diana, among other subjects—and so Franken approached him and asked to hear a few tunes. Hatch played a recording of a song called “Headed Home,” which was written before his close friend Ted Kennedy died and had a metaphor about sailing into the ocean. “It was obvious what that was about, and I began to tear up a bit,” Franken told me. Then Hatch played a sad song in which an American wife entreats her husband, a soldier in Kandahar, to “Come Home.” “The waterworks started,” Franken recalled. “I’m a crier.”
To lighten the mood, Hatch broke out a country music number called “Are You Lonely Here With Me?” The song made Franken laugh, and he confessed to Hatch that he had written a humorous country song of his own, “We Stayed Together for the Kids.” He proceeded to sing it for me in an exaggerated Nashville twang:
We stayed together for the kids
And this is what we thought we had to do
But now the kids are up and gone
And there’s just me and there’s just you
Franken explained to Hatch that he wanted the song to conclude with the couple deciding to stay together, despite their many years of bickering. But he needed a bridge to reach this happy ending, and Hatch suggested they write one together. A few weeks later, the pair spent more than an hour brainstorming lyrics and discarding lines they thought weren’t sufficiently funny. Finally, they came up with this: “I’m amazed the kids turned out ok/I’m amazed with you today.” Franken explained, “The verses are all about how they couldn’t stand each other, basically, and all the stuff that went on between them, and then the last verse is sort of like, ‘You got better with age, you grew up a little too/I’ll share my empty nest with you.’ It turns out they’re glad they stayed together.”
I asked Franken the obvious question: Was the song a metaphor? Was he going out of his way to work with Republicans for the good of the kids—that is, the American people? Franken cackled. “I don’t know if I’d go that far—I actually really enjoy a lot of my Republican colleagues,” he said. “And I try to get along with everyone. The Senate is like a small town with a hundred people in it. And each one can put a hold on you.” Warming to his metaphor, Franken grinned mischievously. “It’s a somewhat contentious small town ... and some members are sometimes trying to slow down what the town is doing when the town really needs to be moving. But what are you going to do? It’s obviously been a difficult time in certain respects, sometimes it is frustrating ... but you don’t take it out” on your colleagues.
When Franken launched his campaign for the Senate, it wasn’t obvious that the former comedian and Air America pundit would become a devotee of the rituals of senatorial comity. As an entertainer, Franken had mastered a combative political persona in which he tackled his ideological opponents head-on. Given the opportunity to interview George W. Bush, then a presidential candidate, he asked Bush whether he’d ever manufactured crystal meth. He famously got into a shouting match with Bill O’Reilly at a C-SPAN panel discussion, and, in another of his books, Lies and the Lying Liars Who Tell Them, he recounted that he’d once called up National Review editor Rich Lowry and challenged him to a fight in a parking garage. When Franken arrived in Washington, many expected him to be a bombastic, no-holds-barred partisan.
But Franken has self-consciously chosen a different model: the institutionalist who can achieve bipartisan consensus but also successfully champion liberal legislation. During his brief time in office, Franken has emerged as a throwback to the successful progressives of a distant era when senators knew what they were talking about and spent long hours working on worthy policy proposals to make the lives of their constituents better. As unlikely as it may appear, at a time when it seems as if every politician wants to be a celebrity, Franken has used his celebrity to become a serious senator.
During the election campaign, Republicans mined Franken’s show-business career for attack ads, taking aim at some of his more risqué “Saturday Night Live” skits and a satirical article he once wrote for Playboy about having sex with robots. When it became clear that Franken was going to make it to the Senate, he knew he had to dispel his image as a cutup. He sat down with Hillary Clinton’s chief of staff, Tamera Luzzatto, and asked her how Clinton—who had also arrived in Washington with the advantages and baggage of a celebrity—had developed a reputation as an effective lawmaker. Franken was told “she came to each hearing prepared—she came early and stayed late,” he recalled. After he was assigned to the Judiciary Committee, he diligently followed this advice. Since many of the hearings were perfunctory and uncontroversial, he often found himself alone with the chairman and ranking member, Senators Patrick Leahy and Jeff Sessions. “Sessions would always say, ‘Oh, Al’s here,’” Franken recalls, mimicking Sessions’s Alabama drawl. “I remember once, when Leahy had to leave, I was chairing the hearing, and Sessions said: ‘A meteoric raahz!’” Franken replied, “And well deserved!”
In recent years, congressional hearings have become little more than televised sideshows in which most senators rely on questions scripted by their staff and seem unable to ask tough or even relevant follow-ups. Franken clearly aspires to an older tradition, when lawmakers could think on their feet and were capable of grilling witnesses without aides handing them notes or whispering furtively in their ears. He studies issues exhaustively, which allows him to negotiate directly with senators and their aides rather than intermediaries. His staffers say that he encourages them to challenge him during the murder boards he assembles to prepare for hearings and sometimes insists on staying past midnight.
I saw evidence of Franken’s careful preparation firsthand, when I testified in a Senate Judiciary Committee hearing last March on the Citizens United campaign-finance case that enabled unlimited corporate spending in election campaigns. One of the witnesses, Bradley Smith, had criticized a provision of a bill Franken had introduced which said that if a foreign national controls more than 20 percent of a company, that company shouldn’t be allowed to spend unrestricted amounts on American elections. When Smith confidently stated that 20 percent ownership didn’t constitute corporate control, Franken pounced:
FRANKEN: Yes or no, please. Do you know how Delaware, the leading state for corporate law, defines a controlling shareholder?
SMITH: No, I do not, nor do I think it is relevant to the question of whether control ...
FRANKEN: I asked you to respond yes ... or no, sir, and you said no, you do not. ... Now, the fact is that thirty-two states that define control with a number, thirty-one of them define it as twenty percent ownership or less, most of them less.
Franken is not an attorney, but with a few deft questions he had demonstrated that Smith, a law professor, didn’t know what he was talking about. “It’s clear to me that he could have been a world-class litigator, and his ability to take people down the slippery slope is just fabulous,” said his friend Norman Ornstein, a congressional expert at the American Enterprise Institute. “I saw a hearing on health care where a witness was talking about how our system was the best in the world and how awful others are, and Al asked,‘Do you know how many bankruptcies there were as a result of health care in Switzerland?’” When the witness said no, Franken said “[t]he answer is zero,” and then went through a list of other countries that had no bankruptcies. “The witness was just filleted,” Ornstein said.
On the morning of the second day of confirmation hearings for Supreme Court nominee Elena Kagan, I met Franken at his tastefully decorated townhouse, which is located a few minutes from the Capitol. He kindly offered me a bagel, but couldn’t find a serrated knife to cut it, so he grabbed a butcher’s knife instead and brandished it animatedly as he talked about his policy agenda. (Eventually, his wife, Franni, came in and prevented him from injuring both of us.) After the interview, Franni made sure that Franken had remembered his accessories—an aspirin, a pink BlackBerry, keys, and a phone. We piled into the car along with Hazel, a friend from the Upper West Side who had come along for the show. While Franni drove, Franken lamented the jokes he wouldn’t be able to make in the hearings for fear of appearing unserious. (Not all of his fellow senators were so restrained: Franken’s colleague from Minnesota, Amy Klobuchar, quizzed Kagan on her opinion regarding “the famous case of Edward v. Jacob”—a reference to the Twilight vampire movies.) Later that day, the press and the blogosphere focused on the fact that Franken had amused himself during the hearing by doodling a surprisingly good likeness of Sessions, which was captured by an AP photographer.
Most commentators, however, missed Franken’s impressively substantive discussion with Kagan over how to protect civil liberties at a time when Comcast, Google, and Facebook have more power than the Supreme Court over privacy and free speech. Franken was especially concerned about the pending merger between NBC and Comcast. Noting that Comcast was the nation’s largest cable operator, Franken warned that if the company owned “both the pipes and the programming,” it could favor its own content or charge more for it, leading to “fewer voices, and a smaller marketplace of ideas.” He explained, “That’s a First Amendment problem. It’s also an antitrust problem.” Franken’s knowledge of this issue dates back to his time at NBC in the 1990s, when an obscure rule change ultimately allowed networks to own, and thus control, most of the content they air, rather than purchase it from independent producers—a move that Franken believes has limited the range of views on television. Franken then asked one of the best questions of the hearings: “Do you believe that the First Amendment could inform how the government looks at media antitrust cases?” Although she was unable to comment on the merger, Kagan acknowledged Franken’s point: “I guess you could be thinking about that as a kind of policy matter as to whether the authorities that are responsible for approving mergers and such ought to take into account so-called ... First Amendment values.”
Franken also used the confirmation hearing to lay out a robust vision of progressive constitutionalism. He attacked a “bare majority” of the Roberts Court for having “used its power to help big business.” Taking aim at the Citizens United decision, he pointed out that unlimited corporate spending by companies like Standard Oil and GM might have meant the failure of the Clean Water and Clean Air acts of the 1970s, both of which passed around 60 days before an election.
For all of his efforts to play down his past life as a comedian, Franken frequently deploys humor to bond with Republicans in the Senate. “Every time I vote against a Thune amendment, I go up to him and say, ‘John, I voted against you this time, but I swear it’s the last time!’” Franken told me gleefully. “I do it every time! And Thune does a very funny Perot; yes he does.” Franken added that Kansas Republican Pat Roberts is a “huge” fan of Jack Benny, the vaudevillian comic. “He’s really funny—although we never agree on anything—and every time we see each other, we go, ‘You again!’” He added, “There are some people here that I have a very fond relationship with that I didn’t imagine I would.”
Franken has accomplished more in his first year than many Senate freshmen, sponsoring several amendments that became law. One requires health insurance companies to spend 85 percent of premiums on actual medical care, not administrative costs or other expenses. “The medical-loss ratio is one of the things I’m proudest of,” Franken told me. Another measure bans the federal government from awarding contracts to employers who require employees to give up their right to sue for sexual harassment or rape at work. (The law was inspired by the case of Jamie Leigh Jones, who accused her co-workers at Halliburton in Baghdad of gang raping her and was forced by Halliburton into secret arbitration.)
However, Franken was less successful when it came to his most ambitious legislative proposal: reining in the credit-rating agencies that helped to create the financial crisis. After reading Michael Lewis’s The Big Short, Franken became outraged that the rating agencies, which were in the pocket of the mega-banks, had given triple-A status to securities so complicated that no one understood their true value and which ultimately proved to be worthless. Franken wrote an amendment that would have created a board to randomly assign rating agencies to banks, instead of allowing them to shop around for the agency most likely to whitewash their risky products. The board was also given incentives to favor agencies whose ratings proved the most accurate over time. Although the amendment cleared the Senate with eleven Republican votes, it was opposed by Banking Committee Chairman Christopher Dodd and failed to survive the conference between House and Senate lawmakers.
I asked Franken whether he worried that corporate lobbyists had killed the measure. “It’s obviously a problem,” he replied. “But lobbyists often represent a major constituency in your state: How do you vote against banking interests in Delaware when half the state is employed” by banks? He laughed wearily. “When there’s a very close call, and you don’t know how to vote anyway, and there are eight arguments against the thing and eight arguments for it, you might as well go with the way the constituency group of the lobbyist is asking you to ... or what your staff is saying.” He added, “I’ve talked senators out of a vote that their staff had told them one way to vote, and they were completely misinformed. ... On the ratings bill, people were told, ‘This is going to give an official U.S. stamp of approval to the credit ratings,’ and the opposite was written into the bill!” The failure of the rating-agency amendment also suggests that Franken may have been less effective in persuading his colleagues than he had hoped. His office suggested that I call Hatch and Roberts for testimonials to his bipartisan effectiveness. Neither senator called back.
Franken’s staff told me that his ultimate model is not Hillary Clinton but Teddy Kennedy—a master of working across the aisle to advance an unequivocally liberal agenda. Whether Franken can fill Kennedy’s shoes will hinge on his ability to combine legislative skills with a fiery economic populism that is as progressive as the Tea Party’s populism is conservative. Although Franken has been a relatively successful institutionalist, he hasn’t yet demonstrated Kennedy’s ability to bend ideologically in order to cut a deal. (Of course, bipartisan deal-making may also be less possible in today’s polarized Senate than it was during Kennedy’s long tenure in office.)
Economic populism has deep roots in Minnesota, including a string of senators associated with the Minnesota Democratic-Farmer-Labor Party: Hubert Humphrey, Eugene McCarthy, Walter Mondale, and Paul Wellstone. Franken was a close friend of Wellstone’s, whose memorial service became so politicized by Norm Coleman and other Republicans that, according to Ornstein, it helped spur Franken to launch his bid for elected office.
Franken’s economic outlook was also influenced by his father, who struggled as a printing salesman in Minneapolis, and by Franni, whom he met when he was a freshman at Harvard. When Franni was an infant, her father, a World War II veteran, died in a car accident and her mother was left a widow with five children at the age of 29. They bought a house in Maine with a G.I. loan. Her mother supplemented her income from the produce department at a grocery store with Social Security. All four girls got college educations, thanks in part to Pell Grants and Defense Department student loans. The experience, which Franken has described with tears in his eyes, convinced him of the importance of the federal safety net.
I asked Franken what had frustrated him most about his first year in Washington, and he mentioned the defeat, in June, of a Senate bill to extend unemployment insurance benefits to the long-term unemployed. (A version of the bill passed after we spoke.) “I’ll go into a union hall and see people whose whole identity is their job—these guys have worked since they were ten years old ... and they haven’t had a job in six months, and you see that they’re literally depressed.” Franken shook his head in disbelief. “I’ve had guys say to me, ‘If it weren’t for unemployment insurance ... I wouldn’t be in my house,’ and then I hear how unemployment insurance incentivizes people not to get jobs,” he said. “You hear that, and you think how out of touch that is, and how insensitive it is.”
“I want to achieve a lot,” he continued. “A real energy policy that takes us into the future, a transportation policy that gets us focused on things that create prosperity, education, the right kind of infrastructure, and creating the most vibrant, prosperous society we can.” Realizing that he was veering into a stump speech, he gave a self-deprecating shrug, and added that he would like to remain in the Senate for a long time, until he’s as old as the late Senator Robert Byrd. “It depends how I’m doing at a hundred and eighteen,” he explained. “I have this running joke ... that I want to be a senator until I’m so out of it that all I can say is ‘how dee doo.’”
Jeffrey Rosen is the legal affairs editor at The New Republic. This article ran in the December 2, 2010, issue of the magazine.
Please join Jeffrey Rosen for a live conversation about Al Franken and the Democratic Senate "after the shellacking," at 3p.m. EST, on Friday, November 19. (www.livestream.com/thenewrepublic)