Strengthening Constitutional Self-Government

No Left Turns

Published in Political Parties


Going South

Are the Republicans degenerating or just revealing their true selves?  With his latest charge that M. Mitt speaks French (Newt does too), it must be speculated that Newt is indulging in (self-)caricature. Of course it can always get worse--someone can appeal to states' rights.  Here's a good explanation of why conservatives should speak of federalism instead--plus a few other New Year's political resolutions.

Categories > Conservatism


Supercommittee Ends; Superelection Begins

"Retrospective determinism" is the term historians use to caution against the mistake of treating the fact that something did happen as proof that it had to happen. Don't forget, in other words, that the chain of events leading to a particular denouement included choices and contingencies, many of which could have gone this way rather than that way, possibly altering the final outcome.

Sometimes, though, it really is hard to see how events could have turned out differently. Congressional and White House negotiators spent the summer trying to come up with a "grand bargain" to, in the short term, raise the debt ceiling and, over the coming decade, make the national debt a shrinking portion, not a growing one, of the U.S. Gross Domestic Product. They couldn't strike that deal, so they agreed to raise the debt ceiling, in stages, by $2.1 trillion over the coming year. In exchange, the deal met the demand by the Republican Speaker of the House, John Boehner, that every dollar by which the debt ceiling was increased be matched by a dollar of deficit reduction. 

The August 2011 agreement specified cuts in spending to many, though not all, federal programs.  Additional deficit cuts would either happen automatically, if Congress did nothing, or according to the plans devised by a congressional "supercommittee" that was evenly divided in every way: six members of the House, three from each party; and six senators, three from each party. If the supercommittee came up with a plan that reduced the deficit by at least $1.2 trillion, Congress could vote it up or down - but not amend it - and the president could sign or veto the law if Congress passed it.

The failure of the supercommittee, confirmed this week, was foreordained in the sense that the overlap between the list of all the deficit plans congressional Democrats could agree to, and all the plans Republicans could agree to, turned out to be a null set. There was, most fundamentally, no way to split the difference between the Democrats' insistence that any deficit reduction plan had to include some tax increases and the Republicans' insistence that no tax increase could be part of the plan.

The supercommittee's failure to agree on a deal that the full Congress could vote on means that the automatic cuts agreed upon in August are supposed to take effect in 2013. The structure of those cuts was designed to be unpleasant enough that the supercommittee members would have real incentives to come up with a bipartisan plan. At the same time they reflected how each party thinks about what its highest priority does and does not include.

The automatic cuts will affect a lot of federal discretionary spending, but not such big safety net programs as Social Security and Medicaid. Democrats give highest priority to the entitlement programs for two reasons, one political, the other psychological. The political reason is that it's easy to rally voters, especially older ones, against the threat of cuts to these programs. The psychological one is that Democrats regard these programs as their party's most glorious achievements in the 20th century. To acquiesce in curtailing or restructuring them would put a question mark where Democrats want an exclamation point. The problem with protecting entitlements at all costs, however, is that those costs will eventually include some discretionary domestic programs that Democrats believe are vital to the nation's well-being, as Mark Schmitt has argued

The gamble in setting up the supercommittee was that at least some Democrats would be be so opposed to those domestic cuts that they would vote for entitlement reductions as the lesser of two evils. That's not what happened. The other part of the gamble was that Republicans would be so opposed to automatic cuts in defense spending over the coming decade that they would vote for tax increases as the lesser of two evils. That didn't happen, either. As Peter Beinart contended, Republicans have reached the point where national security concerns have been subordinated to the mission of limiting government and holding the line against tax increases. 

That Congress was amenable to serious cuts in discretionary spending on both domestic and defense programs may be construed as an indication that Capitol Hill, for the time being, is content to live with the modest curtailment of deficit spending that results when entitlement cuts and tax increases are both off the table. It could, on the other hand, mean that Congress is content to live with this padlock on future spending because it knows that it will always possess the key to that lock. Both parties, that is, feel that they'll figure out how to avoid the inevitable spending cuts that are supposed to begin in 2013. The history of past efforts to force spending discipline on Congress by threatening automatic, across-the-board spending cuts, such as the Gramm-Rudman limits of the 1980s, gives every reason to believe that Congress can figure out a way around the limits it imposes on itself.

Another sense in which the supercommittee's failure was baked in the cake was that its stalemate is a pretty accurate reflection of the electorate's unresolved marching orders about what the government should do. Republicans prevailed in the elections of 2004 and 2010, Democrats in the elections of 2006 and 2008. With a Democratic president, a Democratic majority in the Senate, and a Republican majority in the House, the voters have given partial, ambiguous endorsements to both party's approaches, but clear, unequivocal support to neither. This ambivalence is not surprising. Clear support for the Democrats would mean big tax increases, and clear support for the Republicans would mean big entitlement cuts. Neither will be pleasant, and the desire to postpone having to choose is understandable.

Nonetheless, the financial pages remind us every day that sovereign debt crises are hard for democracies to avoid, but really, really hard for them to solve. The voters are running out of elections cycles in which they can decide by not deciding. Now that all politics is fiscal, the 2012 election is likely to be dominated by the choice between the parties' mutually exclusive approaches to taxing and spending.
Categories > Economy

Political Philosophy

A Republican Form of Government

Noting that "progressives have long lamented the fact that the Framers designed a Constitution replete with impediments to federal government activism," the eminent George Will reveals the latest twist of logic by which Colorado liberals are attempting to use the Constitution as an impediment to popular referendums (which would otherwise limit the power of the ruling classes in state legislatures).

Sextion IV, Article IV of the U.S. Constitution reads: "The United States shall guarantee to every State in this Union a Republican Form of Government."

The folks in Colorado argue (tellingly, before an unelected judiciary) that a Colorado initiative limiting the legislature's license to raise taxes (the progressive's golden calf) denies the state a republican form of government. That is, only elected bureaucrats can craft laws - not the people themselves. While direct democracy has many flaws (and was hence rejected by the Framers as an insecure means of safeguarding liberty), its outright prohibition is a novel reading of the Guarantee Clause. Without delving into the history of the clause, I deeply suspect this reading is flawed.

Politically, however, liberals continue to reveal the surprising degree to which they are willing to oppose the people and popular government in favor of a ruling class. On an elementary level, the left - with all of its liberal ideologies of radical freedom, individuality and nonconformity - is incredibly devoted to the system, bureaucratic institutions and ever-expanding government.


Farm Dusts the US Senate

It was a chaotic night last night in the United States Senate, with one of the most heated and important debates that chamber has seen in a few years. I was over at the Heritage Foundation for a screening of part of the 1978 Panama Treaty debate between Ronald Reagan and Bill Buckley, with Lee Edwards, Grover Norquist, and Fred Barnes participating in a discussion panel afterwards, when I got a few texts telling me to turn on C-SPAN. I checked into my Twitter feed to see what was going on, and reporters in the Senate press gallery were uncharacteristically active for a Thursday night. Indeed, they were even coming across as excited. I took an opportunity during question-and-answers at the event and slipped away to go plop down in front of a television and computer and figure out what was going on.

The Senate was in discussion on the Chinese currency manipulation bill last night. The Republicans had introduced a group of amendments to attach to the bill, including a procedural vote on the Obama jobs plan--as the President continues to yell at Congress to pass his bill, Senator McConnell (R-KY) decided to obey our commander-in-chief and introduce a vote on the bill, which would have surely failed to pass and embarrass the president and some Senate Democrats. Republicans and Democrats had been negotiating these amendments all day, and by Thursday night seemed to have reached an agreement. At the last moment, though, Senator Johanns (R-Neb.) introduced an amendment regarding EPA regulations on farm dust. Yes, farm dust. Democrats did not want to vote on that amendment, so they tried to substitute an amendment offered by Senator Paul (R-KY) on the Federal Reserve. This set off a complicated and legalistic battle on the rules and arcane procedures of our Senate, and led to an unscripted and tense battle of words between the senators.

Procedurally, Senator Reid (D-NV) raised a point of order against the GOP's motion to suspend the rules in order to introduce the amendments, including McConnell's amendment to introduce President Obama's jobs package. Reid's argument was that the GOP's motion was "germane" as it was only intended to slow down the passage of the Chinese currency bill. The chair, on the advice of the parliamentarian, disagreed with Reid's point of order. Senator Reid then pulled an unprecedented maneuver, and motioned to overrule the decision of the chair--after some arm wrangling with moderates, 51 Democrats voted to overrule, 48 Republicans voted against. The Republicans were fuming, and for once the normally-empty chamber was stacked with members of the Senate, watching the debate unfold. C-SPAN, the Twitteratti, and most people were completely baffled as to what was going on in the cascade of events. Initially many people thought that Reid had finally pulled out the famed "nuclear option" and ended the ability to filibuster in the Senate.

Rather, what Senator Reid did was change a precedent in the chamber. While historically the majority party could block amendments to bills by the minority, it could not stop motions to suspend the rules in order to introduce amendments. Now it can, and it has become much more difficult for the minority party to change legislation once it has been introduced. Senator Reid's aides spent most of the day on Thursday advising him against this move, fearing the debilitating position it will leave Democrats in once they are again the minority party. For an hour and a half afterwards, Reid and McConnell, with several others senators chiming in, debated over this procedural change and even the nature of the United States Senate itself. It was fantastic; watch it here. The limiting of the powers of the minority party will indeed haunt the Democrats whenever they are returned to the minority (probably 2013); for the rest of this term, it is likely going to make things even more tense and combative in the already-tense chamber. Additionally, this move will likely diminish the role of many of the Senate's moderates who had previously negotiated the major deals to avoid any type of wonkish procedural showdown like this---McCain, Snowe, Nelson, Collins, Lieberman, Pryor, McCaskill, Warner, Graham, and Grassley. It will be interesting to see what things are like when the chamber reconvenes to vote next week. All of this over farm dust!
Categories > Congress



Well, if you have not read it or seen it by now, here is a link to both the transcript and the video of the Chris Christie speech at the Reagan Library two nights ago. 

Most of the commentary about it can be characterized as one of two things:  speculation or begging.  Although I am not inclined to think there is a lot of need for the former, I cannot avoid it if I am to say anything intelligible about the substance of Christie's fine and effective remarks.  I absolutely will not engage in the latter.  But more about that later.

Here's what I think:  It is entirely possible that Chris Christie misread his moment.  I think he was sincere when he said that he did not mean to run for President and I think his reason for not running--at least, initially--had partly to do with his own personal concern with being "ready," but it had mainly to do with a suspicion that no Republican was likely to beat Obama in 2012.  He thought he could and should wait.  He was wrong on both counts. 

Consider his long (and, yes, very good) reflections on Obama's 2004 Democrat Convention speech.  Everybody who knew anything about politics in 2004 knew that watching Obama warming up for Kerry brought on feelings reminiscent of those you get when the previews at the movies look better than the movie you came to see.  That was as close as Obama ever got to a Reagan moment.  And Christie was at the Reagan Library, so he can be forgiven if visions of "A Time for Choosing" were dancing in his head.  I think Christie meant to do something like that at the Reagan Library or, perhaps, to give us a taste of what he must mean to do at our coming convention whether or not he is the candidate.  I think that explains why this 2004 speech of Obama's was so close to the forefront of Christie's mind; that, and it is a good hook for explaining to people, who once trusted in Obama, the ways in which their original opinion is wrong. Without question, Christie did that well. 

But this brings me to the second part of my thoughts about Christie's speech.  If he's not running, why is he waxing eloquent on Presidential politics in this way?  Well, it must fry him to watch these debates, right?  He's sitting there watching these guys do it in ways that seem, to him, wrong.  It's killing him.  Maybe he thought he could at least offer a tutorial to the GOP candidates.  "Watch me.  This is how it's done."  And his substance was good.  What he said about compromise (contra Rush and others who, though they mean well, seem to be suffering post traumatic stress disorder whenever they hear that word) was good.  

But the thing about this speech is that, as with most pros who step in to demonstrate skills to talent that is already playing at the top of its game, Christie is only succeeding in showing the rest of them up.  It's not going to do anyone any good for him to continue in this mode.

"Maybe showing them up is all part of his plan?" suggest some prognosticators who, like me, don't see much point in all of this talk if the man doesn't mean to run.  So, therefore, he must mean to do it.  Well, if that is the case, here's what the rest of me is saying:  I have loved Chris Christie for a long time.  And I long, just as much as the next citizen, to hear someone come and speak simple truths to power with good effect and without cringing.  But if he is planning like that, to hell with him.  No, really.  This is becoming unseemly.  He may be the best guy (though I don't think that is, by any means, a settled matter) but he ain't the only guy.  Please.

And here's something else.  What is this with the begging of this guy to run?  This suggestion that he must do it?   I don't like it.  I thought his answer to the (sincere, but sad) woman who was begging him to run was good, respectful and, even, sweet.  But it bothers me to see Americans so desperate for one man to run for the Presidency.  There is something weak and pathetic about it, I am sorry to say.  Have some pride.  Americans don't beg anyone to be their boss.  It reminds me, in a way, of the scheming that went on to get George Washington to declare himself emperor . . . maybe without the Washington.  

Perhaps it is unfortunate that Chris Christie's moment has passed and that he seems to have made the wrong call.  But if he is a man of integrity, and I think he is, he can use this opportunity to remind Americans that this is their country.  No one man is so essential, so wise, or so wonderful that he must be deign to be their king as if he were part of some Platonic dialogue writ large.  Of course his consent in the thing matters.  This is a regime built on the principle!  Enough, already.  There is serious work to do and Chris Christie will best contribute to that effort when he makes it clear that he means to support someone else for the Presidency this go around.   If, on the other hand, he means to jump in, he had better do it quick.  And, if he does that, there's no getting around the fact that he is going to have a lot of explaining to do and he should not be surprised if a lot of voters, instead of thinking that he has finally lived up to his duty, consider that he's not really as much a man of his word as they once thought he was.   
Categories > Elections


Pennsylvania and the Electoral College

A fight is brewing in Pennsylvania as some Republicans indicate that they wish to transform the way the state allocates its electoral votes for the presidency. The President of the United States is not elected by the national popular vote, but rather by the popular vote in each of the 50 states--if one candidate in Ohio gets 55% of the popular vote in Ohio, that candidate receives Ohio's electoral votes. To win the presidency, one needs to win at least 270 of the 538 electoral votes; these votes are divvied between the states based on congressional representation, plus three for the District of Columbia. The Electoral College is designed to support federalism by forcing candidates to campaign across a broad spectrum among the states and also maintains for us a relatively stable and fraud-free system, especially compared to other nations. Yes, there is occasionally a fluke when the popular vote and the electoral votes do not match up--the 2000 Election an example of this--but these are rare, and not a reason to discount the entire system.

Every state except for two operates on the winner-take-all system mentioned above. Maine and Nebraska use the Congressional District System, which apportions the votes by district rather than the entire state. In these states, elections are held within each congressional district and whoever wins in those districts gets the votes, and the winner of the popular vote in the state receives a bonus two electoral votes. Pennsylvania is considering adopting this method of voting instead. Some people seem to be decrying it as unconstitutional or an attack on the Electoral College; this is plainly wrong. The Constitution allows each state to decide how its electoral votes are split up. Article II, Section 1, Clause 2 states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." So, there are no constitutional arguments to be made against this way of divvying up the Electoral Votes.

There are, however, some practical and political concerns with shifting over to the Congressional District System. While it is a bit more democratic and may comfort those seeking to abolish the Electoral College in favor of a national popular vote, it may have the adverse consequence of increasing gerrymandering, which is already a huge problem in the country; parties will have further incentive to strengthen districts for themselves in order to ensure electoral success. The fact that the GOP in Pennsylvania is trying to do this purely for partisan reasons rather than concerns of suffrage and whatnot is also disconcerting (and strengthens my concern about gerrymandering), and furthermore foolish as it would very well harm Republican candidates in the future as well as Democrats. It is also worth noting that, based on the various data and articles I've been looking over, if every single state operated on a Congressional District System for their electoral votes, it would not change the outcome of any single election in recent history.

So, while it is perfectly within the constitutional rights of Pennsylvania to apportion its electoral votes in whatever way it sees fit, it is foolish to do so for the perceived political gain of a party, and could have some bad consequences. I have also seen proposed that one divvies the electoral votes up by percentage (if someone wins 55% of Ohio, they get 55% of the Electors, and second place gets their percentage and so-on), but my chief concern with that is that it would give more success to third party candidates which may cause systemic problems by making it more difficult for anyone to receive 270 votes in the college, opening the way for Congress to vote on the matter. The winner-take-all system is not perfect, but it is better than any alternative yet put forth.
Categories > Elections


Cruel Thoughts

I'm having lunch at the Mad Boar in Wallace, North Carolina. Not bad. Large, Irish-pub-like atmosphere, attractive and competent waitresses serving me a cool glass of Pinor Gris, with a pork stew soup, followed by a whiskey river trout. Second glass of wine, and I'm reading, slower now, reactions to last night's GOP debate. The best is by Scott Johnson at Power Line. Crisp and to the point, even witty when the subject allows it. I agree with his thoughts too bad they have to be cruel.

Categories > Politics


Tea Party Constitutionalism

My esteemed colleague Pete, on the debt fracas, below: "the whole controversy was ugly and at most minimally productive."  To the contrary, I think this was the most important constitutional debate in memory (other than Obamacare, though I admit I am getting old and forgetful).  I wonder whether the Tea Party critics have ever purchased a car.  Do they pay the sticker price?  They used the power they had to educate the people on our disastrous situation.  Would the public be more aware of the crisis had a routine raise been voted through?

My high esteem for Senator Coburn has increased.  He exposed Grover Norquist's odd accounting on what constitutes a tax increase:  Cutting a subsidy (ethanol) would be a tax increase, in Norquist's view.  If that's the case, then reform without a tax increase is impossible.  To be fair, a cut in the subsidy would hurt the industry being subsidized and cost jobs, etc.  The press coverage of the new law emphasizes the temporary harm to the economy, caused by a cut in public spending, though the reforms will have a good long-term effect. 

As with Obamacare, the debt ceiling bill exposed Washington's ways.  What shocks us about Washington procedure is in fact routine.  Congress passes laws that no one reads through and that grant the real law-making power to bureaucracies.  That is the problem.  That is what the Tea Party, for whatever naievete it exhibits, has exposed:  Our routines are rotten.

Categories > Congress


The 14th Amendment Consequences

Right now several senators are on the floor calling on President Obama to unilaterally raise the debt ceiling through some twisted interpretation of the 14th Amendment, and earlier today Nancy Pelosi declared her support for this "option" as well. Senator Harkin went so far as to say that presidents can gain extra powers in emergencies, likening this debt debate to Abraham Lincoln's Emancipation Proclamation in the midst of the Civil War. President Clinton came out a few weeks ago in support of this option as well. However, President Obama himself has said that his lawyers tell him he does not have the constitutional authority to do something like this without congressional approval-- but he stopped short of saying that he would not do it. As we can see from his chameleon-like changes on the war powers of the executive, his views of the Constitution are not rooted in any coherent or steady interpretation-- it is truly a living document, transforming to fit whatever the White House wants it to.

The 14th Amendment was passed in the aftermath of the Civil War and has mostly been used in past public discussions for its citizenship standards, the equal protection clause, and the application of the Bill of Rights to the states. One section of the amendment states the "the validity of the public debt...shall not be questioned," and goes on to say that the United States was not going to count the debt incurred by the Confederacy as part of the legitimate public debt. From those few words, some Democrats in Congress have decided that it mandates the Federal Government to pay the interest on our debts on time and that the President therefor has the option to do whatever it takes to ensure that we meet our debt payments. There are two massive problems with this logic.

First, we have the money to pay the interest on our debts even if we hit the debt ceiling. We literally have enough cash on hand to pay what we are supposedly mandated to pay. Second, even if we did not have the cash on hand to pay our interest--which we do--those ten words do not grant the President the authority to exceed his authority and unilaterally raise the debt ceiling. The president cannot violate one part of his Constitutional duties to fulfill another.

If President Obama does follow the cries of his allies in Congress and decide to raise the debt ceiling himself, it may very well set off a cascade of political intrigues that will have tremendous consequences for the 2012 elections. If he does do it, Obama is seeming to hold the upper hand insofar as the public will be more concerned about economic issues rather than separations of powers. But that would be the only early advantage that Obama has, and the public response would depend significantly on what both parties do following such a move by the White House.

The Republicans could very well start impeachment proceedings against President Obama for grossly exceeding his constitutional authority. This would set up a flood of fighting in Washington, D.C. that would probably irk the public even more than the Clinton Impeachment proceedings did, which would be risky for Republicans depending on how the entire thing is seen-- however, if President Obama cannot offer strong arguments for exceeding his authority and depending how long it is dragged out, it could certainly weaken Obama's image and ability to campaign fully if he is being impeached. But, since Republicans and the anti-war Left in the House of Representatives barely lifted a finger outside of some rhetorical whining after President Obama launched his unfunded and unauthorized not-war in Libya, it has weakened the ground that Congress has to oppose Obama's expansion of his executive powers. Though, it might prove possible to try roll the Libyan war, still opposed by most Americans, into President Obama's invoking the 14th Amendment as a campaign to impeach him--multiple grievances and such--and pull in the Operation Fast and Furious gunrunning debacle in the background. 

Conviction would not make it through the Senate, but such a move could bring questions of the constitutional limitations of the Executive Branch back into the public discussion in the run-up to the 2012 elections, which would force progressives like Obama to publicly defend the lack of constitutionality to their positions and would also bring the subject up in a more clear way during the Republican nominee debates and next year's presidential debates. This would hinge on the ability of the Republicans in Congress to execute it well and try to avoid seeming like petulant politicians, so I would really not stake my hopes upon such a line-- but it is certainly a possibility.

The other massive consequence would be how Democrats respond to such a move by President Obama. The president would exceed his authority to increase the nation's debt, but the question of the nation's fiscal solvency would still be at the forefront and, unless the Democrats immediately act to make cuts, it would be politically devastating to the Democratic party in the upcoming elections. The public knows we need to make cuts. I suspect that the Democrats would in turn offer some gimmicks as they have been to make it seem like they are cutting back, at which point the onus would be on the Republicans to expose their false cuts. Again, this would be a more precarious position for President Obama as it just makes it so much easier for his rivals in 2012 to show that the Democratic Party is fiscally insane. "They raised our debt $2 trillion by themselves without any spending cuts! They are leaving our fiscal house in complete disarray!"

All in all, I do not think it is certain that President Obama will invoke this 14th amendment option, but with all the cries of support from his friends in Congress and his progressive penchant for claiming extraordinary powers in whatever he deems to be extraordinary situations, it may very well be likely. The consequences of such a move might make him appear to be the hero who saved us from collapse, but with the current mood of the country it may very well energize the Tea Party movement even more and push moderates towards the Republican candidates due to the ensuing fiscal issues. Presidential politics aside, it is no small fact that two-thirds of the Senate seats up for reelection are currently held by Democrats-- even if Obama manages to skim by on all this, such a mood could not only guarantee Republicans a majority, but a filibuster-proof supermajority to boot.
Categories > Presidency

Political Parties

The Zombie Party

Bob Hope on the Democrats.

Categories > Political Parties