Unmasking the big lie at schools

This from Dan Weintraub at the Sacramento Bee:

The occasion was the endorsement of Treasurer Phil Angelides, who is running for governor, by Assembly Speaker Fabian Núñez. The two Democrats used the moment to bash Gov. Arnold Schwarzenegger and his policies.

"He said he wouldn't cut education," Angelides told the students, "but he did."
The treasurer's statement was the latest attempt by Democratic leaders and their allies in the teachers unions to persuade voters that the budget proposed by Schwarzenegger earlier this year and approved by the Legislature reduced funding for the schools. The governor's opponents think that if they repeat this lie often enough, people will believe it. So far, they have been right.

The truth, however, is that while Schwarzenegger did not give the schools as much as he once promised he would, his budget this year increased funding for education, and not by just a little. It provided $3 billion more for kindergarten through community colleges, including a $2.5 billion increase for K-12 alone. That was a 5 percent boost from the year before, or nearly $400 for every student enrolled in the public schools.

There are times when I wish the libel and slander standards were a little lower for public figures. These two politicians not only have no proof about their allegations, they simply know better. Nunez in particular has more of a direct role in any "underfunding" of public schools. Like other states, the Governor may submit a budget proposal, but it is the legislature that issues the official state budget.

The Incumbent Protection Racket

Being elected to Congress is tantamount of a lifetime appointment similar to being named to the Federal bench, at least in the House of Representatives. According to government watchdog, Common Cause, in 2004, 399 Congressional incumbents ran for re-election. Of that number only seven lost and two of those seven ran against other incumbents in Texas. Thus, a 98.3 percent incumbent re-election rate nationwide and a 99 percent re-election rate for all states outside of Texas. Since 1976, the incumbent re-election rate for the House has dipped below 90 percent only once, in 1992, when it was 88.3%.

Congress has become a permanent institution. Even in the redistricting year of 2002, when traditionally seats are more vulnerable due to the change in district lines, the re-election rate was 96 percent. The reasons for the incumbent re-election rate being so high are many, but all of them can, in the end, be reduced to two matters, the redistricting process and campaign finance laws.

Redistricting: The Only Real Bi-Partisan Effort
In most states, the state legislature controls the process of drawing the district lines for both state and congressional legislative districts. The process, which used to involve the literal smoke-filled back room, has become a high stakes battle between demographers and database experts. The precision with which district lines can be draw to include or exclude people on a given street depending on their partisan affiliation or trend in the neighborhood boggles the mind.

But redistricting is not the battle one would presume, namely a battle between the parties for power, which in some cases, such a Georgia, Pennsylvania and Texas, it is. Rather, the political parties argue and wheedle to get a few hundred more voters into their districts to solidify their hold on the seat. If that means a few voters move to another district to solidify the hold by the other party on that seat, that’s fine. Thus is born the sweetheart gerrymander, where the major parties schmooze one another to guarantee that neither party loses seats.

The result of this bipartisan love-fest is Congressional seats that are more and more safe. According to the Rhodes Cook Report, since 1990, the number of competitive House seats, defined as districts where the winner won with less than 55% of the vote has fallen from a high of 111 in 1992 to just 32 in 2004.

The prospects for change are slim, simply too much power hangs in the balance of the redistricting process. State legislators look to ensure their own tenure in the state legislature or at least lay the groundwork for moving up to Congress, in a safe seat of course. Some states, however, have changed their process as a result of the referendum process, for example, the California proposition currently being considered this fall. Similarly, the residents of Arizona passed a Constitutional amendment making the redistricting the duty of a five member commission with a mandate, in part, to favor competitive districts when possible (see Sec. 14(F)). Iowa uses a legislative support agency to draw the lines.

Are these methods perfect? No, but unless something is done to make the redistricting process more transparent and skewed to favor competition among candidates and the parties, there will be little incentive for the states to make a change. Without the change in laws and process, there is not likely to be much change in the Congressional Roster anytime soon.

Campaign Finance Laws: Regulating Speech, Ensuring Re-election

The current structure of the campaign finance laws, at least at the federal level, all but guarantees elections that are not competitive at all. As a matter of disclosure here, I don’t believe in much regulation beyond the power of disclosure, i.e. reporting where the candidate’s campaign money is coming from. Everything else is an encroachment on freedom of speech and particularly political speech. But having spent most of my adult life in the campaign finance world, here are some of the practices that favor incumbents.

Year-Round fundraising. As a former PAC manager, on November 8, 2000, literally a day after the incomplete Presidential election, operating on a little more than two hours of sleep, I received a call from Senator Robert Smith (R-NH) asking for a $10,000 contribution from the PAC I managed to his campaign in 2002!!! Thus started the 2002 election cycle.

Incumbents receive the bulk of the PAC money available. The reasons for this largesse are many (and none are connected to the concept of money buying support among legislators). But the result is that by the time challengers file papers to run in a race, the incumbent has amassed an nearly insurmountable lead in fundraising, placing a very large obstacle in the path of potential challengers.

Certain advantages will always accrue to incumbents. It is far easier for an incumbent to get his or her name in the papers or to be invited to speak. But it is within the power of Congress to say that fundraising will only occur once a challenger has filed or during the actual election year as I have argued in this forum and at this location. I realize the Olympian task involved to get Congress to agree to such a proposition, but it would go a long way to leveling the playing field and making campaigns more competitive.

An additional plus to this idea would be that for at least one year Congress can focus on being full-time legislators and not full-time campaigners.

Legal Protections. If candidates filing to challenge incumbents face the massive obstacle of a bloated campaign war chest belonging to an incumbent, one method to jumpstart a campaign is to self-fund, i.e. spend a great deal of your own money. There are drawbacks to only the personally wealthy being able to run, but that is the subject of a later post.

But Congress has thought of that as well, passing, as a part of the McCain-Feingold free-speech sapping Bipartisan Campaign Reform Act, the Millionaire’s Amendment. This legislative absurdity states that if a candidate (read incumbent) is facing an opponent who will spend in excess of certain amount of their own money (currently $350,000 for House candidates) that candidate (incumbent) may raise funds under increased contribution limits—up to six times the normal limit (currently $2,100 per election). According to FEC data for the 2004 election cycle, incumbents spend less than 0.5 percent of all the money they raise for re-election from their own pocket, against the nearly 12 percent for open seat candidates and over 16 percent for challengers. During the debate, Senators supporting the Millionaire’s Amendment routinely stated that the amendment would “level the playing field” and make campaigns fairer. What they didn’t say was that they would be the primary beneficiaries of the amendment.

So what is the solution for this abomination? Treat political wealth and personal wealth the same. If an incumbent has a big warchest, allow challengers to raise funds under increased limits until parity is achieved. Then everyone is on a truly level playing field.

Some would say, reasonably, that the best way to limit the effect of big money in the system is to impose some very low limits. This belief is premised on the thought that everyone should have an equal voice in government, that big money somehow corrupts the process. But the premise is flawed. There exists a guarantee of equal voice--voting rights. Corporations and labor unions cannot vote, individuals can and that makes them more powerful than the richest PAC.

Leadership PACs: Campaign Funds in Disguise. A leadership PAC is a political committee that is, while legally distinct, the functional equivalent of an alter ego of a member of Congress. Leadership PACs used to be the tools by which, well Congressional leaders, helped their party out by raising additional funds to contribute to junior Congressmen and candidates. In the past, the Speaker, the Majority and Minority leaders, powerful committee chairmen and occasionally ranking members might have a leadership PAC. You could count the number of real leadership PACs on two hands.

Today, even the most junior member of the House has a leadership PAC. These PACs are used for political travel, fundraising expenses and other functions designed to increase the political stature of the member who nominally sponsors the PAC. Leadership PACs used to allow Congressional leaders to travel to other candidates districts to help raise money for those candidates. Today they are simply a means for a candidate to increase his ability to influence his own re-election prospects.

Challengers and open seat candidates do not have leadership PACs. They cannot tap into a fundraising base twice like incumbents can. Incumbents with a leadership PAC can fund travel back and forth to the district and within the district without having to tap in to their personal campaign funds, leaving more money in their already bloated campaign account to campaign.

If this description of leadership PACs confuses you, you are not alone. One solution would be to outlaw leadership PACs, which the PAC manager in me would like to see happen, but the lawyer in me objects. A lesser alternative would be to limit the geographic location where funds can be spent, i.e. not in the Congressman’s home state. Yet, I am aware of hypocrsiy of my position in that such limitations, I admit, run counter to my belief that we need less campaign finance regulations, not more. Thus, leadership PACs may just be a by-product we have to live with.

What to Do: A Reality Check

Of course, the biggest problem with campaign finance laws remains that Congress gets to write the rules. So long as no one pressures them to change the rules, no change will occur. Campaign finance changes never top anyone’s list of important issues, but the near permanence of Congress must change if we are to have real political debates in this country, political debates with consequences for those Congressmen who dare not act as they should, as representatives of the people.

Campaign Finance reformers like Democracy 21 and Common Cause routinely espouse the view that government needs to ensure some that the democratic process must work. But such a viewpoint is not democracy, but bureaucracy. The ideas and rules I have put forth in here aim to truly level the playing field, making it more likely that challengers can succeed in the political arena. I oppose term limits which, unless included in a Constitutional Amendment, are unconstitutional. Rather, I would prefer rules that make campaigns a true competition between candidates and ideas. Is such a world possible? Yes it is, but not likely right now. But with more educated voters, we can get there from here.

Barone on Abortion

Michael Barone has this interesting take on The politics of abortion (9/27/05). A well-written piece on what would likely happen if the Court overturned Roe. The short answer is "not much."

Direct Action

If the guy can avoid assualt charges, which are almost sure to come, this is a classic. Haven't been able to cofirm the story as reported by Cao's Blog

Two things navy seals are taught.

Sex-Ed Panel Aims to Sway Lessons on Gays

The debate on the sex education curriculum in the People's Republic of Montgomery County, already strange enough, continues to get more interesting. A new group is joining the fray, making more unlikely that the curriculum is going to be relevant on any level. Teachthefacts.org is "seeking representation on an advisory committee that will work with the school system on devising the lessons. The school board will select the committee next month."

I am all for diverse representation on the advisory panel, but how many groups are going to be represented and how with the panel make any sort of consensus recommendation. At the very least, we are looking at years of lawsuits in the near future as every group not selected will sue, every groups whose viewpoints are not represented in the recommendations will sue, and you can be assured that someone will not like the curriculum (when ever it comes out) and will sue. Sounds like a good time to be a lawyer in Montgomery County. I wonder if anyone is hiring?

Democracy 21 Distortions

In this release from Democracy 21, the organization headed by Fred Wertheimer (the most naive man in America) Democracy 21 cries the sky is falling regarding the recent House Administration committee hearing on campaign finance rules regarding the internet.

A new effort is underway in the House of Representatives to restore corrupting soft money to federal elections by allowing federal candidates and state political parties to spend soft money on campaign ads on the Internet to support and oppose federal candidates.

The effort is being undertaken by House Administration Committee Chairman Bob Ney (R-OH) in the guise of exempting political communications on the Internet from the campaign finance laws in order to allow bloggers to engage in unregulated political communications.

But the reality is that bloggers can already engage in such communications under existing campaign finance laws. Meanwhile, the Ney led effort to create a blanket Internet exemption from the campaign finance laws, if successful, would open gaping new soft money loopholes in the laws and return Members of Congress to the corrupting world of soft money.

First, I disagree with the notion that the House committee was considering a blanket exemption for Internet activity. Such a statement is utterly false.

Second, let us assume that some sort of exemption would be given for internet activity in the campaign finance realm. Such an exemption would still have to fit within the confines of the Federal Election Campaign Act. The act prohibits express advocacy regarding candidates by corporations and labor unions. Any statement to the contrary is different. The arguments made by Mssrs. Black and Krempasky were that their organziations are more akin to the media and subjecting them to different rules than traditional newspapers or radio/TV would be discriminatory and have an adverse effect on independent bloggers. Similarly, Mike Krempasky argued that Congress needs to think not only of bloggers, but any other new form of communication that may come along that provides broad access in a cheap forum. (I am thinking podcasts, but other technologies may come along).

Democracy 21 makes this asinine statement:

The blanket Internet exemption, if enacted, would allow federal candidates to control the spending of soft money by corporations, labor unions and wealthy individuals to pay for campaign ads run on the Internet to support their candidacies.

I am not sure what we are talking about, but let me take a few guesses. First, wealthy individuals. If they are spending their own money, it is not soft money but independent expenditures, which must be reported to the FEC under current law, regardless of the medium of distrubtion. Second, where the hell is the concept of control coming in? if by control you mean that candidates can by ad space, well they can do that and it must be reported to the FEC by the candidate--who are expressely forbidden from raising, spending or directing the spending of soft money by current law!! Third, if a corporation makes a communication regarding a candidate, under current law that communication must be made with hard money if made to the public or can be made to its PAC members and eligible class without limit because it is not public.

Yes, Mr. Wertheimer may be naive, and not only that, he clearly does not understand the law he consistently attacks.

The Dirty (Baker's) Dozen?

A group called the Citizens for Responsibility and Ethics in Washington issued a report in which it named 13 lawmakers, of both parties, but primiarily Republicans, who they say have violated ethics laws. According to the Seattle Times, "Representatives for some of the 13 congress members dismissed the report as 'pure politics.'"

A quick scan of the report shows that the lawmakers accused of improper ethics have either been cleared of such charges by the House/Senate Ethics committee or been punished in some way, like the paying of FEC fines or closing of FEC cases. The problem with such reports is that they tend to gloss over such details.

An Interesting Idea

The Centre Daily Times of State College, PA, offers this interesting idea for helping raise funds for Katrine relief efforts: Make federal candidates tithe their campaign war chests.

Members of Congress have voted more than $60 billion in Hurricane Katrina disaster relief, with the total estimated to eventually go as high as $200 billion.

But that's (mostly) your money. What about their campaign money?

After all, shouldn't sacrifice for the vulnerable start with the powerful? So how about this unconventional idea: Washington should call a 90-day moratorium on campaign fundraising, and both parties -- and all congressional incumbents -- should tithe from their campaign funds for Katrina relief.

That means 10 percent of their war chests should go to hurricane relief, or they should raise that amount and donate it to the relief effort instead of collecting still more for the 2006 campaign battles.

A little later comes this:

Federal Election Commission re-cords show that the party campaign committees and House and Senate incumbents have more than $400 million with nearly 14 months to go before the elections. Tithing would yield $40 million for Katrina aid, money that otherwise would probably just be used for attack ads.

The rest of the piece is pretty much a solid argument against the current incumbent protection racket. Check it out.

Cost of redrawing boundaries panned

I have heard all kinds of reasons for reforming the manner in which legislative districts are drawn in this country. This, however, may be the most effective: it simply costs too much money.

Of course, the budgeting for it may be a reason for ending the current practice, but it may not be pursuasive to most legislators, who have much to lose if the process is changed.

Hat Tip to Votelaw

Leadership PAC Loophole

I have never been a big fan of leadership PACs, at least as they have become in the past several years. (Aside: how is a leadership PAC a leadership PAC if freshmen members of Congress have them?

Anyway, in a must pass appropriations bill, a provision has been added that would allow for the unlimited transfer of funds between leadership PACs and the national parties. Generally, I am against lots of campaign finance regulation for a variety of reasons. I don't necessarily see this idea as something bad in and of itself. What I find offensive is the below the radar screen method of attaching this proposal to an appropriations bill.

If the sponsor of this idea wants to get it passed into law, fine, then do it through the normal legislative process, out in the open and subject to attack, defense and debate. The Cincinnati Post remarks:

We've never been big cheerleaders for the McCain-Feingold approach, mainly because experience has shown that money will make its way into politics in much the same way that water will make its way downhill. Better, in our view, to focus on making the flow transparent, and to write the contribution rules in a way that doesn't give one party or one special interest a particular advantage over others. Moreover, while we're more willing than he is to accept contribution limits as the price for curbing the corrupting influence of special interest money, we share McConnell's apprehension over the free speech limitations that are inherent in the McCain-Feingold scheme.

Still, if we're going to change the rules, it should be done only after a full and open debate.

I agree. I have some definitive remarks on leadership PACs to come.

In the OTB Traffic Jam

Not the Answer

The proposal by President Bush to put the Department of Defense in charge of natural disaster response is bad on so many levels. From misapplication of skills and expertise to improper management structure to the simple abandonment of basic principles of federal government, such a response to the Katrina and Rita hurricanes smacks of stupidity.

Plus, it is not necessary. FEMA has problems and this is not news, but they should be the agency or some other civilian agency responsible for natural disaster response. If the United States is attacked, the DoD is the go to agency. But if we experience natural disasters, the military is not hte answer. Military assets can and should be used, but they should not direct the effort. Here's more from the Wash. Post:

Under the new National Response Plan unveiled last winter, local military commanders are authorized and pre-approved "to respond to requests of civil authorities" for "immediate response" needs, including rescue, evacuation, medical treatment, restoration of vital services and safeguarding and distribution of food and supplies, said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland School of Law.

The current National Response Plan developed after the Sept. 11, 2001, terrorist attacks gives the defense secretary authority to provide military support for disaster relief efforts at the president's direction...

However, active-duty troops generally cannot take on domestic law enforcement roles, which is what many experts said was desperately needed to stop the rioting and violence in the streets of New Orleans after Katrina hit. National Guard troops under state control are allowed to take on law enforcement responsibilities.

The state and local governments need to realize that they hold the primary responsibility for disaster preparedness and relief. The federal government should have a secondary and support role in these situations.

FEC v. Club for Growth, Update

I have learned that the FEC v. Club for Growth case has been assigned to Judge Ricardo Urbina. As far as I can tell, Judge Urbina has not heard a case on election law, which may actually cut in favor of CFG.


An answer to the complaint should be due sometime around October 9, give or take.

Tenure, Turnover and the Quality of Teaching - New York Times

The Easy Metrics are Failing Us

When schools began implementing the No Child Left Behind Act, the genuine concern was whether or not schools would be able to show adequate yearly progress in core subjects particularly reading and math skills. The response was knee-jerk and almost immediate, we need to spend more time teaching reading and math. In an article in the Washington Post comes this quote:

Andrew Rotherham, co-director of the nonprofit group Education Sector and a member of the Virginia state school board, said: "When faced with disappointing achievement in math and reading, the first reaction of too many schools is to just teach those subjects more and consequently squeeze out other subjects. This 'solution,' however, ignores one common culprit for low achievement -- teaching. Instead of using data to determine if teachers are teaching the material, are able to teach it and what exactly students are struggling with, too often schools decide to just extend the time on these subjects. The problem is, if your instruction is weak for 60 minutes a day, it's going to be for 90 minutes, too."

The three easiest metrics in schools are standardized test scores, teaching time, and average time spent on homework. Of these, the school can only control the latter two. Thus, if the school is looking show that it is improving "quality" the easiest measures to show the state and parents are the amount of teaching time spent on a given subject and how much homework is being given. But as Rotherham pointed out, the measure is one of quantity not quality.

Speaking of metrics, this from today's Sacremento Bee:

Last year the law required that about 12 percent of students score proficient or better on math and language arts tests for a school to avoid program improvement. This year, the law requires about 23 percent hit that mark on the tests students took last spring...

O'Connell said he expects the portion of Title I schools facing the law's consequences to rise each year as the federal performance target goes up. In 2007-2008, No Child Left Behind will require that about 34 percent of students test proficient. The increase continues until 2014, when 100 percent of students are supposed to be proficient in math and English.

I am not sure why this is so surprising. Any new program is likely to see a quick spike in success when the program first starts. This is the "low-hanging fruit" bounce. But as the program wears on it becomes more and more difficult to meet performance targets without significant changes. The fact remains that for most school districts, at least to my understanding, have not made significant changes in the manner in which they teach or manage their efforts. Most school systems figured, wrongly as it is turning out, that if they just put more effort into to teaching then test scores will improve.

This is another example how the long-term culture of public schools is coming back to haunt us. For decades our response to educational problems was to throw money at the problem. This lead to a mentality among educrats that if there is a problem doing more of "something" is the solution, rather determining if that "something" is the right thing. So now, instead of simply throwing more money at the situation (which is also being done), school systems are now requiring more teaching time--never questioning whether the teaching being done will address the root cause of the problem.

Stuck in the OTB Traffic Jam.

Practical Thoughts on Fixing Campaign Finance

The recent spate of activity at the FEC regarding regulations and litigation, namely the Club for Growth suit, has brought about some new thoughts about how real campaign finance reforms should be implemented. Specifically, we are on the wrong path entirely and unless we make a turn for the better, significant political freedoms will become limited.

Like many people, including Senator Mitch McConnell and others, I have always thought of campaign finance matters from a First Amendment viewpoint, but that is where many of the similarities end. I do not subscribe to the viewpoint of "money equals speech." Rather, for me, the First Amendment right impacted is one of association. The concept of me giving my hard earned money to a candidate is symbolic of my alliance with that candidate. I am saying to the candidate and the world, "by giving this money to you, I am publicly supporting you and your candidacy." If I want to give more than $2,000 to show how much I support that candidate, why can't I?

Here has been the progression of campaign finance regulation on the federal level. First, there were no regulations and the concern was that the citizenry did not know who was funding the campaigns of candidates for public office. Thus came the Federal Election Campaign Act, designed to prevent corruption or the appearance of corruption in the system. The big part of this law was disclosure of sources of funds. I am a big believer in this system of disclosure as it is open to the press and public.

However, over time, this kind of activity proved limiting and the concept of soft money was born. Soft money soon overtook the regulated activity under the FECA and so we got BCRA which banned overtly political actors from using soft money. But as the Court said in McConnell v. FEC, money, like water, will always find an outlet.

Soon came the pernicious influence of 527 organizations. The FEC tried to regulate them, but that was questionable. Now they are trying to sue to get the regulatory authority. Assuming some regulations are passed on 527s, what is next?

As can be seen, each step of regulation attempting to prevent the appearance or actual corruption represents more regulatory creep. The problem with this regulatory creep is that the regulations deal with core, protected political rights, that of speech and association. The fundamental basis of the First Amendment and the structure of our Constitution is to permit political speech, regulating it only so far as necessary. In the realm of campaign finance regulation, we have long passed the road of necessity.

The "reform" community's efforts, while certainly their right to advocate for their viewpoints, has debased the concept of an informed voter. Not that the campaign finance reformers have a lock on their view of the American voter, over the past 40 years, parties, politicians and even issue advocates have treated the voter like idiots or children that need to be protected from themselves or others. The regulatory creep in campaign finance is nothing more than a type of paternalism, implicitly telling voters, "You can be trusted to determine for yourselves, so we will have rules to tell you."

To me we have a three option tree for campaign finance reform. The options are:

1. Maintain the current path--that of regulatory creep and run the risk of bad cases making bad law in the courts.
2. Go to a completely publicly financed campaign finance system.
3. Move to a "no limits, full disclosure" model espoused by Congressman John Doolittle.

As I have said, option 1 is not an option.

Option 2, one favored by some, creates regulatory problems of its own. First, how will the public funding work? How will disparities between campaign costs for different congressional districts and states be accounted for? It is far more expensive to run a campaign for office in New York City than it is in rural Nebraska. How will candidates qualify for public financing? What are the spending limits? What if a candidate opts out of the public financing? What recourse do his opponents have? In short, more problems may be raised by a publicly financed system.

That leaves us with the No Limits, Full Disclosure model. Under this model there would be no limits on campaign contributions, but full and rapid disclosure of contributions would have to be made via the internet and the FEC. Thus, the only limits on campaign contributions are what I call the "Red Face and Laugh" Test. A candidate could accept $1 million dollars from a contributor, but would have to face public scrutiny of his activities. If the candidate cannot explain his actions without embarrassment or laughter by his critics, then he can take it and the voters could then decide whether his views on the matter are corrupted or not.

Four months ago, I wrote this idea about campaign finance regulation. But I now have a better plan. Here are the elements of my modified plan:

1. No contribution or expenditure limits at all. Any candidate, PAC or Party may raise funds in unlimited amounts. Corporations, unions and foreign nationals would still be prohibited from making contributions.
2. All contributions in excess of $10,000 must be reported to the FEC within 24 hours. All contributions in excess of $5,000 up to $10,000 must be reported within 48 hours. All contributions between $2,000 and $5,000 must be reported in 72 hours. All candidates, PACs and parties must file reports according to currently promulgated schedules. These numbers come from currently written regulations regarding independent expenditures and late contributions. The availability and ease of internet based reporting and freely available software from the FEC and commercial software for managing campaigns would make this requirement quite easy.
3. Ban the raising of all funds for re-election or election campaigns until the earlier of the filing of candidacy papers with the FEC by any candidate other than an incumbent or Jan. 1 of the year of the general election. Thus, if a candidate for any federal office files papers with FEC declaring their intent to run for office, at that point, all candidates, including the incumbent, may begin raising funds. But if no one declares against the incumbent until after Jan. 1 of election year, the incumbent may begin raising funds for re-election. Special election fundraising can only begin when the governor declares the vacancy and all candidates must start from scratch.
4. PACs and parties may raise funds at all times, with no limits, but the same disclosure scheme noted above. The problem here is leadership PACs. Given the reality that these leadership PACs are alter egos of the member, I am inclined to create a separate category of PACs, officially called leadership PACs which would be subject to the same rules on fundraising as candidate committees. But I am flexible on this issue.
5. Prohibit the carrying over of funds from previous elections. One common means to scaring off challengers is have a big bank balance, if all candidates have to start at zero, the early funding advantage for incumbents is eliminated. For those who are elected, the candidate must dispose of excess campaign funds by March 1 of the following year in the means currently allowed, usually throughout contribution to party committees, refunds to contributors, or gifts to charities.
6. Repeal the Millionaire's Amendment. This to me is blatantly unconstitutional on equal protection grounds and on practical grounds is nothing more than a subtle incumbent protection racket.
7. Those who are elected and have debts may raise funds to pay down the debts, but no more until the start of the next even numbered year.

My goal with this proposal is to accomplish two goals. First, reduce the incubency advantage as much as possible, facilitated by limiting the time in which a candidate may raise funds and making each candidate for office start at the same point, i.e. zero. Second, reduce regulatory creep in campaign finance. Disclosure of funding and activities works and provides the public with the opportunity to judge for themselves whether the candidate has been corrupted by his/her contributors.

Flight 93 Memorial Conspiracy Theories

I recognize that any issue surrounding 9/11 generates intense feelings. I also know that memorials to the heroes of that day, from the unsung to the well-known are an important part of the healing process and the rememberence of the tragedy.

I am also aware of the power of symbols and the symbology of memorials carries more weight that others. I do agree that the design for the Flight 93 Memorial was insensitive at best and downright stupid at worst. I do believe the architects and designers completely ignored the politics of the day and the underlying motivations of the terrorists as well as their heritage and religion. The design of the memorial as originally proposed was poorly conceived.

yet having said that, I do believe that in some cases there are coincidences that need not be delved into as come sort of conspiracy. This post at Cao's blog is a prime example. As a former navigator, I cannot deny the accuracy of the mapping work done, but I don't think there was any effort by the architects to take the insensitivity to the level being described. the perpendicular line being drawn simply boggles the mind that the designers intended the result.

I could be wrong, but I would like to see more evidence than just cartographic calculations. The simple fact of the matter is that Mecca is on the physical other side of the world. There could be dozens of reasons for the placement of the contructed memorial, from shape and form of hte land to the zoning requirements for the memorial.

Just because the designers were insensitive the realities of the people being memorialized does not mean they have some devious plan to undermine the purpose of the memorial.

Good Reading I

The Carnival of Education is open. Go check out the reading--some very good stuff.

My favorite posts this week are:

Coach Brown's and his student's take on the court decision in California declaring the Pledge of Allegience unconstitutional.

Ticklish Ears has a post about why the Constitution Day is unconstitutional. This would be a great topic to explore further.

Finally, the Scholar's Notebook has his take on the Constitution Day. Be sure to read that opening quote by James Madison.

FEC v. Club For Growth

Having not posted on campaign finance issues in a while, I figured now is a good time since the Federal Election Commission has filed suit against the Club for Growth alleging failure to register as a political committee.

Having now read through the complaint, there are only a couple of things that are really at issue. First, is whehter the FEC has the authority to regulate IRS 527 organziations. Club for Growth is registered as a 527 (registration documents can be found here) but has stated in the past that its goal is to elect people to Congress who support pro-growth, anti-tax policies. According to its initial registration, the Club is "dedicated to helping election pro-growth, pro-freedom candidates through political contributions and issue advocacy campaigns." But is most recent amended registration statements notes something a little different in its purpose, at least different from a semantic point of view.

Allison Hayward makes one point about some of the communications the FEC alleges are expenditures, if it a communication to members, then such communications are exempt from the definition of expenditure. Let's assume that some of the communications detailed in the FEC's complaint are actually communications to members. Another question will be about solicitations for membership into the club. Some of thse solicitations could be viewed a solicitations for contributions to candidates rather than for membership depending upon the language used. Clearly, this is an issue of fact to be determined by the court.

Another interesting question for me is why did the FEC choose some of the examples of expenditures they used. For example, Paragraph 37 of the complaint talks about a $30,000 radio ad buy in Florida's 8th District in September/October of 2000 in support of Ric Keller, who was then a candidate in a run-off election. Leaving aside the question of whethe Club for Growth should be an FEC regulated committee, nothing in this allegation is a violation of then existing law. The ad said, according to the complaint, "This is a mission for Orange County Republican primary run-off voters. Your mission is to find a Republican for Congress who will battle liberal Democrat Linda Chapin...Remember, only a tax cutter like Rick Keller can help you accomplish your mission."

This ad buy and broadcast took place well before BCRA became law. Under the Buckley "magic words" test, this ad is a legitimate ad. It did not use words like Vote for, Vote Against, Elect or similar words. Even if Club for Growth was a political committee, this expenditure while reportable, could have been paid for entirely with soft money.

Subsequent paragraphs also allege behavior as improper when it was permitted under then existing law. At the time, Club for Growth's activities were permissible, but the implication made by these specific allegations is that the Club violated the law. Perhaps they violate law as it is now written, but not as it was at that time.

Some of the Club's more recent action may be more suspect. Matters related to the 2004 election cycle are clearly questionable if they maintained the types of activity they had done in the past.

The big issue is a question of law, that is can a 527 organization, with the express intent of affecting federal election, be considered a political committee for purposes of FEC law and thus regulated by the FEC? The outcome of this case will definitely reshape the campaign finance landscape. But the problem may be bad facts making bad law. The Club for Growth was explicitly engaged in election activities, but other groups like American Coming Together and MoveOn.org had more generic purposes, but some very similar activities.

Antoher interesting issue from a meta standpoint will be which DC District Judge will get the case. Judge Kollar-Kotelly has done a number of campaign finance cases, including McConnell v. FEC and Shays v. FEC in recent years. Judge Leon also served on the McConnell three judge panel.

For some news links:
New York Times
Washington Times
Associated Press
Roll Call (subscription required)

Free Speech On Your Property--Only for 30 Days

According to this story in the Washington Post, the People's Republic of Montgomery County Maryland (PRMC) has an ordinance that prohibits political advertising on your own property for more than 30 days.

The back story is that a Somerset Town Councilman Tom Eldridge bought an old house in the Brookdale neighborhood (not that these locations have any impact on the story). Common in many neighborhoods in metropolitan areas, Eldridge didn't like the tiny old house and got permission from the county to raze the house and build a brand new 6,000 foot plus McMansion on the property--but not to live in but to sell. Not surprisingly neighbors were upset and posted in their yards a sign reading "Council Member Tom Eldridge, We Don't Want Your McMansion for Profit in Our Neighborhood!"

Sounds like your normal neighborhood dispute about development. Except that the PRMC has now issued violation notices to the people who have the signs in their yard, citing " a county law limiting lawn signs to no more than 30 days in a year, unless the resident wants to pay a $29.70 fee and apply for a permit." The violation notices are the first step towards fines that could be $500 per day.

The sign itself looks to be, at most, 3 feet by 3 feet in size and are posted solely on protesters private property. But the county has seen fit to limit yard advertising to 30 days. If you want to do more you have to pay a fee and apply for a permit. What kind of insanity is this? These siogns are not a commercial advertisement nor is the ordinance a reasonable time, place and manner restriction--both areas that have been permitted by the Supreme Court in free speech jurisdictions. These are simply signs opposing an action the protesters don't like. This regulation clearly violates free speech principles. Here are some of the common yard signs that would violate this law in some or even all cases:

1. A yard sign supporting a candidate for office during election time which could last months.
2. A For Sale sign in your yard--some in my neighborhood have been up for six or seven weeks
3. A sign advertising in home day care
4. Alarm company signs (often there is a requirement in those contracts to have those out for 2 or 3 months) or alarm company sign desiged to scare off burglars.

Those are just ones I can come up with off the top of my head.

Of course PRMC is not a county known for logic and common sense given some of the dumb moves they have made in the past. However, this is an ordinance that any high school graduate with just a cursory knowledge of the Constitution would say is a violation of Free Speech.

In one of the few moves that I agree with, the ACLU has sent a letter to "County Attorney Charles W. Thompson Jr. that the order is unconstitutional because it restricts a person's right to express opinions on his own property." Thompson's response:

"The ACLU does a terrific job in the work they do, and they sent us a very thoughtful and researched letter, and we are looking into it," Thompson said.

Presumably Mr. Thompson has graduated law school and is a member of the Maryland Bar Association. This doesn't take a lot of work to figure out.

Stuck in the OTB Traffic Jam

More on School Boards

Last week, I wrote a post about this article in the Washington Post. The more I thought about it, the more I began to think about what is the proper role of an elected school board? This quote in particular bothered me?

From the dais of a windowless meeting room, the elected leader of Southern Maryland's largest school system strained to smile politely this week as she faced angry accusations from a teacher.

She had heard similar questions before: How can you be an advocate for the public schools when you home-school your children? Are you going to replace science books with Bibles? And why are you trying to censor classic literature? (empahsis added)

The question presented by the teacher assumes that a school board is supposed to be an advocate for public education. But is that necessarily true? How is an elected school board member more of an advocate for public education than say, the governor of a state, or the chairman of the state legislature's education committee? Why do people find that higher elected officials may chose to send their children to private schools somehow more palatable than the chairman of the local school board? Put another way, why can't a school board member send their kids to private school or homeschool the children and still be a proper school board member? These questions challenge the assumption that the school board is an advocate for public education. But if the school board is not an advocate for public education, for whom, or for what, should an elected school board advocate? Furthermore, what is the constituency of a school board and to whom does the school board owe its first duty?

Taking the last question first, from a purely electoral aspect, the voters of the district are the school board's consitutency, and the board answers, ultimately, to those voters. Because it is based on republican principles, i.e. the elected school board members are supposed to represent someone, I began to wonder who is the school board's primary constituency? Nominally, the school board represents the voters, but who are those voters? When you consider that many people do not vote on down ticket races like school board, the question is who does vote for school board members? Unfortunately, I don't know and if anyone can point to an electoral study on the subject, please let me know.

I suspect that school boards, as a population, are heavily influenced by teachers unions and, one would hope, parents. But the one constituency the school board should represent is the constituency that cannot vote, students.

Put another way, the one constituency a school board should represent is the one constituency with no voice in the process, except by proxy. The school board is responsible for setting policy designed to educate all children in the district. Matters of how those educational standards are met are properly within the scope of the school board's authority, but public education is but one method for achieving those standards. Any method authorized by the state to achieve education ends should be supported by the school board, including homeschooling.

The implicit problem faced by school boards like that in Charles County Maryland is that school boards with a conservative membership run counter to the liberal orthodoxy espoused by teachers' unions. But a conservative school board with an open mind about educational alternatives may be more successful at their overall goal, ensuring all kids get a high quality education. In the end, the school board can be judged only by the effectiveness of its policies on the education of kids. Regardless of the political affiliations or educational choices school board members make for their own kids, the only standard to judge a board by is how successful they are at serving their primary constituency, namely the students of the district. Everything else is hot air.

Conservatives Ascendant in Charles Schools

At first I was tempted to dismiss this story about conservatives controlling the Charles County Maryland school board, chalking it up to bitterness about losing elections. But upon reflection, I believe there are a few deeper issues involved here beyond the surface. The story starts like this:

From the dais of a windowless meeting room, the elected leader of Southern Maryland's largest school system strained to smile politely this week as she faced angry accusations from a teacher.

She had heard similar questions before: How can you be an advocate for the public schools when you home-school your children? Are you going to replace science books with Bibles? And why are you trying to censor classic literature?

Southern Maryland encompasses, three counties, Calvert County, Charles County and St. Mary's County. Charles County is the county that sits geographically closest to Washington, DC of the three and has experienced phenomenal growth in the past decade. Initially, as I said, I thought that people were reacting to a situation they created themselves, meaning that enough people did not vote against the four conservative members of the Board, so in a politically divided county, the fight was partisan.

But the story goes much deeper, into the heart of what it means for school boards to set policy and the implications of an elected school board.

Margaret Young, chairwoman of the Charles County Board of Education, has at times taught her children at home in Waldorf using a Christian-based curriculum. She says she wants teachers to stop assigning books that contain profanity and what she believes are immoral messages.

The problem for critics is that Mrs. Young is advocating a different set of criteria for developing curricula, one that is not steeped in liberal, self-esteem based, social justice language, but one that some people find offensive because of its conservative, religion basis. Similarly, Mrs. Young felt that the public school system was doing a disservice to her children, whom she stated "needed to be educated right now." Young and her supporters argue they are seeking a return to back-to-basics lessons, greater parental invovlement and character education--factors that are often missing in education in Maryland. (Remember, this is a state whose largest county (Montgomery) once appointed an 11-year-old girl to be the student advisor on a sex-education curriculum development panel.)

Charles County takes a place in the growing debate about the role of religion in the public sphere. The Charles County School Board's majority is unabashedly Christian, but is that necessarily a bad thing? Cannot a religious-minded school board member not make an effective judgment about the efficacy of education? Is such a person automatically suspect?

Obviously the answer depends on your point of view. But cannot, indeed should not, an elected body, consider and advocate for alternatives to the prevalent thinking? The fact of the matter is that many school systems in Maryland are very good and some are very bad. Many of the problems associated with poor school districts falls into the realm of poor management. Here is a school board that openly questions prior management, leading to heated debates. Indeed a school board the debates issues instead of acting as a rubber stamp I would argue is better than anything. At the very least the community must decided collectively how best educate their kids--and Charles County would be one of the few counties in Maryland to be actively asking the question.

A Poverty of Thought

George Will is probably one of my favorite regular political columnists. This week he brings us A Poverty of Thought, a not so subtle jab at Democratic leaders and the concept of a war on poverty.

Will cites a stunning number,

The senator [Barak Obama of Illinois], 44, is just 30 months older than the "war on poverty" that President Johnson declared in January 1964. Since then the indifference that is as bad as active malice has been expressed in more than $6.6 trillion of anti-poverty spending, strictly defined. (emphasis in original)

.

Now I don't know what "strictly defined" means but I am sure that no one thinks that helping people out of poverty is a bad thing. In fact, even the most hardened conservative would say that as an affluent nation we have duty to help our citizens who are less fortunate than others. But it seems to me that, given the "rampant poverty" that exists, according to some Democrats, (and I am not denying that it doesn't exist) it would seem that 40 years of activity in a war on poverty that has not altered the poverty rate would seem to be a failure.

If the definition of insanity is doing the same thing over and over again expecting a different result, our governmental leaders from say Nixon on, of both parties and in all branches of government belong not in the Capitol but in St. Elizabeth's mental hospital. The insanity is rampant.

Will notes that Obama and others would do better preaching to everyone three basic rules for avoiding poverty:

The senator [Obama] is called a "new kind of Democrat," which often means one with new ways of ignoring evidence discordant with old liberal orthodoxies about using cash -- much of it spent through liberalism's "caring professions" -- to cope with cultural collapse. He might, however, care to note three not-at-all recondite rules for avoiding poverty: Graduate from high school, don't have a baby until you are married, don't marry while you are a teenager. Among people who obey those rules, poverty is minimal. (empahsis added)

Assuming Will's "rules" are just that, it does not take a genius sociologist to understand that the "rampant" poverty among minorities is not because of systemic pressures keeping them down--if anything the system spends trillions trying to help them up. Rather the issue is a cultural one.

Lest anyone think me a racist, Will's rules apply equally to whites, hispanics or any other minority. Thinking that all we need to do is spend more money on anti-poverty programs will work is the true poverty of thought--a poverty of imagination and effort.

Roberts and Affirmative Action Line Drawing

This is the second in a series of posts regarding what I think are future issues for the Court. The first post on abortion is here. The Senate Confirmation hearings just provide a great excuse for opining, just like everyone else.

As expected, Judge Roberts is getting a grilling from Senators Kennedy, Biden and others on the Senate Judiciary Committee regarding affirmative action. Roberts views on this are pretty well known, he doesn't like quotas, but has done work on affirmative action in the past. However, like all Senate hearings, this confirmation hearing is looking to the past to ask questions instead of asking questions about the future impacts of issues, as Professor Jeffrey Rosen suggested in this New York Times article (subscription required-sorry) which originally appeared on August 28 in the NY Times Magazine.

I am not sure what motivates Judge Roberts' opposition to affirmative action, but my motivation has always been about lines, that is where do we draw the lines defining the scope of affirmative action? The limits of affirmative action, whether they be temporal, racial, socio-economic or otherwise, have been the downfall of the policy.

No rational observer of history can deny that racial discrimination did not exist in this country. However, affirmative action was not the best program to address past inequities, merely the easiest. It was easy for the government to say, "We should cut people a break to make the playing field level," but the result of the policy was a counting game. Looking at a class of people and counting became the determination of affirmative action. Call it what you want, quotas, reparations, or fairness, but proportional representation became the goal and all other standards became secondary. Of course, the liberal left and minorities would say, "the discrimination happened, you have admited as such and implicitly admit that some sort of correction was necessary." Indeed, but affirmative action means that when dealing with resources which are finite, a zero-sum game exists. In order for someone to get a break, someone must lose out, perpetuating some form of discrimination.

But any rational observer of history will note that we cannot go back and alter history, the plain fact of the matter is that affirmative action exists. Fine, but that returns us to the original problem--where do you draw the lines going forward? Let me offer a hypothetical. Student A and Student B both come from households that fall well below the poverty line. Both children live and went to school in districts that were poorly funded, received free lunches, received government subsidized health care and were in all respects equal in terms of academic preparation, i.e. identical 3.0 GPAs and 1200 SAT scores. These students worked hard to get where they are, ready for college

You should know where I am going. Student A is black and comes from inner city Atlanta, Student B is white and comes from rural southwest Georgia. If both applied to the University of Georgia, the black student has a much greater chance of getting in, a greater chance that can be statistically calculated, merely because of his race.

But this is an old problem. What Professor Rosen pointed out in his article is that technology and the changing demographic nature of the country are going to wreak havoc on contemporary notions of affirmative action as currently formulated.

If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.

Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?

What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:

As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"

Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes:

"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."

If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?

I have not even explored other issues such as the economic issues. How can we say that a black child born of rich, upper middle class parents is entitled special consideration as opposed to a poor white child from Appalchia? What about immigrants from Africa or Latin America that are clearly of a particular race, but, because they are first generation immigrants, have not been subject to the history of discrimination in this country?

These are the questions that should be asked of Judge Roberts, but won't be. Partly because Judge Roberts is smart enough to know that such issues will be coming up in the court system, and partly because the Senate is notoriously bad about looking forward, we won't get answers. But at least if the question were asked in such a public forum, the real debate can begin in America about what are the appropriate lines to draw in affirmative action or even if we still need affirmative action.

In the OTB Traffic Jam and Basil's Blog

Bush Takes Responsibility for Katrina Failures

While there is a lot of blame to go around, as far as I know the President is the first elected official to take responsibility for the failures in New Orleans.

I haven't seen one from Governor Kathleen Blanco and New Orleans Mayor Ray Nagin has reportedly taken up residence in Houston rather than staying in some close proximity to New Orleans. Even Baton Rouge is closer than Houston.

Bush Takes Responsibility for Katrina Failures

From My Pen to Judge Roberts Mouth

On July 29, I authored a post over a Watchblog, where I am a contributing writer, that I thought the decision in Kelo should be a comfort to liberals worried about Roberts ruling to overturn Roe.

I had argued that the Kelo decision was a logical extension of the Court's decisions in previous case and its respect for stare decisis and precedent. In fact, the decision was simply an amalgamation of two previous cases combined together.

So what does this have to do with Roe and the debate over abortion. Simply put, the Court no matter what its current composition is to a certain extent, bound by the decisions of past Courts. The purpose of stare decisis is to provide predictability in the law despite the current personnel on the Supreme Court. Even if a majority of the members of the Court decide to take a case on abortion, itself not necessarily a given, the fact that over thirty years of decision founded on the legality of abortion means that the court will need a solid reason for overturning Roe.

Well today, in his confirmation hearings, Robert said pretty much the same thing that I had argued. (great big hat tip to the live blogging of Tom Goldstein at SCOTUS blog) Precedent is important and it should not be dismissed with significant reason.

9:32 - Specter asks about Casey and its view of stare decisis vis-a-vis Roe. Roberts says "the importance of settled expectations" is "very important." Stare decisis involves many factors, including the workability of precedents and whether the doctrinal bases have been eroded. Specter says those don't apply to Roe. Roberts says he feels the need to stay away from particular precedents. He says that in Casey did consider the erosion of precedent.

9:35 - Specter continues to press on Casey. Roberts says that of 1992 you had a reaffirmation of the central holding of Roe. That application of stare decisis would itself be entitled to respect. Roberts has said nothing that suggests he would vote to overrule Roe.

9:37 - Roberts says he won't say whether he agrees or disagrees with particular cases. Specter says he is asking about jurisprudence and reasoning, not whether Roberts would overrule Roe. Specter focuses on Casey's discussion of the Court's legitimacy. Roberts says legitimacy is critically important, citing Payne v. Tennessee as saying that broad disagreement is a basis for revisiting decision, noting that Casey took the opposite view. "It is a jolt to the legal system when you overrule a precedent." "It is not enough that you think the prior decision was wrongly decided. That doesn't answer the question, it poses the question."

9:40 - Roberts - there are times instability "is a price that has to be paid," citing Brown and other cases. In those instances the overruled precedents had been undermined.

9:42 - Specter asks about "super-stare decisis," Judge Luttig's phrase describing Roe after Casey. Roberts says that the Supreme Court hasn't recognized that term. Casey itself "is a precedent" entitled to respect under stare decisis - i.e., its methodology and reaffirmation of Roe. Roberts is suggesting a double-hurdle for overruling Roe - not just overuling that decision but overruling Casey's view of stare decisis.

9:52 - Specter asks about Roberts' reference in a memo to the "so-called right to privacy." Roberts - I do believe that the right to privacy is protected in various ways; the 4th A; the 1st A; 3d A; and in addition the Court has over a series of decisions going back 80 years has recognized that it is a component of the liberty protected by the Due Process Clause, not merely procedurally but also as a substantive matter as well.

9:55 - How Appealing cites to an AP article saying that Roberts has "sidestepped" Roe. My take is slightly different. He certainly has not answered directly whether he would overrule it. But his comments thus far very strongly suggest that, post-Casey, he would not overturn it given stare decisis.

Can we finally put to rest this issue. The abortion question as it is framed is not the important part. Assuming Roberts is not going to current abortion jurisprudence, the more important question to ask is this one that I wrote about last week.

Found in the OTB Traffic Jam.
Linked to Basil's Blog

Let's Read the Constitution!!

The State of civics education in this country is deplorable as evidence by this little screed at a blog called "Third Estate Sunday Review."

Aside from the disrespect shown to the President of the United States as "Bully Boy," these five "students" (and I use the term loosely because they are journalism students) show their lack of understanding of anything remotely Constitutional.

Only in a Bully Boy world could someone who's never served on the Court be considered worthy of not only serving but also presiding over the Court.

I'll dismiss this and move on to answer their "questions."

Are you telling us that of the seven justices currently sitting, and planning to continue sitting on the bench (we're leaving out the eighth who's announced her retirement), that there's not one, with their years of experience, who's actually qualified to be Chief Justice?

Actually, all seven are and I believe everyone could agree on that, but this President is not going to name Stevens, Ginsburg, Souter or Breyer to be Chief Justice on ideological or policy grounds. Same for Kennedy. Justices Scalia and Thomas could do it, but they might have a hard time getting confirmed. Nominations are a political matter, not necessarily one for pure experience.

Second, there is no requirement that the Chief Justice have served on the Supreme court before becoming the Chief. In fact, there are no Constitutional qualifications to be Justice, including no minimum age, education, or even citizenship. So, assuming the President could get them confirmed, a 23 year old, illiterate immigrant from Brazil who speaks no English at all is Constitutionally qualified to be a Justice. But then again, such a person would not be confirmed.

Then there is this little diatribe:

We would assume that a new Justice would need time just to assimilate and grasp the workings involved in the Highest Court of the land. Instead of getting his toe wet, he's diving straight into the deep end. Well, a swimmer can do whatever they choose with their own lives and fate. But we're talking about a Court that is the final say in matters across the nation.

First, as a former Deputy Solicitor General, Judge Roberts has a very good idea of how the Court works and if he didn't, I am sure the other Justices would teach him pretty quick.

Second, as these "students" apparently don't know, the Chief Justice has but one vote in the Court's deliberations. The Chief Justice's duties as Chief are more administrative than anything else; he has no more influence on the Court's docket than any other Justice. According to the Rule of Four, if four Justices decide to hear a case on certiorari, they will hear it. Other cases come to the Court as a matter of Constitutional or statutory directive--a factor Chief Justice Roberts (assuming he is confirmed) has no more control over than any ohter Justice.

Finally, on this score, very rarely does the Court have the final say on anything in the nation. True, they will hear a lot of important cases, but as the debate on abortion and affirmative action shows, questions will continue to arise in many matters.

To be fair, picking on these "students" is all too easy since they put their words out there for comment. But if these students at a journalism program at a college in New York(Columbia?) then one could assume they have a little more background in the nature and structure of our government, not to mention the ability to do a little research before posting such tripe.

I would suppose that if you asked most American college students about the Supreme Court, most would not be able to name more than three or four Justices. Most would not understand the role of the court in American politics nor would they be able to understand how Justices are named. Part of the fault may be in the longevity of the Rehnquist Court since this is the first nomination to the Supreme Court in eleven years, but still. If these "students" are representative of the state of knowledge among journalism students--the media is in even bigger trouble than you might imagine.

Common Cause Can't File Lobby Report On Time

According to the House Administration Committee, the liberal good government reform organization Common Cause failed to file its lobby reports on time.

Common Cause, did not file its 2004 year-end lobbying disclosure report with the House until August 1, 2005, nearly six months after the date prescribed by law, U.S. Rep. Bob Ney, Chairman of the House Administration Committee, stated that a recent directive issued by him mandating the electronic filing of such reports by January 1, 2006, will hopefully eliminate such serious oversights in the future. Notably, Common Cause is a leading member of the self-described "Congressional Ethics Coalition,” a group of liberal outside organizations that many in the national media have pointed to as “government watchdogs."

Chairman Bob Ney had these comments:

Noting that on its website, Common Cause claims to have "led efforts" to "enact strict lobbying disclosure requirements." Ney said, "When we first took these important steps in June, I wondered why groups such as Common Cause did not say a word in support. At first, I thought it was because they so rarely support Republican initiatives, even if they are in-line with their own philosophy, but now it seems that they first needed to get their own paperwork in order. Now that it seems they are in compliance with the law, I hope they will support our efforts to increase accountability and transparency in government."

For the most part, the Lobbying Disclosure Act is a joke. Large segments of activity designed to influence the government are not reportable, the most glaring of which is the 20 percent rule, which states that if a person does not spend more than 20 percent of the compensated work time on lobbying (which itself is pretty narrowly defined), they those efforts need not be documented. Thus if a CEO of a major American Corporation works (on the low side) 60 hours a week, they could spend 12 hours lobbying Congress each week before having to report that lobbying activity--that is a lot of lobbying by a CEO--who will get heard.

But leaving that aside, you would think that an organzation "dedicated to making government open and accountable" could get their lobbying reports in on time. Not so good!!

Does the Left have a Different Constitution

Alright, I have a question to be asked. Do Democrats have a different Constitution than the one I have? In yet another glaring misstatment of the Constitution, Senate Judiciary Committee member Dianne Feinstein (D-CA) said in a prepared statement today (as reported by the Washington Post) that she intends to ask Judge Roberts "about 'the constitutional right to privacy' as it deals with abortion rights."

Just to be sure, I checked my copy of the Constitution and I find no "right to privacy" in the Constitution. From cover to cover, start to finish, Preamble to the 27th Amendment--there is no right to privacy in it. I have mentioned this topic before in this space.

While the Senator has the right to ask Judge Roberts about his legal views on abortion rights, she cannot ask him about the existence of a right that does not exist!!

Now of course, some Lefty is going to say something about an implied right to privacy, but implications are subject to interpretation. How I define right to privacy is not how my wife would define it. Neither of us are wrong in our definition and our views have little impact on the world other than our dinner table conversations. But the danger with a judge having a subjective interpretation of a "right" to privacy is in the inconsistent application of the law.

Finally, when will we as citizens begin to demand more from our elected representatives. How can Senator Feinstein, who serves on the Constitution, Civil Rights and Property Rights Subcommittee of the Senate Judiciary Committee not know what is actually written in the Constitution?

I challenge anyone who reads this to send me the quotation, clause, section or Amendment that describes a right to privacy from the U.S. Constitution.

Katrina Leads a Lobbyist to Reevaluate His Priorities

I used to work for Fred Webber when he was the head of the Chemical Manufacturers Assocaition (now called the American Chemistry Council). I find his take on the fundraising excesses and the political money arms race interesting. I wonder what would happen if more lobbyists starting feeling the same way. Would Congress change its behavior?

I don't know, but here is my idea along the lines of changing the way Washington DC fundraising would be handled.

Wow--That Didn't Take Long

Amid questions about his fitness to lead FEMA, the AP is reporting that FEMA Director Michael Brown has been relieved of his duties managing the Katrina Relief effort.

I had theorized, although not here yet, that Brown was a short-timer in the Bush Administration. It appears as though the repetitive mistakes and mismanagement, whehter real or imagined or spun from pure fantasy, have caught up to the White House.

While the Brown may be the first of the blame game vicitims, he probably won't be the last. DHS Secretary Michael Chertoff will likely be shown the door sometime soon and not necessarily because of hte Katrina screw-ups themselves. Many of the goals of the DHS, including preparing local and state first responders with interoperable communications gear and planning, among other things, have yet to be accomplished, this nearly four years after 9/11.

Undoubtedly, there have been some glaring mistakes and Brown is the fall guy.

Hat Tip: Michelle Malkin

The Cost of Educating Katrina's Kids

On the heels of a $51 billion dollar request for disaster aid, I am guessing that there will be a bigger bill to come. The New York Times is reporting that storm victims are being welcomed into schools so that displaced children will not have their entire education displaces as well.

This fantastic act of charity does not come without costs. In the United States, it costs an average of $7,284 to educate a child. Louisiana, ranked 43rd in the nation in per pupil spending, spends significantly under the average at $5,934 per child. Alabama is ranked 45th, spending an average of $5,845 and Mississippi is ranked 49th, spending $5,179 per student. (Source: Education Intelligence Agency) With schools all over the country providing education to children, who is going to foot the bill for these extra students?

One could argue that Lousiana should foot the bill, but what about the shortfall. Lousiana is ranked 43 in the nation in per pupil spending. Texas, where a lot of the kids are now going to school, spend on average $6,460 per pupil. The $526 difference between Texas and Louisiana spending levels, when calculated over thousands of school children is not an insigifnicant number. When calculated against the national average, the disparity in funding is $1,350 per child in Louisiana, $1,439 for Alabama students and $2,105 for Mississipi students. These figures may or may not account for the increases in text book costs, supplies, transportation, gas, school lunches and breakfasts and the myriad costs associated with providing an education to a child since the data underlying per pupil expenditures vary great from state to state.

These costs are just the differences in costs for education. When you add the education costs to the other costs of services for these children (not their whole family, just the kids) you are probably talking several thousand dollars of services per child.

Most states cannot handle such an overflow of costs. The response of these states will be to either ask Louisiana for the funds, but such a hope would be quixotic at best. Even if Louisiana could fund to its statewide level, what about the additional funds to cover the disparity between the disaster state and the charity state?

The answer will, undoubtedly, be to ask the federal government. Figures ranging from $100 to $200 billion dollars are being bandied about as the pricetag for recovery and rebuilding in New Orleans alone. Do these cost figures include the bill that will be submitted by charitable states to the federal government.

Stuck in the OTB Traffic Jam

Wal-Mart Rescue Efforts

Despite the somewhat sidelong view in this Washington Post article about Wal-Mart, I personally am not surprised. Despite efforts of labor unions, lefties and people who just don't like big business Wal-Mart continues to grow. Some may ask why and for one answer just look at what they do when the excrement hits the oscillating wind-making device.

It would be cynically easy to think that Wal-Mart's reaction in the Katrina aftermath is simply a matter of PR to overcome their bad press they have received in recent years. However, such a mindset belies the long term activities of the company. If you go to Charleston, South Carolina, you will find a city that loves Wal-Mart, not because of its low prices or vast selection, but because in 1989, Hurricane Hugo blew through town. Literally hours after Hugo was gone, Wal-Mart trucks were pulling into town with relief supplies--faster in many respects than the government. I was part of the crew of Wal-mart employees who spent weeks living in the stores, with no running water and not only fixed up the store in order to provide goods and services, often at or below cost for most items but also free food and water. We also spent hours each day in the community, cutting up trees, cleaning up neighborhoods and just helping out. To this day, the city of Charleston and surrounding communities continue to thank Wal-Mart by shopping there and no one would forget what the company did.

The same will be said in Louisiana, Mississippi and Alabama. Sam Walton was a southern gentlemen as well as a savvy businessman, he believed in helping those who needed it realizing that such efforts are both humanly moral and good business. Wal-Mart can move with speed, react to changning needs and do so without the red tape of the government or the bickering and blame games of the politicians. While the company gets good PR, my guess is that everyone from Lee Scott on down to the lowliest hourly worker would be happy with a Thank You and nothing else.

This is why Wal-Mart is the biggest company in America--because it embodies the basics of America. It offers assistance for no other reason than that someone needs help and they can provide it.

For all the unions and Wal-Mart haters out there, unless and until you can find another organization who can provide this kind of aid and assistance, I suggest you shut up and thank Wal-Mart for it efforts, after all--if not for Wal-Mart in the Gulf Coast, there could be a lot more misery going around.

Not the Time for Reactionary Legislation

Roll Call is reporting that the parties are divided over legislative responses to Katrina. Before Congress rushes headlong into legislating and appropriating in response to Katrina, a pause should be taken.

Beyond emergency appropriations, Senate Minority Leader Harry Reid (D-Nev.) and other Democrats pressed to pass legislation by the end of this week that would extend federal social programs such as Medicaid, subsidized housing and unemployment insurance to newly homeless and jobless residents of Louisiana, Mississippi and Alabama...But the Democrats’ proposals and demands for "immediate" Congressional action were received somewhat skeptically by Republicans.

Senate Republican Policy Committee Chairman Jon Kyl (Ariz.) urged Members to “take a deep breath and think carefully.” Kyl suggested creating a bipartisan task force that would develop a legislative package within 30 days. (emphasis added)

Congress, as an institution, is notoriously bad at rapid action involving complex policy matters. Anything done in one week or in 30 days or in any time frame less than several months of extended study and debate carries with it significant chances for screw-ups. As evidence, I offer none other than the Patriot Act.

Sure Congress many come up with some good ideas, but for the most part, the bad will outweigh the good in this case. If you start handing out government aid, you will create a program that will have to be sustained for these victims and extended to victims of future natural disasters such as California earthquakes, Midwest tornadoes and southeastern hurricanes. In short, if you give these folks additional aid beyond that already available, what will prevent the government from providing the same aid to future victims. In short--nothing.

I realize my statements may seem callous and I am fine with that. Government aid already exists for victims of disasters. Why do we need more? Is more government aid necessary? Perhaps, but laws already on the books provide aid for these vicitms for a significant period of time. Let Congress use the time to think more about the consequences, intended and unintended, of their actions. Congress is a deliberative body--lets hope that Congress comes to work.

Roberts v. the Future - New York Times

In what feels like a few lifetimes ago, prior to Hurricane Katrine, the topic dominating the headlines was the nomination of John Roberts to the Supreme Court. In an article titled Roberts v. the Future, the New York Times magazine offered a fascinating article about what the Senate should be asking Judge Roberts and interesting insights into future issues that will appear before the Supreme Court.

By their very nature, Senators will be looking to the past. In particular, we can expect many questions of Judge Roberts dealing with his stance on civil rights and on voting rights--areas where his writing for the Reagan Administration have made headlines. But as Professor Jeffrey Rosen pointed out, Judge Roberts former boss and predecessor, Chief Justice Rehnquist was also the subject of backward looking Senate:

But in the case of Supreme Court nominees, looking backward may not be the most reliable way to predict the future. During William Rehnquist's confirmation hearings, first as a nominee for associate justice in 1971 and then for chief justice in 1986, the discussion focused heavily on a memo he wrote as a law clerk that seemed to question the soundness of Brown v. Board of Education. By expending so much of their energy on the issue of segregation, the senators asked little, in the end, about the issue that would come to define the Rehnquist court -- the relationship between the federal and state governments.

Assuming Judge Roberts becomes Chief Justice Roberts, Professor Rosen points to a number of issues, dealing with science and technology that will come to dominate a Roberts Court.

As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation. The court's response to those issues, far more than its resolution of cases that will be decided next year, will define the role it will play in the first decades of the 21st century.

Left-leaning groups have tried to paint Judge Roberts and the man who will overturn Roe v. Wade. But as the right to abortion is not likely to be the issue in the future, but rather the purpose behind abortions. "Regardless of whether Roe v. Wade remains on the books in 10 or 20 years, however, America's political and legal disputes about reproduction may well have moved far beyond efforts to balance the interests of a fetus against the interests of a pregnant mother," wrote Rosen. Rather the debate may well center on whether or not an abortion may be performed to prevent the birth of a homosexual child.

"if scientists ever learn to identify a genetic predisposition to homosexuality with a high degree of certainty, genetic screening might be used to 'weed out these embryos,' as [Notre Dame law professor O. Carter] Snead put it, ''or to select for them.'"

If you think that such a debate is unlikely since there has been no discovery of a "homosexual gene,"

a Republican state legislator in Maine introduced a bill to ban abortions based on the sexual orientation of the unborn child. Snead [the former General Counsel to the President's Commission on Bioethics] imagined that a conservative state might pass a law banning genetic screening "for elective sex selection or sexual-orientation selection not linked to a therapeutic concern."

But Democratic senators, spurred on by groups like NARAL and People for the American Way will ask whether Judge Roberts will vote to overturn Roe. As I have argued before, as a judicial conservative, Roberts may vote not to take an abortion case at all, thereby avoiding the issue--leaving the matter to precedent. The problem, of course, is that novel questions of law such as abortions to prevent the birth of children of unwanted characteristics will come before a Roberts Court.

I will be looking at a number of the issues Professor Rosen raised in his article, including more on this one.