Tuesday, February 24, 2015

DHS Scuffle

Since Senate Democrats have filibustered efforts to fund the Department of Homeland Security, Senate Majority Leader Mitch McConnell has agreed to offer a DHS bill that funds the president's executive actions on immigration.  After this vote on DHS funding, Senate Republicans would propose a separate measure targeting the president's actions.

But now Senate Democrats might not even be happy with this turn of events, as Roll Call reports:
In an extraordinary sequence of events, Senate Majority Leader Mitch McConnell offered Democrats exactly what they have been asking for Tuesday — “clean” full-year funding for the Department of Homeland Security. And Minority Leader Harry Reid said “no” — or at least, “not yet.”
McConnell’s offer of such a bill shorn of provisions blocking President Barack Obama’s recent immigration executive orders — which he said could happen quickly with Democratic cooperation — was put on hold by Reid, who said he was waiting to hear Speaker John A. Boehner agree to pass it through the House first.
“We have to make sure that we get a bill to the president,” Reid said. “Unless Boehner’s in on the deal, it won’t happen.”
That could lead to the extraordinary circumstance of Democrats blocking a bill they have insisted on for weeks — though a Democratic aide suggested later Tuesday that Democrats might, in the end, agree to McConnell’s proposal, provided the Kentuckian can get Republicans lined up for a unanimous consent request to vote on a clean bill.
It is unclear whether Senator Reid will go through with his threat to block a vote on a bill he supposedly supports.  What is clearer, however, is the uneasiness of many House Republicans with this plan.  Time will tell whether the House will support a DHS bill that funds the president's executive actions.

Friday, February 20, 2015

GOP Can't Coast

Bill Kristol turns to a recent CNN/ORC poll, which finds that a majority of voters think of Hillary Clinton as representing the future.  No Republican candidate mentioned in this poll equals that number.  This is just one poll and numbers can change, but American presidential elections are often about the future, so this finding should concern Republicans.  As Kristol writes:
It’s of course very early in the 2016 cycle. But it’s never too early for some healthy alarm. Are we the only ones who are struck that many of the leading Republican candidates, whether moderate or conservative, seem to be planning stale and tired campaigns? Hillary will herself, it’s safe to predict, run a stale campaign with tired themes. But the polls suggest she would prevail in a conventional matchup of boring campaigns.
We’re all free to ignore the fire bell in the night, and hope for the best. But it would be a shame to have to explain in November 2016 how the Republican party decided to sleepwalk to defeat.
If conservatives hope to win in 2016, imagination and energy will be crucial.

Tuesday, February 17, 2015

Injunction Junction

Federal judge Andrew S. Hanen has enjoined the Obama administration from implementing its November executive actions on immigration until after he has ruled on the case.  Here's a round-up of some coverage:
  • Josh Blackman analyzes some of the details of Hanen's 123-page ruling.
  • Patrick Brennan suggests that the battle over the constitutionality of the president's executive actions is far from over.
  • Bill Jacobson looks at the implications of this ruling for the DHS funding battle.
  • Senate Democrats seem inclined to continue to block debate on DHS funding.
  • Ilya Somin challenges some parts of Hanen's ruling.
  • The Obama administration plans to appeal.

Thursday, February 12, 2015

Don't Kill the Filibuster over DHS

Because Senate Democrats have continued to filibuster a bill funding the Department of Homeland Security, some House Republicans have called upon Majority Leader Mitch McConnell to "go nuclear" and eliminate the filibuster.  One can understand the desire of members of Congress to strike back at executive overreach, but invoking the "nuclear option" would be a mistake for a few reasons.

First, it would not eliminate the real roadblock, which is President Obama's decision to veto any funding bill that defunds his executive overreach.

Second, going nuclear would violate regular order in the Senate.  If we mean the Senate to be the body of deliberation and consensus that the Founders intended it to be, maintaining a respect for regular order (which requires a 2/3 vote of the Senate to change rules) will be crucial.

Third, the filibuster itself may play a role in maintaining the Senate as an institution of consensus, so jettisoning it would be a risky proposal indeed.

Going nuclear on the filibuster could do grave structural damage to the traditional role of the Senate and would not really help get DHS funded.

At the moment, many Senate Republicans, including the Majority Leader, seem to have no interest in going nuclear.  Rebuilding the Senate after the recent deviations from traditional norms has been a key goal of Senator McConnell, and going nuclear would set that enterprise back considerably.

Monday, February 9, 2015

The Slippery Slope of "Hate Speech"

Edward Schumacher-Matos, NPR's former ombudsman, offers the following thoughts about freedom of expression in his valedictory post:
The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn't be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn't know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.
In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible. Look at the sectarian bloodbath that is the Middle East. Or look at the tensions in China, Myanmar, Ukraine, Nigeria, the Balkans, and elsewhere. Nothing guarantees that different peoples can live together, or that nations will remain as we know them.
The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.
I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods. The NPR editors were right not to reprint any of the images.
Leaving aside the question of America's "sins" against immigrants (and whether those "sins" are in any way equivalent to the wrongs done to slaves and their descendants), let us consider Schumacher-Matos's riposte to what he terms "First Amendment fundamentalists."  These remarks are worth considering not only because of Schumacher-Matos's professional stature but also due to the fact that they are representative of a broader worldview.

As a matter historical fact, the U.S. has not always had absolute freedom of the press.  Governments at all levels---federal, state, and local---have taken acts that have suppressed speech.  However, there is a big leap from that historical fact to the theoretical principle that "hate speech" is not and should not be protected by the First Amendment.

Schumacher-Matos seems to operate from the presumption that a government prohibition of certain kinds of inflammatory speech will act as a force for social cohesion, but one could rather claim that free expression and the free exchange of ideas can actually lead to a more tolerant and socially coherent society.  The U.S. has never had a ban on hate speech, yet, over centuries, an increasingly diverse range of individuals have indeed been assimilated into the whole of the American republic.  Free expression---even of ugly sentiments regarding race, religion, and so forth---was also compatible with an integrating society.

In fact, arbitrary government classifications of "hate speech" could inflame rather than soothe social tensions.  It's much easier to feel oppressed and wronged by another group when that group uses the power of government to suppress your expression.  And that brings us to a key challenge to any idea of banning "hate speech": there is no clear limiting principle.  Free-speech law in the U.S. is complicated enough.  Holding to a "hate-speech" exception to free speech would make free-speech law impossibly complicated---so complicated that any exercise of government power to ban "hate speech" would likely seem quite arbitrary.

Schumacher-Matos seems to take for granted that, of course, the cartoons of Charlie Hebdo are "hate speech" unprotected by the Constitution because they "make fun, in often nasty ways, of [various religions'] prophets and gods."  But, if that is so, surely many other works must also be banned: South Park, nearly all of Christopher Hitchens, many George Carlin and Bill Maher jokes, James Joyce's novel Ulysses, much of Nietzsche, numerous tracts by Voltaire, and so on.  To seek to use the law to ban anything that critiques certain sacred figures is to suppress a vast range of works.

Certain critiques of religious figures may indeed be misguided.  Offensiveness for its own sake can often be juvenile, self-indulgent, and tiresome.  Moreover, there is much to be said for courtesy as a civil virtue, as Schumacher-Matos implies.  But none of those considerations nullify the importance of a legal right to free expression.  "Hate speech" may often be ugly, but efforts to ban it can lead to results that are even uglier.

(See Charles C. W. Cooke for more about the dangers of opposition to the right of free speech.)

Thursday, February 5, 2015

Middle-Class Populism Is More Than Redistributionism

In a thoughtful New York Times essay, Thomas B. Edsall argues that a major hurdle for a Democratic middle-class populist agenda is the fact that the Democratic coalition depends increasingly upon the affluent.  This poses problems, Edsall argues, for redistributionist proposals:
Middle-class populism, however, raises a host of problems for the Democratic Party. When the middle-class populist message is turned into actual legislative proposals, the costs, in the form of higher taxes, will be imposed on the affluent. Such a shift in the allocation of government resources threatens the loyalty of a crucial Democratic constituency: well-off socially liberal voters.
However, policies that tax the rich and give to others are not the be-all and end-all of policies that could improve the standing of the middle class.  Market-oriented proposals to reform the health-care system, for instance, could provide the average American with cheaper and more effective health-care.  Putting in place policies that would help drive down the cost of energy could similarly appeal to families in the economic middle.  Curtailing guest-worker programs and reducing the flow of illegal labor could also improve the employment prospects of many Americans.  And those are only some of the ways in which decisions about regulation and the administration of government could advance the cause of middle-class economic uplift (for more, see, of course, Room to Grow). 

Edsall makes some very suggestive points about why tax-and-spend redistributionism might not be politically promising, and I don't mean to discount the real political tensions and trade-offs of some pro-middle-class policies.  But conservatives can take heart that imaginative reforms can improve the conditions of the middle class without pitting it against the wealthy.  Moreover, the rich would also benefit from the economic growth generated by a recharged middle class.  So a pro-middle-class agenda could provide economic benefits for the nation as a whole--from the bottom to the top.

Wednesday, February 4, 2015

How Many Democrats Are Flip-Flopping on Executive Power?

Over at the Corner, Mark Krikorian notes seven Democratic/Independent senators who were skeptical of President Obama's use of executive power on immigration but who now refuse to allow debate on a DHS bill that does not fund the president's actions:
Joe Donnelly (IN)
Al Franken (MN)
Heidi Heitkamp (ND)
Angus King (I, ME)
Joe Manchin (WV)
Claire McCaskill (MO)
Mark Warner (VA)
To those seven, we can also add New Hampshire's Jeanne Shaheen and Montana's Jon Tester.

In Senator Shaheen's case, she spoke out strongly against the president taking sweeping executive action while she was running for reelection.  In a debate in October 2014, Shaheen explicitly stated, "I don’t think the president should take any action on immigration."  A top advisor specifically told the Washington Post that Shaheen "would not support a piecemeal approach issued by executive order."  Tester also expressed his desire for Congress, rather than the president, to act on immigration.

But now Senators Shaheen and Tester, along with seven additional senators, refuse to allow debate on a DHS funding bill because the current DHS bill does not fund the executive actions they opposed in the past.

Tuesday, February 3, 2015

Testing up in the Air?

At NRO, I look at the possibility of rolling back federal testing mandates in revising No Child Left Behind:
In January, the Senate began to examine NCLB, taking up the question of whether to revise it, and the House will probably vote on revisions to NCLB later this month. This effort might not go anywhere. After all, past Congresses have tried and failed to revise NCLB. But let’s hope it’s not another dead end, because reform could help create an educational system that is more responsive to local communities.

High-stakes standardized tests were at the center of No Child Left Behind, and any revision of the law would have to take into account testing practices. If Congress wishes to undo the Gordian knot of federal-education-policy red tape, it will have to revise federal accountability standards.
Read the rest here.

Wednesday, January 28, 2015

AG Nominee Raises Doubts About Enforcing Employment Law

The defense of the president's executive dictates on immigration usually requires proponents to twist themselves into pretzels, and Attorney General nominee Loretta Lynch was no exception to this general trend in her Senate testimony today.  Lynch even seemed almost unwilling to deny that the president could basically nullify any law at whim.

Beyond Lynch's vagueness about her beliefs regarding the limits of executive power, she also seemed to imply that she thought that the U.S. prohibition on illegal immigrants working violated their rights.  The following exchange between Lynch and Alabama Republican Jeff Sessions is a revealing one (transcript via Hot Air):
Let me ask you this: In the workplace of America today when we have a high number of unemployed, we’ve had declining wages for many years, we have the lowest percentage of Americans working, who has more right to a job in this country? A lawful immigrant who’s here, a green-card holder or a citizen, or a person who entered the country unlawfully?
Well, Senator, I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here. And certainly, if someone here, regardless of status, I would prefer that they be participating in the workplace than not participating in the workplace....
This viewpoint represents a radical departure from decades of immigration law.  A key part of Reagan's 1986 amnesty was the trading of amnesty for new federal powers to punish employers who hired illegal immigrants.

As Politico reports, Lynch later tried to walk this statement back:
However, later in the day, Sen. Chuck Schumer (D-N.Y.) gave her the opportunity to clarify her statement and she said she didn't mean to suggest that it's legal for everyone in the U.S. to be employed.
"In my family as we grew up, we were all expected to try and find employment as part of becoming a responsible adult," Lynch said. "I was making a personal observation based on work ethics passed on by my family, not a legal observation."
Asked by Schumer whether immigrants have a right to work regardless of status, Lynch said: "No, there is not, to my knowledge.”
A Justice Department official told POLITICO that Lynch's original comments were intended to refer only to those authorized to seek employment and not to others.
"U.S. Attorney Lynch does not believe any right to work exists for those who have not been authorized to seek employment by the Department of Homeland Security, and she has aggressively prosecuted employers who have knowingly made illegal hires," said the official, who asked not to be named. "Sessions was asking whether citizens have an exclusive right to work in the U.S., and she was being mindful of the scores of categories of individuals who are eligible to work though they might not be citizens. But she certainly does not believe those who entered the country unlawfully and have no work permit whatsoever have any right to a job."
But the words of an anonymous official at Justice are a poor substitute for Lynch's own.

Some on the right, including John Hinderaker, have suggested that Lynch's remarks disqualify her from becoming AG.  Whether one agrees with that judgement or not, it seems clear that senators have an obligation to continue to sound out her beliefs on executive power and the ability of the federal government to regulate employment.  The principal officers of the Obama administration need to go on the record regarding their belief in and willingness to abide by constitutional norms.

Tuesday, January 27, 2015

Senate Democrats Threaten to Filibuster DHS Funding

A letter released by the Senate Democratic Caucus expresses the willingness of all Senate Democrats to oppose any Department of Homeland Security funding measure that forbids the enforcement of the president's recent executive actions on immigration.  Citing worries about national security and the president's threat to veto any DHS measure that rebukes his power grab, Senate Democrats demand a "clean" funding bill.  This letter also expresses a hostility to short-term funding measures for DHS.

Leaving aside the irony of senators threatening to filibuster a bill they say is vital for national security, it is also worth noting that many Senate Democrats appear to be unwilling to walk the walk when it comes to defending congressional power.  In the past, at least six Senate Democrats and one independent have expressed opposition to, or at least skepticism of, the president's actions: Democrats Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Claire McCaskill (Mo.), Jeanne Shaheen (N.H.), and Jon Tester (Mont.), and independent Angus King (Maine).  Many more Democrats trumpeted the dangers of an out-of-control executive during the administration of George W. Bush, though many now seem to have changed their minds about the role of executive power.  Apparently, some Democrats are now, despite their earlier promises, becoming partisans of executive supremacy.

In response to this threat, Senate Republicans seem to have at least three options:

  • Call the Democrats' bluff and put forward a funding measure that pushes back against the president's power grab.  If Democrats do filibuster a national-security funding bill, let them pay the political price for that filibuster.  Republican leaders can then decide whether to offer a clean bill or to allow DHS to potentially "shut down."
  • Preemptively give into Democratic demands and immediately offer a clean funding bill.
  • Follow the strategy suggested by the editors at National Review: "Pass one bill to fund all of DHS except for U.S. Citizenship and Immigration Services, which is responsible for implementing the president’s amnesty, and another bill that funds CIS but prohibits it from implementing the November amnesty."  Senate Democrats did not explicitly say that they would oppose that proposal, and splitting CIS from the rest of DHS funding would eliminate the "national security" argument.

Friday, January 23, 2015

Testing, Testing

This week, the Senate began hearings about revising No Child Left Behind.  Tennessee Republican Lamar Alexander---the chair of the Health, Education, Labor, and Pensions Committee---has issued a draft text that would potentially reform testing standards.  Currently under NCLB, the federal government demands a set number of tests each year.  Alexander's proposal would potentially give states the option to devise their own testing standards and regimes.  Many across the political spectrum have been critical of the current emphasis on standardized testing, though the Obama administration has continued to defend the importance of annual standardized tests.

Molly Hensley-Clancy has an interesting look at the implications of NCLB and the reform of NCLB for testing companies.

Guest-Worker Tensions

Reports that Marco Rubio is potentially mobilizing to get into the GOP presidential race have provoked much speculation from pundits.  James Pethokoukis makes a very interesting case for Senator Rubio as "the Man With the (21st century, middle-class, conservative) Plan."  Pethokoukis finds much to celebrate in Rubio's latest book:
In his new book, American Dreams: Restoring Economic Opportunity for Everyone, Rubio outlines an economic plan that takes timeless conservative principles — faith, family, free enterprise – but adapts their policy manifestations to the current challenges confronting middle- and working-class America. For instance: As part of broader tax reform that would reduce anti-investment business taxes, Rubio would also provide immediate tax relief to families by expanding the federal Child Tax Credit. This reflects the economic reality that cranking up GDP growth, while a necessity, may no longer be sufficient to lift all boats — at least not right away. Macroeconomic trends such as globalization and automation are restructuring the American economy so that income gains are flowing heavily to those at the top. The Rubio plan, jointly developed with Sen. Mike Lee, also addresses the fundamental financial unfairness that parents — unlike childless adults – pay the taxes that support Medicare and Social Security while also investing in future taxpayers, their kids. There’s a lot more in the book, everything from innovative higher education reform to pro-work support for low-income families to anti-cronyist deregulation.
Many of Senator Rubio's ideas have merit, and it is worthwhile indeed to find modern solutions to contemporary problems while still keeping true to enduring principles.

However, there seems to be some tension between a pro-market, pro-middle-class approach to conservatism and a support for swelling the number of guest workers admitted to the country annually.  Senator Rubio was a major defender of the Gang of Eight immigration bill, which would have increased guest-worker numbers.  And he is a co-sponsor of the Immigration Innovation bill, which would cause a massive increase in the number of guest workers.  Guest-worker policies are usually not pro-market and are hardly pro-worker.

Republicans of all stripes would be wise to listen to Pethokoukis's call for a solutions-oriented conservatism.  And hopefully Senator Rubio, along with other possible Republican candidates for president, will be able to advance such a vision.  But it is unclear how advocating for more guest workers fits into an opportunity-oriented, middle-class conservative plan.

Thursday, January 22, 2015

Romney Reunion Rumors

Eliana Johnson reports that many key players in Mitt Romney's inner circle are planning on meeting tomorrow:
The meeting will include members of the former Massachusetts governor’s inner circle: his son, Tagg, top aides Spencer Zwick and Matt Waldrip, longtime confidante Beth Myers, political consultant Eric Fehrnstrom, longtime pal Bob White, and adviser Ron Kaufman.
The Boston Globe notes the following: "Romney himself is not planning to attend, and one aide cautioned not to read too much into the meeting, saying, 'People are meeting all the time.'"

Tuesday, January 20, 2015

Running Against Washington

President Obama raised some valid points about the need for economic renewal for working Americans in tonight's State of the Union.  And there were some well-turned phrases, too.

However, there is a crucial tension in the president's remarks.  At the end of this speech, the president seemed to pivot to run against Washington:
So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for -- arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision.

Imagine if we broke out of these tired old patterns. Imagine if we did something different.
Understand -- a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

A better politics is one where we appeal to each other's basic decency instead of our basest fears.

A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.
This appeal to a "better politics" is all well and good.  However, it crashes into the fact that the White House and its allies have devoted considerable energy to demonizing its opponents.  The president may be trying to run against Washington, but, as chief executive, he has had a considerable role in shaping national politics.

Rather than better politics, we have all too often seen trolling politics out of the White House.  It is the president who has chosen the lonely road of executive supremacy rather than constitutional consensus.  It is the president who has often appealed to the resentments of class warfare.  It is the president's allies who constantly try to paint all opposition to the "progressive" cause du jour as the product of bigotry, narrow-mindedness, and greed.

Moreover, even as the president runs against Washington, his agenda seeks to concentrate even more power---for health-care, education, etc.---in the bureaucratic apparatus of the federal capital.

Sunday, January 18, 2015

Fate of the Middle Class

Reuters surveys the economic landscape and finds that the middle class is still struggling:
The forces at work in the American economy appear so entrenched that Obama may be remembered as the president who pulled the nation from its worst downturn since the Great Depression, but failed to arrest deepening economic inequality.
The Federal Reserve, under Obama appointee Janet Yellen, has put money in almost all Americans' pockets with near zero interest rates that have held down mortgage payments, allowed companies to reinvest, and boosted job creation.
But the Fed's Survey of Consumer Finances shows how uneven the distribution of that stimulus has been. Between 2010 and 2013, as recovery took hold and stock markets soared, the average net worth of families in the top 40 percent of income earners grew. For all others average net worth shrank, declining 19 percent for the middle fifth.
Similarly, the average earnings for families in the top 10 percent grew more than 9 percent from 2010 through 2013, while those at other levels stagnated or shrank. For the middle fifth, average earnings fell 4.6 percent.
Over the six years through 2013, the middle fifth's average annual family earnings fell to $47,243 from $53,008 while their average net worth dropped to $170,066 from $236,525.
There are limits to what the president (or any government official) can do to shape the economy.  But it is not exactly clear how many of the president's policies---from Too Big to Fail to the encouragement of the growth of illegal labor---advance the interests of the middle class.  They may in fact hurt it.