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.

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.

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.

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.

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.)

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.

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.

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.