State of the Union

Development of Non-Toxic 2016 GOP Agenda Continues Apace

The release of Rep. Paul Ryan’s anti-poverty “discussion draft” last week marks another milestone in a long, painstaking, and necessary project: the development of a non-toxic policy agenda on which the next Republican presidential nominee can run.

Zooming out, we see Republicans, like Tiktaalik, slowly transitioning out of the primordial soup of supply-side dogma. There was Rep. Dave Camp’s comprehensive tax reform proposal. It’s revenue neutral and maintains progressivity. Relatedly, Ryan takes care to insist his own proposal is “not a tax cut.” It’s true the conservative movement didn’t exactly leap for joy at Camp’s proposal—and there’s a myriad of reasons to doubt that the GOP could ever muster the courage to eliminate as many loopholes and deductions as it would take to reconcile the math of the Ryan budget.

But the larger point is this: a net tax reduction for the rich is now a radioactive position on the mainstream right.

Climbing down the income ladder, Ryan, in presenting his anti-poverty plan, with its devolution to states and consolidation of public assistance spending, noted that “this is not a budget-cutting exercise.” Yes, there’s the matter of reconciling these reforms with the harsh math of the Ryan budget. And the “accountability standards” to which states and local agencies would be held smells an awful lot to me like the anti-poverty version of No Child Left Behind.

But—and again—the larger point is this: a net reduction in spending on the poor and vulnerable is now a radioactive position on the mainstream right.

The recovery from “The 47 percent” and “You built that” will remain a tough slog over the next 18 months. However, the momentum is clearly in the direction of rational reform. The Tea Party era—in which “conservatism” for all practical purposes stood for an unholy alliance of plutocracy and Dixie revanchism—is clearly coming to a close.

Just how the all the manic energy of the last five years will be brought into the fold of a plausible governing agenda remains to be seen. The Room to Grow agenda represents the seedbed of ideas that might eventually become an appealing campaign platform. I like, in particular, Andrew Kelly’s ideas on higher-ed and job training, and Carrie Lukas’s emphasis on fiscal reforms that improve work-life balance.

Broadly speaking, the “reformocon” carriage is an interesting one, fraught with tension but full of possibility: that of the nontechnocratic wonk; of superintendence of the welfare state in a pro-market direction. Of bottom-up or middle-out reforms that issue from the top. The idea of a Medicare premium support system is qualitatively different than, say, Ronald Reagan’s original position on Medicare. But if the arrow is pointing in a rightward direction, can each faction of the right buy into it? Can you sell the idea of “reform” to people on a steady diet of Mark Levin, Ted Cruz, and Sarah Palin? Personally, I think the right would be better off it admitted—no, more than admitted—that “spontaneous order” does not and will not ever lead to a safety net or social insurance for the elderly.

But perhaps I worry too much. One of my themes in this space is the belief that the Tea Party was a cultural temper tantrum more than a granular programmatic shift. It may turn out that tea partiers can be lead to the water of an essentially neoconservative domestic agenda more easily than anyone currently imagines.


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Derek Khanna Talks Cellphone Unlocking Victory, Copyright

After a popular online campaign to legalize cellphone unlocking, which allows a consumer to change the settings on a phone in order to use it on a different wireless network, the president is about to sign the Unlocking Consumer Choice and Wireless Competition Act into law. It will legalize unlocking until the Librarian of Congress, who administers the Digital Millennium Copyright Act, reviews exemptions again next year.

The law is a significant victory for copyright reform activists like Derek Khanna, whose 2012 memo for the Republican Study Committee on how current copyright law stifles the free market set the tone for reform (after it got him fired). Khanna has called the ban on cellphone unlocking a denial of “a fundamental tenet of property rights; which is the ability to modify your own property.”

I spoke to Khanna to learn more about where the copyright reform movement will go from here.

A Democratic president standing up for consumer choice certainly represents a sort of conversational victory, but the law itself is something of a temporary fix. Are you happy with how the bill turned out?

Yes. It’s a short-term bill—this needed to be addressed urgently—but at the same time, Congress is considering other long-term fixes. To that end, there are ongoing copyright hearings in the House Judiciary Committee.

The tech field is fast-paced, while American government is purposefully slow-moving by design and by politics. How can Congress ensure the laws are keeping pace with the technologies they regulate?

The particular problem is that Washington hears only one narrow perspective on these issues. A lot of what I call “the forces of the status quo” have lobbyists that make their voices heard. Entrepreneurs and smaller business owners aren’t really being represented, so in Washington they almost don’t know what their regulations are preventing.

As you noted in your cover story for TAC earlier this summer, Republicans only took action on this legislation after the White Houses endorsement, which in turn followed a public outpouring of support. Will it always take that kind of massive push to get congressional Republicans to move forward on regulatory reform?

I hope not. I hope Republicans take the initiative. Our whole campaign here was based on the free market, which Republicans run on across the country. But they’re one step behind on technology, which is a shame, because that’s where the modern economy is.

But they’re starting to turn around on this. Congressmen like Thomas Massie and Jason Chaffetz are real leaders on this issue. The Young Guns Network, which represents Kevin McCarthy, Paul Ryan, and Eric Cantor, included a section on regulatory reform in their “Room to Grow” report. It goes out of the way to say we need wholesale copyright reform and makes a very enthusiastic plea for IP reform. It even directly cites my RSC memo. So these things take a long time, but there are real successes.

Tech policy is a straightforward way to win over the youth vote, but Republicans don’t seem to have noticed. Do you think that disconnect is purely generational? Can young conservatives just hope the party grows out of it?

I don’t know if it’s generational, but I know that it’s changing.

According to the College Republicans National Committee, in 2012, “young people simply felt the GOP had nothing to offer.” Kristen Soltis Anderson concluded, “There is a brand. …And it’s that we’re not in the 21st century.” That’s pretty stark. But the thing that polls best among young people is talking about innovation and technology. This isn’t just good policy, it’s good politics.

Those congressional offices never knew what hit them with SOPA/PIPA. For some people that was a seminal experience, the first time they had ever engaged in the political process and were able to make a change. And now with unlocking we have the first time an online campaign was able to actually introduce legislation. There is a whole generation of people who see these policies as really stifling innovation.

What’s next for copyright reformers?

There is a lot of work to be done in copyright reform still. How long should copyright terms be? The founders set it at 14 years and today it can be over 120. That’s kind of ridiculous in a world where every text, every tweet, every Facebook post is copyrighted longer than anyone who writes them will ever live.

The phone unlocking bill is great. But other issues are very closely related and if Congress doesn’t act soon, we’re going to see the ‘Internet of things’ collapse. A great example is that the next Keurig coffee machine is expected to have a digital chip technology built in such that you can’t use any other coffee pod. It would be a felony to use any other coffee pod with it! The technology would be used to stifle competition in the coffee market. This is just the tip of the iceberg because the benefits for existing businesses are overwhelming.

Any final thoughts?

There has been a sea of change in policymaking on copyright on the right since 2012, it’s almost impossible to find any conservatives, other than lobbyists for industry, opposed to substantial reform. The conservative position is we need to restore our founding principles on copyright.


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Pentagon Audit Goes Once More Into the Breach

Image courtesy Congresswoman Barbara Lee
Image courtesy Congresswoman Barbara Lee

H.R. 5126 is the latest effort in a longstanding and increasingly bipartisan movement to send the Pentagon sailing into the azure waters of Sound Fiscal Policy. The bill is sponsored by Rep. Barbara Lee (D-Calif.), and co-sponsored by Reps. Michael Burgess (R-Texas), Dan Benishek (R-Mich.), and Jan Schakowsky (D-Ill.).

For those seeking immediate, significant cuts to military spending, the measure might be less than satisfying, but Jill Shatzen, Communications Director for Rep. Burgess, said that the primary goal of the bill was to “put a little pressure on them in order to gain compliance.” The bill will “reduce by one-half of one percent the discretionary budget authority of any Federal agency for a fiscal year if [it] does not receive a qualified or unqualified audit opinion by an external independent auditor[.]“ A similar bill proposing five percent budget penalties for un-auditable Pentagon programs failed in 2013, so a more modest approach has been taken.

Led by Rafael DeGennaro, the Audit the Pentagon Coalition has secured endorsements from a diverse range of political figures. “[H.R. 5126] is a well-crafted and moderate piece of legislation,” DeGennaro said at a press conference. “It’s backed by a broad coalition: from Grover Norquist on the right to Ralph Nader — who endorsed it only recently — to Code Pink on the left.”

The law that H.R. 5126 seeks to enforce, passed in 1990, required the Pentagon to pass an annual audit and has been utterly disregarded since. “The current law is strong and clear,” said DeGennaro, ”The deadline was [25] years ago. We need to impose immediate financial consequences on un-auditable agencies.” Norquist, the founder and president of Americans for Tax Reform, emphasized at a press conference that establishing baseline accountability is an important first step to reform, regardless of political affiliation. ”There is always going to be a discussion on how and what to spend on defense,” Norquist said, “but do any of us know how much we are spending? You can’t begin to have a conversation without the facts.” Norquist is a long-time supporter of the effort to audit the Pentagon. TAC‘s Michael Ostrolenk interviewed him in 2012 about his efforts at the time. During the interview, he quipped that “[s]pending is not caring. Spending is what politicians do instead of caring.”

DeGennaro said that by requiring each individual agency to be responsible for passing an audit, H.R. 5126 sidesteps the mistake of treating the Pentagon as a “monolith.” Necessary spending cuts can be decided once the numbers are available and the agencies are once more operating within definable boundaries.

Lt. Col. Tony Shaffer, a former officer with the Defense Intelligence Agency, strongly supported the Pentagon audit in a 2013 interview with TAC: “Audit the Pentagon?” he asked. “Absolutely—a no brainer. Just do it.”


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Congressional Quirkiness on Display @CongressEdits

Twitter has revolutionized the way constituents interact with their representatives in Congress. Will Wikipedia be the next interactive legislative platform?

If developer and Library of Congress employee Ed Summers’ ideas take off, maybe so. This week, Summers created a bot called @congressedits that tweets out anonymous Wikipedia edits from congressional IP addresses. The account has mainly uncovered the innocuous and the banal, from noting the availability of Choco Tacos in the Rayburn building to correcting grammar in the article for Step Up 3D. However, the account also enables the public to see when staffers vandalize or rewrite politicians’ biographical information, whether updating word choice (Justin Amash is an “attorney,” not a “corporate lawyer”) or casually defaming likely opposition (activist Kesha Rogers is a “Trotskyist”).


Rogue political Wikipedia edits have been controversial before. In 2006, staffers for politicians from Rep. Marty Meehan to Sen. Joe Biden were publicly called out for removing criticism from their bosses’ pages. Wikipedia’s usual crowd of vigilant editors reversed the few problematic edits they found after investigating other congressional activity on the site, but left most edits intact as intended “in good faith.”

But Summers’ project is not a series of overt agendas connected to individual staffers. Its real-time, eerily specific feed of edits streams activity from the entire congressional workforce in what Megan Garber has called a project of “ambient accountability.” Like the earlier controversies, Wikipedia can yet again serve as a proxy for political fights happening elsewhere, but it can also serve as a window into everyday life on the Hill at its most bizarre and inconsequential.

There is a significant online audience for Capitol Hill quirkiness. Buzzfeed’s Benny Johnson more or less makes a living off it, while members of Congress have social media interns delving into the ever more surreal with legislative doge memes. The @congressedits project could appeal to both easily amused political junkies and to accountability advocates who see it as an opportunity to expand access to the people that they say should be the government’s most visible and engaged group. Read More…

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Stop the Impeachment Talk

Matt Cadwaller / Flickr

Increasingly, across this city, the “I” word is being heard. Impeachment is being brought up by Republicans outraged over Barack Obama’s usurpations of power and unilateral rewriting of laws. And Obama is taunting John Boehner and the GOP: “So sue me.”

Democrats are talking impeachment to rally a lethargic base to come out and vote this fall to prevent Republicans from taking control of the Senate, and with it the power to convict an impeached president. Still, Republicans should drop the talk of impeachment.

For the GOP would gain nothing and risk everything if the people began to take seriously their threats to do to Barack Obama what Newt Gingrich’s House did to Bill Clinton. The charges for which a president can be impeached and removed from office, are “Treason, Bribery, or other high Crimes and Misdemeanors.” With Bill Clinton, the impeachers had a solid case of perjury.

With Richard Nixon, they had a preponderance of evidence that, at least for a time, he had sought to obstruct justice in the investigation of the Watergate break-in. Article II of the impeachment of Richard Nixon was for misuse of the IRS in what turned out to be futile and failed attempts to have the agency harass political enemies by having them audited. As yet there is no evidence Obama knew of the IRS plot to delay and deny tax exemptions to Tea Party groups, which would be an abuse of power and a trampling upon the constitutional rights of Tea Partiers, who were denied the equal protection of the laws.

The GOP response to the lost emails of Lois Lerner and crashed computers that went missing should be a drumbeat of demands for the appointment of an independent counsel, not an impeachment committee in the House. Obama claims he did not learn of the IRS abuse until years after it began, and weeks after his White House staff learned of it. In the absence of those emails, the claim cannot be refuted.

In the Benghazi scandal, the president’s defense is the same.

He had no idea what was going on. And cluelessness appears here to be a credible defense. Two weeks after the Benghazi atrocity, Obama was at the U.N. still parroting the Susan Rice line about an anti-Muslim video having been the cause of it all. Has the president unilaterally rewritten the Obamacare law, while ignoring the Congress that wrote it? Indeed, he has.

But would a Republican Party that failed and folded when it tried to use its legitimate power of the purse to defund Obamacare really stand firm in an Antietam battle to impeach a president of the United States? Or is this just “beer talk”?

Impeachment is in the last analysis a political act. The impeachment of Nixon was a coup d’etat by liberal enemies who, though repudiated and routed by the electorate in 1972, still retained the institutional power to break him and destroy his presidency. And, undeniably, he gave them the tools.

In the case of Nixon, political enemies controlled both houses of the Congress. Washington was a hostile city. Though he had swept 49 states, Nixon lost D.C. 3-to-1. The bureaucracy built up in the New Deal and Great Society was deep-dyed Democratic. Most crucially, the Big Media whose liberal bias had been exposed by Nixon and Vice President Spiro Agnew were hell-bent on revenge. All three power centers—the bureaucracy, Congress, the Big Media—worked in harness to bring Nixon down.

No such powerful and hostile coalition exits today with Obama. Read More…

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The Chinese Embassy’s Embarrassing New Address

Chinese dissident and human rights activist Liu Xiaobo has a habit of making headlines from prison. The political reformer began his fourth prison term, this time an eleven-year sentence for “subversion,” in 2009, only to receive the Nobel Peace Prize in 2010, and now a surprising congressional move has pulled him into the most local of politics. Last week, the House Appropriations Committee approved an amendment to next year’s budget that would rename the address of the Chinese embassy in northwest D.C. to “1 Liu Xiaobo Plaza” in his honor.

David Keyes of the nonprofit Advancing Human Rights explained the position of the move’s bipartisan advocates when the proposal was initially made. As he tells it, the idea is to remind other countries that their domestic policy decisions have an international cost: ”Every time the representatives of tyranny walk outside of their offices, they should be confronted with the faces and names of those whose freedom they deny. Dissidents languishing in prison must know that they are not forgotten.”

Washington street names have been political arenas before. Similar motivations led Congress to rename the address of the Soviet embassy “1 Andrei Sakharov Plaza” after a Soviet dissident and human rights activist in 1984.

Criticism from China on this latest move was to be expected: a spokeswoman from their Ministry of Foreign Affairs called the proposal a “complete farce,” while online commenters proposed renaming the address of the U.S. embassy in Beijing after Edward Snowden. But Americans are faulting the move as well. Richard Bush of the Brookings Institution, for instance, complained that the renaming’s “symbolic shaming” would not accomplish much. “Of course, what the regime did to Liu Xiaobo violated every reasonable moral standard, and this action will make some in the West feel good. But it will not speed his release by even one day.”

Yet no one questions that the move is anything other than symbolic. The proposal’s sponsor, outgoing Virginia Rep. Frank Wolf, defended the move in moral language: “Renaming the street would send a clear and powerful message that the United States remains vigilant and resolute in its commitment to safeguard human rights around the globe.” The question is not whether the U.S. can force China to release Liu Xiaobo by renaming a street. Secretary of State John Kerry has already made the U.S. position on Liu’s case perfectly clear in the past. Rather, Wolf’s message-sending may be aimed in another direction entirely.

Human rights advocacy has taken a back seat as an American foreign policy priority in dealing with China. Taken in that context, the street sign proposal may be sending a message to Americans, rather than the Chinese. Naming the street of the Chinese embassy after a jailed dissident may be a small effort to suggest to Americans that human rights should be a bigger national priority. It is that agenda that should be debated, not the overdramatized foreign policy implications of a street sign.


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Eric Cantor’s Defeat Is Also Netanyahu’s

Photo: Amos Ben Gershom, GPO
Photo: Amos Ben Gershom, GPO

Of course it isn’t yet clear what Eric Cantor’s stunning and decisive defeat at the hands of an unknown challenger with one twentieth the campaign funds means for the direction of the House GOP. On domestic issues, including immigration, Cantor has been a chameleon—an establishment figure, a reformer, a “young gun,” a Tea Party insurgent with legislative tactician skills, a supporter of immigration reform (aka amnesty), and then a professed opponent of the same immigration reform. (I should note there was a time, in the 1990s, when immigration “reform” meant tightening the borders and tinkering with the legal immigration system so it was more skills-based, less based on “your brother’s wife got in a few years ago, so you are now eligible for a visa.”) The only ads I’ve seen from David Brat, the surprising victor, attacked Cantor’s readiness to hang out with big-money immigration boosters (Facebook founder Mark Zuckerberg) while ignoring the labor market and wage impact large-scale immigration has for voters in his district.

One issue wasn’t talked about, though I wonder if it subliminally registered with some anti-Cantor voters. Cantor in 2010 more or less presented himself as Bibi Netanyahu’s congressman. Newly elevated by the GOP House takeover as the incoming majority leader, he held a private meeting with the Likud leader at the New York Regency. No other Americans were present; Netanyahu was joined by Israel’s ambassador and national security advisor.

It was a tense time in American-Israeli relations: the Obama administration was pushing hard for progress on peace talks and trying to get Israel to stop expanding settlements on the West Bank during the negotiations, an idea vigorously resisted by Israel’s government. During the meeting, Cantor gave Netanyahu assurances that the House would have his back in any showdown with the Obama administration. The Republicans, he told Bibi, “understand the special relationship” and would obstruct American initiatives which made Israel uncomfortable. Ron Kampeas, a veteran and centrist observer of U.S.-Israeli relations, said he could not “remember an opposition leader telling a foreign leader, in a personal meeting, that he would side, as a policy, with that leader against the president.” So Cantor was, in his way, making history.

The ties to Israel made Cantor popular in the GOP caucus. Cantor could raise money more easily than other southern congressmen—from pro-Israel billionaires, for example—and spread it around. Sheldon Adelson poured millions into his PAC. Cantor knew his way around the Regency.

More recently, Cantor has spearheaded House opposition to Obama’s negotiations with Iran, speaking frequently of Iran in terms that echo Netanyahu. His Mideast positions track completely with Likud’s, whether it be aid to the Syrian rebels or aid to Egypt after the Sisi coup. He may be hard to pin down domestic issues, one day a moderate, another a hard rightist, but he is always a hawk—whether it be Ukraine or Syria or Iran, he will be a force pushing the most belligerent policies.

I wonder if this registered in the district in some ways. Pat Lang, of the interesting Sic Semper Tyrannis blog, meditated on Cantor (his congressmen) several years ago, wondering whether this sophisticated Richmond lawyer was a natural fit for a district that trends barbecue. Some have pointed to an ethnic angle, which could well be a factor. But it may be simply that conservative southern Republicans are beginning to get tired of neocons telling them they have to prepare to fight another war. Antiwar Republican Walter Jones won his North Carolina primary earlier this spring, standing strong against a major media assault by Bill Kristol’s Emergency Committee for Israel. Now, in an election result that stunned political observers more than anything that happened in their lifetime, Cantor goes down before an underfunded Tea Party candidate.

We’ll see what happens with David Brat, but he’s already made history.

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The VA’s Bureaucracy Always Wins—Until Now

Veterans Affairs Secretary Eric Shinseki has been forced to resign. This bizarre solution to the VA scandal fires the Senate-confirmed cabinet chief so that the career staffers responsible for the mess can run the organization for the year or so it would take to find, confirm, and educate a new secretary, just before a new president would choose someone else. The Washington bureaucrats always seem one step ahead of the politicians.

President Barack Obama was reportedly “madder than hell” about the VA scandal. Before Shinseki’s auto-da-fé, ultra-liberal Washington Post columnists Dana Milbank and Eugene Robinson actually criticized the formerly sacrosanct president for not taking charge. Even the Democratic Senate Veterans Affairs Committee held investigative hearings finding that 40 patients at a Phoenix VA hospital reportedly died while waiting to be treated. Its VA leaders reported patients only had to wait 26 days for an initial appointment, when the Inspector General later found the wait to be 115 days. An April memo by a deputy undersecretary disclosed “gaming strategies” to hide the delays that the IG confirmed were “a systematic problem nationwide.”

Congressmen from both parties expressed shock and demanded Shinseki’s head, ignoring the numerous Government Accountability Office and IG reports going back decades that warned against such shenanigans, currently gathering dust in Congressional back offices. In fact, irregularities and poor service have been reported since VA’s inception. Shortages in primary and other medical care are offered as excuses for failure, but such shortages are not due to a lack of funds. The VA is popular with voters, and its military “service” organizations are such powerful lobbyists that its budget increased from $27 billion in 2003 to $57 billion in 2013, a 106 percent increase. Even with such funding, the IG found that 84 percent of veterans had to wait two weeks or longer to be treated.

Congress demanded reforms for many years, but nothing much changed. After many requests, the VA announced in 2000 that it would finally overhaul its decrepit, quarter-century-old scheduling process. After $127 million and nine years, the VA gave up the project without adopting any improvements. Implementing a medical records system that would integrate military and veteran systems was abandoned after almost $1 billion in spending. The bureaucracy cites a RAND study claiming that the VA is actually superior to private medicine, but that study was based on VA records the GAO and IG findings now undermine. Clearly no one in the private sector has such long wait times (although the government’s Medicaid comes close).

The real test is that only 16 percent of veterans identify the free services of VA as their primary source of medical care, and only one-third more even use it in emergencies. They know what they are doing. The best estimate finds that veteran suits against the VA yielded $845 million in malpractice payments over the past decade. The New England Journal of Medicine found that private practice pays about 20 percent of malpractice suits brought against them, compared to 25 percent for VA, a rate one-quarter higher. The decorated and wounded Army General Shinseki did not know what he was up against: “I can’t explain the lack of integrity among some of the leaders of our healthcare facilities,” he said. “This is something I rarely encountered during my 38 years in uniform. I cannot defend it because it is indefensible.” House Veterans Affairs Committee chairman Jeff Miller had warned “his people were not telling him the truth” even as Shinseki visited more facilities than any previous secretary, an absolutely corrupt bureaucracy lying right to his face. Read More…

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Walter Jones and the Bush Tax Cuts

One bit of pushback I’ve encountered in response to today’s column about Walter Jones: the claim that Jones was one of just three Republicans to vote with House Democrats to raise taxes in 2010.

Viewed in context, this is misleading. It’s true that Jones joined Ron Paul and Jimmy Duncan in voting for a Democratic bill that would have extended the Bush tax cuts for most taxpayers, but not for the highest earners.

Unlike most of the Democrats who voted for this bill, however, Jones and the other two Republicans did not actually favor increasing tax rates on the top earners. Democrats controlled the House at the time and the Bush tax cuts were going to expire in full unless Congress passed and President Obama signed an extension.

At the time, there was a real possibility that all the tax cuts were going to lapse in 2011. Democrats were arguing that the GOP was holding lower tax rates for the middle class hostage to lower rates for the top 2 percent. Jones, Paul, and Duncan wanted to extend the lower rates for however many people they could.

When I wrote about this in the context of Ron Paul at the time, a representative of Grover Norquist’s Americans for Tax Reform commented, “The bill Congress voted on yesterday is a tax cut relative to 2011 law, which assumes everyone’s taxes go up. By preventing some people’s taxes from going up, this would score out as a tax cut.”

Norquist is hardly in the tank for Jones; he campaigned against him in 2008.

Jones voted for the full Bush tax cuts in 2001 and 2003. He voted to make the first round of Bush tax cuts permanent in 2002. He voted for the full extension of the Bush tax cuts in 2010, after the vote for which he is being criticized.

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Conservative Sentencing Reform: Politically Savvy, Morally Right

Darlene Eckles was not a drug user or dealer when she was indicted in 2004. After her troubled brother Rick used her house to sell crack cocaine against her wishes, Darlene was arrested as a co-conspirator and offered a plea bargain of 10 years in prison. She rejected the deal in attempt to clear her name in court. But, after it was revealed that she counted Rick’s drug money in exchange for paying her electricity bill, Darlene was sentenced to nearly 20 years in prison as a first-time, nonviolent drug offender.

While Darlene’s story may seem exceptional at first glance, she is just one of the countless victims of mandatory sentences that oblige judges to deliver often lengthy prison terms to convicted criminals. While the practice has received harsh criticism over the past two decades, convicts like Darlene have an unexpected new allies. Fiscally conservative elected officials like Sens. Rand Paul and Mike Lee are leading the charge in Congress for federal sentencing reform, reforming the GOP’s stance on criminal justice in a way that could potentially attract new supporters.

This turn in conservative politics is rather surprising considering the history of mandatory minimums. Although its roots in American jurisprudence trace back to the 19th century, it was not until the height of the War on Drugs during Ronald Reagan’s presidency that mandatory sentencing started gaining steam. The Sentencing Reform Act of 1984 directed the United States Sentencing Commission to reduce the discretion district judges had on sentencing terms, through strict guidelines. Two years later, the Anti-Drug Abuse Act of 1986 imposed specified mandatory minimums for violations of federal controlled substance laws.

Like most policy pushes, mandatory minimums were undoubtedly passed with good intentions. Given the high drug crime rates of the 1980s, it’s understandable why legislators would want to tackle the problem with a no-nonsense sentencing approach. Furthermore, mandatory minimums even had an egalitarian appeal. Under the previous sentencing regime, judges had wide discretion in determining the length of prison terms, giving rise to arbitrary inequalities in sentences for people convicted of the same crime.

Unfortunately good intentions do not always give rise to good policy. Mandatory minimums’ attempt to rein in judges’ discretion only shifted the discretion to prosecutors, resulting in no significant decrease of sentencing inequality. In fact, many mandatory minimums seem as arbitrary as the previous legal regime. Most infamously, the Anti-Drug Abuse Act was criticized for discriminating against African-Americans by mandating a five-year sentence for possessing five grams of crack cocaine while imposing the same sentence for possession of 500 grams of powder cocaine.

As a result of these lengthy and inflexible sentencing requirements, America’s prison population has skyrocketed, turning the criminal justice issue into a fiscal one. Over the past three decades, the cost of operating state correctional facilities have roughly tripled, giving rise to conservatives’ ire and the current Congressional push for reform. Read More…

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