State of the Union

Lobbyists, Private Goods, and the Public Good

Last summer I tried to tease out the complications of adopting libertarian-populist standards. The self-dealing of, say, an aluminum company lobbying for and benefiting from fuel-efficiency regulations seems, on its face, sleazy and reprehensible. But what, I asked, can be done to avoid such conflicts of interest when there is a public good being pursued?

[D]id Obamacare’s architects desire to turn insurance companies into public utilities as a policy end in itself—or was it a means of broadening access to medical insurance (a goal the public generally favors)? …

After September 11, the Bush administration and a bipartisan majority of lawmakers concluded it was in the national interest to invade two countries. A giant new security apparatus slowly spread its tentacles across American life. Defense contractors and security consultants dine out on this policy sea change to this day. One can argue until one is blue on the face about the wisdom of these policies—but at the end of the day, one is forced to mount an argument about an overarching public good (or ill).

Simply asking “who, whom?”, as libertarian populism would have it, will only you take you so far.

Timothy Carney grapples with this question in a lengthy and thoughtful piece at Reason magazine. After having run through a series of real-life examples of wheeler-dealing, he delineates a set of best practices for industry lobbyists:

There’s nothing inherently wrong with profiting off big government. If the government creates a surplus of deer, someone has to thin that surplus. If government forces factories to clean up their emissions, someone has to make the smokestack scrubbers. If government requires drivers to use ethanol, someone has to make the stuff.

Nor is it inherently wrong to lobby for policies that increase your profits. “Petitioning the government for the redress of grievances” is protected by the First Amendment, and the regulatory environment often chips away at the profits companies would otherwise make. What is wrong is to lobby for policies that enrich your business by taking away other people’s property or liberty.

In a nutshell, the Carney Standard—unassailably reasonable, I’d say—is this: Do not lobby in favor of unjust laws.

Read the whole piece, however. It’s well worth your time.

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For One Night, a Family-Friendly GOP

Gage Skidmore / Flickr

While President Obama famous labored over all the drafts of his  one State of the Union speech (and documented those labors), the opposition party apparently worked overtime to make sure that their response was thoroughly recorded, with no fewer than four broadcast or streamed statements given by House Republican Conference Chair Cathy McMorris Rodgers (R-Wash.) in the official Republican response, Rep. Ileana Ros-Lehtinen (R-Fla.) in the official Spanish-language Republican response, Sen. Mike Lee (R-Utah) in the Tea Party Express response, and Sen. Rand Paul (R-Ky.) speaking for himself.

Past official responses have often been delivered by strong state officials, with many getting their first glances of Gov. Bobby Jindal of Louisiana and Mitch Daniels of Indiana in such forums. As Daniel Larison remarked yesterday, such a Congress-heavy slate of respondents risked “cement[ing] the current GOP’s identity as a mainly Congressional party” when Congress’s approval ratings are, as is now customary, at all-time lows. What is interesting about this all-Congressional slate of respondents is how neatly it cuts across the traditional divide of Beltway-establishment outside-the-Beltway-free thinking. Rand Paul and Mike Lee both were swept into the tradition-soaked Senate as Tea Party candidates in 2010, and Rodgers herself presented a somewhat new and more promising messaging than even the venerable outsider governors have been able to marshal in recent years. As I do not know a lick of Spanish, I regret that I have to refrain from comment on Rep. Ros-Lehtinen’s message.

Lee and Rodgers, when taken together, make for something of an interesting pairing. Most of the policy talk, or what passed for policy talk, in Rodgers’ address was regular Republican boilerplate. The framing, however, served a dual purpose of addressing the “cares about you gap” that hurt Romney so severely in the last election and in combatting the mostly unfounded “war on women” meme that many Democrats have been propagating. While framing American exceptionalism in its most vague generalities of economic growth and positive feelings, Rodgers rang a money line, that “That is what we stand for—for an America that is every bit as compassionate as it is exceptional.” Her compassionate pitch was not big government in sheep’s clothing, though, but a direct connection to American political conservatism’s most potent emotional appeal: the pro-life fights and defenses of the most vulnerable. By discussing her own middle child, diagnosed with Downs syndrome, as a manifestation of God’s gift rather than a tragedy her family would overcome, Rodgers draped drab Republican economics in compassionate clothing. Moreover, her discussion of her own marriage after coming to Congress, and rising to the fourth highest position in the House even as she continued to have children and grow her family, made her the highest exemplar of a Douthatian natalism.

Senator Lee has already been a favorite of the Douthat reform conservative-types, and last night he condensed the arguments he has been making over the past year into a concentrated recounting of conservatives making a positive case for their agenda just as the Founding Fathers did for theirs. He also continued to make the case for a libertarian populism-infused inequality definition:

This inequality crisis presents itself in three principal forms:

immobility among the poor, who are being trapped in poverty by big-government programs;

insecurity in the middle class, where families are struggling just to get by and can’t seem to get ahead;

and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.

When combined with his family-friendly tax reform plan, for one night at least, American conservatives seemed to be represented by a party that both knew to value families and children, and how to serve them.


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Obama’s SOTU 2014: ‘Opportunity’ Still Knocking

LARRY DOWNING / UPI / Newscom
LARRY DOWNING / UPI / Newscom

For his fifth State of the Union Address, and arguably the most politically fraught moment of his presidency, Barack Obama offered what he called “a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity.”

“Ladders of opportunity” is a go-to phrase of Obama’s. It not only predates his presidency, but also his career in politics: you can hear him (a “civil rights lawyer”) use it here, in this 1994 NPR commentary warning against Charles Murray and Richard Hernnstein’s The Bell Curve.

It’s more than a go-to phrase, actually; it captures something fundamental about his assumptions about government and markets. He does not believe that the outcomes of the latter are morally authoritative. Hard work does not always pay. Discipline is not always rewarded. Consequently, it takes a thumb on the scale to break up—not necessarily equalize—patterns of wealth distribution, to ensure that there are rungs on the “ladder” and not just a pretty view of the mansion on the hill. And it requires a central government to promote a healthy ecosystem of the future, where things like the DOD-hatched proto-internet, the Air Force-administered GPS, and biomedicine can grow fruit.

In the back-and-forthing of State of the Union addresses, this debate is typically reduced to Democrats arguing for things like, well, an increase in the minimum wage, more spending on early-childhood education, job training assistance, an extension of unemployment insurance, new infrastructure spending—all of which Obama called for tonight—and Republicans responding that Democrats believe in “equality of outcome” and government’s picking economic winners and losers.

In short, Barack Obama is the keeper of a shriveling post-WWII consensus about economic development and countercyclical strategy.

And quite frankly, he picked a terrible time to be president. Trust in government, whether to manage the national economy or protect the “privacy of ordinary people” (as he put it in tonight’s address), is miserably low. Indeed, if there’s an issue on which he truly enjoys the will of the people at this back, it’s in his insistence on preventing direct U.S. government involvement (to put it cheekily) on foreign soil.

As I see it, there’s a tension within Obama’s (and mainstream Democrats’) stubborn clinging to the old consensus. The fact is, they don’t just want to create “ladders of opportunity.” They want a strong safety net that extends from early-childhood through to retirement. You could hear this in the speech’s section on financial security:

Let’s do more to help Americans save for retirement. Today, most workers don’t have a pension. A Social Security check often isn’t enough on its own. And while the stock market has doubled over the last five years, that doesn’t help folks who don’t have 401(k)s.

And probably the most potent appeal of Obama’s mention of the Affordable Care Act was its link to financial security: you will not go bankrupt if you get sick.

As a strong-government conservative, I’ll cop to this: I’m sympathetic to the old consensus. But I’m equally sympathetic to the Republican critique of an agenda that doesn’t seek to just equalize opportunity, but rather a cradle-to-grave latticework of care and feeding.

To be sure, there are compelling Rawlsian social-justice arguments for the latter—but they should not be confused with the former. Dollars spent on the old are dollars not spent on the young and underprivileged. This is not a summons to throw grandma over the cliff. It’s simply an acknowledgment of a finite budget.

Say this for Obama: he seemed upbeat, despite low polling and talk of lame-duck-ery spreading like wildfire. If nothing else, he seems aware of the fact that there will be no more major legislative accomplishments of his administration. (Count me in the camp that immigration reform remains a long shot.) If he does nothing else than push the boulder of his approval rating a few points up the hill, and thereby maintain Democratic control of the Senate, he will maintain a semblance of relevance for the last three years of his presidency.

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Congress Sends Guns to Syria in Secret Vote

This can only end well.

Last night Reuters reported that Congress recently approved funding to send small arms and anti-tank rockets to perceived non-Islamist Syrian rebels, though it continued to withhold portable anti-aircraft rockets that could be used to shoot down civilian airliners. “The weapons deliveries have been funded by the U.S. Congress, in votes behind closed doors, through the end of government fiscal year 2014, which ends on September 30,” according to two officials.

Congress was apparently satisfied that the Obama administration and any intermediaries it was using would be able to reliably get the weapons to “moderate” rebels without strengthening the al-Qaeda-aligned rebel forces that have often proven militarily superior. Such funding had been suspended after reports of weapons filtering to more radical elements. It is unknown when this change of heart occurred, though the Reuters article notes that nonclassified defense funding passed in December.

While there is surely great diversity in Syrian rebel forces, the inclination of many prominent foreign policy voices in Congress and the media to follow John McCain’s lead in seeing a George Washington in every irregular colonel does not give one great confidence that classified Congressional appropriators are well positioned to put guns in good hands. At the very least, “moderate” may be the single least helpful adjective in foreign policy discussions. As Donald Devine wrote late last week,

Both administrations and the Journal view democracy and moderate leadership as their goals. But what does “moderate” mean? When this author was in Iraq in 2003, the moderate Shi’ite leadership was all for “democracy,” but freely admitted it was because their majority could institute their version of Sharia. …

It also wants to support “moderate opposition” in Syria and Iraq. But isn’t Maliki a moderate, who we allied with against Moqtada al-Sadr? Of course, he oppressed his Sunni moderates too, but who in the region does not oppress moderates? Do we support moderates generally in Iraq, only Sunni moderates, or only non-ruling Shi’ite moderates? In Syria, we support the Sunni moderates, but extremist rebels have defeated them at every turn, chasing the moderate military leader out of the country and turning back a recent moderate surge. The only one protecting Christian, Druze, and Turkmen minorities is the Shi’ite/Alawite dictator. There are no good choices in the Middle East.

Or, as TAC alum Michael Brendan Dougherty (who debuted his new position at The Week writing about the plight of Middle East Christians last week) put it:

Also, while secrecy surely has a necessary place in foreign policy and military decision making, the sheer amount of uncertainty created by classified national security and military budgets necessarily undermines the possibility of democratic governance and accountability. The fact that not even the reporters breaking the story can quite nail down when the classified budget was passed makes combating waste and fraud seemingly a fool’s errand.

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The Least Interesting Approximation of You

If a friend or a first date sidles up to you and asks “Do you prefer cats to dogs?” or “Do you keep your desk neatly organized?” they may be trying to divine your political leanings.

Jonathan Haidt, author of The Righteous Mind, teamed up with Time to offer readers a 10 question quiz that promised to guess their politics by asking seemingly unrelated questions. The survey turned out to be fairly strongly correlated with a person’s self-identification as liberal or conservative (Haidt’s model explained 60% of the variance in people’s self-reported political leanings). On Facebook and Twitter, readers shared their results and kibbitzed about whether it was fair to claim that conservatives had a better claim on dog-ownership than liberals.

Haidt’s project closely resembled a research project conducted by the dating website OkCupid. The company trawled user data to find the question that best predicted whether someone was willing to have sex on the first date. (It turned out to be “Do you like the taste of beer?”).

These kinds of studies are informative, but only in a very narrow way. They might be useful if you have no easy way to uncover information directly—maybe you’re barred by law from asking an employee about her politics, or barred by social niceties from asking directly about sexual proclivities on the first date. But it’s a mistake to treat these findings as though they really flesh out our understanding of the people we’re studying.

Statistics software can tease out correlations, but just knowing two survey answers are related doesn’t do much to expand our understanding of the world. If two answers are linked, one might cause the other (favoring tradition and authority leads you to seek out a pet that acknowledges you as sovereign—a dog—over a more anarchic cat) or vice versa (exposure to a dog causes you to change your position on Iran sanctions) or both outcomes might be caused by a third, hidden variable (perhaps living on a farm leaves you more likely to own a working dog and to keep the government at arms length).

Any of these predictions are testable and posit something about how people’s ideologies are formed. A causal prediction prompts us to be curious about how someone thinks and their intellectual journey. But an unexplored correlation simply leads us to choose up sides and adopt more trivialities as tribal markers, in much the same way that ‘arugula’ became a sneering byword for liberalism.

It’s odd to see Haidt behind this clickbait survey, since his own research on moral foundations theory suggests that the liberal-conservative dichotomy isn’t the most informative way to classify the world. He identified six major considerations (harm, fairness, liberty, loyalty, authority, and purity) that might be weighted more or less strongly in someone’s moral calculus. Self-identified liberals and conservatives tend to prioritize these factors differently. Liberals tend to care primarily about harm, fairness, and liberty, while conservatives tend to factor in all six criteria.

In other words, Haidt’s own research suggests we can’t easily dichotomize the world, and that there’s little reason to desire to. An OkCupid dater may only have one important question to answer, but a politician still has a lot to learn after they learn that a potential collaborator identifies liberal or conservative. They may still share enough moral foundations to be able to find common ground.

The Time poll keeps training us to think that conservative versus liberal is the most interesting and essential part of our identity, but it’s much more important to learn what someone is trying to conserve and why. You might be able to get there in ten questions, but they’d compose a much deeper conversation.


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North Carolina’s Lessons for Unemployment and the GOP

Despite the recent words of Paul Ryan, Marco Rubio, and Mike Lee, the GOP currently has little credibility when it comes to improving the lot of the poor and downtrodden. In the last election, Mitt Romney lost four to one among voters whose most important perceived candidate quality was who “cares about people like me.” This represented a fifth of the electorate, a share that may only increase as our economy limps through a tepid recovery. By transforming “limited government” from the means to an end to an end itself, Republicans lost the vocabulary of human flourishing—and what stale budget talk and appeals to principles remain won’t rebuild conservatives’ appeal to the economically anxious.

The recent debate over extending unemployment benefits is a case in point. Republicans mostly dropped the argument about the potential trade-offs between helping individuals and serving the long-term health of our economy—a welcome development given the depressing statistics economists like AEI scholar Michael Strain have compiled: of all unemployed workers, over a third have been unemployed for more than 27 weeks, double the share we saw during the recession of the early 2000s. Today there are approximately three unemployed workers for every available job opening. No wonder more than 350,000 workers opted to leave the workforce, making today’s labor force participation rate the lowest since April of 1978.

Then the debate moved to the cost—$18 billion, or approximately one-half of one percent of overall federal spending in 2013, then to procedural objections and the perfidy of Harry Reid. Yet at no point has a substantial majority of Republicans rallied behind a set of policies that would address the plight of the long-term unemployed.

Admittedly, part of the problem is the inherent challenge for a party out of power to rally around a substantially new, coherent agenda. Ryan and company are helping to fill that vacuum with their own policy solutions, and one can imagine that with a Republican in the White House, a similar agenda could get passed.

But the experience of my home state of North Carolina should give one pause. With control of both houses in the General Assembly and the Governor’s Mansion, the GOP passed many far-reaching reforms ranging from the tax code to education, none of which grappled with the structural problems facing the state’s economy. Rhetorically, GOP leaders and their surrogates stuck to abstract financing issues and small government talk. They rarely defended policies by appealing to a vision of the good life for North Carolinians that resonated with anyone outside the conservative fold.

Their strategy hasn’t panned out. The unemployment benefits reform was already controversial, since state leaders could have continued the benefits for the current long-term unemployed even as they reaped the same fiscal benefits had they just been willing to seek a mere six-month delay and a waiver from the Department of Labor. The unemployment rate has decreased six months later, but the drop appears to stem more from marginally-attached workers leaving the workforce than from unemployed workers finding jobs. Voters aren’t pleased. Governor McCrory hasn’t recovered in the polls, and likely GOP Senate nominee Thom Tillis is trailing Senator Kay Hagan even as President Obama’s unfavorability rating sits at a solid 55 percent.

Fiscal responsibility is important, but small government talk alone won’t cut it. Like it or not, the federal and state governments can target some of the root causes of poverty and economic hardship. Republicans need to start taking cues from Ryan, Rubio, and Lee to thoughtfully confront the challenges our society faces today: the decline of institutions like the family and local communities and the continuing struggles of segments of the workforce still grappling with our post-manufacturing age. Addressing the needs of the long-term unemployed would be a good place to start—lest some Congressional Republicans find themselves out of a job this November.


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Why Congress Is Held in Contempt

Official Photo by Heather Reed

“I’ve got a pen,” said President Obama early this week. ”I can use that pen to sign executive orders and take executive actions … that move the ball forward.”

“When I can act on my own without Congress, I’m going to do so,” the president added Wednesday at North Carolina State.

Thus did Obama signal that he will bypass Congress and use his executive powers to advance his agenda of national transformation.

This dismissal of Congress has gone almost unprotested. In an earlier age it might have evoked talk of impeachment. But not now.

For though Congress may be the first branch of government in the Constitution, with the longest list of enumerated powers in Article I, its eclipse has been extraordinary.

Congressional powers have eroded or been surrendered. The esteem in which Congress is now held calls to mind Emily Dickinson: “It dropped so low in my regard/I heard it hit the ground.”

Congress boasts a 13 percent approval, a surge from its all-time low of 9 percent last fall before the budget deal.

While ex-Secretary of Defense Robert Gates expressed disappointment in Obama and Hillary Clinton in his book “Duty,” and was dismissive of Joe Biden, his view of Congress dripped with venom:

Uncivil, incompetent in fulfilling basic constitutional responsibilities (such as timely appropriations), micromanagerial, parochial, hypocritical, egotistical, thin-skinned, often putting self (and reelection) before country—this was my view of the majority of the United States Congress.

At Congressional hearings, Gates says he was “exceptionally offended by the constant, adversarial, inquisition-like treatment,” and lines of inquiry that were “rude, insulting, belittling, bullying, and all too often personal.”

Admirers of Obama, Hillary, and Biden have all come forward to defend them. Where are the defenders of Congress from this searing indictment by Gates? Almost nowhere.

What happened to Congress? Not so long ago, school children were taught more about Sens. Henry Clay, John C. Calhoun and Daniel Webster than many of the presidents of that pre-Civil War era.

High among the causes of Congress’ decline has surely been the loss or surrender of its constitutional powers—to presidents, the Supreme Court, and a federal bureaucracy Congress itself created.

Consider this. Under Article I, Congress is entrusted with the power to “regulate commerce with foreign nations.”

With the exception of slavery, there was not a more divisive issue before the Civil War than the tariff question. In the Jacksonian era, South Carolina almost seceded over the tariff, and Andrew Jackson threatened an invasion.

Today, Congress first surrendered to the executive the authority to negotiate trade deals, and then passed fast track, denying itself the right to amend those treaties. Congress has restricted itself to a yes or no vote on what the executive negotiates.

The transnational corporations that finance campaigns are delighted.

But as a consequence of NAFTA, GATT, and the WTO, a third of U.S. manufacturing jobs and a huge slice of our manufacturing base have been shipped overseas, and we have run $10 trillion in trade deficits since Bush I.

The stunning industrial decline of the United States has been matched in two centuries only by the USSR.

Congress was granted the power to “coin money” and “regulate the value thereof.” But in 1913, Congress transferred that power to the Federal Reserve.

With the Fed as its steward, the dollar’s purchasing power had fallen to that of a couple of pennies in 1913. And the Fed was responsible for the stock market bubble that bought on the Great Crash of 1929 and Great Depression, and the real estate and stock market bubbles that brought on our own Great Recession.

Yet, the Fed is untouchable.

Though Congress was granted exclusive power “to declare war,” our last declared war was in 1941.

Obama today draws “red lines” and tells nations not to cross them or we bomb, and announces to the world that, in dealing with Iran, “all options are on the table,” meaning war.

But when did Congress authorize Obama to wage war on Iran? Never.

Nor did Congress authorize Bill Clinton to bomb Serbia.

While Congress was granted the power in the Constitution to restrict the jurisdiction of the Supreme Court, that court has been on an ideological tear, remaking America without a nod to Congress.

The court has created new rights for criminal suspects out of thin air. It ordered all states to integrate public schools, even if that meant forced busing by race across cities. It declared abortion and homosexual relations to be constitutionally protected rights.

Congress often complained, but almost always did nothing.

Congress has behaved more timidly than the Court, whose justices serve for life. And unlike the president, Congress cannot act decisively or speak with a single voice. It’s a cacophony.

Sundered by party and ideology, with 535 members, and rules and regulations that inhibit decisions and impede action, Congress appears a 19th-century anachronism at sea in a 21st-century world.

Who looks to Congress today as the bulwark of our liberties?

Patrick J. Buchanan is the author of “Suicide of a Superpower: Will America Survive to 2025?” Copyright 2013 Creators.com.

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3 Political Stories to Follow in 2014

Orhan Cam/ Shutterstock

With the new year finally upon us, it is time to see what stories of the past will be continuing forward with new life.

Primary Battles:

When the shutdown showdown of this past October finally concluded with Ted Cruz’s demands left unmet, the Senate Conservatives Fund vowed to wage a campaign of retributive primaries against the the insubordinate members of Congress that refused to follow Mr. Cruz all the way off the cliff and down into the waters of default. Steve Stockman has announced a candidacy to oppose “liberal” John Cornyn, whose credentials as a Beltway conservative are thoroughly intact. In Kentucky, Matt Bevin has likewise challenged Senate Minority Leader Mitch McConnell for being a Washington figure through and through, drawing on the popularity of the junior senator from Kentucky, Rand Paul, to pummel McConnell. The establishment is fighting back, however, as they target upstart constitutionalist Justin Amash in Michigan, pouring business money into a candidate more willing to toe the party line.

Can Obamacare Survive Takeoff?

With a disastrous October launch faltering through the end of the year, President Obama’s signature law is in much more serious danger of failing of its own accord than its bitterest opponents could have hoped. The administration has reported cautiously positive enrollment numbers through the infamous Healthcare.gov, but it is far from clear how many of those enrollments will actually pay for their coverage. Moreover, as the administration has continued to issue ad hoc exemptions and extensions, the insurance companies themselves are increasingly worried about their ability to enroll the magic mixture of young and healthy premium payers to pay for the old and sick. With the prospect of insurance “death spirals” looming over it, the Affordable Care Act’s implementation will in large measure set the political tone for the rest of the year.

Whither the Midterms?

To a certain extent, the 2014 midterm elections will be a product of the previous two stories. Should Obamacare resurrect itself and go off without too many more hitches, the Democrats’ chances of retaining the Senate improve considerably. Likewise, if the law continues to falter or worse, vulnerable Democrats like Mark Pryor in Arkansas and Kay Hagan in North Carolina will be heavily investing in antacids. Pryor should already be purchasing in bulk, as he faces Weekly Standard darling Tom Cotton, a Harvard Law graduate who left a lucrative private practice to enlist in the Army in 2005. The first-term Congressman makes up for what he lacks in experience with resume and backing. Should he win the seat, Rand Paul would have regular dueling partner in the fight for the Republican foreign policy soul.


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White House Panel Rebukes NSA Spying

Six months after Edward Snowden’s first powerpoint slides went public, it’s official: all three branches of government have weighed in against the NSA’s surveillance overreach.

Yesterday, President Obama’s own hand-picked panel issued a 308-page report recommending a series of reforms to the National Security Agency and overall national surveillance structure. The five-member panel had previously been criticized for not being independent enough of the presidency, and included such members as Cass Sunstein, President Obama’s former “nudge” and regulatory czar who is also married to current UN Ambassador Samantha Power; Michael Morrell, the recently resigned deputy director of the CIA; and Peter Swire, a former Obama economic aide.

Nevertheless, the panel released 46 sweeping recommendations, highlighted by the recommendation to end the bulk phone record collection program that made up Snowden’s very first revelation. It urged congress to pass legislation ending the NSA’s ability to collect and maintain records of Americans’ phone metadata for years on the presumption that it may at some point be pertinent and subject to a legitimate search. Instead, the panel recommended that the NSA be barred from such pre-emptive collection, and instead need to obtain a specific Foreign Intelligence Surveillance Court order for each set of records. Instead of being preserved in government archives in perpetuity, the records would be subject to the company’s own data retention policies, so a court order served for two-year-old records at Cricket, which only retains records for six months, would come up blank. Verizon, the first company whose cooperation with the NSA was exposed, keeps records for one year, and AT&T, five years.

Earlier this week, a George W. Bush-appointed judge ruled the program likely unconstitutional and issued a (stayed pending appeal) injunction against it, writing “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” The same program was the target of Justin Amash and John Conyers’ joint effort to defund NSA bulk collection this spring, and is banned under a proposed law by Patriot Act author Jim Sensenbrenner (R-Wis.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.). President Obama is not bound by the recommendations of his panel, and the White House has said that it will announce which suggestions it will itself adopt in January.

What is particularly important, and special, about this case is the unison with parts of the executive, legislative, and judicial branches are speaking in rebuking the NSA’s activities as unconstitutional. Often in our nation’s history, particularly post-Warren Court, we have acted as if the only legitimate judges of the Constitution sit on the Supreme Court. After last summer’s Obamacare ruling, for instance, Democrats and many in the media reported that the law was authoritatively stamped “constitutional” forever. That is an impoverished formalism, however, unworthy of our democratic system.

Instead, thanks to the wisdom of the Founders, we have three branches of government through which to pursue the political determination of constitutionality. The Constitution does not defend itself, nor does it belong to a single branch to define. Instead, our checking and balancing institutions of government compete in the political arena to give heightened voice to the public debate and uphold their sworn oath to protect and defend the Constitution of the United States. So they are now engaged in a great civil discussion to determine what invasions of privacy the Constitution permits, and what invasions prudence counsels to be forbidden, even within its limits.

Perhaps Edward Snowden’s greatest achievement, beyond the pushback of the surveillance state, beyond the awakening of the public to any particular debate, is the awakening of our Constitutional order to demonstrate its continued potency in the face of new and unexpected challenges.


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We’re Probably at Peak Republican

Natalie Kolb / Flickr.com
Natalie Kolb / Flickr.com

On CNN’s State of the Union Sunday, economist Douglas Holtz-Eakin made a funny about the GOP’s (relatively speaking) decent showing among voters right now: “Republicans have tried something new: they made a budget deal and they’re not shutting [down] the government.” After saying this, Holtz-Eakin initially kept a straight face. His bottom lip quivered. Laughter ensued.

No, seriously.

Republicans made a budget deal and didn’t shut down the government.

Hear, hear.

The public craves, now as ever, two things: stability and widely shared prosperity. Promising the latter is fine; actually providing it is best. Denying the former is fatal.

Alas, there’s reason to believe the GOP’s recognition of the primacy of stability is merely temporary.

The party may simply be lying in wait until the next kulturkampf over Obamacare.

Dave Weigel reports at Slate:

One of the bullet points that convinced most House Republicans to back [the budget] bill was “hey, let’s shut up about everything except Obamacare.” (I’m paraphrasing.)

Later in 2014, with Republicans largely focused on winning Senate races, what will they want out of Congress? A chance to codify their problems with Obamacare, and exploit whatever delays to the law the president is making in his executive decisions. The overwhelming acceptance of this deal suggests that Republicans aren’t really obsessed with passing entitlement reform, but they are obsessed with dismantling Obamacare, and they think their biggest mistake in 2013 was using the wrong leverage (the CR) to achieve that.

If true, Republicans are grossly miscalculating.

Yet again.

The truth is, polling on Obamacare is not starkly different than it was two years ago. And recall that, in October, during the shutdown, the needle moved toward approval of Obamacare not because it was working well (obviously), but because Republicans shut down the government over it.

The numbers on Obamacare fell to earth again largely because of the “If you like your plan, you can keep it” imbroglio. In other words, Obamacare suffers most when people feel like it’s going to disrupt their lives. Hence the seeming paradox that’s not really a paradox: the law itself is unpopular, and so is the idea of repealing it.

Disruption is the common denominator.

A wise party would learn from this. A wise party would not be salivating over the next opportunity to destabilize the government, spook markets, and upset stability-craving voters. A wise party would seek to either constructively improve or offer a serious alternative to the law, or else take the public’s hint and simply keep its head down and do its job.

But wisdom is in short supply.

And we’re probably still looking at a clown show.

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