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“The ‘Conspiracy’ In Mississippi”: A Perilous Challenge Based On Mississippi’s Silly, Unenforceable And Probably Unconstitutional Law

Three days after his upset defeat in the MS GOP SEN runoff, Chris McDaniel is still keeping his counsel on what he might or might not do to challenge the results. All but one of the national conservative groups (the Tea Party Patriots being the exception) have written off the contest and moved on. And while there is some anecdotal evidence–much of it not necessarily credible–of plain violations of the law (people who voted in the Democratic primary on June 3 being allowed to participate in the runoff), it seems unlikely it’s sufficient to close a 6,000-vote deficit or mount a legal challenge to the outcome.

If that’s all accurate, that means what McDaniel may be pondering is an extremely perilous challenge based on Mississippi’s silly, unenforceable and probably unconstitutional law limiting primary participation to those who “intend” to support the party in the next general election. Here’s what he told Sean Hannity earlier this week:

McDaniel says Cochran’s campaign brought in Democrats to steal the GOP primary. He told Hannity he might launch a court challenge on “a civil conspiracy to violate state law.”

Sounds like given the inability of anyone without divine omniscience to establish individual violation of the “intent” law, McDaniel may claim that the open Cochran campaign appeals for crossover votes amount to a conspiracy to encourage violation of that law.

Legal niceties aside, this will come down to a toxic claim that by appealing to Democrats–which in Mississippi mostly means African-Americans–Cochran was “stealing the election.” Given Mississippi’s history, I don’t think this would redound to the benefit of a Republican Party struggling to overcome its reputation as a sort of national redoubt for Old White People, or of a conservative movement whose denizens become crazy furious (as my Twitter account can attest) at any suggestion “race” ever enters their minds.

As the days go by and Team McDaniel’s accusation that black people voting in “their” primary constitutes voter fraud hangs in the air, you wonder if he’ll be able to walk any of this back. Mark my words: if McDaniel does move forward with a conspiracy charge, “Establishment Republicans” may ultimately wish he had won the runoff after all.

 

By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 27, 2014

June 29, 2014 Posted by | Conservatives, Mississippi, Tea Party | , , , , | 2 Comments

“So When Is The Senate In Recess?”: An Extended Recess Broken Up By Several Pro Forma Sessions Is Still A Recess

Before the Circuit Court went all activist in the Canning case, everyone thought the question was defining what counted as a “recess.” On that issue, the Supreme Court had a clear answer today: “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

That’s a nominal defeat for President Barack Obama, who had claimed that an extended recess broken up by several pro forma sessions is still a recess.

The history here is that a Senate with a Democratic majority used pro forma sessions every three days in 2007-2008 to prevent President George W. Bush from making recess appointments, and Bush didn’t contest the maneuver. Then, in 2011, the Republican majority in the House of Representatives tried the same workaround, which forced the Senate to stay “in session” because of the constitutional provision that when one chamber is in session, the other cannot adjourn for “more than three days.”

The Senate-initiated attempt to block recess appointments seemed dicey, but probably reasonable. The House-initiated obstruction, however, was constitutionally noxious. After all, the House has no constitutional role in presidential nominations. By refusing to recess, the Senate essentially is enforcing its role in advise and consent. That changes when lawmakers hold pro forma sessions instead of “real” sessions and enforce that role at their convenience. When the House does it, however, that chamber is being inserted into matters it has no business being involved in.

The court didn’t differentiate those two very different situations today, but Associate Justice Stephen Breyer reminded everyone that there is another option for combating the House: The Constitution allows the president to act if the two chambers cannot agree on adjournment. Although I argued strongly at the time that Democrats shouldn’t allow the House to veto nominations — and that therefore Obama should have acted — I believed that the unused Article II power of adjournment was the safest constitutional ground.

As it turns out, the House option is pretty much a moot question since Senate Democrats pushed through the nuclear option, which allows nominations to go through with a simple majority vote. The House option for obstruction was relevant only in cases in which the president and Senate majority were from one party, and the House majority and a Senate minority large enough to kill nominations by filibuster were from the other party. Given simple majority confirmation, the House no longer has the power to obstruct. I suppose it’s still true that a president and the Senate majority might prefer a simple recess appointment to going through the hurdles of confirmation, even if it’s guaranteed to happen, but that’s not as big a deal as the attempt to nullify entire agencies by the House in conjunction with a Senate minority.

To be sure, the Senate will still have the ability to refuse to confirm any nominee and to prevent recess appointments. But that was always going to be the case; the only thing at stake here (on the narrow question of what counts as a recess) was how inconvenient it was going to be for the Senate to do so. In the long term, odds are that future legislation will be written more carefully to prevent nullification by obstructing nominations, now that Republicans have revealed that such a weapon is available and will be used. Constitutionally, none of that is a big deal.

To get into the details, the question of what counts as a “recess” is complicated because the Constitution doesn’t offer a definition, and usage now and then is ambiguous. Both Breyer and Associate Justice Antonin Scalia discussed two meanings (recess between two sessions of Congress and recess within one session). But, in fact, there are three usages: everyone in and around Congress knows that “recess” can mean both short periods when Congress is out for a weekend, the night, or even lunch, or it can mean the longer “district work periods” that last for a week (with surrounding weekends) or longer. Without explaining it very well and therefore opening himself up to Scalia’s claims that it’s just an arbitrary ruling, Breyer is basically attempting to follow that perfectly common-sense, ordinary usage distinction. That is the correct way to go; it’s the only option that really conforms to Senate practice.

That leaves the question about the pro forma sessions. Breyer puts a fair amount of weight on the ability of the Senate to transact business (by unanimous consent, or presumably by a voice vote if it wasn’t challenged) during these sessions. That’s true, but it’s also true that everyone talks and acts as if the Senate is in a normal recess during those periods. So the court has erred, but it’s a close call, and relatively little is at stake in this portion of the decision, especially in the post-nuclear era.

 

By: Jonathan Bernstein, Ten Miles Square, Washington Monthly, June 27, 2014

June 29, 2014 Posted by | Congress, Senate, Supreme Court | , , , , , | 1 Comment

“GOP Chases Fake IRS Scandal, But Makes The Real One Worse”: Republicans Need Look No Further Than Their Own Budget Proposals

With the exception of the 2012 Benghazi attacks, no Obama-era controversy has animated Republican imaginations quite like the one surrounding the Internal Revenue Service.

Congressional Republicans’ version of the scandal originally went like this: President Obama ordered the IRS to target right-wing organizations applying for tax-exempt status as non-political “social welfare” groups, leading the agency to harass those on the president’s Nixonian enemies list.

It turns out that none of that ever happened; the IRS targeted liberal groups as well as conservative ones, not a single Tea Party group was denied tax-exempt status (despite overwhelming evidence that many of them were engaged in political activity), and no evidence ever emerged that the White House was involved in any of it. Still, that hasn’t stopped Republicans from escalating the “scandal” in increasingly ridiculous ways.

The current outrage centers around the IRS’ claim that thousands of former IRS official Lois Lerner’s emails were lost when her computer crashed in 2011. Although evidence and logic suggest that this was not part of a massive cover-up, Senator Ted Cruz (R-TX) is threatening to impeach Attorney General Eric Holder unless he appoints a special prosecutor to investigate it, and Reps. Louie Gohmert (R-TX) and Bill Flores (R-TX) have introduced a bill promising a $1 million bounty to anyone who can restore the lost emails, while threatening to cut the salaries of IRS employees by 20 percent unless the emails are recovered.

As it happens, Republicans have already hammered IRS employees with cuts since they took control of the House of Representatives in 2011 — and they didn’t even need a “Nixonian” “scandal” to do so.

In a report released Wednesday, the Center on Budget and Policy Priorities illustrates just how badly Congress has constrained the IRS’ ability to do its job. Due to a combination of discretionary budget cuts and sequestration, the IRS has been left with an $11.3 billion budget for 2014. That’s $840 million lower than it was in 2010, amounting to a 14 percent cut when accounting for inflation.

CBPP Chart 1

As a result of the cuts, the IRS has been forced to reduce its workforce by 11 percent since 2010, even as the agency’s workload has substantially increased (for example, in addition to the IRS’ new campaign finance responsibilities, CBPP notes that the number of individual tax returns has grown by 1.5 million annually over the past decade).

CBPP Chart 2

Furthermore, even as the IRS’ remaining workers have been forced to take on more responsibility, the agency’s training budget has been slashed by an astonishing 87 percent between 2010 and 2013, the most recent year with available data. If Congress wants to know why the IRS struggled so badly at sorting out the glut of groups that applied for tax exemption, there is your answer.

President Obama’s 2015 budget would reverse the rapid slide in the IRS’ funding; it would increase the agency’s budget by $1.2 billion from this year’s level, returning it to roughly its 2010 level (before adjusting for inflation).

The House appropriations subcommittee wants to go further in the other direction, however; it has proposed cutting IRS funding by yet another $340 billion. This is especially illogical considering the GOP majority’s supposed desire to limit the budget deficit. According to the Treasury Department, each $1 spent on the IRS budget yields $4 of revenue.

“Policymakers should give the IRS sufficient resources to carry out its mission,” the CBPP paper concludes. “In particular, policymakers who profess to be concerned or even alarmed about the nation’s current or future fiscal course should provide the IRS with the funding it needs to administer the nation’s tax laws and collect taxes due under the laws of the land.”

CBPP is not the first to sound the alarm over the IRS’ lack of funding; The National Memo’s David Cay Johnston made a similar argument in 2013, at the height of the “targeting” controversy.

Republicans are clearly desperate to uncover a real scandal at the IRS. But if they really want to improve things at the much-maligned agency, they need look no further than their own budget proposals.

 

By: Henry Decker, The National memo, June 27, 2014

June 29, 2014 Posted by | Federal Budget, Internal Revenue Service, Republicans | , , , , , , | Leave a comment

“The Right’s Cynical Wordplay”: ‘Women’s Safety’ Means Absolutely Nothing Anymore!

The most direct consequence of Thursday’s Supreme Court ruling striking down Massachusetts’ buffer zone law is that the people working and accessing care at abortion clinics will be less safe. Lawmakers in Massachusetts and municipalities across the country with similar measures in place will now have to figure out — once again — how best to ensure that the people who need to enter and exit clinics can continue to do so without being harassed, threatened, harmed or worse by antiabortion protesters. There have been nearly 7,000 incidences of clinic violence since 1977; history teaches us that safety is never a given when walking through those doors.

The second thing that the opinion in McCullen v. Coakley reminds us is how empty — how absolutely devoid of meaning — the notion of “women’s safety” has become in politics. Hardly a week passes without some measure advancing through a state legislature that will have devastating consequences for women’s health, but these bills are nonetheless cloaked in the language of women’s safety. Put those words in front of almost any piece of legislation and it seems like most lawmakers just nod their heads.

Texas comes to mind. We’re one year out from Wendy Davis’ historic filibuster, and the status of access in the state has gone from bad to utterly catastrophic. Nearly half of Texas’ abortion clinics have closed since 2011; it is estimated that come September, there will only be six abortion providers left in the second most populous state in the nation. The Rio Grande Valley has lost its last remaining abortion clinic, and now women in the region must travel 300 miles round trip to access care, including routine services like mammograms, cancer screenings and birth control. A recent study found that 7 percent of women in Texas have attempted to self-induce abortion. The number jumps to 12 percent for women who live along the Mexican border, and it is expected to grow. Women who have the luxury of crossing border checkpoints without fearing deportation or worse have been traveling to flea markets in Mexico to buy drugs from unlicensed and unregulated vendors in order to terminate their pregnancies.

But state Rep. Jodi Laubenberg called the passage of HB 2 a victory for women’s safety. In reflecting on the year that was, she commented, “Authoring and passing House Bill 2 was one of the most rewarding and challenging accomplishments of my legislative service. […] It was worth it. I will continue to fight for both the safety of Texas women and the pre-born.” Her Republican colleagues echoed the sentiment. Republican state Rep. Jane Nelson said, “I am proud to support House Bill 2, which not only protects innocent life but also ensures that abortion facilities are safe for Texas women.” And state Rep. Patricia Harless used the same language to justify her vote. ”I proudly voted for House Bill 2 because I believe Texas women deserve more than the bare minimum, lowest level safety standards,” she said.

These talking points have been parroted by lawmakers in Louisiana, Utah, Oklahoma, Arizona, Mississippi, Virginia, North Carolina, South Carolina and virtually everywhere else that laws like these are being enacted. It’s never about abortion. It’s always about safety — women’s safety.

Now the Massachusetts law was also about women’s safety. The kind of safety that 35 feet of distance between yourself and someone willing to spend their Saturdays outside an abortion clinic calling women murderers will provide you. The kind of safety that state lawmakers recognized was urgently needed after an antiabortion activist opened fire on a clinic near Boston and killed two people and injured five others.

The violence isn’t unique to Massachusetts; the threat is national. As Robin Marty wrote this week, if you want to understand why buffer zones matter, spend some time at an abortion clinic without one:

In my time working with abortion providers and abortion rights advocates over the last few years, I’ve seen first hand what is considered “counseling” by abortion opponents at unprotected clinics. In Louisville, Kentucky, one of only two clinics left in the Bluegrass state, I witnessed over 100 abortion opponents lining the sidewalk leading up to the clinic, stopping just at the property line in front of the door, chanting rosaries, calling to patients, preaching sin and eternal damnation through a microphone just a few feet from the waiting room window. I watched a woman shout through the window that the patients inside would die on the exam room table, that they would bleed to death inside, and no one would help them because the money was already paid up front. I saw protesters with bloody, graphic signs swarm patients just trying to get out of the car door and cross the mere 10 feet from curb to clinic property.

That’s what it is like at a clinic with no buffer zone.

And that will be the scene at more clinics in the wake of the Supreme Court’s unanimous finding that while it sees no problem with the buffer zone around its own building, it believes that a 35-foot barrier — the length of a school bus, a walk that will last approximately 7 seconds — is an undue burden on the First Amendment rights of the “peaceful sidewalk counselors” stationed outside. Not being able to follow women to the doors of the clinic apparently limits their ability to “persuade.”

But the burden that removing that buffer will place on women’s safety? Well, what do those words even mean anymore?

 

By: Katie McDonough, Politics Writer, Salon, June 27, 2014

June 29, 2014 Posted by | Supreme Court, Violence Against Women, Women's Health | , , , , , , , | Leave a comment

“The Course Republicans Have Chosen”: The GOP Is Now Officially The Party Of “Get The Hell Out”

Exactly one year after the Senate passed an immigration reform bill that built a compromise on an exchange of increased enforcement for legalization for the 11 million, Republicans have now officially abandoned any pretense of a willingness to participate in solving the immigration crisis. Instead, they have committed the party to a course premised on two intertwined notions: There are no apparent circumstances under which they can accept legalization of the 11 million; and as a result, the only broad response to the crisis they can countenance is maximum deportations.

This means it’s now all in Obama’s hands to decide what he can do unilaterally to ease the pace of deportations and address the current unaccompanied migrant crisis.

One way to understand what happened here is to trace the evolution of GOP Rep. Bob Goodlatte, chair of the Judiciary Committee and a serious party thinker on the issue. Today Politico has a deep dive into the death of reform, reporting that in 2013, House GOP leaders privately told Hispanic leaders that they would try to embrace reform if the August recess that year went smoothly. This happened:

At one point, the Rev. Daniel de Leon, a California pastor, asked…Goodlatte about family reunification — a critical issue for religious communities. The normally reserved Virginia Republican…began to cry and choked up completely, two people inside the room recalled.

About a minute later, Goodlatte regained his composure. Apologizing for the abrupt tears, the former immigration attorney discussed how the issue is a deeply personal one: His wife Maryellen’s parents were first-generation immigrants from Ireland, he explained, and throughout his legal career, Goodlatte helped immigrants from more than 70 nations come to the United States.

Now fast forward to yesterday. Goodlatte effectively declared immigration reform dead as long as Obama is in office, blaming his decision to defer the deportation of DREAMers for the current crisis of unaccompanied migrants crossing.

This tells the entire story. Goodlatte was an early proponent of a form of legalization for the 11 million that could have been the basis for compromise. In this scenario, Republicans could have voted on piecemeal measures that included just legalization — and no citizenship — packaged with concurrent enforcement triggers. Paul Ryan and Mario Diaz-Balart both floated versions of that idea, which is to say, Republicans probably could have passed something like this, though it would have been (shock! horror!) difficult. This could have led to a decent deal for Republicans: In negotiations with the Senate, Dems would drop the special path to citizenship in exchange for Republicans agreeing to legal tweaks making it easier for the legalized to eventually find their way to citizenship through normal channels.

That’s essentially the larger scenario Goodlatte supported as early as last summer, and those who closely follow this debate have long known it was a plausible scenario and an endgame GOP leaders such as John Boehner privately hoped for. But it would have required getting the right angry at some point (which any immigration solution was always going to do). And so, it ran up against an unwillingness by a large bloc of Republicans in the House to do the hard work of figuring out what set of terms and conditions, if any, might enable them to support some form of legal status in the face of the right’s rage. Jeb Bush’s remarks were controversial precisely because he revealed the GOP unwillingness to cross this Rubicon as a moral challenge Republicans could not bring themselves to tackle. Even Boehner — who actually deserves some credit for trying to ease the party towards accepting legalization — essentially admitted this was the real obstacle to reform in a moment of candor earlier this spring.

And that’s where we are now. The current crisis is actually an argument for comprehensive immigration reform. But Goodlatte — who once cried about the breakup of families — is now reduced to arguing that the crisis is the fault of Obama’s failure to enforce the law. Goodlatte’s demand (which is being echoed by other, dumber Republicans) that Obama stop de-prioritizing the deportation of the DREAMers really means: Deport more children. When journalist Jorge Ramos confronted Goodlatte directly on whether this is really what he wants, the Republican refused to answer directly. But the two main GOP positions — no legalization, plus opposition to Deferred Action for Childhood Arrivals (relief for the DREAMers) — add up inescapably to “get the hell out” as the de facto GOP response to the broader crisis.

This is the course Republicans have chosen — they’ve opted to be the party of maximum deportations. Now Democrats and advocates will increase the pressure on Obama to do something ambitious to ease deportations in any way he can. Whatever he does end up doing will almost certainly fall well short of what they want. But determining the true limits on what can be done to mitigate this crisis is now on him.

 

By: Greg Sargent, The Plum Line, The Washington Post, June 27, 2014

June 29, 2014 Posted by | Conservatives, GOP, Immigration Reform | , , , , , , | Leave a comment

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