“2016 Versus 2014?”: Are 2016 GOP Presidential Candidates Rooting Against The Party in 2014?
Who’s afraid of Majority Leader Mitch McConnell? It may not only be the Obama administration, congressional Democrats and their allies. According to a new report from Time’s Zeke J. Miller, the ranks of people who are quietly rooting for Democrats to hold the Senate by the skin of their teeth include all manner of Republican presidential hopefuls. Miller writes:
Behind closed doors and in private conversations with reporters and donors, GOPers eyeing the White House in 2016 are privately signaling they wouldn’t mind seeing the party fall short in this year’s midterm elections. For all the benefits of a strong showing in 2014 after resounding defeat in 2012, senior political advisers to some of the top Republican presidential aspirants believe winning the Senate might be the worst thing that could happen.
Miller identifies GOP governors Chris Christie of New Jersey, Scott Walker of Wisconsin, Bobby Jindal of Louisiana and Rick Perry of Texas as being the prime movers in this, as they are all likely to contrast their can-do problem-solving with the feckless gridlock of Washington – gridlock that they’d have a harder time dealing with if the GOP controlled all of Congress. GOP senators too (Florida’s Marco Rubio, Texas’ Ted Cruz and Kentucky’s Rand Paul) would have a greater expectations problem if people actually expected them to do more than inveigh against Obama. Miller continues:
For candidates from either category, a GOP-controlled Senate and House would mean having to answer for their party’s legislative agenda in both a primary and a general election. Whether it be new fiscal deals struck with Obama or continued votes to repeal Obamacare, aides to potential candidates fear that congressional action may put a damper on their boss’ future campaigns by forcing them to either embrace or break with specific legislative proposal as opposed to general policy ideals.
All of these points are good and Miller’s article is worth a full read. I especially like the detail where he notes that GOP governors don’t talk so much about the GOP Congress (honestly little wonder given that the reviled Obamacare is way, way, way more popular than congressional Republicans).
But there’s another reason why Republicans should be wary of excessive success and it has to do with the schizophrenic nature of the modern electorate. The midterm electorate tends to be older and whiter than the presidential electorate and the electorate’s increasing polarization (where parties tend to run up steep margins among specific demographic groups, like Republicans among whites and Democrats among minorities) has produced off-year collections of voters that lean Democratic (because they’re younger and less white) in presidential years and lean Republican (because they’re older and whiter) in off-years. The upshot has in recent cycles been parties that have struggled to succeed with the other side’s electorate.
So while Republicans swore up and down that they were going to learn the lessons of 2012 about growing their base, success in 2014 could kill any steps in that direction (which, in fairness, haven’t much been in evidence).
National Journal’s Ron Brownstein explicated this phenomenon last June:
The peril for Republicans is that a good 2014 election could provide a “false positive” signal about their prospects for 2016, much as the 2010 landslide did for 2012. … The GOP can thrive in 2014 without solving [its youth voter] problem — but not in 2016. The same dynamic holds for Republicans’ minority problems. The GOP attracted 60 percent of white voters in 2010 and enjoyed a landslide. But because minority turnout increased so much just two years later, Romney lost badly while winning 59 percent of the white vote.
At The American Conservative, Scott Galupo (a former U.S. News contributor) sees something more than a “false positive” danger; he argues that GOP poobahs understand their party’s problem full well but are trapped.
Republicans, or at least a good portion of those who matter, know full well that the party has a problem going into 2016, quite apart from what happens this fall. The crux of it is this: there’s nothing they can do to change it in the near term. The adjustments they need to make in order to recapture the White House—find some way to deal with undocumented immigrants; give up on tax cuts for the wealthy; acknowledge the painful trade-offs of any serious Obamacare alternative—would jeopardize their grip on Congress.
It’s possible that Republican leaders are merely biding their time until the Senate is in hand. Why rock the boat when you can win by default? I suspect, however, that the truth is more inconvenient: Rocking the boat will be no easier in 2016 than it is now.
The bottom line of course is that deep down no one is going to root against their side winning – you take the victory in the hand rather than hoping that a narrow loss will bank-shot you to greater success in the future. But these considerations are a useful reminder that allied political interests aren’t always perfectly aligned and that sometimes short-term success can mask and even exacerbate long term problems.
By: Robert Schlesinger, U. S. News and World Report, April 9, 2014
“When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”
“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”
In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.
First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.
A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.
Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.
There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.
The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.
By: John Paul Stevens, Associate Justice of The Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”; The Washington Post, April 11, 2014
“We Need To Be More Ambitious”: Why The Minimum Wage Should Really Be Raised To $15 An Hour
Momentum is building to raise the minimum wage. Several states have already taken action — Connecticut has boosted it to $10.10 by 2017, the Maryland legislature just approved a similar measure, Minnesota lawmakers just reached a deal to hike it to $9.50. A few cities have been more ambitious — Washington, D.C. and its surrounding counties raised it to $11.50, Seattle is considering $15.00
Senate Democrats will soon introduce legislation raising it nationally to $10.10, from the current $7.25 an hour.
All this is fine as far as it goes. But we need to be more ambitious. We should be raising the federal minimum to $15 an hour.
Here are seven reasons why:
1. Had the minimum wage of 1968 simply stayed even with inflation, it would be more than $10 an hour today. But the typical worker is also about twice as productive as then. Some of those productivity gains should go to workers at the bottom.
2. $10.10 isn’t enough to lift all workers and their families out of poverty. Most low-wage workers aren’t young teenagers; they’re major breadwinners for their families, and many are women. And they and their families need a higher minimum.
3. For this reason, a $10.10 minimum would also still require the rest of us to pay Medicaid, food-stamps, and other programs necessary to get poor families out of poverty — thereby indirectly subsidizing employers who refuse to pay more. Bloomberg View describes McDonalds and Walmart as “America’s biggest welfare queens” because their employees receive so much public assistance. (Some, like McDonalds, even advise their employees to use public programs because their pay is so low.)
4. A $15/hour minimum won’t result in major job losses because it would put money in the pockets of millions of low-wage workers who will spend it — thereby giving working families and the overall economy a boost, and creating jobs. (When I was Labor Secretary in 1996 and we raised the minimum wage, business predicted millions of job losses; in fact, we had more job gains over the next four years than in any comparable period in American history.)
5. A $15/hour minimum is unlikely to result in higher prices because most businesses directly affected by it are in intense competition for consumers, and will take the raise out of profits rather than raise their prices. But because the higher minimum will also attract more workers into the job market, employers will have more choice of whom to hire, and thereby have more reliable employees — resulting in lower turnover costs and higher productivity.
6. Since Republicans will push Democrats to go even lower than $10.10, it’s doubly important to be clear about what’s right in the first place. Democrats should be going for a higher minimum rather than listening to Republican demands for a smaller one.
7. At a time in our history when 95 percent of all economic gains are going to the top 1 percent, raising the minimum wage to $15 an hour isn’t just smart economics and good politics. It’s also the morally right thing to do.
Call your senators and members of congress today to tell them $15 an hour is the least American workers deserve. You can reach them at 202-224-3121.
By: Robert Reich, The Robert Reich Blog, April 9, 2014
“SCOTUS Sanctioned Corruption”: In McCutcheon, Justices Advance Troubling Vision Of Democracy
The Supreme Court’s McCutcheon decision today dealt another serious blow to the regulation of money in politics. In its 5-4 decision, the Court struck down the federal aggregate contribution limits, which restrict the amount one person can contribute to all candidates, parties, and political committees combined. As a result, one person can now give more than $3.6 million to one party’s candidates and committees in a single election cycle (under the limits, one could give “only” $123,200 per election cycle). With a sufficiently sophisticated joint fundraising apparatus, this money could be given in response to a solicitation from a single party leader.
While this is troubling by itself, the more sinister part of the decision lies in the groundwork the decision laid for future money in politics cases.
The Court doubled down on its holding that corruption only includes contributions given with the expectation of receiving official action in return — essentially a direct bribe in the guise of a political contribution. The Court also acknowledged that contributions can be used to gain ingratiation with and access to government officials while not reaching the level of outright bribery. But the Court praised this relationship rather than condemning it:
“We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. . . . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
This vision of the Constitution is wrong. It elevates wealthy donors who can afford to buy influence over 99.99 percent of Americans, who have an equal right to representation. Although the Court may talk in the language of protecting constituents, the outcome is clear — big donors can give to however many candidates they want, regardless of whether they can vote for those candidates or would be constituents of those candidates. This case is about big money, not constituents.
Beyond this, the overtones of the decision suggested that contribution limits may be subject to harsher constitutional scrutiny in the future. If the Court changes this standard for review, it will be more difficult to successfully defend contribution limits from First Amendment challenges in future cases. The Campaign Legal Center’s Trevor Potter describes this danger in a blog post that predates the McCutcheon decision.
There are still meaningful ways to limit the power of big money in our political system. We need to enact disclosure laws to eliminate dark money, elevate the voices of ordinary voters through small donor public financing, strengthen rules against coordinated spending and the circumvention contribution limits, and ensure existing rules are enforced.
But until then, even more money will flow directly to candidates, further marginalizing average voters at the expense of the wealthy. While this is just the latest step in a long line of recent cases weakening our campaign finance system, the decision strongly signals that more is still yet to come.
By: David Earley, Brennan Center For Justice, April 2, 2014
“Macho Chest-Thumping Myth”: Sorry, Dick Cheney, Torture Doesn’t Work
I’ve written a couple posts now predicting that a Senate report on the CIA’s interrogation practices during the Bush years would show that the CIA’s foray into torture just didn’t work. Also, that the CIA lied about the effectiveness of waterboarding and other controversial techniques. Now we have a test of that prediction — not the Intelligence Committee report itself, which is still under wraps, but a bombshell in the Washington Post that quotes people with firsthand knowledge of the report. Lo and behold:
A report by the Senate Intelligence Committee concludes that the CIA misled the government and the public about aspects of its brutal interrogation program for years — concealing details about the severity of its methods, overstating the significance of plots and prisoners, and taking credit for critical pieces of intelligence that detainees had in fact surrendered before they were subjected to harsh techniques.
The report, built around detailed chronologies of dozens of CIA detainees, documents a long-standing pattern of unsubstantiated claims as agency officials sought permission to use — and later tried to defend — excruciating interrogation methods that yielded little, if any, significant intelligence, according to U.S. officials who have reviewed the document.
“The CIA described [its program] repeatedly both to the Department of Justice and eventually to Congress as getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” said one U.S. official briefed on the report. “Was that actually true? The answer is no.”
Importantly, the Senate report apparently also recommends no prosecution for these war crimes. That’s depressing, if not very surprising.
You might be wondering: How was I so prescient? In fact, I deserve no credit: that torture during the Bush era yielded no valuable intelligence was completely obvious from the beginning, despite what Dick Cheney might have you believe. All you had to do was pay attention to people who have studied torture carefully. Darius Rejali, a professor at Reed College, did just that in his masterpiece Torture and Democracy (see here and here). Rejali found that torture is good for two things: intimidation and extracting false confessions. As an intelligence-gathering mechanism, it’s much worse than worthless. You get no good intelligence, while what you do get is decidedly bad, including a corrosion of the legitimacy of security agencies and a weakening of the foundation of liberal democracy itself.
Micah Zenko makes a good point that the major issue when it comes to torture is that it is blatantly illegal, immoral, and unethical. He’s right that the rule of law — not to mention basic decency — ought to land every torturer in federal prison.
But it would be a mistake to ignore the fact that it is also ineffective. The ethos of the Bush-era CIA was “know-nothingism,” as Paul Krugman put it at The New York Times, “the insistence that there are simple, brute-force, instant-gratification answers to every problem, and that there’s something effeminate and weak about anyone who suggests otherwise.” These national security officials see themselves as the hard-headed tough guys who won’t let the pathetic moral qualms of liberal cowards keep them from doing the dirty work that keeps us safe. (This is a real-life version of Jack Nicholson’s famous “You can’t handle the truth!” scene in A Few Good Men.) Breaking the law, then, is a Badge of Seriousness, of a willingness to do what is necessary no matter the cost.
It’s critically important, therefore, to break forever this macho chest-thumping myth. Anyone who advocates torture shouldn’t be met only with moral condemnation, but also contemptuous jeers for being such a naive dupe. The members of the CIA torture cabal aren’t tough. They aren’t keeping us safe. They are a pack of incompetents who don’t know what they’re doing.
By: Ryan Cooper, The Week, April 1, 2014
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