Archive for the ‘2010 Midterms’ Category

The Flaws and Dangers of the Nullification Movement

Monday, July 26th, 2010

We’ve discussed the increasing use of constitutional rhetoric on DeObfuscate before, but I wanted to delve into the issue a little deeper, and specifically addressing the “nullification movement” (a.k.a.  “tenthers”) and the increasing rhetoric that everything President Obama does is unconstitutional.

If you’re not familiar with the idea of nullification it boils down to this:  States can declare federal laws unconstitutional and thereby “nullify” them and make them void within their state.  It’s the sort of flawed logic that got us into the Civil War, and it’s been a debunked legal theory since 1832.  The primary legal inconsistency is that if Federal law can be nullified by states, then there’s no point in a federal government… and well, we’re basically back to the days of Articles of Confederation (and that worked out oh-so-well).  There are a LOT more issues with nullification, but I won’t get into all of them here.

As an Attorney, you’re generally ethically bound to avoid asserting fringe legal theories as hard and true fact, and if it’s a totally debunked legal theory then you shouldn’t assert it at all.  I have many Conservative Lawyer friends who would probably love living in a world where States can trump federal law whenever they feel like through nullification, but they would never assert that this is such a world.  So I was surprised to see organizations like the Tenth Amendment Center and scholars like Thomas E. Woods describe nullification pretty much as a given. When I started poking around, i realized that Woods is a historian, not a legal scholar, and I couldn’t identify anyone with formal legal training associated with the Tenth Amendment Center.  I don’t mean to suggest that a social or political movement needs attorneys or lawyers, but when your underlying claim is one to Constitutional interpretation, it might help.

But my main point in bringing all this up is the Rhetoric flowing out of if.  Rhetoric has consequences.  If you start with the assumption that the Constitution stands for what “tenthers” say it does, then it’s true: Everything President Obama’s done might be Unconstitutional.   Of course, by that measure everything George W. Bush did was also unconstitutional, as was anything done by Clinton, Reagan, Nixon, Johnson, etc.  all the way back to George Washington.  But that fact is lost in all the rhetoric describing Obama’s supposed unconstitutional assault on our “freedom”.  Rhetoric that leads Representatives in Colorado to call Obama a greater threat than Al Qaeda, or another in Tennessee to suggest secession from the U.S..  Combine that with the below video promoting “Nullify Now” get-togethers,  which features gun-shots and machine guns firing in the background and things look pretty ugly.

As Americans, no matter what our ideology, we’d expect a natural inclination to “honor and defend” the Constitution of the United States.  It’s what our soldiers do, and it’s what our elected officials are supposed to do.  By bypassing a generally acceptable framework for constitutional interpretation and substituting their own as fact, the nullification movement manages to evoke people’s passions while avoiding the more difficult (and likely unpopular) issue of what a world with nullification would actually be like.

So, not that I really want to propound my own flavor of Constitutional Rhetoric, but, given the widely accepted view that nullification is a dead legal concept, those who continue to support it are … well… striving for something Unconstitutional.

Rand Paul Isn’t Racist, He’s Just Wrong (and beware constitutional rhetoric)

Wednesday, June 9th, 2010

A few weeks ago there was a lot of news about comments Rand Paul made in regards to the burden placed on small businesses in mandating non-discrimination. I have a friend who shares the same view that the Civil Rights Act needlessly places a burden on business. While discussing the issue with my friend, and while pointing out the inefficiencies of discrimination, the fact that the market in the 1950’s and 60’s actually valued discrimination, and the countervailing rights of African Americans to effectively participate in commerce, his argument devolved into one simply about the “constitutional right” of a business to function free of coercion by the government. This sort of rhetoric is coming up more and more often, and not just at Tea Party rallies, it happens on the left as well (ie, those who when pushed suggest that they only support a woman’s right to choose because it’s a constitutional right).

A similar, though not constitutional, area where this kind of argument comes up is in the discussion of immigration law. Often, those supporting some of the strongest positions on immigration reform (no “amnesty”, blanket deportation, or support for AZ’s new immigration law), fall back on the argument that illegal immigrants “broke the law” to justify their position. Of course many of these individuals are also OK with speeding, occasionally driving under the influence of alcohol, or participating in the also-illegal and cross-border smuggling of marijuana. Being against something because it’s “illegal” makes for a lazy and poor argument. There are surely other reasons at work when someone falls back on the “it’s illegal” argument, some of it might be racism, but I imagine more of it has to do with perceptions of unfairness in allowing illegals to stay here and have jobs in a tough economic environment, or perceptions of higher crime rates in certain areas, etc.

Most of the time we, as a society, define what’s constitutional and what’s illegal, and the view that the Constitution enshrines business with an inalienable right to not be regulated is just that: a view (and a historically minority one at that). So to argue a policy position based on law or constitutionality is often meaningless, and we should always push past a legalistic justification to the underlying policy rationales of those advocating a position. I’m concerned that this sort of rhetoric actually catches on, and that those who use it aren’t being pushed for the underlying reasons WHY they have the positions they have. (To clarify, I’m talking about those advocating policy positions, and not lawyers and Judges interpreting the law on the books).

Constitutional Rights, and all laws for that matter, don’t exist for the sake of themselves. They embody policy rationales, whether developed according to notions of efficiency, justice, equality, etc. Those who share the view that the Constitution enshrines business with the right to be free from any and all coercion, do so because they see some merit in a society that functions that way (whether it be from the incentives for creation that develop, the way wealth is accumulated, or many other things). Simply saying that they support their position because “it’s a Constitutional Right” masks the real reasons for supporting the position (and the same goes for those who might hide behind “Constitutional Rights” on the left).

A Third Party? Why not a Fifth!

Thursday, May 20th, 2010

I’ve long been a defender of our two-party system. It’s not perfect, but nothing ever is. Those who usually argue for a third party (whether it be the Green, Libertarian, Constitution, or Independent party) usually point out that neither Republicans nor Democrats fit their ideal mold of the policies they support. Maybe they’re with Dems on issues like abortion and gay marriage, but like Republican positions on foreign policy. Or maybe they’re die-hard neo-libertarians and find neither party appealing (though the Tea Party movement may be currently transforming the Republican party in this regard). To this I usually point out that there’s a spectrum of beliefs within both parties, and that usually leads to concessions and compromises within each party and across the aisle, such that legislation ends up having been influenced by all, including those sympathetic to a third-party position. Whereas, wasting resources on a third party campaign means that you may not end up influencing the Democrat or Republican eventually elected to office.

But recently, that sort of compromise and influence hasn’t been the case. Republicans had a great opportunity to influence the Health Care Reform bill in a positive manner, but they chose not to (I don’t consider asking the majority party to throw out their bill and use yours instead a valid attempt at compromise). The bill of course did have to be palatable to more conservative Dems, so significant concessions (like the removal of the public option) were made. Presumably, Republicans found it more beneficial to avoid participation in the bill so that they could rail against it in the election season as a Government takeover of healthcare, even though the bill regulates the insurance market.

Immigration is actually another area where compromise should actually be pretty easy. No one WANTS a flood of illegal immigrants, and only a few want to rip apart productive families made up of a mix of illegal and legal immigrants. A bill that brings together strong border protection with a rational mix of legalization and stronger enforcement should be easy to pass… but even President Bush couldn’t get it done and he had a decent chunk of bipartisan support.

With individualism resurgent throughout the country, the appeal of a third party might be gaining traction. Especially with candidates like Charlie Crist running as an Independent in Florida. But the history of third-party candidacies have usually ended like this: Third Party Candidate runs, siphons votes from similarly-situated Mainstream Candidate, and then other Mainstream Candidate whose views are even farther away from the Third Party Candidate wins. (Think Al Gore and Ralph Nader, or George H.W. Bush and Ross Perot). So really, those who advocate for Third Parties should consider bolstering support for opposing Fourth or Fifth parties. A Third Party on it’s own can’t survive, but a field with 5 different parties would be less affected by siphoning, and people might even be more energized about coming out and supporting candidates they find more in-sync with their beliefs.

That said, I still appreciate the efficiency of having two major political parties rather than a disjointed patchwork of varying parties (parliamentary systems in Europe have a multitude of parties, and they can get quite messy). Multiple parties might mean that it would be easier to get compromises in Congress, but my hope is that sanity returns to congress some time in the near future.

Political Implications of HCR

Wednesday, March 24th, 2010

Republican opposition throughout the Healthcare Reform debate was pretty staunch and unified, but it involved a gamble that they could block HCR and thereby sink the Obama presidency.  Not so terrible a strategy, but all the rhetoric and misinformation thrown around by HCR opponents might now come back to bite them.

For one thing, the “American’s Don’t Want This!” line, as powerful as it was, isn’t entirely accurate.  While polls showed about only 45% in favor of reform, there was a decent block of people who were undecided or felt too uninformed to answer.  Furthermore, you have to take these polls in the context of what people thought Health Care Reform does.  Republicans have significantly out-done democrats over the past few months in messaging HCR, such that the general conception is some sort of Government “takeover” of healthcare a-la socialized medicine countries like Canada and the UK.  Even many liberal-leaning friends of mine had concerns about such a non-existent takeover, not to mention the talk of “death-panels”.  It’s likely that these polls measure opposition to the publicly perceived HCR rather than the content of the actual bill, meaning that support for the actual content of the bill was under-represented in these polls.

In fact, now that HCR passed and the media has started to discuss the specifics of what it actually does, it looks like polls are trending such that a majority of people are liking HCR. (though these are just a few polls, and FiveThirtyEight’s been looking at the possibility of a post-HCR temporary “bounce”).  This could be a pretty big problem for Republicans,  the more popular HCR becomes, and the less HCR horror stories come true, the less Republicans can use it as a rallying-cry for November (in fact, an initial “repeal HCR” campaign has already been pulled back by the GOP).

The best bet for Republicans might actually be the legal challenges arising out of various States.  The legal logic that a Health Insurance mandate is unconstitutional is a little weak (we have tax incentives for all sorts of behavior).  But reframing the debate as Democrats doing something unconstitutional may play better than being against a popular bill.  That said, Democrats should be focused on squashing these lawsuits as fast as they can, but they could be tied up in the courts for a while.

In Defense of Primaries

Friday, February 26th, 2010

A couple of days ago I was talking to someone who was smitten with the fact that the Indiana Democratic Party gets to hand-pick a Democratic nominee to succeed Evan Bayh (since no one  is running in the Democratic Primary for his seat).  The logic was this:  Primaries can get bad candidates elected; the fear in moderate Indiana being that “too liberal” a candidate could win the primary and lose the general election.  Meanwhile, in Minnesota’s race to replace Governor Tim Pawlenty, the DFL (Democratic-Farmer-Labor Party, the equivalent of the the State Democratic Party elsewhere) has decided to move their party convention from June to April (even though the official primary isn’t until September) in the hopes of endorsing a candidate early (and making the primary election moot), the goal being to “build greater momentum for the general election.”

What’s going on here?  Since when do we hate primaries?  While it may be true that a bad candidate can get elected via a primary, I seriously doubt having elites hand-pick candidates leads to a better result.  I’m actually a huge fan of primary elections.  I think competitive primaries are the only way to truly test candidates (their ability to campaign, connect with voters, flush skeletons from opponent’s closets, etc.) and thus go into the general election with a broad base of established popular support and some momentum.

So why is everyone so scared of them? There seems to be two different driving forces to the situations I described above, in Indiana the fear is of the Democratic voters, who may elect someone too liberal (a valid concern, but one that can be addressed during a primary: someone can run as the moderate electable candidate).  In Minnesota, the DFL seems to want to mimic an incumbent’s advantage in a general election: not having to face a primary challenger and thus the ability to campaign in a general election early (while the opposing party “wastes” time on primaries).

I’m not convinced that this sort of incumbent-type advantage is actually worth it, especially if you’re not running against an incumbent! (The Governor’s seat in MN is open)  Particularly when you consider the benefits of a primary (rigorously testing a candidate, gaining tested popular support, media attention, etc.) against the possible flaws of having elites cherry-pick candidates (such as general discontent with elites deciding rather than voters, picking someone who looks great on paper but can’t campaign, or picking someone with a hidden October surprise that could have been flushed out during a primary).

Plus, we don’t have great modern examples of elite-selected candidates.  Let’s look at last year’s Senate Vacancy Shuffle:  We got Roland Burris in IL and Kirsten Gillibrand in NY.  Burris is widely unpopular and is stepping down, while Gillibrand is facing a primary challenge from Harold Ford Jr.

So, now that I’ve boasted the greatness of Primaries, I’d like to point out that not all primaries are equal.  An effective primary battle that produces a good candidate for a general election should be competitive, it should be long (since voters aren’t as tuned in to primaries as much as they are general elections, for example Illinois’ recent primary is likely too early), and the election system should allow, at the very least, independent voters to participate in either the Democratic or Republican ballots.

Don’t forget to participate in your primary elections this year! (If you’re lucky enough to have one)

Follow-Up to Political Inconsistency

Sunday, February 21st, 2010

This Editorial Cartoon from earlier this week does a good job of capturing the sentiment I was getting at in my post on Political Inconsistency: