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December 31st, 2015 at 7:24 pm
Marco Rubio Proposes a Constitutional Convention
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The Des Moines Register reports:

U.S. Sen. Marco Rubio is endorsing a Convention of States to amend the U.S. Constitution, saying it’s the only way to impose term limits on Congress and the U.S. Supreme Court and to require a balanced federal budget. . . .

. . . Rubio told reporters later he has been studying “very carefully” the Convention of States concept to amend the U.S. Constitution and that his former Senate colleague, Republican Tom Coburn of Oklahoma, is an advocate for the initiative.

“It is something we feel very positive about. I think it is the only way that you are ever going to get term limits, and the only way that you are ever going to get a balanced budget amendment,” Rubio added.

Asked if he had concerns about opening up the Constitution to a convention, Rubio remarked, “I think you would have to limit the convention, and that is what they are proposing: a very limited convention on specific delineated issues that they would talk about — like term limits and a balanced budget amendment.”

Approval from 34 states is required for a Convention of States to proceed, and any amendments would need to be ratified by 38 states to become part of the Constitution.

A few observations/words of caution:

  • Although term limits have a certain populist appeal, they don’t really work. Term limits haven’t produced more “citizen legislators.” In fact, such laws have succeeded in empowering lobbyists and government employees. As Alan Greenblatt observed a decade ago in Governing magazine, “It shouldn’t come as a surprise that short-term legislators aren’t prone to engage in long-term thinking.” That’s about the long and short of it. Lawmakers may come and go, but special interests and bureaucrats are forever.

It is pretty clear, though, that through lifetime appointments, the Founders wanted to shield judges from the political pressures of the day. But an excellent byproduct of having ancient, long-serving justices is that they are far more likely to be impervious to . . . fleeting populist bugaboos and contemporary preferences . . . . This should be about the long game.

  • A balanced budget amendment offers no guarantee of fiscal rectitude. For a good sense of how a balanced-budget amendment would work in practice, one need look no further than California.
  • There is no real way to limit a constitutional convention. Remember, the Framers of the Constitution of 1787 were only sent to Philadelphia to fix the original Articles of Confederation. But James Madison had something quite different in mind. Sure, it worked out well the first time. But it is no mere exercise in nostalgia to say the Founding generation was far wiser (even when bitterly divided) than the vast majority of those who would pass for statesmen in our day. The point is, any Convention of the States is bound to take up questions beyond limiting legislative and judicial terms or balancing the federal budget. So let’s be careful what we wish for.

Sen. Rubio says he’s given this idea a great deal of thought. He might do well to spend some time with the original Federalist just the same.

December 31st, 2015 at 6:25 pm
Goodbye and Good Riddance to 2015
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George Will sums up the follies of the year that was. The only downside of the column is that space prevented it from being much, much longer.

“This list of 2015 ludicrousness could be lengthened indefinitely, but enough already,” Will writes. “The common thread is the collapse of judgment in, and the infantilization of society by, government.” Take Will’s advice, pour yourself a stiff drink, and hope for a better year to come.

December 31st, 2015 at 6:13 pm
The Rise of the Anti-Anti-Trumpians
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The Swiss psychiatrist Elisabeth Kübler-Ross famously postulated five emotional stages following a death or profound loss: denial, anger, bargaining, depression and acceptance. Conservatives for much of the summer and fall have been attempting to come to terms with the reality of Donald Trump’s candidacy and the depth of division between the Trumpians and the Anti-Trumps. First came denial. (This guy? Are you kidding?) Then came anger. (Seriously, this guy?!)

Now winter is here, a new year is upon us, Trump remains the Republican frontrunner (despite the growing likelihood he will come up short in Iowa). And so we’ve arrived at the bargaining stage and with it, the emergence of the Anti-Anti-Trumpians.

William Voegeli, senior editor of the indispensable Claremont Review of Books (disclosure: I was managing editor of the CRB over a decade ago and Voegeli is a friend), explains why he is “Anti-Anti-Trump”:

The fact that Trump has become a credible contender despite, or even because of, his obvious faults argues, however, for taking his followers’ concerns seriously rather than dismissing them. It is not, in fact, particularly difficult to explain the emergence of Trumpismo in terms of legitimate concerns not addressed, and important duties not discharged. That such a flawed contender could be a front-runner tells us more about what’s wrong with the country than about what’s wrong with his followers. People have every reason to expect that their government will take its most basic responsibilities seriously, and every reason to be angry when, instead, it proves more feckless than conscientious. Governments are instituted among men to secure their inalienable rights, according to the Declaration of Independence. This means that when we and our rights are left avoidably insecure, government has failed in its central mission.

In short, Trump supporters’ anger is a righteous anger that should be understood and harnessed, rather than treated with contempt and dismissed. Voegeli continues:

The problem, in any case, is not so much that we are governed by idiots as that we are governed by idealists, who proudly follow the Kennedy brothers’ exhortation to disdain seeing things as they are in favor of dreaming dreams that never were. Because no such dream would incorporate a nightmare like ISIS, idealists have preferred to dwell on more congenial matters.

Adding insult to injury, we are governed by idealists who think we’re idiots for not appreciating the bang-up job they’re doing.

Voegeli concludes:

Demagoguery flourishes when democracy falters. A disreputable, irresponsible figure like Donald Trump gets a hearing when the reputable, responsible people in charge of things turn out to be self-satisfied and self-deluded. The best way to fortify Trump’s presidential campaign is to insist his followers’ grievances are simply illegitimate, bigoted, and ignorant. The best way to defeat it is to argue that their justified demands for competent, serious governance deserve a statesman, not a showman.

Voegeli is hardly alone among the Anti-Anti-Trumpians. Peter Lawler at NRO’s Postmodern Conservative blog has been making the case for months, almost to the point of exasperation. Nor have the Anti-Antis escaped criticism, though mostly from the left. Damon Linker at The Week recently published a fairly scathing column on the “unbearable lameness” of Anti-Anti-Trump Republicans, which amounted to “you reap what you sow.”

Perhaps. On the other hand, it isn’t as if the Republicans have a monopoly on populist discontent. Bernie Sanders trails Hillary Clinton in national polls, but he could very well win in New Hampshire. Trump and Sanders have substantial support among independent voters in the Granite State. And as the New York Times reports, Trump’s strongest supporters are “self-identified Republicans who nonetheless are registered as Democrats.”  

The trouble with the Anti-Anti-Trumpian argument is that it’s not entirely clear that “competent, serious governance” is what Trump’s supporters really want. (Check out this unrepresentative sample of Trump voters responding to a question from The Atlantic’s Conor Friedersdorf. Trump contains multitudes.) We know what they don’t want: More of the same. But, let’s face it, that’s likely what they’re going to get.

December 18th, 2015 at 12:56 pm
School Choice a Casualty of the Omnibus Budget
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Education Week reports some disappointing news on the school choice front:

Although education spending as a whole got a $1.2 billion boost in a federal budget deal announced Wednesday, one small but high-profile program has been left out: Washington D.C.’s school vouchers.

The Scholarships for Opportunity and Results Act (SOAR), which creates a limited number of vouchers for students living in the District of Columbia, was not reauthorized in the omnibus spending bill, which is expected to be passed this week.

Recently departed House Speaker John Boehner was a champion of the Opportunity Scholarship Program, and the House signed off on reauthorizing SOAR earlier this fall even though it wasn’t up for renewal this year.

The Wall Street Journal editorializes:

The omnibus funds the program for fiscal year 2016 but fails to reauthorize it. This means that 20 years after the program was first debated, 10 years after it started, four years after Mr. Boehner revived it after President Obama had killed it, and a few months after the House passed a bill to reauthorize it, we’ll have to fight the battle all over again . . .

Perhaps this reflects the imbalance of passion. Democrats try to kill vouchers every year because unions demand it. Never mind that Opportunity Scholarship recipients have higher graduation rates and more parental satisfaction than D.C. public school students. Or that the children who get these scholarships are from households with an average household income below $21,000 a year.

This part of the editorial rankles: “A spokesman for the House Appropriations Committee chaired by Hal Rogers, which helped negotiate the omnibus, says only that ‘as this was a compromise agreement, not all priorities could be retained.’”

Four years ago, Republicans — and a significant number of Democrats — understood that protecting and extending the scholarship program was a fight worth having. And that was when Republicans didn’t control both houses of Congress.

December 18th, 2015 at 11:30 am
Yalies Say: Blow Up the First Amendment!
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Yale University last month was the scene of student protests against what Time magazine described delicately as “the racial insensitivity of the school’s administration.”

To recap: In October, lecturer and associate master Erika Christakis sent an email to her students at one of the university’s residential colleges responding to a campus-wide letter on culturally sensitive Halloween costumes. “Is there no room anymore for a child or young person to be a little bit obnoxious,” she wrote, “…a little bit inappropriate or provocative or, yes, offensive?”

Her students’ short answer: No.

Filmmaker and satirist Ami Horowitz decided to visit Yale “to take this campus free speech debate to its logical conclusion.” Horowitz asked students if they would sign a petition to repeal the First Amendment. No tricks. No funny wording. The pitch couldn’t have been more straightforward.

“The result was this unbelievable display of total stupidity,” Horowitz told Fox News.

Well, maybe not so unbelievable, as Kevin D. Williamson chronicled at National Review when the lunacy in New Haven was near its peak.

In any case, watch Horowitz’s video and see for yourself.

Yale spokesman Tom Conroy questioned the veracity of the video, telling the Daily Beast: “There are a number of heavily edited prank videos like this one circulating lately in which someone surreptitiously records people while pretending to support a position that they actually oppose, and trying to get the individuals they speak with to agree with them.”

(That Daily Beast story is best read in its entirety. Horowitz offers many interesting insights on the video, including this: “One girl had the honesty to say, ‘I don’t know what’s in the First Amendment,’” recalled Horowitz… “She pulled it up on her phone, read it thoughtfully, and said ‘Okay, I’ll sign this,’” said Horowitz. “That one blew me away.”)

Not to be outdone, Harvard’s Office for Equity, Diversity, and Inclusion and the Freshman Dean’s Office last week began distributing what The College Fix describes as “holiday placemats for social justice” in college dining halls.

According to The Harvard Crimson:

[T]he placemats pose hypothetical statements on those topics and offer a “response” to each of those in a question and answer format. For example, under a section entitled “Yale/Student Activism,” the placemat poses the question, “Why are Black students complaining? Shouldn’t they be happy to be in college?” and suggests that students respond by saying, “When I hear students expressing their experiences on campus I don’t hear complaining.”

In the center of the placemat are what it calls “tips for talking to families,” with recommendations such as “Listen mindfully before formulating a thoughtful response” and “Breathe.”

That’s good advice to parents, too. Take a deep, cleansing breath and remember you’re only spending $60,000 a year for this hokum. Then have another eggnog. Maybe make it a double.

December 7th, 2015 at 2:11 pm
President Obama’s Oval Office Address: “What Could Possibly be the Argument…?”
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President Obama addressed the nation Sunday night from the Oval Office on the threat of terrorism and America’s response in light of last week’s atrocity in San Bernardino, California. The speech was . . . not good. Clichéd. Condescending. Utterly uninspired and uninspiring.

And that’s not all.

Marc A. Thiessen, Washington Post: “Usually when a president delivers a prime-time address to the nation, he has something new to announce — like, say, a new military strategy. Not President Obama. Like a notorious Christmas ‘re-gifter,’ Obama did nothing more Sunday night than repackage his old, failing strategy in the shiny wrapping of tougher language.”

Jim Geraghty, National Review Online: “At this point in his presidency, Obama speaks with only one tone, the slightly exasperated and sometimes not-merely-slightly exasperated ‘adult in the room’ who constantly has to correct his fellow Americans, who are always flying off the handle, calling for options that ‘aren’t who we are,’ betraying our values, and so on. He’s always so disappointed in us.”

George Condon, National Journal: “His low point may have come when he in­sisted on veer­ing in­to gun con­trol. If the point of the speech was to unite the coun­try and bring an anxious na­tion to­geth­er, bring­ing up one of the most di­vis­ive do­mest­ic polit­ic­al is­sues is not a great way to do that—par­tic­u­larly when the ad­min­is­tra­tion has struggled to ex­plain how the usu­al items on their gun agenda such as gun-show re­stric­tions and bet­ter back­ground checks would have made any dif­fer­ence in San Bern­ardino.”

The president’s venture into the gun control debate was particularly inept when he took up the cause of barring people on the U.S. no-fly list from buying guns. “To begin with,” he said. “Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semiautomatic weapon?”

There are at least two arguments. First, the no-fly list is rife with error and devoid of transparency — which is why the ACLU sued in 2010. Among those on the list: a 4-year-old child, Stephen Hayes of the Weekly StandardTed Kennedy, and at least 72 Department of Homeland Security employees. (Incidentally, Kennedy managed to get himself off the list — no easy feat.)

Second, there is the nontrivial matter of due process of law. The U.S. Senate last week rejected an amendment by Sen. Dianne Feinstein (D-Calif.) that would have empowered the federal government to bar a person from buying a gun if “the Attorney General . . . determines that the [buyer] is known (or appropriately suspected)” to have been involved in terrorism-related conduct “or providing material support support or resources for terrorism,” and “if the Attorney General ‘has a reasonable belief that the [buyer] may use a firearm in connection with terrorism.’”

“Can a person be denied constitutional rights, not based on a past criminal conviction or even a restraining order issued in court under a ‘preponderance of the evidence’ standard, but based just on the government’s suspicion?” UCLA Law professor Eugene Volokh asks and offers an answer at the Volokh Conspiracy:

I can’t see how that’s constitutional. And though the bill would have let the buyer go to court to challenge the attorney general’s decision, the attorney general would simply have had to show by a preponderance of the evidence that the two elements were satisfied — that the attorney general appropriately suspected the buyer and that she had a reasonable belief about what the buyer may do. Plus the evidence supporting the attorney general’s position might never be shared with the buyer, which may make it impossible for the buyer to fairly challenge it, or aired in open court. . . .

But the problem would be even more serious when we’re dealing with the denial of an explicitly guaranteed constitutional right, and not just the denial of the admittedly very important ability to fly on airplanes. If you have a constitutional right to do something, the government has to do more than just provide the attorney general’s suspicion and speculation as a basis for denying you that right. This isn’t a supposedly modest, limited gun control measure. It cuts to the heart of the constitutional right itself.

The president and congressional Democrats are demagoguing this question. They haven’t been able to achieve the sort of “common sense” gun control they’ve long sought through conventional political means — good, old-fashioned persuasion — so they’re left to exploit a terrorist attack in order to subvert the Constitution. Again. “What could possibly be the argument”? Constitutional rights shouldn’t be subject to the whims and caprices of a craven political class, that’s what.

November 27th, 2015 at 2:23 pm
Wising Up to the ‘Black Friday Con’
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Black Friday is upon us, and — in keeping with tradition — so are the attendant brawls, melees, assaults, thefts and general mayhem.

Nevertheless, Black Friday appears a bit more sedate this year overall. Reuters reports:

Bargain hunters found relatively little competition compared with previous years. Some had already shopped Thursday evening, reflecting a new normal of U.S. holiday shopping, where stores open up with deals on Thanksgiving itself, rather than waiting until Black Friday.

Retailers “have taken the sense of urgency out for consumers by spreading their promotions throughout the year and what we are seeing is a result of that,” said Jeff Simpson, director of the retail practice at Deloitte. Traffic in stores was light on Friday, while Thursday missed his expectations, he said.

As much as 20 percent of holiday shopping is expected to be done over the Thanksgiving weekend this year, analysts said. But the four days are not considered a strong indicator for the entire season. A slow start last year led to deeper promotions and a shopping rush in the final ten days of December.

Steve Bratspies, chief merchandising officer, Wal-Mart Stores Inc , told Reuters he was not surprised that a store would see thinner crowds on Friday after it kicked off Black Friday deals on Thursday night.

Suntrust Robinson Humphrey analysts were more blunt, calling Thursday a “bust”. “Members of our team who went to the malls first had no problem finding parking or navigating stores,” he wrote in a note.

My Manhattan Institute colleague Nicole Gelinas anticipated this turn in her New York Post column earlier this week. The crux: consumers are a lot smarter about bargain-hunting than retailers think. She writes:

Last year, Thanksgiving weekend sales dropped by double digits.

It’s important to remember here: This is good news. People aren’t as stupid as retailers think they are. They saw the artificially created stampedes for a piece of plastic that their kids will have broken or forgotten about in a few weeks anyway — and they said no.

Plus, retailers’ fake-emergency marketing has worked against them. People can see that stuff is already on sale — and that it will be on sale next week, the week after and, of course, after Christmas. There is no rush.

People are also smarter than their own government. For the past seven years, Washington has kept interest rates at record lows in the hopes that people would go out and borrow and spend again. They haven’t.

People knew, in 2007 and 2008, that they had taken on way too much debt.

Since then, they’ve been trying to fix that — and in doing so, have been helping us strengthen our economy. Americans’ household debt peaked in 2007, at about $16.2 trillion in today’s dollars. Today, it’s barely above $14 trillion.

Black Friday is unlikely to go away altogether — it’s hard to remember now, but 15 years ago, most retailers’ idea of opening early the day after Thanksgiving meant 7:00 a.m. — but a little more sanity and fewer doorbuster donnybrooks would be a welcome turn of events.

November 3rd, 2015 at 3:41 am
Larry Lessig is Out
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Larry Lessig, the Harvard Law professor who launched a quixotic, long-shot, single-issue, “so-crazy-it-just-might-work” campaign for president on Labor Day after raising $1 million (give or take*) online from his supporters, has decided to drop out of the race.

That’s too bad. With Lessig exiting the contest, that leaves the Democrats with only three candidates to prattle on about the evils of money in politics.

Lessig explains in a short video to his supporters that he needed to break into the Democratic presidential primary debates if he had any hope of running something resembling a credible campaign. He has some further thoughts on his blog: “There’s a reality that the will to reform can’t bend — like mortgage payments.”

“It is now clear that the party won’t let me be a candidate,” he says in the video. “And I can’t ask people to support a campaign that I know can’t even get before the members of the Democratic Party — or to ask my team or my family to make a sacrifice even greater than what I’ve already made,” he adds.

Lessig also displays some of the belated self-awareness that had come to characterize his campaign. “I may be known in tiny corners of the tubes of the Internets, but I am not well known to the American public generally,” Lessig said.

When he first got into the race, he promised to resign the presidency just as soon as Congress passed his campaign finance reform bill. (Cough.) At some point, he realized that was a “totally stupid” idea and jettisoned it. But campaign finance remained the driving purpose, the anima, the lodestar of Lessig’s campaign.

At the heart of Lessig’s pitch is the belief that the vast majority of Americans want to eliminate or vastly curtail “big money in politics.” In the TED talk that marked Lessig’s “coming out” as a campaign-finance crusader, he cited a poll in which 96 percent of Americans said it’s “important to reduce the influence of money in politics.”

A more recent New York Times/CBS News Poll of American adults (the least trustworthy of demographics for polling purposes) found 46 percent of respondents think the campaign finance rules need “a complete overhaul.” Another 39 percent said “fundamental changes” are in order.

And yet the supposed demand never quite pans out. Lessig barely cracked 1 percent in the polls. Democrats Lincoln Chaffee and Jim Webb, who dropped out of the race last week, didn’t do much better. But because the Democratic National Committee changed the way it evaluates a candidate’s polling to determine participation in the televised debates, Lessig had no chance of getting any meaningful national exposure.

Of Clinton, Sanders, and O’Malley’s campaign finance reform proposals, Lessig said: “Until we end the corruption that has crippled Congress, none of their promises are even credible.” If so, then his promises were even less credible. The others at least have a constituency.

Just last week, the Times reported how Lessig’s campaign “endures in relative obscurity”:

Despite raising more money than Mr. Chafee, Mr. Webb and several Republicans, Mr. Lessig’s candidacy is not considered serious by many analysts or party leaders, who see him as an activist and gadfly. He did not dispel that notion when he introduced himself as a “referendum” candidate who would step down as president once he managed to overhaul the campaign finance system.

After spending years defending Internet freedom, he came to see corruption in politics as a monster that must be defeated, and he did not let go of the cause. Last year, Mr. Lessig started a “super PAC to end all super PACs,” and in September, he set his sights on the White House.

Back at Harvard, where he is on leave, Mr. Lessig’s cause has been met with a mix of bemusement, encouragement and concern.

“Larry’s a terrific guy, but I don’t think that because you have a very important project, that therefore you should be in charge of all the millions of things the president is in charge of, including foreign policy,” said Charles Fried, a conservative Harvard Law School professor who gave Mr. Lessig $100 anyway.

According to OpenSecrets, Professor Lessig raised the most money (around $93,000) from the Boston area. “Donors from a Cambridge zip code were the most generous.”

Perhaps he’ll have better luck next year with his Mayday PAC.

*For what it’s worth, Lessig took umbrage and responded to the Washington Free Beacon‘s reporting.

October 30th, 2015 at 12:29 pm
The Nation’s Report Card, Common Core, and Stagnating Schools
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The latest National Assessment of Educational Progress (a.k.a. “the Nation’s Report Card”) is out this week, and the news “isn’t great.” For the first time in 25 years, fourth and eighth grade math scores have fallen and reading scores remained flat.

Specifically, 39 percent of fourth graders and 32 percent of eighth graders scored proficient or better in math, while only 35 percent of U.S. fourth graders and 33 percent of eighth graders scored at “proficient” or better in reading.

Seven years into an administration that has made unprecedented inroads into state and local educational policymaking decisions, it could be we’re starting to see the effects.

The NAEP is a good test. The National Center for Educational Statistics, which administers the program, takes samples from all 50 states and 20 major metros. Tests are quick — they only run about an hour. And students are anonymous. The idea is to get the most accurate picture possible of what students are or are not learning, with a special focus on the black-white achievement gap.

Gerard Robinson of the American Enterprise Institute notes the racial subgroup scores aren’t very good, either. “Math and reading scores for white and black fourth- and eighth-graders remained the same or dropped since 2013,” he writes. Meantime, “reading scores rose for Hispanic fourth graders but dropped in eighth grade; and eighth grade math and reading scores for Asian students, who are the top performers in the nation, dropped.”

Departing Education Secretary Arne Duncan this week surmised that disappointing results likely have something to do with states’ difficult transition into the Common Core State Standards.

“Big change never happens overnight,” Duncan said. “I’m confident that over the next decade, if we stay committed to this change, we will see historic improvements.”

Duncan’s critics on the left are having none of that. They believe the NAEP scores vindicate their long-held view that testing and accountability are ruining education.

“The news isn’t good for those who think standardized test scores tell us something significant about student achievement,” writes the Washington Post‘s Valerie Strauss, who has rarely encountered a teachers’ union talking point she hasn’t parroted.

She even takes a swipe at the NAEP tests, which are nothing like the “high-stakes tests” left-liberal critics loathe. “It is seen by many as a high-quality test,” she writes, “though it has many critics, too, some of whom say that the NAEP definition of’ ‘proficiency’ is unnaturally high, and that the test cannot measure many of the qualities students must develop to be successful.”

Oh, please. NAEP is very good at testing knowledge. If you want to understand the depth of civic ignorance in our republic, for example, peruse the past 15 years of results from the NAEP civics and U.S. history tests.

In any event, the teachers union critics are happy to point out how Duncan just two years ago was crediting the Common Core for boosting NAEP scores in a handful of states. Now he’s saying, whoops, maybe not.

“Considering that the rationale for the Common Core State Standards initiative was low NAEP proficiency rates, it would appear that the solution of tough standards and tough tests is not the great path forward after all,” writes Carol Burris, who along with Diane Ravitch founded the pro-teachers union Network for Public Education.

It cannot be that simple — or so ideologically pat. As the Wall Street Journal editorializes:

Perhaps what’s most depressing about the latest results is that progress has ceased even in education reform leaders like Tennessee, Indiana and Florida that have loosened teacher tenure protections and expanded school choice. Yet this may be evidence that a falling tide can strand all boats.

One of the few exceptions this year was Chicago where eighth-grade proficiency in math increased to 25% from 20%. Over the last two years Chicago has closed its achievement gap with other large public city school districts. Mayor Rahm Emanuel deserves credit for expanding charter schools as well as imposing a longer school day and more rigorous teacher evaluations.

Cleveland’s school district has also made modest strides. In 2012 Ohio Gov. John Kasich signed a law allowing the district to base teacher layoffs on performance rather than seniority. The law also rewarded highly rated teachers with better pay.

Mr. Duncan, who is leaving in December, last week gave unions a parting gift by proposing to cap standardized testing at 2% of classroom time. Yet it’s possible that the anti-testing fever that has swept the nation in the last two years may have contributed to the lousy NAEP results. (Emphasis added.)

Michael Petrilli at the Thomas B. Fordham Institute suggests the stagnant economy also may be playing a role in stagnating scores:

What might be going on? It could certainly be something happening inside our schools. Maybe the transition to the Common Core is causing disruption and growing pains (or worse), and those are reflected in these data. Maybe the political debate over standards, testing, and teacher evaluations has caused uncertainty in the classroom or discouraged kids from trying as hard. Maybe Arne Duncan’s waivers relieved the pressure on schools to boost achievement, and they consequently took their foot off the gas. Some states will explain that they altered the portions of English language learners and students with special needs who were excused from NAEP testing. All plausible.

But it’s also plausible that these trends reflect something going on outside of schools—namely, the economic condition of our country and our communities. As I argued the other day, the Great Recession and its aftermath could have acted as a stiff headwind. As schools face more challenging demographics—partly because of the decades-long surge in immigration, but also because of the economic dislocation facing many students and their families—they have to work harder just to stand still.

All possible! But it’s worth digging a little more deeply into the role Common Core may be playing in what students are learning and how. For the moment, however, Peggy Carr of the National Center for Education Statistics has offers a sound word of caution: “One downturn does not a trend make.” Let’s see what the scores look like in 2017.

October 6th, 2015 at 4:42 pm
Obama’s Real Education Legacy
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Rick Hess of the American Enterprise Institute has a enlightening critical essay on Barack Obama’s “real education legacy” in the latest issue of National Affairs. The essay couldn’t be more timely, coming on the heels of Education Secretary Arne Duncan’s announcement last week that he plans to leave his post at the end of the year.

Hess writes:

Despite the soaring rhetoric and heady promises . . .  education reform during Obama’s tenure has disappointed in practice. Oddly enough, some of the president’s critics on the right have missed this and have maintained that, on education, his policy has been uniquely sound. New York Times columnist David Brooks declared that “Obama has been the most determined education reformer in the modern presidency,” and suggested that Obama’s approach to education reform constituted a model for “health care, transportation, energy [and] environmental policy.”

In fact, Obama’s presidency has proven deeply divisive in nearly every area of policy, from health care to government spending to the environment. And those who have been disconcerted by the Obama administration’s faults in other areas — its abuse of executive discretion, its dramatic expansion of the federal government, and its exacerbation of identity politics and the culture wars — will find that education has not been spared. Despite all the promises of a “post-partisan” presidency, Obama has pursued a polarizing, bureaucratized, and Washington-centric education agenda while exploiting and then draining a substantial reservoir of bipartisan goodwill.

While it does little good to merely gripe about bad policies and squandered opportunities for reform, setting the record straight is crucial. Our understanding of the Obama era in education will color how we regard the promises of presidential candidates and inform our expectations for future Congressional and executive policymaking. Accounting for the lessons of the last seven years is especially vital given education’s substantive and symbolic import and its centrality for any national figure intent on promoting opportunity. Ultimately, the Obama years have illustrated that how presidents tackle education may matter as much as whether they do.

In particular, Hess looks at how the Education Department bungled Race to the Top and the ham-handed rollout of the Common Core standards. Do read the whole thing.

October 2nd, 2015 at 12:18 pm
Arne Duncan Takes His Leave
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U.S. Secretary of Education Arne Duncan on Friday announced he would be stepping down after seven years of service to the Obama administration. In a letter to department employees, Duncan said he wished to return to Chicago to be with his family. Duncan’s wife and two children moved back to their hometown earlier this year. He plans to leave by the end of the year.

President Obama has already selected John B. King, Jr., the current deputy secretary of education, to replace Duncan.

Duncan’s announcement is a bit out of the blue. From the Washington Post:

Even after Duncan’s family relocated to Chicago at the end of the summer, and their home in Arlington was put up for sale, Duncan insisted that he would stay until the end of the Obama administration.

In an interview with The Washington Post in June, Duncan said he planned to stay put because he felt he had a long list of unfinished business and felt an urgency to keep pushing toward unmet goals. He called his job the dream of a lifetime. “I still pinch myself some days,” he said.

Duncan’s announcement came as a surprise, even to some people who are close to him. Just two days ago, after a speech at the National Press Club in Washington, Duncan artfully declined to answer when he was asked whether he planned to stay until the end of the administration’s second term.

Duncan’s tenure at the Education Department was a curious one. Conservatives in Congress weren’t fans, which could be expected. But the National Education Association and American Federation of Teachers denounced him regularly, as well. Last year, he rejected calls by the NEA and AFT to resign. The NEA’s resolution blamed Duncan for a “failed education agenda” of policies that “undermine public schools and colleges, the teaching education professionals, and education unions.” The AFT, meantime, demanded — among other things — that Duncan do away with the No Child Left Behind and Race to the Top “test and punish” model, and replace it with a “support and improve” system.

Yet in most respects, Duncan has acted as any down-the-line Democrat would. He has opposed every meaningful effort to rein in federal education spending. He opposed Congress’s reauthorization of the Elementary and Secondary Education Act, for all the wrong reasons.

Along with President Obama, Duncan used Race to the Top — a $4.35 billion grant competition that was included as part of the $787 billion stimulus in 2009 — as a way to strong-arm states into adopting the Common Core standards.

And, of course, he opposes school choice. As I wrote in July:

Although it’s true that Duncan has supported charter schools throughout his tenure at CPS and the U.S. Department of Education, he is no friend of public school choice.

Last week, when the House of Representatives passed HR 5 to reauthorize No Child Left Behind, Duncan made a point of denouncing the bill’s “Title I portability,” which would allow a portion of federal dollars to follow low-income students to the public school of their choice.

Again, this isn’t even a question of sending tax dollars to private schools, which most Democrats and a fair number of libertarian-leaning Republicans oppose. Duncan labors under the widespread misapprehension, born of a career spent toiling in the government-school bureaucracy, that tax dollars are best distributed to institutions. Institutions are wise. Individuals are not. (Never mind individuals run those institutions.)

To change the way the federal government funds school districts would mean to deny special interests their due. But Duncan says Title I funding portability would be “devastating” to poor children—as if poor children and poor school districts are synonymous.

Duncan will leave office with “a long list” of items left undone. But insofar as the federal education apparatus has expanded to heretofore unimagined powers, Arne Duncan has been a smashing success. And the republic is much poorer for it.

August 13th, 2015 at 1:32 am
Larry Lessig . . . for President?!
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Campaign finance reform crusader and aspiring censor Lawrence Lessig is threatening to form an exploratory campaign to seek the Democratic Party’s nomination for president. Because apparently Bernie Sanders and Hillary Clinton aren’t serious or strident enough.

Yes, he is serious.

I want to run. But I want to run to be a different kind of president. “Different” not in the traditional political puffery sense of that term. “Different,” quite literally. I want to run to build a mandate for the fundamental change that our democracy desperately needs. Once that is passed, I would resign, and the elected Vice President would become President.

This is the Presidency as referendum. Our constitution, unlike some states, doesn’t give us a referendum power directly. This hack adds one in. Almost never would it be necessary — in a well-functioning democracy. But when a democracy has lost the capacity to act as a democracy, a referendum president is a peaceful means to force a change that Congress is otherwise not going to make. When the system has become the problem, we need an intervention from the outside.

We are at one of those moments now. In no plausible sense do we have a representative democracy in America today. That fact shows itself in a thousand ways — from #BlackLivesMatter to billion dollar SuperPACs, and none more profound than the deep sense that most Americans have that their government is not theirs. “The system,” as Elizabeth Warren puts it, “is rigged.” And the fundamental challenge for our democracy today is to find a way to fix that rigged system.

The problems here are manifest. Would it be pedantic to point out that the United States was founded as a republic, not a democracy, and that the difference matters? Or to mention that the Constitution was written to limit government as well as democratic impulses? Or to bring up the small fact that direct democracy is a disaster?

(Incidentally, your writer understands that attacks on the initiative, referendum, and recall most often come from progressive quarters nowadays. It wasn’t always so.)

Lessig likes to cite polls suggesting “96 percent of Americans say it’s ‘important to reduce the influence of money in politics.’” More recently, he’s become fond of citing a MoveOn/YouGov poll that purports to show that 82 percent of Americans of all political stripes agree “the system is rigged.” Many conservatives and libertarians would agree with the latter proposition.

So what? As always, the question must be: what’s the remedy?

Lessig’s answer is the Citizen Equality Act of 2017, which includes such novelties as “a meaningfully equal freedom to vote,” ranked-choice voting; and taxpayer-funded (or, to use his parlance, “citizen-funded”) elections.

Do read the proposal. All three ideas are worth deeper exploration—and sound refutation. In lieu, we have James Taranto at the Wall Street Journal, who made sport of Lessig’s quixotic campaign in Wednesday’s Best of the Web Today:

Lessig would ask Congress (1) to abolish freedom of speech in favor of “equality of speech,” whatever that means, (2) to prohibit state legislatures from engaging in “political gerrymandering,” and (3) who knows what else. It doesn’t seem to occur to him that (1) and (2) have glaring constitutional problems. Maybe he should consult with some law professors.

Oh wait, he is a law professor. At Harvard no less.

Lessig last month stepped down as chairman and of MayDay, the SuperPAC he founded to promote “reform” candidates in the 2014 congressional elections. The effort raised $10 million and had virtually no impact. Only one of the candidates MayDay supported won and that was Rep. Walter Jones, the Republican from North Carolina whose reelection was a mortal lock.

This cycle, he’s been urging the two leading Democratic candidates to go bigger on campaign finance reform. In July, Lessig wrote a memo to Sanders urging on the senator to take advantage of his growing popularity by making “citizen equality” the “first issue — the one change that makes all other changes believable.”

. . “…[A]fter the surge of support for you, the single strongest attack is going to be the ‘reality argument,’” Lessig wrote. “You’re talking about a string of reforms that simply cannot happen in the Washington of today. The ‘system is rigged.’ If that rigging is good for anything, it is good for blocking basically everything you’re talking about.”

Looks like Lessig didn’t get the response he was hoping for.

Now Lessig has launched a “kickstarter-like” campaign (Kickstarter itself doesn’t allow political fundraising) to raise $1 million for his new effort by Labor Day. If he makes it, Lessig vows to give “this run every ounce of my energy.” If he falls short, he’ll give the money back.

He’s raised about $166,000 so far, so who knows? Maybe he can waste another $10 million in service of an ignoble cause.

August 4th, 2015 at 11:48 pm
Your Weekly Mencken: Republican Presidential Debate Edition
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The first Republican presidential debate is set for Thursday night. Fox News on Tuesday announced the lineup, which includes the top 10 of 17 GOP contenders based on an average of national polls.

In: Donald Trump; former Florida Gov. Jeb Bush; Wisconsin Gov. Scott Walker; former Arkansas Gov. Mike Huckabee; retired neurosurgeon Ben Carson; Texas Sen. Ted Cruz; Florida Sen. Marco Rubio; Kentucky Sen. Rand Paul; New Jersey Gov. Chris Christie; and Ohio Gov. John Kasich.

Out: former Texas Gov. Rick Perry; former Pennsylvania Sen. Rick Santorum; Louisiana Gov. Bobby Jindal; former Hewlett Packard CEO Carly Fiorina; South Carolina Sen. Lindsey Graham; former New York Gov. George Pataki; and former Virginia Gov. Jim Gilmore.

What to make of this motley crew? H. L. Mencken made an art of skewering politicians. Although he would describe himself over the years as an “enlightened tory,” an “extreme libertarian,” a “reactionary,” and a “whig,” he was a lifelong Democrat who revered Grover Cleveland and hated Woodrow Wilson and Franklin D. Roosevelt. And although Mencken judged practically every president after George Washington as inferior to the task, he directed some of his best barbs at the presidency itself. Here’s what he had to say about the sort of men who seek the Oval Office ahead of the 1924 election:

Let us turn from such specially bred men [as kings] to the sort of fellows who constitute the common run of Presidents under democracy — the Franklin Pierces, Tafts, Eberts, Poincares, Chester A. Arthurs, Benjamin Harrisons, John Tylers, Rutherford B. Hayes and so on — mainly ninth-rate politicians, petty and puerile men, strangers to anything resembling honor. It is my contention that even such preposterous worms, if they were turned into kings, would make relatively honest and competent administrators — that, at worst, they would be better than any Presidents save a miraculous few. . . . The point is that . . . [their] good qualities are now under constant adverse pressure — that they can be given free play only by heroic efforts, too often beyond the man’s strength. If he were absolutely free, as the responsible head of a great state ought to be — if he could devote his whole energies to administering the government according to his best skill and judgment, instead of spending nine-tenths of his time engaging in obscene devices to enchant the mob or humiliating bargainings with villainous politicians — then the chances are that he would run the state . . . competently . . . and so give us a government a great deal better than any democracy deserves, or will ever get. His job does not require genius; it requires only industry, honesty, courage and common sense. But how can a man harbor such qualities and at the same time make votes? What chance has he got against the nearest mountebank? (The Baltimore Evening Sun, April 2, 1923)

Three years earlier, as the Age of Wilson was winding down, Mencken famously wrote:

The Presidency tends, year by year, to go . . . to mediocre men. As democracy is perfected, the office represents, more and more closely, the inner soul of the people. We move toward a lofty ideal. On some great and glorious day the plain folks of the land will reach their heart’s desire at last, and the White House will be adorned by a downright moron. (The Baltimore Evening Sun, June 26, 1920)

The reader is left to judge whether Mencken’s sobriquet applies to any of the current crop of candidates, Republican or Democrat.

August 4th, 2015 at 11:08 pm
Obama’s Clean Coal Initiative: A Warning from California
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The Los Angeles Times‘ front-page headline Tuesday comes across as remarkably upbeat: “California is ahead of the game as Obama releases Clean Power Plan.”

But the story’s lead paragraph reads more like a threat than a promise: “President Obama’s plan to cut carbon pollution from power plants over the next 15 years will force states to address climate change by pushing them to act more like California.”

The president cited California’s example when he announced the plan on Monday, recalling the smog that hung over the Los Angeles basin in the late 1970s and early 1980s. “You fast-forward 30, 40 years later, and we solved those problems,” Obama said.

Well, yes, we did — and it’s a good thing, too. But the president is conflating those clean-air rules with policies of a more recent vintage.

California has led the way in pushing utilities to adopt renewable energy from sources such as windmills and solar panels in lieu of natural gas and coal-fired plants. According to the Times: “In 2013, the most recent year available, nearly 19% of California’s electricity came from renewable sources, while less than 8% came from coal, according to the California Energy Commission. In January, Brown proposed an ambitious target of 50% renewables by 2030.”

The story doesn’t mention, however, that the Golden State ranks close to the top in terms of energy prices. It’s no coincidence that the cost of renewable energy in California increased by 55 percent between 2003 and 2013, as the renewable portfolio standard was being phased in. And costs will continue to rise, in no small part because the state Public Utilities Commission earlier this year ordered changes in California’s tiered pricing for electricity, moving from four tiers to two. As a result, the first tier rate will increase significantly, and the second tier rate will rise marginally.

The Times also reports that California is on track to cut greenhouse gas emissions to 1990 levels by 2020 as required under AB 32, the “Global Warming Solutions Act” of 2006. Gov. Jerry Brown in January issued an executive order that would accelerate the mandate’s requirements, with the goal of reducing emissions by 40 percent from 1990 levels by 2030. Expect rates to go higher still.

Not surprisingly, Brown hailed Obama’s plan as “bold and absolutely necessary.”

But a new Manhattan Institute report by Jonathan A. Lesser of Continental Economics highlights the real consequences of California’s decarbonization efforts, some unintended, some not. Among Lesser’s key findings:

  • California households’ electricity prices have risen as a result of the state’s renewable-energy mandates and carbon cap-and-trade program—and will likely continue to rise at an even faster rate in coming years.
  • The aforementioned policies have created a regressive energy tax, imposing proportionally higher costs in certain counties, such as California’s inland and Central Valley regions, where summer electricity consumption is highest but household incomes are lowest.
  • In 2012, nearly 1 million California households faced “energy poverty”—defined as energy expenditures exceeding 10 percent of household income. In certain California counties, the rate of energy poverty was as high as 15 percent of all households.

This is the model that President Obama lauds and his EPA wants to emulate. The EPA’s new regulations would mandate that states cut carbon emissions 32 percent from 2005 levels by 2030.

A tough Wall Street Journal editorial notes that the EPA’s final rule “is 9 percent steeper than the draft the Environmental Protection Agency issued in June 2014,” and opines: “The damage to growth, consumer incomes and U.S. competitiveness will be immense—assuming the rule isn’t tossed by the courts or rescinded by the next Administration.”

Steven F. Hayward, a professor of politics at Pepperdine University and an expert in environmental policy, observed in a post at Power Line on Monday, “By [EPA’s] own admission, full implementation of the emissions targets will avert only 0.018 degrees C of warming by the year 2100. I’m sure we’ll all notice that much change in temps!”

The final rule is nearly 1,600 pages long, and the regulatory impact analysis is nearly 400 pages, so needless to say it will take some time for the lawyers and wonks to sort everything out. But Hayward found an odd paragraph in near the middle of the impact analysis that led him to wonder if the government is putting us on:

As indicated in the RIA [Regulatory Impact Assessment] for this rule, we expect that the main impact of this rule on the nation’s mix of generation will be to reduce coal-fired generation, but in an amount and by a rate that is consistent with recent historical declines in coal-fired generation. Specifically, from approximately 2005 to 2014, coal-fired generation declined at a rate that was greater than the rate of reduced coal-fired generation that we expect from this rulemaking from 2015 to 2030. In addition, under this rule, the trends for all other types of generation, including natural gas-fired generation, nuclear generation, and renewable generation, will remain generally consistent with what their trends would be in the absence of this rule. [Hayward’s emphasis.]

Hayward poses a fascinating question: “if the electricity sector under this new regulation is going to unfold more or less along the lines of business as usual, why are we bothering with this regulation in the first place? Is the EPA seriously admitting that their regulation does nothing substantial at all, or that they’ve spotted a parade going down the street and decided to march at the head of it?”

The Wall Street Journal‘s editors encourage a vigorous legal challenge to the new rules, noting:

The Supreme Court did give EPA the authority to regulate carbon emissions in Mass. v. EPA in 2007. But that was not a roving license to do anything the EPA wants. The High Court has rebuked the agency twice in the last two years for exceeding its statutory powers.

“When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism,” the Court warned last year. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”

Congress did no such thing with the Clean Power Plan, which is a new world balanced on a fragment of the Clear Air Act called Section 111(d). This passage runs a couple hundred words and was added to the law in 1977, well before the global warming stampede. Historically Section 111(d) has applied “inside the fence line,” meaning the EPA can set performance standards for individual plants, not for everything connected to those sources that either produces or uses electricity.

When the EPA rule does arrive before the Justices, maybe they’ll rethink their doctrine of “Chevron deference,” in which the judiciary hands the bureaucracy broad leeway to interpret ambiguous laws. An agency using a 38-year-old provision as pretext for the cap-and-tax plan that a Democratic Congress rejected in 2010 and couldn’t get 50 Senate votes now is the all-time nadir of administrative “interpretation.”

“This plan is essentially a tax on the livelihood of every American,” the Journal‘s editorial concludes, “which makes it all the more extraordinary that it is essentially one man’s order.” As California goes, so goes the nation? Let’s hope not.

July 16th, 2015 at 5:59 pm
Your Weekly Mencken: Donald Trump Edition
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A USA Today/Suffolk University poll this week finds that reality TV celebrity and billionaire golf-course developer Donald Trump currently leads among Republican contenders for the 2016 presidential nomination.

Economic historian Robert Higgs, author of many fine books, including the classic Crisis and Leviathan, muses on Facebook: “If only the great H. L. Mencken were still alive to write about Donald Trump and his admirers. What a joyous field day he would have in doing so.”

One commenter offered this gem from the Sage of Baltimore: “As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”

Not bad, but perhaps a bit too general. Mencken saved some of his best barbs for the business titans of his era. Here, for example, is Mencken on John D. Rockefeller Jr., whose celebrity in some ways parallels The Donald’s:

He is, by all ordinary standards, an eminent man. When he says anything the newspapers report it in full. If he fell ill of gall-stones tomorrow, or eloped with a lady Ph.D., or fell off the roof of his house . . . the news would be telegraphed to all parts of the earth and at least a billion human beings would show some interest in it. And if he went to Washington and pulled the White House bell he would be let in infallibly, even if the Heir of Lincoln had to quit a bridge whist game or a saxophone lesson to see him. But it must be obvious that young John’s eminence, such as it is, is almost purely fortuitous and unearned. He is attended to simply because be happens to be the son of old John, and hence the heir to a large fortune. So far as the records show, he has never said anything in his life that was beyond the talents of a Rotary Club orator or a newspaper editorial writer, or done anything that would have strained an intelligent bookkeeper. He is to all intents and purposes, a vacuum, and yet he is known to more people, and especially to more people of means, than Wagner, and admired and envied vastly more by all classes. (The American Mercury, August 1924)

On second thought, Rockefeller looks pretty good by comparison.

July 16th, 2015 at 5:06 pm
Wisconsin’s “John Doe” Prosecutions Come to an Ignominious End
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One of the more disturbing stories of political censorship of the past half-decade just came to a close in Wisconsin. The state’s Supreme Court ruled 4-2 on Thursday that a section of Wisconsin’s campaign finance law is “unconstitutionally overbroad and vague.” Moreover, the court said, a special prosecutor appointed by Milwaukee District Attorney John Chisolm to probe allegedly unlawful coordination between Governor Scott Walker and independent activist groups during the 2011 and 2012 statewide recall campaigns ended up investigating perfectly legal activities.

In short, the political fishing expedition against Badger State conservatives is finished.

Here are a few backgrounders on the investigation, which made prime targets of Wisconsin Club for Growth executive director Eric O’Keefe and at least 28 other activist groups.

A (very) short version: In 2013, the Milwaukee DA’s office and special prosecutor Francis Schmitz began hitting activists with subpoenas demanding everything from emails and memos to donor lists. As one judge would later put it, Schmitz’s subpoenas were “so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.” Although the subpoenas just happened to coincide with the beginning of Walker’s reelection campaign for governor, prosecutors denied any political motivation for the probe. (What? Did you think they would affirm a political motive?)

O’Keefe and Wisconsin Club for Growth sued Schmitz, et. al., contending the state’s investigation violated their First Amendment rights. A federal court last year agreed, halting a probe that had involved—among other things—SWAT teams conducting pre-dawn raids on citizens’ homes as if they were no different than drug peddlers or mob capos. Such abuses were made possible by Wisconsin’s “John Doe” law, which allows prosecutors to operate in secret—and thus without any meaningful public scrutiny or accountability.

As the Milwaukee Journal-Sentinel reports, “Large sections of court filings have been blacked out—which is highly unusual” because of the law, which lets prosecutors the power to compel people hand over documents and give testimony while forbidding them from speaking about the investigation with anyone except their lawyers. Such proceedings may be common in national security and certain criminal cases, but applying the law to a campaign-finance law investigation smacked of political persecution—which the court recognized.

Writing for the majority, Justice Michael Gableman blasted Schmitz’s conduct of the investigation and made a vigorous defense of political liberty. Here’s the key passage from the ruling:

It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.(Emphasis added.)

Although Thursday’s ruling is a triumph for the First Amendment, a peculiar censorious instinct remains alive and well among Madison’s progressive elite. In dissent, Justice Shirley Abrahamson wrote her colleagues’ theme music ought to be “Anything Goes.

“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” Abrahamson wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.'” It’s hard to see how pre-dawn raids and secret proceedings lead to “fair and equal” campaigns or a “better-informed” electorate, rather than a chilled political climate where dissenters from received partisan wisdom risk incurring the wrath of zealous prosecutors.

Wisconsin’s legislature is turning its attention to overhauling the state’s campaign-finance laws. In particular, some Republicans would like to do away with the “John Doe” provisions. Eliminating arbitrary and capricious rules from the statute books shouldn’t be a partisan matter. Wisconsin has seen what a political prosecution looks like. Avoiding a repeat of such abuses would seem to be a cause both parties could support.

July 6th, 2015 at 11:34 am
Do “Agency Shop” Rules Violate the First Amendment?
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The last couple of weeks have delivered huge news from the U.S. Supreme Court on contentious questions ranging from the definitions of “state,” “marriage,” “legislature,” “jiggery pokery,” and “cruel and unusual punishment,” to the scope of the EPA’s power to regulate emissions from coal plants and the use of a “disparate impact” standard in housing discrimination cases.

But one of the biggest pieces of SCOTUS news emerging from the term’s final hours was the court’s decision to take a case out of California that could severely curtail the political power of America’s teachers unions.

Friedrichs v. California Teachers Association seeks to overturn the court’s 1977 decision in Abood v. Detroit Board of Education, which upheld public-sector “union shop” rules and maintained that unions could charge non-members for collective bargaining activities. The Friedrichs plaintiffs argue that the rule requiring public employees to opt out of contributing a portion of their dues to union political activity — as opposed to allowing them to opt in — violates their First Amendment rights.

If Rebecca Friedrichs and her colleagues prevail, public-sector union membership would no longer be compulsory.

The Cato Institute’s Jason Bedrick points out, “Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. – lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political.”

Cato also filed an amicus brief in the case, which makes a powerful point:

[W]hen it comes to public-sector unions, it is somewhat bizarre to say that some of the spending is “political” and some isn’t. A teachers union may run political ads advocating for particular public policy positions, but it also collectively bargains in order to fight for similarly “political” gains, such as class size, school year length, and teacher qualifications. In a sense, a teachers union is just another political party that lobbies the government for preferred policies, and, whether it is spending on political ads or collectively bargaining, both are “political.”

The National Education Association and its California affiliate are not pleased with this news. The unions on Monday issued a joint statement with the American Federation of Teachers, the Service Employees International Union, and the American Federation of State, County and Municipal Employees, decrying the court’s decision to take the case:

We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life.

The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities—decisions that have stood for more than 35 years—and that have allowed people to work together for better public services and vibrant communities.

The fundamental promise of America says nothing about compelling workers to join a union or pay for a union’s political agenda. And although the Abood decision is nearly 40 years old, the First Amendment is quite a bit older.

The unions are right to worry and it’s no wonder they’re trying to change the subject. As Larry Sand reported at City Journal California last year:

If the Supreme Court overturns Abood, it would change the political landscape drastically. When Wisconsin’s Act 10 made teacher union membership voluntary, the unions in that state lost about one-third of their membership and a substantial amount of clout. If the same percentage of teachers quit the California Teachers Association, the union would lose approximately $62 million a year in dues. Considering the teachers’ union spent more than $290 million on candidates, ballot measures, and lobbying between 2000 and 2013—by far the most of any political player in the Golden State—such a loss would be crushing. And it’s no secret that CTA spending moves almost exclusively in a leftward direction. Between 2003 and 2012, the union gave $15.7 million to Democratic candidates and just $92,700 to Republicans—a ratio of roughly 99 to one. CTA has also spent millions promoting controversial causes such as same-sex marriage and single-payer healthcare, while opposing voter ID laws and limitations of the government’s power of eminent domain.

But a Supreme Court decision wouldn’t be limited to California, of course. As Sand pointed out, “The National Education Association, which hauled in nearly $363 million in forced dues in 2013–2014 and spent about $132 million of it on issue advocacy, would have to curtail its political largess considerably.”

The court in 2013 seemed to lay the groundwork for doing away with Abood in Harris v. Quinn, which held that home healthcare workers couldn’t be forced to pay agency shop fees to the SEIU. Justice Samuel Alito writing for the court made a distinction between the home workers and “full-fledged” public employees. But he suggested in the ruling that there also may be a distinction to be made between private-sector union collective bargaining and public-sector union collective bargaining.

“Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government,” Alito wrote. “But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.” By that logic, it wouldn’t be much of a stretch to make mandatory fees voluntary in California and 25 other states where union-shop rules prevail.

The Court returns the first Monday in October. In the meantime, you can read the petitioners’ and respondents’ briefs here and here and here.

July 6th, 2015 at 9:40 am
Your Weekly Mencken: Judicial Usurpation Edition
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H.L. Mencken (1880-1956) was arguably the greatest American polemicist of the 20th century. He was a newspaperman, a magazine editor, critic, satirist, “extreme libertarian,” “Tory anarchist,” scourge of the booboisie, and amateur linguist. He could wield the English language like a goedendag or a stiletto. When current events get to be too much, a shot of Mencken helps clear the head and soothe the anxious soul. So in order to ease some of the heartburn many of us have experienced in the final days of the Supreme Court’s 2014–15 term, here is a bit of the Sage of Baltimore to put things in perspective:

The theory that there is something sacred about law is always propagated very diligently by gentlemen thirsty for power, and it has never been propagated so diligently as it is by such persons in the United States today. They erect upon it a cult that takes on a passionate and even mystical character. The thing that we must grovel to, so they teach, is not this law or that law, but law in general, all law. But it takes no great acuity to see that what they are really arguing for, whatever their pretensions otherwise, is some law that they are especially interested in. They care nothing, in truth, for law in general.

 (American Mercury, December 1929)

July 3rd, 2015 at 8:13 pm
More Uses and Abuses of Laudato Si’
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In last week’s column about Pope Francis’s encyclical on the environment and creation, I pointed out some of the ways climate change alarmists have appropriated the pontiff’s language to advance agendas quite different from that of the Catholic Church. (Population control? Seriously?)

Well, the hits just keep on coming. Actor/activist Robert Redford on Sunday cited Pope Francis in his case for doing something — anything — to address the threat of climate change. 

“As Pope Francis has told us, we have a moral obligation to be responsible stewards of the earth and all it supports,” Redford wrote, which is true as far as it goes. “That means protecting future generations from the dangers of climate change.” Well, maybe.

But what does Redford have in mind exactly? On that point — and as with so many others who share his point of view — he’s maddeningly vague. “Our best business minds grasp the historic opportunity for us to lead the world in the clean energy economy of tomorrow,” he writes. “And a new American generation understands the urgency of acting now.”

He may be referring to the U.N.’s stated desire to “decarbonize the economy” by the end of the century. Or he might be talking about covering the country with solar panels and windmills. Whatever it is that he means, it won’t be cheap and it will require plenty of coercion.

It’s one thing to point out how greens lean on the Pope’s encyclical for their pet causes, but in fairness, Francis hasn’t made himself easy to defend. The Pope’s latest choice in climate change advisors is enough to send the most devout Catholic or free market devotee into the slough of despond. As I mentioned in the column, Francis is hardly a friend of capitalism. But he looks like Milton Friedman compared to Naomi Klein.

July 2nd, 2015 at 4:40 pm
Happy July 2: “The most memorable Epocha in the History of America”
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Yes, yes, July 4 is when we officially celebrate American independence, commemorating the day 56 men pledged their lives, fortunes, and sacred honor for the cause of liberty. But John Adams for a moment believed the more momentous occasion was July 2, when the delegates of the Continental Congress cast the fateful vote to draft the Declaration of Independence that would sunder America’s ties with Great Britain. Adams, along with Benjamin Franklin and Thomas Jefferson, formed the drafting committee.

Those were heady days, the culmination of years of argument, abuse, and violence, with plenty more to come. Adams, standing at the center of history, took time to take stock and convey his thoughts to his beloved wife Abigail in two letters he wrote the morning and evening of July 3.

What’s great about these letters is how wrong and how right Adams was. July 2? Annexing Canada? No and not bloody likely. Yet they’re well worth reading today, with the benefit of hindsight, if for no other reason than to marvel at the man’s prescience. It isn’t difficult to feel in the final paragraphs Adams’ excitement and trepidation at what was to come.

Philadelphia July 3d. 1776

Had a Declaration of Independency been made seven months ago, it would have been attended with many great and glorious effects. We might, before this hour, have formed alliance with foreign states. We should have mastered Quebec, and been in possession of Canada.

You will, perhaps, wonder how such a declaration would have influenced our affairs in Canada; but, if I could write with freedom, I could easily convince you that it would, and explain to you the manner how. Many gentlemen in high stations, and of great influence, have been duped, by the ministerial bubble of commissioners, to treat; and, in real, sincere expectation of this event, which they so fondly wished, they have been slow and languid in promoting measures for the reduction of that province. Others there are in the colonies, who really wished that our enterprise in Canada would be defeated; that the colonies might be brought into danger and distress between two fires, and be thus induced to submit. Others really wished to defeat the expedition to Canada, lest the conquest of it should elevate the minds of the people too much to hearken to those terms of reconciliation which they believed would be offered to us. These jarring views, wishes, and designs, occasioned an opposition to many salutary measures which were proposed for the support of that expedition, and caused obstructions embarrassments, and studied delays, which have finally lost us the province.

All causes, however, in conjunction, would not have disappointed us, if it had not been for a misfortune which could not have been foreseen, and perhaps could not have been prevented—I mean the prevalence of the smallpox among our troops. This fatal pestilence completed our destruction. It is a frown of Providence upon us, which we ought to lay to heart.

But, on the other hand, the delay of this declaration to this time has many great advantages attending it. The hopes of reconciliation which were fondly entertained by multitudes of honest an well meaning, though short-sighted and mistaken people, have been gradually, and at last totally, extinguished. Time has been given for the whole people maturely to consider the great question of independence, and to ripen their judgment, dissipate their fears, and allure their hopes, by discussing it in newspapers and pamphlets – by debating it in assemblies, conventions, committees of safety and inspection – in town and country meetings, as well as in private conversations; so that the whole people, in every colony, have now adopted it as their own act. This will cement the union, and avoid those heats, and perhaps convulsions, which might have been occasioned by such a declaration six months ago.

But the Day is past. The Second Day of July 1776, will be the most memorable Epocha in the History of America. I am apt to believe that it will be celebrated by succeeding generations, as the great Anniversary Festival. It ought to be commemorated, as the day of deliverance by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp, shews, games, sports, guns, bells, bonfires and illuminations, from one end of the continent to the other, from this time forward forever.

You will think me transported with enthusiasm; but I am not. I am well aware of the toil, and blood, and treasure, that it will cost us to maintain this declaration, and support and defend these states. Yet, through all the gloom, I can see the rays of light and glory; I can see that the end is more than worth all the means, and that posterity will triumph, although you and I may rue, which I hope we shall not.