Freedom Line Blog

And now the other shoe drops.

Less than a week after telling HHS Secretary Kathleen Sebelius that her implementation of ObamaCare’s costly and confusing health care system is a “train wreck,” U.S. Senator Max Baucus (D-MT) announces he’s retiring.

Baucus’s comments caused a stir because they met the Washington, D.C. definition of a gaffe – telling the truth in public.  With the Chairman of the Senate Finance Committee, and lead ObamaCare author, on record as criticizing the President’s signature policy, it looked like it might finally be acceptable for Democrats in Congress to admit the obvious: ObamaCare is a disaster in the making.

But rather than stick around and fight to reform the law, Baucus is choosing to bow out of a tough reelection campaign in 2014. The decision could make it much easier for Republicans to pick up the seat, potentially adding another vote to the conservative-led repeal caucus.

Whatever the spin, this much is clear. Last week Baucus let it be known he could no longer defend the law. Now, it’s clear he can’t win with it either.

Hopefully, it’s the start of a trend.

It looks like U.S. Senator Ted Cruz (R-TX) isn’t the only member of the upper chamber who has serious questions about the assault weapons ban being pushed by colleague Dianne Feinstein (D-CA).

At least fifteen Senate Democrats have told Majority Leader Harry Reid (D-NV) they won’t vote for Feinstein’s ban if it comes up for a vote, according to Reuters. With 55 members in the Democratic caucus, that means that at least 11 Republicans would have to cross party lines to pass the bill with a simple majority of 51. In other words, Di-Fi’s dream is over.

Feinstein’s defeat exposes a very real fault line among Senate Democrats. In 2014, the party must defend 20 of the 33 seats up for election, with five seats held by Democrats from pro-gun states: Louisiana’s Mary Landrieu, Arkansas’ Mark Pryor, Alaska’s Mark Begich, Montana’s Max Baucus, and South Dakota’s Tim Johnson.

And these are just the folks running for reelection this year. Using Reid’s number, there are at least ten more Senate Democrats unwilling to tie their electoral future to a gun ban that will most likely kill their political career down the road.

The ban is over (for now). Good riddance.

It looks like Quin’s prediction that Senate Republicans would filibuster Chuck Hagel’s nomination to be the next Defense Secretary was right on.

Politico and Fox News are reporting that Senate Majority Leader Harry Reid doesn’t have 60 votes necessary to shut down a threatened Republican filibuster, so it looks like Hagel will be in confirmation limbo until at least February 25^th.

The reasons given revolve mainly around trying to pressure the White House to turn over documents detailing the Obama Administration’s response during and after the terrorist attack on the American Consulate in Benghazi, Libya.  So far, there have been only cursory remarks by Republican Senators that a vote on Hagel is being delayed because of problems raised by his past policy statements and inconsistent testimony two weeks ago.

Right now, it looks like the GOP, as the minority party in the Senate, is trying to assert itself any way it can.  But there is a risk the move could backfire, if over the next week or two President Obama successfully frames the filibuster as over a dispute about an issue unrelated to Hagel’s fitness to run the Pentagon.  To avoid that, Republicans should be prepared to make a compelling case against Hagel on the merits, in every forum possible.

Looks like Quin might get his wish on Chuck Hagel’s nomination.  President Barack Obama’s Defense Secretary nominee misstated the Administration’s policy on containment of Iran twice; once when Hagel said he supported Obama’s policy of containment, then when he said there was no policy.  It took Senate Armed Services Committee Chair Carl Levin (D-MI) to remind Hagel that, actually, “We (i.e. America) do have a position on containment, and that is we do not favor containment.”

Hagel also said during his confirmation hearing today that he doesn’t know enough about military programs and technology, but promised that as Defense Secretary he would do the necessary cramming to get up to speed.

Overall, Hagel did himself no favors with the senators who oppose his nomination, and may have given fence-sitters enough wiggle room to justify abandoning him.  My guess, however, is that President Obama and Senate Majority Leader Harry Reid (D-NV) will work the phones and twist the arms necessary to save the Administration from a humiliating No vote on confirmation.

The Hill posted a jaw-dropping lead to describe just how broken is the federal budget process:

Senate Democrats on Wednesday said they will move a budget resolution through the Budget Committee and onto the Senate floor for the first time in four years.

Despite protests to the contrary, the move is in response to a House-approved measure to move the nation’s debt ceiling back from late February to early May.

It’s hard to applaud a group of adults for finally getting the regular budget process going in the Senate.  Still, it’s a sign of progress that a budget may actually be produced in accordance with federal law.

The Hill is reporting that Senate Majority Leader Harry Reid (D-NV) is in the final stages of hammering out a filibuster reform package.  Here are the two biggest changes:

The agreement between Reid and McConnell is not expected to include the talking filibuster, which would require senators who want to block action on legislation to actually hold the floor and debate for hours on end.

In recent days, Reid has begun to focus on a proposal to tweak the filibuster rule by requiring the minority party to muster 41 votes to stall a bill or nominee. Under current rules, the responsibility is on the majority to round up 60 votes to end a filibuster.

I say half right because I favor a talking filibuster and making the minority party (in this case the Republicans) come up with the votes necessary to trigger a filibuster.  Putting people on the record isn’t comfortable, but it is required to make the distinctions between the parties – and their ideologies – more publicly apparent.

Moreover, citizens need to know the well-reasoned, well-researched arguments for and against a proposed policy.  Far from hurting the Republican minority, I think giving articulate conservatives like Ted Cruz (R-TX), Marco Rubio (R-FL), Mike Lee (R-UT), and Rand Paul (R-KY) an opportunity to make their case will help educate the public about important issues.  This in turn will spur a dialogue on the Right that will allow the movement to better understand itself so that it can better persuade the electorate.

George Will has some excellent questions that should be put to Defense Secretary nominee Chuck Hagel in the latter’s upcoming confirmation hearings.  Here are my three favorites:

●Do you agree with Defense Secretary Leon Panetta’s judgment that cuts under sequestration would “hollow out the force”? Can you give examples of procurements or deployments that justify your description of the Defense Department as “bloated”?

…

●Congress’s power to declare war has atrophied since it was last exercised (against Bulgaria, Romania and Hungary on June 5, 1942). Should Congress authorize America’s wars?

…

●Speaking of the imperial presidency, do you believe that the use of drones to target specific individuals means presidents have an unreviewable power to kill whomever they define as enemies? Do you favor “signature strikes,” wherein drones attack not identifiable individuals but groups of young males whose characteristics match the “signature” of terrorists?

Read the whole list here.

In light of the volleys exchanged, let’s review how a senatorial hold works.

From the U.S. Senate’s reference page on chamber rules:

hold - An informal practice by which a senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The majority leader need not follow the senator’s wishes, but is on notice that the opposing senator may filibuster any motion to proceed to consider the measure.

Note the part stating, “The majority leader need not follow the senator’s wishes, but is on notice that the opposing senator may filibuster any motion to proceed to consider the measure.”

What’s a filibuster?

filibuster - Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

Bear in mind that the majority leader, i.e. Harry Reid (D-NV), “need not follow the senator’s wishes…”  Recall also Reid’s musings that he’d like to enact the so-called ‘nuclear option’ to remove the usual supermajority requirement for overcoming a filibuster, and replace it with a simple majority.  So, if the Senate Democratic caucus wants to, they can 1) refuse to honor any hold requests on Hagel, and 2) change Senate rules on filibusters to shut down the opposition.  With several news outlets reporting that President Barack Obama is ready to pick a fight over Hagel, I think Reid does both if Republicans try to kill Obama’s nominee for Defense Secretary with obstructionist procedural tactics.

Maybe if Hagel was nominated for some second tier Cabinet office Republicans could get away with relying on informal procedures to block his next career move.  But with Obama riding high after the fiscal cliff negotiations – Quin’s optimism notwithstanding – I think Republicans will lose, and lose big, with the public if they try to kill Obama’s top Pentagon pick on procedure rather than substance.

It should be said that I don’t disagree with any of Quin’s criticisms of Hagel.  Instead, my point of departure is with Quin’s reliance on procedural obstruction rather than tough questioning and reasoned argument.  Conservatives have one of the most intellectually articulate groups of senators in living memory with the likes of Marco Rubio, Ted Cruz, Mike Lee, Rand Paul, and others.  Let them and military stalwarts like John McCain and Lindsey Graham make a coordinated, sustained case against Hagel and his views on foreign policy.  In the process, they might even discover a countervailing vision that convinces the American people.

To start, I’ll take as a compliment Quin’s assertion that “Ashton seems to accept with some equanimity the idea that Chuck Hagel will be confirmed as Secretary of Defense” since equanimity is a virtue I’m trying to achieve.

That said, I don’t think there’s a Republican United States Senator willing to take Quin’s suggestion and put a permanent hold on Hagel’s nomination.

It’s one thing for Ted Cruz (R-TX) to make waves on cable television by (rightly) blasting the Obama Administration over Hagel, the fiscal cliff, and gun control, but it is quite another for Cruz to use his senatorial prerogative of “holding” up the President’s nomination for one of the top three Cabinet posts (State and Treasury being the other two); especially since Cruz is in his first full week as a Senator.

Moreover, from the tone of opposition coming from other top Republicans like John McCain (R-AZ), Lindsey Graham (R-SC), and others, I don’t get the sense defeating the Hagel nomination through an obscure “hold” is the proverbial hill upon which any Republican Senator wants to die this session.

Instead, I think Hagel will go through the confirmation process with the kind of probing scrutiny Supreme Court justices get.  It may very well be that, as Quin writes, “The man [Hagel], appears to many to be an anti-Semite.  Opponents make quite a case that he should never set foot in the top office at the Pentagon.”

Well, let Senate Republicans, not just political pundits, make that case on the record.

In the confirmation hearings, during floor debate, and in an actual speaking filibuster if it comes to that, Senate Republicans will have many instances to make precisely the case Quin alludes to, and any other substantive policy criticisms about Hagel they think will defeat his confirmation.  But let’s have the argument in public, through the normal process of a presidential nomination.

U.S. Senators like to think they work within “the world’s greatest deliberative body.”  Let them prove it with a robust examination of Chuck Hagel’s fitness to be the next Secretary of Defense.

The Hill is reporting that Senate Majority Leader Harry Reid (D-NV) has the 51 votes needed to change the upper chamber’s filibuster rules.  Historically, rules changes to Senate procedure are done with two-thirds support (currently 67 votes) in order to ensure bipartisanship.  Making the change with only 51 Senators would mean only the majority of Democrats favor the move.

An ad hoc group of Senators from both parties is trying to broker a compromise reform that would speed certain processes along – such as some judicial nominations and the amending of bills – but so far their version of reform doesn’t include the most obvious change: Actually requiring an objecting Senator to verbally filibuster.

Call me simplistic, but I think presidential nominations should get an up-or-down vote, and filibusters should be real.  There’s too much posturing in politics.  I’d much rather see politicians put their reasons on the record than suffer through another year of finger-pointing.

If U.S. Senator John Kerry (D-MA) becomes the next Secretary of State, expect several dominos to fall.  Soon-to-be-former Senator Scott Brown seems poised to run in yet another special election.  Bay State Tea Party groups will have to decide whether to support a member-turned-establishment figure like Brown over someone more conservative, but arguably less able to win.

And then there’s Ben Affleck.  What?  According to The Daily Caller, Affleck, the Hollywood star and Massachusetts native, recently met privately with Senator Kerry in Washington, D.C., possibly to discuss running for the latter’s open seat in 2013.  If you’re looking for qualifications, Affleck graduated from Harvard, won an Academy Award for co-writing “Good Will Hunting,” and founded the East Congo Initiative.  Oh, he’s also married to actress Jennifer Garner.

But if Affleck isn’t your ideal Senator, remember, it could be worse.  Minnesota gave us Saturday Night Live’s Al Franken.  If Affleck takes a pass, America could get his friend and Palin-hater, Matt Damon.  Can you imagine Damon and Elizabeth Warren together?

NBC News quotes U.S. Senator-Elect Heidi Heitkamp (D-ND) from a campaign debate on what she would say to President Barack Obama about his energy policy:

“You’re wrong on energy. You’re headed in the wrong direction. You made bad decisions,” she said, according to The Associated Press. “You promised that you would promote clean coal technologies, that you would be a champion of coal, and you haven’t done it.” She also urged the president to replace Energy Secretary Steven Chu and EPA administrator Lisa Jackson.

Certainly, that kind of independence helped Heitkamp eke out a win in a state Mitt Romney won by 20 points.  Now that she’s earned the right to speak her mind in the U.S. Senate, let’s see if she’s willing to make good on her promise.  With the coal industry staring at death by a thousand regulations, the sooner the better.

If the Electoral College deadlocks at 269-269, Vice President Biden, in his role as President of the U.S. Senate, would get to decide the rules for picking the VP.  (The House would pick the President.)

Roll Call paints the picture:

One of the foremost experts on Senate rules said he sees no evidence of expedited procedures to avert a filibuster of that process.

“I have read the 12th Amendment to the Constitution, and I don’t see anything that requires the Senate to vote without debate on choosing a vice president,” former Senate Parliamentarian Robert B. Dove said. “Therefore, I don’t see what would stop Senators from speaking about who is going to be the vice president and, in effect, forcing a cloture vote.”

While the parliamentarian advises the presiding officer on procedural questions, Dove said, the responsibility to rule rests with the occupant of the chair. In the event of an Electoral College tie, that would be Biden (in his capacity of president of the Senate, until Jan. 20). Dove notes that Democratic Vice President Hubert H. Humphrey disregarded the parliamentarian’s guidance with some regularity.

Something tells me Good Ole’ Joe isn’t the kind to let a little conflict of interest get in the way of his hold on power.

Randy Barnett, writing for the American Spectator, captures the zeitgeist of the Tea Party movement in a rousing essay about the need going forward for a different kind of mindset when judging conservative judicial nominees:

Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.

With Barnett’s distinction in mind, it’s no wonder that Tea Party-inspired Senators like Marco Rubio (FL), Mike Lee (UT), Rand Paul (KY), Jim DeMint (SC) – and soon-to-be Senator Ted Cruz (TX) – all identify themselves as constitutional conservatives.  Restraint in judging liberalism’s faulty governing assumptions hasn’t gotten conservatives many substantive victories.  We need smart, bold nominees eager and able to make the case for the kind of limited government our Founders envisioned; both in the political branches and on the bench.

Last week, in her first debate with U.S. Senator Scott Brown (R-MA), Democratic challenger Elizabeth Warren tried to nationalize their contest in terms designed to solidify her support from Bay State environmentalists:

“Senator Brown has been going around the country, talking to people, saying, you’ve got to contribute to his campaign because it may be for the control of the Senate.  And he’s right.  …  What that would mean is if the Republicans take over control of the Senate, Jim Inhofe would become the person who would be in charge of the committee that oversees the Environmental Protection Agency.  He’s a man that has called global warming ‘a hoax.’  In fact, that’s the title of his book.”

To be fair to Senator Inhofe, who, as the Ranking Member of the Senate Committee on Environment and Public Works is in line to lead the panel if Republicans become the majority, the full title of his book is The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future.

The hoax Inhofe describes is the use of Climategate-manipulated science to legitimize massive increases in taxes and regulation.

In its war on coal, the EPA has been at the forefront of the environmentalists’ push to tax and regulate an entire industry out of existence; most specifically by requiring coal operators to adopt expensive and experimental manufacturing techniques that are already making it necessary to lay off workers and close down plants.

By parsing Inhofe’s insight about how global warming alarmists politicize science to justify liberal policies, Warren was trying to substitute Inhofe’s complete rejection of global warming for Brown’s position on the issue.  In fact, Brown thinks global warming/climate change/something is happening.  But like Inhofe, he thinks that getting the job market growing again trumps spending billions of dollars on policies built in part on scientific fraud.

Brown shouldn’t shy away from this issue so long as he frames it correctly.  The environmental activists that Warren was playing to won’t be voting for him anyway.  But the independents that put Brown in office two years ago know that job-killing taxes and regulations don’t make sense; especially in an era of chronic unemployment.

The Cincinnati Enquirer reports that Republican Senate Leader Mitch McConnell made a very public peace with Rand Paul and Kentucky’s Tea Party movement by hiring Jesse Benton to head his reelection campaign in 2014.

Previously, Benton steered Rand Paul into Kentucky’s other U.S. Senate seat by defeating an establishment candidate handpicked by McConnell.  This cycle Benton ran Ron Paul’s presidential campaign.

With $6 million already in the bank for an election two years away, McConnell’s hiring of Benton likely shuts the door to the kind of Tea Party conservative primary challenge faced by other long-serving Republicans.

Charles C. Johnson of the Daily Caller unearthed a scathing review of U.S. Senate candidate Elizabeth Warren’s book that was published before Harvard Law School hired her in 1995:

In 1991, Rutgers Professor Phillip Schuchman reviewed Warren’s co-authored 1989 book “As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America” in the pages of the Rutgers Law Review, a publication Warren once edited. Schuchman found “serious errors” which result in “grossly mistaken functions and comparisons.

Warren and her co-authors had drawn improper conclusions from “even their flawed findings,” and “made their raw data unavailable” to check, he wrote. “In my opinion, the authors have engaged in repeated instances of scientific misconduct.”

The work “contains so much exaggeration, so many questionable ploys, and so many incorrect statements that it would be well to check the accuracy of their raw data, as old as it is,” Schuchman added.

Further reporting by Johnson indicates the reason for HLS’ willful oversight – an affirmative action policy that placed a premium on hiring female and minority faculty members.

For months now Warren’s Senate candidacy has been plagued by her use of alleged Cherokee ancestry to get academic jobs she might otherwise have failed to get.

Just last week, Warren told the Democratic National Convention, “We celebrate success.  We just don’t want the game to be rigged.”

At least not after she’s won.

Kudos to U.S. Senator Dianne Feinstein (D-CA) for putting politics aside and directly challenging the Obama administration to investigate what she calls “an avalanche of leaks” harming national security.

Feinstein’s public offensive began last week with a press release where she acknowledged sending “a classified letter to the president outlining my deep concerns about the release” of information “regarding alleged cyber efforts targeting Iran’s nuclear program.”

On Sunday, Feinstein said on CBS’ Face the Nation that the effectiveness of two recently appointed federal prosecutors to investigate the leaks about covert U.S. efforts to combat threats from Iran and terrorist groups linked to al-Qaeda would be judged on whether it was “nonpartisan,” “vigorous,” and able to “move ahead rapidly.”

But if Attorney General Eric Holder has proved anything during his tenure – as the face of the Fast and Furious scandal, non-enforcement of the Defense of Marriage Act, and refusing to prosecute voter intimidation by the New Black Panthers – it’s that he is incapable of being nonpartisan in the administration of justice.

Feinstein isn’t waiting on Holder to change his spots.  In her press release last week she promised to include new disclosure requirements to her Select Committee on Intelligence so that administration officials can be held accountable for leaks that put at risk the lives of Americans and American allies – even if it might help President Obama look tough on foreign policy.

Feinstein’s reaction thus far is pure commonsense.  Conservatives should support her push back against the Obama administration, and open up avenues for her to do more.

Politico reports that a group of Democratic and Republican senators are “quietly pushing to have a major tax and budget package ready by September so a bill can be introduced immediately after the November elections and passed by Christmas.”

In other words, during a lame duck session.  Only in the U.S. Senate could people seriously think that a multi-trillion dollar deal negotiated in secret and passed by a Congress that no longer reflects the electoral will of the people somehow counts as statesmanship.

This isn’t to say a lame duck Congress should never hold consequential votes.  A terrorist attack, a foreign military invasion, or an asteroid hitting the earth all qualify as legitimate reasons to let retiring and dethroned members decide national policy.  But the fear of falling off a “fiscal cliff” that’s been approaching for years – unsustainable deficits, exploding entitlements, budget sequesters that gut the Defense Department, expiring Bush tax cuts that raise rates on individuals – certainly does not.

It’s been said, rightly, that major reforms need bipartisan support.  But that’s only half of the equation.  Major reforms of the magnitude now being contemplated need to be road-tested on the campaign trail.  The 2012 election is one of the most important electoral moments in the modern era.  If there are good ideas brewing in the Senate, members should establish some consensus and make it part of the public debate.  Otherwise, enjoy the perks of office and let the next Congress, and the next President, decide.

A Washington Free Beacon analysis of salaries paid to staff members of Democratic Senators discovered that 37 of the 50 members in the Democratic caucus paid their female staffers less than male counterparts.

Two of the worst offenders are Senators Patty Murray of Washington and Chuck Schumer of New York.  The gender-pay-gap in Murray’s office is 35.2 percent.  Schumer pays men 36 percent more than women.

The Free Beacon’s report highlights two aspects of the so-called gender-pay-gap.  First, those like Murray and Schumer who’ve used the issue to raise money and demonize conservatives are hypocrites.  Second, the likely defenses for Murray and Schumer – that disparities in pay are due to differences in job titles and responsibilities – are exactly the same defenses that private firms use when challenged by liberals.

Elsewhere in the Free Beacon report it explains why the percentages for Murray, Schumer, and company give the lie to their talking points about grossly disproportionate gender bias in pay rates:

[The percentages for Murray and Schumer are] well above the 23 percent gap that Democrats claim exists between male and female workers nationwide. The figure is based on a 2010 U.S. Census Bureau report, and is technically accurate. However, as CNN’s Lisa Sylvester has reported, when factors such as area of employment, hours of work, and time in the workplace are taken into account, the gap shrinks to about 5 percent.

As Kay Hymowitz of the Manhattan Institute has explained, “the famous gender-wage gap is to a considerable degree a gender-hours gap.”  Simply put, women, on average, work less hours than men because many women choose to either work part-time or leave and return to have children and raise families.  Working less hours over the course of a career means less seniority, less promotion, and yes, less pay.

Presumably, the women that make this choice prefer the trade-off.  The point here isn’t to argue in favor of working mothers or those whom stay at home.  Either depends on prudential factors unique to each woman.  Rather, it’s to point out that disparities in pay between women and men – contra liberals like Murray and Schumer – have several other reasonable explanations, all of which align with experience and common sense, than rank gender discrimination.

If Senate Democrats plow ahead as planned with a push to force more votes on legislation to address the so-called gender-pay-gap, then it’s practically the duty of their Republican colleagues to force a debate about the transparent hypocrisy underlying the scam.