Dems Roll Out Their Congressional Reform Package

Ken AshfordCongress1 Comment

WaPo:

Congressional Democrats yesterday laid out a plan to change what they called a GOP "culture of corruption" in Washington, even as Republicans pointed to ethics lapses on their antagonists’ side of the aisle.

Democratic leaders from the House and Senate endorsed proposals that closely mirror Republican plans unveiled this week to tighten regulations on lobbyists since the Jack Abramoff political corruption scandal broke. But in a sign that an ethical "arms race" may be developing, the Democratic plans go further than the Republicans’ proposals.

Rather than limiting the value of a gift to $20, as House Republicans are considering, Democrats would prohibit all gifts from lobbyists. Democrats also take direct aim at some of the legislative practices that have become established in the past 10 years of Republican rule in Congress. They vowed to end the K Street Project, under which Republicans in Congress pressure lobbying organizations to hire only Republican staff members and contribute only to Republican candidates.

Lawmakers would have to publicly disclose negotiations over private-sector jobs, a proposal inspired by then-House Energy and Commerce Committee Chairman W.J. "Billy" Tauzin’s job talks in 2003 that led to his hiring as president of the Pharmaceutical Research and Manufacturers of America in January 2005. Executive branch officials who are negotiating private-sector jobs would need approval from the independent Office of Governmental Ethics.

Under the Democrats’ plan, House and Senate negotiators working out final versions of legislation would have to meet in open session, with all members of the conference committee — not just Republicans — having the opportunity to vote on amendments. Legislation would have to be posted publicly 24 hours before congressional consideration. Democrats also proposed to crack down on no-bid contracting and to require that any person appointed to a position involving public safety "possess proven credentials."

All good ideas.  Of course, Trent Lott (R-MS), complaining about the Republican plan which limits gift values to $20, had this to say:

“Now we’re going to say you can’t have a meal for more than 20 bucks . . . Where are you going, to McDonald’s?”

Listen, dickhead.  Most Americans pay for their own meal out of their own salaries.  They don’t get "gifts" of any value for that purpose.  And if we can do it, so can you.  Yes, even if it means you have to go to McDonald’s.

The Fatalities You Don’t Hear About

Ken AshfordIraq, Mental HealthLeave a Comment

DouglasbarberIn my right-hand column, I have a little thingee reporting the current number of U.S. soldiers killed and injured in Iraq to date.  Don’t be fooled by the numbers, people.  The casualty toll is actually higher.  The numbers, for example, don’t take into account people like Specialist Douglas Barber, an Iraqi War veteran who suffered from PTSD. 

Douglas Barber walked on to his front porch Monday, put a gun to his head, and pulled the trigger.  Bradblog tells the story and pays tribute.

Bin Laden Offers Threat, Truce

Ken AshfordWar on Terrorism/TortureLeave a Comment

Not sure what to make of this:

Al-Jazeera on Thursday broadcast portions of an audiotape purportedly from Osama bin Laden, saying al-Qaida is making preparations for attacks in the United States but offering a possible truce to rebuild Iraq and Afghanistan.

The voice on the tape said heightened security in the United States is not the reason there have been no attacks there since the Sept. 11, 2001, suicide hijackings.

Instead, the reason is "because there are operations that need preparations," he said.

"The delay in similar operations happening in America has not been because of failure to break through your security measures. But the operations are happening in Baghdad and you will see them here at home the minute they are through (with preparations), with God’s permission," he said.

"We do not mind offering you a long-term truce with fair conditions that we adhere to," he said. "We are a nation that God has forbidden to lie and cheat. So both sides can enjoy security and stability under this truce so we can build Iraq and Afghanistan, which have been destroyed in this war. There is no shame in this solution, which prevents the wasting of billions of dollars that have gone to those with influence and merchants of war in America."

While I am loathe to agree with anything this man says, he does provide something to consider: namely that the dirth of attacks on U.S. soil in the past four years may have nothing to do with our post 9-11 increased security.  Remember, the WTC was bombed in 1993, it took eight years before anything happened on U.S. soil.  These guys are patient.

It’s hard to know whether to take these threats seriously, but there can be no mistake that he is making serious threats.  If nothing else, it should serve to remind us all who the real enemy of the United States is.

UPDATE:  Ignoring the "threat" part of OBL’s message, Glenn Reynolds takes bin Laden’s offer of a truce as a sign that "we are winning".  He also suggests that bin Laden’s offer may have something to do with last week’s Pakistani bombing in which (reportedly) some key al Qaeda people were killed.  I seriously doubt that.  I suspect that the bin Laden tape is weeks, or possibly months, old.

I’m more inclined to think that the true "audience" for the tape are members of the Arabic community who are "on the  fence" in the struggle of ideals.  By being strong — yet offering a "truce" — bin Laden might be trying to win the hearts and minds of those who are inclined to see the U.S. as just an international warmongering bully.

FLASHBACK:  Bush — “So I don’t know where he is. You know, I just don’t spend that much time on him. … And, again, I don’t know where he is. I — I’ll repeat what I said. I truly am not that concerned about him.” [3/13/02]

The First Blogger

Ken AshfordBloggingLeave a Comment

Ben_franklin_1Daniel Rubin at the Philly Inquirer makes the convincing case that Ben Franklin, who celebrated his 300th birthday yesterday, was the first blogger:

Not so far a stretch, really. He pamphleteered, self-published, delivered colonial dish, news and opinion, sampled other’s work and remixed it into his own mash.

He wrote anonymously, or under pseudonyms. Instead of posting daily, he squirreled away his words and published them in an almanac.

Doesn’t this sound familiar?

You Call That “Reform”?!?

Ken AshfordCampaign Finance ReformLeave a Comment

Hastert’s plan to reform Congress’ relation with lobbyists is kind of, well, sucky.  As WaPo notes:

According to lobbyists and ethics experts, even if Hastert’s proposal is enacted, members of Congress and their staffs could still travel the world on an interest group’s expense and eat steak on a lobbyist’s account at the priciest restaurants in Washington.

The only requirement would be that whenever a lobbyist pays the bill, he or she must also hand the lawmaker a campaign contribution. Then the transaction would be perfectly okay.

So lobbyists, if you are going to bribe a Congressman by buying him dinner in a Parisian restaurant, be sure to tip his campaign coffers as well.  Then everything’ll be hunky-dory.

Satirical Post Of The Year

Ken AshfordSupreme CourtLeave a Comment

This is one for the annals of blog history.  Publius at Legal Fiction informs us about a recent decision handed down from the Supeme Court, which clarifies the scope of the Commerce Clause:

SUPREME COURT OF THE UNITED STATES

No. 06-03

United States (Respondent) v. Smith (Petitioner)

Justice SCALIA delivered the opinion of the Court:

This case presents a question of the scope of Congress’s power under the commerce clause. To simplify and clarify our commerce clause analysis, we have consolidated two cases in which petitioners challenge the constitutionality of two federal laws that allegedly exceed Congress’s power to regulate commerce – (1) a law banning local possession of marijuana; and (2) a law criminalizing violence against women. Applying our new standard, we find the marijuana law constitutional and the other one, well, not so much.

I

[unnecessarily long and tortuous narrative of facts]

II

Article I, Section 8 grants Congress the power to regulate interstate commerce. In recent years, the Court’s commerce clause analysis has been accused of being “unclear” and “results-driven.” See Bork, R., What the Fuck Is Up With Scalia in Raich?, 118 Harv. L. Rev 211, 213-14 (2005). Specifically, critics have pointed to the seeming inconsistency between the Court’s decision in Morrison and its decision in Raich (cases coincidentally involving similar facts at the case at issue here). Id. at 215. See also Aging Hippy Liberal Douche, A Post-Modernist Perspective on the Habermasian Dialectic Inherent in Scalia’s Commerce Clause Analysis, 98 Yale L.J. 1201, 1210-11 (2004).

The lower courts have also failed to find a meaningful distinction between the laws struck down by the Court and those upheld. See, e.g., Vedder v. Cobain, 321 F.3d 12, 15 (2004) (Posner, J., dissenting) (“What the fuck is up with Scalia in Raich?”).

In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.

A

In justifying any new constitutional doctrine, we must first of course look to the original understanding of the Holy Framers who ascended Mount Sinai and brought back down the Constitution on stone tablets in 1787. A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences. Here is James Madison in Federalist No. 10:

AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it.

While at first glance this appears to have nothing to do with the commerce clause, if you switch around some of the letters, it spells: Do What Scalia Wants. See, e.g., Hamburgler v. Burger King, 521 U.S. 321, 341-42 (2003) (Thomas, J., concurring) (“As Harry Potter has taught us, mixing around letters can reveal important insights into the Framers’ original understanding and Lord Voldemort’s evil plans.”).

B

While this new standard is a marked improvement over our prior doctrine, we recognize that lower courts will need additional guidance in determining just what Justice Scalia likes and dislikes. Although multi-factored balancing tests are generally for commie pinkos and Justice Kennedy, there is not always a clear answer to these questions. Instead, lower courts must look at the many things Justice Scalia likes and dislikes and then determine how the law relates to them.

For instance, Justice Scalia dislikes many things – hippies, long-haired hippies, hippies with beards, long-haired hippies wearing sandals, the homosexual agenda, assisted-physician suicide, Will & Grace, long-haired bearded hippies wearing sandals, long-haired hippies wearing sandals and burning flags, the Florida Supreme Court, Justice Kennedy, Satan, the New Deal, and the equal protection clause.

On the other hand, Justice Scalia likes many things – police, police arresting hippies, laws criminalizing drug possession, laws criminalizing drug possession by hippies, duck hunting, barbeque, John Ashcroft, Jesus, and the equal protection clause in the context of presidential elections.

Read the whole thing — it’s priceless.

Logic We Love To Laugh At

Ken AshfordPopular Culture, Sex/Morality/Family Values1 Comment

Anyone who saw or read about the Golden Globes knows that many of the honored films and TV shows are hardly "family fare".  There’s "Brokeback Mountain" (the so-called "gay cowboy" movie), "Weeds" (a very funny show on Showtime about a Mom who deals in dope in an upscale California suburb), and "Syriana" (a George Clooney movie which depicts Middle Eastern people as, you know, people like you and me), "Munich" (a Spielberg epic which discusses the futility of spiraling violence), and "Transexual" (Felicity Huffman, one of my favorite actresses, won the Golden Globe, protraying a man becoming a woman).  And another great actor, Phillip Seymore Hoffman won the Golden Globe for the very gay, capital punishment-hating, author Truman Capote (in "Capote", of course).

Obviously, this "trend" — if one can call it that — is displeasing to the social conservative set:

"Once again, the media elites are proving that their pet projects are more important than profit," Janice Crouse, of Concerned Women for America, said.

"None of the three movies – Capote, Transamerica or Brokeback Mountain – is a box office hit. Brokeback Mountain has barely topped $25 million in ticket sales."

"If America isn’t watching these films, why are they winning the awards?"

I think she has a point.  Artistic merit should be based solely on popularity.  Which means that, in 2004, the following can be said without fear of contradiction:

  • Million Dollar Baby was not the Best Movie Of 2004; Shrek 2 was.
  • Garfield: The Movie was better than Ray (the Ray Charles biopic which received 6 Academy Award nominations)
  • Shrek 2  is a better movie than Passion Of The Christ
  • Fahrenheit 451 is a better movie than the following "family" pictures: The Princess Diaries 2: Royal Engagement, Scooby Doo 2: Monsters Unleashed, Garfield: The Movie, Christmas With The Kranks, Miracle, King Arthur, A Cinderella Story, Fat Albert, and Around The World In 80 Days

Well, you get the idea.

But what stop there?!?  Why limit this to artistic merit??  Perhaps physical merit should be judged on popularity, too.  Scrap the Super Bowl, I say!  Let’s just vote on the champion!

Quote Of The Day

Ken AshfordRepublicansLeave a Comment

Love this:

The political tactic of playing up the soldiers on the battlefield while tearing down the reputations of veterans who oppose them could eventually cost the Republicans dearly. It may be one reason that a preponderance of the Iraq war veterans who thus far have decided to run for office are doing so as Democrats.

That’s James Webb, Secretary of the Navy under President Reagan.  He said this in the course of commenting on conservative "swift-boating" attacks on Vietnam War hero and Iraq War critic Sen. John Murtha.  Full editorial here.

Bush To Conduct Another PR Tour Before Handpicked Crowds

Ken AshfordHealth CareLeave a Comment

The Bush administration’s implementation of its new Medicare prescription drug benefit wasn’t quite a “seamless transition” as Medicare administrator Mark McClellan promised. The Miami Herald has called the implementation of the new program an “unmitigated disaster.”

Recall that Bush’s program was passed in 2003 under unusual circumstances that included bribes on the House floor. Before lawmakers agreed to the plan, the administration went to great lengths to deceive Congress about the cost estimates for the plan. Once it became law, and seniors started to learn about the new program, everyone was completely confused and couldn’t figure out what to do.

“Several hundred thousand” people enrolled in the new plans were unable to fill essential prescriptions and many states declared public health emergencies. Twenty states have stepped up to the plate to “help low-income people by paying drug claims that should have been paid by the federal Medicare program.”

But instead of mitigating the disaster, the Bush administration has launched a PR campaign:

President Bush’s top health advisers will fan out across the country this week to quell rising discontent with a new Medicare prescription drug benefit that has tens of thousands of elderly and disabled Americans, their pharmacists, and governors struggling to resolve myriad start-up problems.

More at firedoglake and Eschaton.

[Credit here to Think Progress]

Greenberg On The Physician Suidice Case

Ken AshfordBush & Co., Constitution, Sex/Morality/Family Values, Supreme CourtLeave a Comment

I said it, but Greenwald said it better when he writes that the assisted suicide case shows the Administration’s true colors:

[O]nce the Bush Administration took power, democratic processes in this area ceased to matter. John Ashcroft was hell-bent on putting an end to physician-assisted suicide in Oregon because he personally believes it to be morally wrong, and he wasn’t going to let any legal barriers stand in his way of imposing his moral framework on Oregon.

***

It cannot be overstated how reprehensible this is. Ever since September 11, the Bush Administration has insisted again and again that the threat of terrorism is an unprecedented existential threat. We are at "war," and must devote our full attention to capturing terrorists and winning the war, even if it means severely restricting our constitutional liberties and taking other extreme measures to fight this war.

And yet, less than two months after September 11, what was the Justice Department doing? What was the Attorney General’s attention devoted to? Working in secret, and in violation of its promises to the State of Oregon, to figure out how it could trample on the democratic process and on principles of states rights which conservatives claim to believe in, all in order to block terminally ill people from choosing how to die because John Ashcroft and James Dobson think that it’s immoral to exercise that choice. That’s what Ashcroft’s DoJ was doing in the weeks after September 11.

For the last four years, this Administration has cynically exploited the September 11 attacks and the supposedly overarching terrorist threat to work unnoticed, wielding the ever-expanding powers of the Federal Government in order to implement a whole slew of moralizing, intrusive measures. In this time of alleged "war," the Administration has devoted substantial resources of the Federal Government — including the DoJ, the FBI and other law enforcement agencies — to measures as pressing as waging the war against adult pornography, the war against the morning after pill, and the vicious war against adult gambling.

But when it comes to anti-democratic impulses and rank hypocrisy, none of those things match the Administration’s behavior with regard to Oregon’s assisted suicide law. These crusaders for the democratic process, majority will, and states’ rights simply lied to the State of Oregon, trampled on the will of a majority of Oregon’s citizens, and used the power of the Federal Government to override laws regulating medical treatment, an area which has always been reserved for the states.

And this was all done inside the Justice Department, engineered by John Ashcroft, literally in the weeks (before and) after September 11. This was all happening while the country was focused on September 11, the anthrax attacks which the DoJ never solved, enactment of the Patriot Act, and scores of other newly pressing concerns brought about by these terrorist attacks. But in the weeks before September 11 and in the weeks immediately after, the priority of the Attorney General was figuring out how to override the will of Oregon voters in order to prevent terminally ill patients from choosing how to die.

Ayotte Case Decided

Ken AshfordSex/Morality/Family Values, Supreme Court, Women's IssuesLeave a Comment

I gave the backgrounder on the case back in November.  It concerned a parental notification law in New Hampshire, a statute which required notification of parents (or a court order, in the alternative, under certain circumstances) before a teenage girl is allowed to have an abortion.

The ruling was somewhat surprising, but the bottom line is that it didn’t alter the playing field much in the abortion debate.  It merely deals with the way that courts in the future can address (and remedy) future issues involving abortion law challenges.  SCOTUSBlog explains:

The Court, in a rare unanimous vote in an abortion case, ruled that lower courts may have gone too far in striking down the entire parental notice law, enacted in 2003. Declaring that pregnant teenagers sometimes need an immediate abortion to avert serious health problems, the Court said the New Hampshire law must be read to allow that when it occurs, which it suggested would be "in a very small percentage of cases."

If the law can be interpreted to make that exception, and still be in keeping with what the state legislature intended, the Court indicated, the remainder of the law may remain intact. The state law, as written, makes an exception for teenagers where an abortion is necessary to save the pregnant girl’s life, but it does not make a health exception.

Justice Sandra Day O’Connor, in what may be her final ruling as a member of the Court, wrote the decision. She summed it up this way in the opening paragraph:

"We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."

The ruling was noteworthy in a number of respects, in addition to the unanimity: the O’Connor opinion was unusually brief (ten pages in all, only six pages of analysis), it did not clarify whether abortion restrictions must always have a health exception (in non-emergency situations), it did not settle whether abortion laws’ constitutionality will be judged by a different standard than other laws (the so-called "Salerno" issue), and it was the first abortion decision in which Chief Justice John G. Roberts, Jr., cast a vote of any kind — here, silently joining in a single opinion.

In some ways, the opinion seemed to reveal a collective decision by Justices with far different views on abortion to suspend their disagreement until some future occasion, in order to deal with a case that had come increasingly to look as if it were confined to the law for clearcut medical emergencies, instead of being a major test case on the underlying constitutional controversy. By no means, however, did it bridge the existing fundamental disagreements among the Court’s members in this field of law.

Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges’ authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.

If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor’s professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.

Debating Bill

Ken AshfordRight Wing and Inept MediaLeave a Comment

Fox News has a contest in which 6 winners (picked by Fox News, of course) get to "debate" Bill O’Reilly on the air on any topic they desire (did I mention the 6 winners — and their desired topics — are picked by Fox News?).

Deep in the contest rules, we find this little tidbit of verbiage:

Sponsor reserves full editorial rights to edit the segment and determine whether or not to air it.

Um…. yyyyyyyyeh.

Scalia’s Idea of Morality

Ken AshfordSex/Morality/Family Values, Supreme CourtLeave a Comment

I don’t want to get all legal-wonkish here, but Publius notes an interesting comment in Scalia’s dissent in today’s "physician-assisted suicide" case.

Scalia wrote:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

Now, in 1999, the Supreme Court majority — including Scalia — held that interstate commerce clause does not empower the federal government to enact a statute criminalizing violence against women (United States v. Morrison).

Will someone ask Scalia to reconcile this?  If, as he says, the federal government can use the Commerce Clause to "protect public morality", then why was the Violence Against Women Act held unconstitutional?

Of course, Scalia’s premise is wrong.  The Commerce Clause does not confer upon the federal government a power to regulate morality.  In fact, this is what the Court said in Morrison:

As we observed in Lopez, modern Commerce Clause jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power.” 514 U.S., at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276—277 (1981); Perez v. United States, 402 U.S. 146, 150 (1971)). “First, Congress may regulate the use of the channels of interstate commerce.” 514 U.S., at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964); United States v. Darby, 312 U.S. 100, 114 (1941)).

Okay.  This means that Congress can regulate things like interstate roads, hotels, shipping lanes, etc.

“Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” 514 U.S., at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911); Perez, supra, at 150).

This is a little trickier.  This means things like, say, local government ordinances which can impact the entire interstate market.  For example, if Louisiana has a law which discriminates against goods "imported" from another state, Congress can regulate in that area.

“Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.” 514 U.S., at 558—559 (citing Jones & Laughlin Steel, supra, at 37).

This is the loosy goosy one, because (if you want to get hypertechnical) every tiny piece of human endeavor affects interstate commerce, and it is a judgment call as to whether or not it "substantially affects" it.

Now, where does "morality" come into play on any of these three tiers?  Answer: it doesn’t.  Scalia is just spitballing here.