M. Todd Henderson of the University of Chicago Law School has a brief but important essay making the case for Citizens United. As they say, read the whole thing.
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Government and Politics
“Deem and Pass” and TARP
The leaders of the House of Representatives plan to address health care through a “deem and pass” strategy. Professor Michael McConnell believes this strategy violates the Constitution. But put that aside for now. Ms. Pelosi has chosen “deem and pass” because, as she said, “people don’t have to vote on the Senate bill.” The “people” in question are House Democrats whose votes are essential to passing the bill. These members fear voters would penalize them for voting for the Senate bill. As the Washington Post put it, “deem and pass” would “enable House Democrats not to be on record directly as supporting the Senate measure.” A House Democrat running in a tough election will be able to deny voting for the Senate bill if it passes into law. We would then have an odd situation in which a bill became law even though only a minority of House members are willing to take responsibility for having supported it. It would be, as it were, a mystery how the bill became law.
This all reminds me of the TARP legislation. In my recent policy analysis of how Congress performed badly in the TARP case, I found that members of both of chambers were concerned mostly with avoiding responsibility for voting for the bailouts. In the tough cases, and probably many others, Congress does what it can to avoid being held accountable.
Many people inside DC will look at “deem and pass” through the lens of political hardball. If Pelosi can pull it off, she will be praised as tough and shrewd, a risk taker who gets her way by any means necessary.
But there is a larger problem here. The willingness and capacity of Congress to shirk responsibility for its acts suggests deep institutional decline and corruption. That decline implicates more than Congress itself. How can representative democracy work if voters cannot hold their representatives accountable?
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Is Obama Losing David Brooks?
New York Times columnist David Brooks, President Obama’s biggest fan among self-proclaimed conservatives, has been plunged into the depths of despair by the latest machinations of Obama and his congressional allies:
Deem and pass? Are you kidding me? Is this what the Revolutionary War was fought for? Is this what the boys on Normandy beach were trying to defend? Is this where we thought we would end up when Obama was speaking so beautifully in Iowa or promising to put away childish things?
Yes, I know Republicans have used the deem and pass technique. It was terrible then. But those were smallish items. This is the largest piece of legislation in a generation and Pelosi wants to pass it without a vote. It’s unbelievable that people even talk about this with a straight face. Do they really think the American people are going to stand for this? Do they think it will really fool anybody if a Democratic House member goes back to his district and says, “I didn’t vote for the bill. I just voted for the amendments.” Do they think all of America is insane?
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A Confession from the CBO Director
The Congressional Budget Office recently estimated that the so-called stimulus generated jobs and growth. I addressed some of the profound shortcomings in CBO’s Keynesian model in a previous post, pointing out that the model is structured to produce certain results regardless of what happens in the real world.
Interestingly, the Director of the CBO, Doug Elmendorf, basically agrees with me. In a recent speech, recorded by C‑SPAN, he was asked during the question-and-answer session whether the model simply spits out pre-determined numbers. After some hemming and hawing and a follow-up question, he confessed “that’s right” when asked if the model would be unable to detect whether the stimulus failed. The relevant exchange begins around the he 39-minute mark of this recording, and Elmendorf’s confession takes place shortly after the 40-minute mark (I selflessly watched the entire thing so you wouldn’t have to suffer waiting for the key moment).
I’m not sure whether this admission is good news or bad news. It is a sign of progress, I suppose, that CBO’s Director is now on the record acknowledging that the model is useless (at least for purposes of measuring the effectiveness of more government spending). But it is perhaps an even more troubling indication of what’s wrong in Washington that nobody is concluding that the time has come to junk Keynesian analysis. This is either an updated version of The Emperor’s New Clothes or a perverse form of the joke about the drunk looking for his keys under the streetlight because there’s light, even though he lost them someplace else.
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Obama’s Populism a Hoax: ObamaCare Is a Sop to Big PhRMA
From the invaluable Tim Carney:
The Obama team regularly dismisses opponents as industry lackeys. The Democratic National Committee blasted out e‑mails this week warning that “for every member of Congress, there are eight anti-reform lobbyists swarming Capitol Hill” and “Congress is under attack from insurance lobbyists.”
But drug industry lobbyists, according to Politico, spent the weekend “huddled with Democratic staffers” who needed the drug lobby to “sign off” on proposals before moving ahead. Meanwhile, we learn that the drug lobby is buying millions of dollars of ads in 43 districts where a Democratic candidate stands to suffer for supporting the bill. The doctors’ lobby and the hospitals’ lobby are also on board with the Senate bill.
So the battle at this point is not reformers versus industry, as Obama would have you believe. Rather, it is a battle between most of the health care industry and the insurance companies.
(And the insurers are not opposed to the whole package. On the bill’s central planks — limits on price discrimination, outlawing exclusions for pre-existing conditions, a mandate that employers insure their workers and a mandate that everyone hold insurance — insurers are on board. They object mostly that the penalty is too small for violating the individual mandate.)
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The Census Asks Too Much
Everyone in America, I presume, has just received a letter from the U.S. Census Bureau urging us to fill out our Census forms. Seems like a very expensive way to tell us to watch for the form to arrive in the mail. But I’m particularly interested in why they say we should promptly fill out the form:
Your response is important. Results from the 2010 Census will be used to help each community get its fair share of [federal] government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share.
Obviously this is a zero-sum game. If my neighbors and I all fill out the form, then you and your neighbors will get less from the common federal trough. But at least we’ll be getting our “fair share,” as the letter tells us twice in three sentences.
But where does the government get the authority to ask me my race, my age, and whether I have a mortgage? In fact, the Constitution authorizes the federal government to make an “actual enumeration” of the people in order to apportion seats in the House of Representatives. That’s all. Not to define and count us by race. Not to ask whether we’re homeowners or renters. Just to ask how many people live here, so they can apportion congressional seats.
I’m not interested in getting taxpayers around the country to pay for roads and schools and “many other programs” in my community. All the government needs to know from me is how many people live in my house. And I will tell them.
More on the census and the Constitution here.
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The Bill Is Deemed Passed
Today’s question at Politico Arena is:
Should Democrats be worried that health care could be subject to a successful court challenge?
My response is:
I’m the first in my family not to be a lawyer. But Mike McConnell’s article seems compelling to me. As he notes, Article I, Section 7, of the Constitution requires that a bill must pass both houses of Congress to become a law. Duh. And for those who have trouble with that concept, he goes on: “As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the ‘exact text’ must be approved by one house; the other house must approve ‘precisely the same text.’ ”
So the “deemed passed” rule doesn’t seem to be constitutional. Then the interesting question is, Will the Supreme Court strike down a major piece of welfare-state legislation just because Congress didn’t dot all the i’s and cross all the t’s. After all, some of us think the Supreme Court has failed to strike down legislation whose substance violates the Constitution. Would it be more forthright on a procedural issue? Would it dare to tell the political branches that they can’t have the health-care program they worked on for 14 months, negotiating careful and complicated compromises in both houses?
But then, the reason that Democrats are contemplating such an audacious scheme is precisely that they can’t find a bill that a majority of the House will vote for. So this wouldn’t be like the Supreme Court striking down Franklin Roosevelt’s Agricultural Adjustment Act, which passed Congress quickly and overwhelmingly in May 1933. It would not involve the Supreme Court standing up to the unified political branches. Rather, it would only require the Court to tell Congress that they have to actually pass bills before they become law, which apparently a majority of the House is not prepared to do.