…are we under any obligation to obey it? The answer may be no.

Democrats are considering a scheme that would “deem” the Senate health care bill to have passed the House if a separate event occurs (specifically: House passage of a budget reconciliation bill). That strategy has been named after its contriver, House Rules Committee chair Louise Slaughter (D‑NY). House Speaker Nancy Pelosi (D‑CA) says of this scheme: “I like it because people don’t have to vote on the Senate bill” (emphasis added).

Not so fast, says former federal circuit court judge Michael McConnell in The Wall Street Journal:

Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. 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.”

Democrats have already hidden 60 percent of the cost of the Senate bill, effected an obscenely partisan change in Massachusetts law to keep the bill moving, pledged more than a billion taxpayer dollars to buy votes for the bill, and packed the bill with an unconstitutional individual mandate and provisions that violate the First Amendment. It’s almost as if, to paraphrase comedian Lewis Black, Democrats spent a whole year, umm, desecrating the Constitution and at the last minute went, “Oh! Missed a spot!”

And these people want us to put our trust in government.

Washington Post columnist Dana Milbank chides Dick Armey today for having said that socialism caused starvation at Jamestown. “Who knew they had socialists in 1607?” Milbank asks.

Actually, lots of people know this. As I wrote three years ago:

Four hundred years ago today 105 men and boys disembarked from three ships and established the first permanent English settlement in North America. They built a fort along what they called the James River, in honor of their king.

The land was lush and fertile, yet within three years most of the colonists died during what came to be known as “the starving time.” Only the establishment of private property saved the Jamestown colony.

What went wrong? There were the usual hardships of pioneers far from home, such as unfamiliar diseases. There were mixed relations with the Indians already living in Virginia. Sometimes the Indians and settlers traded, other times armed conflicts broke out. But according to a governor of the colony, George Percy, most of the colonists died of famine, despite the “good and fruitful” soil, the abundant deer and turkey, and the “strawberries, raspberries and fruits unknown” growing wild.

The problem was the lack of private property. As Tom Bethell writes in his book The Noblest Triumph: Property and Prosperity through the Ages, “The colonists were indolent because most of them were indentured servants, expected to toil for seven years and contribute the fruits of their labor to the common store.”

Understandably, men who don’t benefit from their hard work tend not to work very hard.

But a new governor arrived and instituted a system of private property.

And then, the Virginia historian Matthew Page Andrews wrote, “As soon as the settlers were thrown upon their own resources, and each freeman had acquired the right of owning property, the colonists quickly developed what became the distinguishing characteristic of Americans – an aptitude for all kinds of craftsmanship coupled with an innate genius for experimentation and invention.”

John Rolfe, the husband of Pocahontas, said that once private property was instituted, men could engage in “gathering and reaping the fruits of their labors with much joy and comfort.”

I gotta go with Milbank, not Armey, though, on another point of contention: Alexander Hamilton was a big-government man. At least by the standards of 1787; no doubt he’d be appalled at the size, scope, and power of today’s federal government, though he might approve the imperial trappings and authority of modern presidents.

Radley Balko will be moderating a panel at Georgetown Law next week, “Bad Science: The Execution of Cameron Todd Willingham and the Case for Forensic Reform.”

Radley will be leading a discussion about the case of Willingham, who was executed by the state of Texas in 2004. Willingham was convicted in 1992 of murdering his three young daughters in a house fire that the state determined was arson.

A report issued in 2009 claimed that in convicting Willingham, the state used techniques and assumptions that were no longer recognized as scientifically valid and that the original finding of arson could not be sustained.

If you can’t attend in person, a webcast will be available.

I regret not remembering where I found this and therefore not being able to thank the source for the link, but Scientific American writes about research on “sacred values” and negotiations. Describing “sacred values,” SciAm writes that when an object becomes sacred, it “becomes worthy of boundless reverence, commitment, and protection. As diverse as people are in ascribing sacred status to possessions, they are equally varied in which values they consider sacred, a diversity that can breed substantial conflict. The abortion debate, for example, often presents a divide between those who consider woman’s ‘right to choose’ sacred versus those who consider a fetus’ ‘right to life’ sacred.”

But the potentially important part for international politics is that

When people are asked to trade their sacred values for values considered to be secular…they exhibit moral outrage, express anger and disgust, become increasingly inflexible in negotiations, and display an insensitivity to a strict cost-benefit analysis of the exchange. What’s more, when people receive monetary offers for relinquishing a sacred value, they display a particularly striking irrationality. Not only are people unwilling to compromise sacred values for money—contrary to classic economic theory’s assumption that financial incentives motivate behavior—but the inclusion of money in an offer produces a backfire effect such that people become even less likely to give up their sacred values compared to when an offer does not include money. People consider trading sacred values for money so morally reprehensible that they recoil at such proposals.

If right, this is obviously an important challenge to those of us who have proposed offering Iran a grab-bag of goodies in exchange for opening its nuclear program to invasive international inspections. I haven’t read the study the article is drawn from very carefully, but I have a few immediate doubts.

1. The authors’ discussion of the “sacredness” of the Iranian nuclear program is pretty nebulous. They reference how “the nuclear dispute is essentially framed as an ongoing resistance with deep historical context.” They talk about how Iran asserts its “inalienable rights” and how it pledges it “will not retreat one iota.” But lots of disputes are couched in these sorts of terms. Are they all over “sacred values”?
2. They code respondents as holding Iran’s nuclear program as a sacred value if they select the statement that Iran shouldn’t give up its nuclear program “no matter how great the benefits are.” Isn’t it possible that the respondents see the United States as untrustworthy and fear that their country will get tricked into accepting a deal that can be easily broken? That there are no benefits that are great enough to offset an indigenous, autonomous nuclear capability?
3. Most importantly, if the authors are right, we’re probably in big trouble. They write that “in conflicts involving sacred values, symbolic compromises which may lack any material benefits, such as apologies for past disrespects, may be key to solving the issue.” My sense is that the Right in America has been winding up American nationalism so high that the Obama people are in no mood to confront it head on. From lapel pins to “apology tours,” to claims that Obama may be an “alien” and therefore an inherently illegitimate president, to claims that he doesn’t recognize that al Qaeda is an Enemy, to the Nobel prize, and on and on, apologizing to Iran probably isn’t something the administration is particularly keen on. So if apologizing to Iran for something or other is the key to solving the nuclear puzzle, get ready for trouble.

Yesterday my government transparency site Wash​ing​ton​Watch​.com rolled out a transparency campaign (along with many collaborators) called “Just Give Us the Earmark Data!”

Visitors to Ear​mark​da​ta​.org are encouraged there to sign a petition asking Congress to publish data about earmarks in formats that are useful for public oversight. Developers can also participate in perfecting the data schema that will capture the “earmarks ecosystem” in the best possible way.

After a surprisingly successful effort at “crowdsourcing” earmark data last summer, the push for earmark transparency gained steam in January, when President Obama spoke about it in his State of the Union speech. A White House “fact sheet” issued the same day called for a “bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark.”

(We were going to ask for good earmark data anyway, but this gave the idea currency in a lot of quarters.)

The focus on earmarks and transparency got the political calculators whirring on Capitol Hill. “Is earmarking worth doing considering the political heat it is going to draw?”

One set of actors came up with their answer last week. House Democrats announced that they would restrict their earmarking only to non-profits. They want for-profit businesses seeking taxpayer money to go through conventional channels like competitive bidding.

The next day, House Republicans came back over the top of Democrats’ political bet. They announced that they would forgo earmarking entirely.

That’s House Democrats and House Republicans. Don’t assume that earmarking is going to go away. A good-government bidding war is on, though—spurred by the political challenge of transparency.

A couple of observations, least important first:

• If it wasn’t obvious before, this illustrates that politicians are very capable political risk balancers. Indeed, surfing political waves is arguably the primary task of elected officials, most especially at the national level, and without this skill, they are goners. (That’s why looking for a wellspring of principle in an elected official usually gets you swamped in disappointment.)
  

  
  I’ve had a number of friendly cynics suggest that politicians wouldn’t mind earmark transparency—bringing home the bacon brings in the votes! This appears in general not to be true. There may still be earmarking from a hard core group who do perceive overall political benefits from it, but they’ll have to buck their parties, who do not.
  

  
  (Alas, I can’t say “I told you so!” because I tended to just grin and say “Maybe you’re right!” For future reference, I agree with the tendency, but doubt the direct outcome described in the adage attributed to Benjamin Franklin, “When the people find that they can vote themselves money, that will herald the end of the republic.” Thankfully, it’s more complicated than that.)

• Notable: Elected officials’ political tuning is not just reactive. The anticipation of earmark transparency is what started this bidding war.This is especially worth noting with respect to President Obama’s “Sunlight Before Signing” promise, which I most recently reported on here. Skeptics have said that President Obama’s promise to post bills he receives from Congress online for five days before making them law wouldn’t make any difference because a bill that Congress has sent down Pennsylvania Avenue is already final. But a parochial amendment hanging out there for five days threatens to draw political discredit on its author and supporters—and their party. Sunlight Before Signing was a meaningful promise.
  

  
  (SBS has two advantages over the creditable “Read the Bill” proposal to hold bills 72 hours before a vote in Congress: 1) SBS takes advantage of interbranch rivalry, and 2) it was a campaign promise of the president!)

• Broadly, this episode illustrates how transparency can bring welcome change. It’s correct to observe that earmarks represent only a tiny part of overall spending. But applying parallel transparency efforts to other parts of the legislative and regulatory processes are likely to elicit similar good behavior from government officials. There are manifold directions to go with government transparency. Each in its way stands to create political dynamics more congenial to good government and—more importantly—to liberty.

In this new video from the Center for Freedom and Prosperity, a Swedish economics student makes three important points.

1. Sweden became a rich nation in the late 1800s and first half of the 1900s by relying a free markets and small government.
2. Growth deteriorated beginning in the 1970s after the imposition of high tax rates and a big increase in the burden of government spending.
3. For the last 20 years, Swedish lawmakers have been trying to restore prosperity by lowering tax rates and adopting pro-market policies.

So if Swedes have learned from their mistakes and are now trying to reduce the size and scope of government, why are American politicians determined to repeat those mistakes? This is something to keep in mind with a looming vote on a giant expansion of the welfare state.