Over the last couple days I’ve been arguing that the time might be ripe to start pushing the case in Congress to get Washington out of education. Educationally, fiscally, and constitutionally it is the right thing to do, and the negatives of being smeared as “anti-education” or “anti-child” could be countered by very powerful voter sentiments against big, wasteful government.

Well, it seems new Tea Party-type Congress members might get a chance to use education to prove their bona fides very early. In his post-pummeling presser yesterday, President Obama mentioned education as one area in which he could see bipartisan accomplishments being made, and several articles today — including on Politico and in The Washington Post — suggest that education might indeed be a Kumbaya issue.

That could be right, because presumptive House Speaker John Boehner (R‑OH) was a lead force behind the No Child Left Behind Act, and the Obama administration has made a lot of noise (if just the opposite in terms of concrete action) about taking on teachers unions and fighting for charter schools. In other words, there seems to be some bipartisan convergence on education, with Republicans now favorable toward federal control and Dems willing to at least talk critically about mega-potent unions. That NCLB is far passed due for reauthorization only bolsters education’s chance of being used as a fence-mender.

That said, there are a lot of obstacles in the way of this happening, with the ideological fissures among congressional Republicans likely to be one of the biggest, as well as divisions among Democrats. But if the leadership in both parties see education as a place where they can all hold hands, the time to make the unapologetic, uncompromising case for getting Washington out of our schools will definitely be upon us.

Listening to NPR on the way into work, I twice heard a reporter refer to Meredith McGehee, a champion of (ahem) campaign finance reform, as a “good-government lobbyist.”

Got that? If you disagree with McGehee’s lobbying agenda — if, say, you think campaign finance reform is an unconstitutional attempt by the Left to restrict political speech that they don’t like — then you are against making government better.

But did you catch the more subtle form of bias? I maintain there is no such thing as good government. (Call it Cannon’s First Law of Politics.) And I’m not alone. “Government, even in its best state,” wrote Thomas Paine in Common Sense, “is but a necessary evil.” Not good. Less evil than the alternative, to be sure. But still, evil. Others disagree. The reporter, like many others and probably without even realizing it, took sides in that long-standing debate too.

My colleagues have done a thorough job of analyzing the policy implications of Tuesday’s federal election outcome as it affects trade policy, health care, immigration, education, and the scope and size of government generally (more here on federal spending). Most of them are cautiously optimistic that a Republican-controlled House is good news for liberty-minded folk. Let’s hope so.

Unfortunately, there are fewer obvious reasons for optimism that Tuesday’s result will mean big changes in agricultural policy, a depressingly bipartisan area of federal intervention. Even Rand Paul, the poster child for the Tea Party, expressed “moderate” views on farm subsidies during his campaign.

On the positive side of the ledger, our friends at the Environmental Working Group make the excellent point that being a friend of Big Farming was not enough to shield many Democrats from defeat. Earl Pomeroy (D, ND) represents the congressional district that ranks Number One in farm subsidy receipts (now there’s a source of pride!) and even he got the boot. As did Senator Blanche Lincoln, chairperson of the Senate Agriculture Committee and shameless architect of a bailout package for farmers that was funded we-don’t-exactly-know-how. At least 15 (possibly 16 if Rep. Jim Costa (D., CA) loses his too-close-to-call race) Dem members of the House Agriculture Committee — friends of the farmer all — are now looking for work. In other words, support for Big Ag is not a sufficient shield.

On the other hand, it’s not clear that their replacements are an improvement as far as agriculture policy is concerned. With a new farm bill due to be written in 2012 (although soon-to-be-former House Agriculture Committee chairman Collin Peterson (D., MN) was trying to get that ball rolling earlier), it is not certain that the fiscal conservatism exhibited during most Republicans’ campaigns extends to farm policy. Indeed, probable new House Agriculture Committee chairman Frank Lucas (R., OK) has said he disagrees with getting rid of the fiscally offensive (but less trade-distorting) direct payments that flow to farmers regardless of what, or even whether, they farm. That was an area of reform that Collin Peterson was at least willing to look at. (More on the implications for direct payments here).

Chuck Abbott, agriculture reporter for Reuters, has more analysis on the outlook for farm policy. His is a more optimistic take, and I hope he’s correct. For my part, my skepticism is based on statements such as those by the CEO of the Renewable Fuels Association, speaking on a conference call yesterday:

[F]or the most part those that may have been defeated were replaced with equally strong advocates for value added agriculture and ethanol. Does anyone believe that Kristy Noem (R‑SD) will not be a strong voice for ethanol?

Exactly. The fight’s not over yet, folks.

Yesterday, the Supreme Court of the United States heard arguments in an appeal of a 9th Circuit decision, Winn v Garriott, a challenge to one of Arizona’s education tax credit programs. It’s been getting more press than I’d expected, in the New York Times, the Washington Post, and USA Today. That’s great news, because the case is far more important than just saving a program that improves education and expands educational freedom.

The 9th Circuit’s reasoning arrogates to the state all property, dissolving the distinction between public and private funds as well as public and private choices. It is a disturbing, dangerous decision.

They assert that tax cuts are the equivalent of government funds, a conclusion possible only if one assumes that all personal income belongs by default to the state rather than to the individual who earned the money. It asserts as well that when taxpayers and parents privately choose to support religious educational organizations, they are in violation of the First Amendment. This reasoning blatantly ignores the logic and plain meaning of the 2002 Zelman decision upholding school vouchers, among others.

Here is a prediction; the court will have their absurd ruling on an Arizona education tax credit program posted on the wall of judicial shame like so many others issued from their Circuit.

But I want more from the Court. This ruling is so awful that I can only pray SCOTUS rules beyond the questionable standing of the plaintiffs and comprehensively dismembers this most egregious 9th Circuit decision.

Today POLITICO Arena asks:

Would a staff shakeup — and potentially Cabinet — help the White House and congressional Democrats recover ahead of the 2012 elections?

My response:

Tea Partiers are celebrating the biggest swing against the incumbent party in the House of Representatives since 1938.

It always feels great to win an election. But the real job for fiscal conservatives and smaller-government advocates starts now.

The usual pattern is that after the election the voters and the activists go back to their normal lives, but the organized interests redouble their efforts to influence policymakers. That’s part of concentrated benefits and diffuse costs, which we talk a lot about here. People who want something from government organize PACs, hire lobbyists, fly to Washington, make phone calls, make political contributions, take senators to dinner, and otherwise “know no rest by day or night” (in the words of economist Vilfredo Pareto) in their effort to get their hands on taxpayers’ money. Meanwhile, it’s not in the interest of any taxpayer to become informed and seek to exert influence on each particular spending bill.

Tea Partiers must change that pattern. They must keep up the pressure on Congress and state legislators. They must demand actual performance, not just promises. And they must also seek to change the attitudes of the American people. It’s not enough to favor small government in principle; more voters have to agree to give up their own subsidies and benefits. There’s some evidence that Tea Partiers know this. As Jonathan Rauch wrote recently in National Journal:

But, tea partiers say, if you think moving votes and passing bills are what they are really all about, you have not taken the full measure of their ambition. No, the real point is to change the country’s political culture, bending it back toward the self-reliant, liberty-guarding instincts of the Founders’ era. Winning key congressional seats won’t do that, nor will endorsing candidates. “If you just tell people to vote but you don’t talk about the underlying principles,” [Tea Party Patriots coordinator Jenny Beth] Martin says, “you just have to do it again and again and again, in every election.”

… One hears again, there, echoes of leftist movements. Raise consciousness. Change hearts, not just votes. Attack corruption in society, not just on Capitol Hill. In America, right-wing movements have tended to focus on taking over politics, left-wing ones on changing the culture. Like its leftist precursors, the Tea Party Patriots thinks of itself as a social movement, not a political one.

As George Washington said in his first inaugural address, “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered, perhaps, as deeply, as finally, staked on the experiment entrusted to the hands of the American people.” We have a chance in the next two years to demonstrate that republican government can still work rather than spiraling downward into endless debt and depression.

And of course Congress has a big job facing it, too, especially the newly Republican House. To capitalize on their victory, the Republicans must demonstrate to the voters that they’re serious — finally — about more freedom and less government. They destroyed the Reaganite Republican brand during the Bush years. And it’s harder to rebuild a brand than to destroy it. But the backlash against the Obama-Reid-Pelosi big-government agenda has given them another chance.

House Republicans should keep these goals in mind:

Get serious about spending. Annual federal spending rose by a trillion dollars under President Bush — before the gusher of spending when the financial crisis hit. Bush became the biggest spender since LBJ, but he didn’t hold that title long. Spending is now twice as large as when Bush became president, and annual deficits are over a trillion dollars. This is Greek-style fiscal policy. All Republicans have been promising to get spending under control, but they have adamantly avoided specifics. Now the rubber meets the road. The House of Representatives must find real cuts that will reduce overall spending and lead to a balanced budget. The Cato Institute has produced the gold standard for budget cuts in its full-page newspaper ads, in this analysis of the military budget, and at Down​siz​ing​Gov​ern​ment​.org. But there are other lists of cuts from the Heritage Foundation and jointly from the National Taxpayers Union and Ralph Nader’s Public Interest Research Group (PIRG). Or they could just start by cutting out the $1.8 trillion in spending this year that exceeds what we spent the year George W. Bush took office.

Start rolling back the health care overhaul. The voters didn’t like Obamacare when it passed. Contrary to lots of predictions, they still don’t like it. Republicans pledged to repeal it. They should keep their promise to the voters. But of course the Senate and the president aren’t likely to go along with a repeal bill. So the House should refuse to appropriate money to implement the provisions of the bill and prohibit the Department of Health and Human Services from spending any money to implement the worst provisions of the bill, especially the individual mandate.

Stop the looming tax increase. Under current law, taxes on capital gains, dividends, and everyone’s income will rise on January 1. Congress needs to block this looming tax increase, preferably in any lame duck session and otherwise in early January. The prospect of higher taxes will discourage spending and especially investment.

Take a hard look at the wars in Iraq and Afghanistan. We’ve been fighting in Afghanistan for nine years and in Iraq for seven. Newspapers in August featured pictures of American soldiers leaving Iraq and officers proclaiming ”A truly historic end to seven years of war.” But as Patrick Henry said, “Gentlemen may cry ‘Peace! Peace!’ — but there is no peace.” Not as long as we have 50,000 troops in a divided and war-torn land. As for Afghanistan, we long ago removed the Taliban government. It’s time to convene hearings and ask what we expect to accomplish in either country for the further expenditure of men and money.

Take a similar hard look at the war on drugs. To drug warriors, nine years is a blink of an eye. They’ve been at it since 1914. And thanks to their efforts, only 119 million Americans have used illegal drugs, and only 22 million Americans use them at least once a month. Meanwhile, the violence generated by prohibition is wracking our closest neighbor and spilling over the border to the American Southwest. A new Cato study estimates that legalizing drugs would save roughly $41.3 billion per year in government expenditure on enforcement of prohibition. Of these savings, $25.7 billion would accrue to state and local governments, while $15.6 billion would accrue to the federal government. The report also estimates that drug legalization would yield tax revenue of $46.7 billion annually, assuming legal drugs were taxed at rates comparable to those on alcohol and tobacco. If it can’t just end this failed policy, Congress should appoint a blue-ribbon commission to study alternatives to prohibition.

Stand up to the special interests. As noted, the moment the polls close, the organized interest groups descend on the new members of Congress. From PHRMA to farmers, from oil companies to Social Security/​Medicare lobbyists, everybody wants to pay off a campaign debt and take a senator to a game at the Verizon Center. Republicans — and Democrats — need to show some republican virtue and resist these organized interest groups. And that includes one of the biggest interest groups: your home district. With trillion-dollar deficits as far as the eye can see, it is a dereliction of duty to say “I’m going to Washington to cut spending and to fund important roads and parks here in my district.” The country’s overriding interest at this point is to reduce spending, the deficit, and the national debt. And that means keeping a comfortable distance between lobbyists and the public trough. One tactic might be for the House to pass a continuing resolution to fund agencies at 90 percent of current spending, thus bypassing the notoriously porcine appropriations subcommittees. Another tactic is to listen to the Tea Partiers: Remember your principles, act like a citizen-legislator, do the right thing and go home.

Avoid social issues. When the Bush Republicans spent too much time on issues like the gay marriage ban and the Terri Schiavo intervention, they alienated suburban and professional women, college graduates, young people, libertarians, and independents (overlapping groups, of course). And they lost two elections. After 2008 they seem to have learned their lesson. Even in the face of several states instituting marriage equality, Republicans kept their focus squarely on overspending, health care, and big-government overreach — issues that united opponents of the Obama agenda. They shouldn’t blow it now. They should stick to the economic issues that won them the 2010 election and avoid the divisive social issues that cost them the 2006 and 2008 elections.

Respect the Constitution. The Tea Party Patriots, the largest network of the thoroughly decentralized Tea Party movement, says its core principles are “Fiscal Responsibility, Constitutionally Limited Government and Free Markets.” In the last NBC News/​Wall Street Journal poll before the election, a plurality (41 percent) of Republicans ranked a “return to the principles of the U.S. Constitution” as the top or No. 2 message they hoped to send. Much of what Congress passes these days, notably including the mandate to require individuals to purchase health insurance, exceeds the powers granted to Congress under the Constitution. As the Cato Handbook for Policymakers recommends, Congress should pass no laws without first consulting the Constitution for proper authority and then debating that question on the floors of the House and Senate.

This is a time of great opportunity for advocates of individual freedom, free markets, and limited government. To paraphrase Hubert Humphrey’s great speech of 1948, the time has arrived for America to get out of the shadow of overweening government and to walk forthrightly into the bright sunshine of personal and economic freedom. Congress can start that process, but it will need support and pressure from lovers of liberty outside Washington.

Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:

Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.

Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.

It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”

Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago — before the Supreme Court’s 2003 decision in Lawrence v. Texas — there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.

Jeffrey Miron surmises, no doubt rightly, that the problem of undislodgeable tenured stoners in the workplace would be more the exception than the rule. Yet it’s worth noting that the issue has already arisen in various lawsuits in which workers with a doctor’s note recommending marijuana use have contested firings. Lawyers have also eagerly cobbled together suits over related issues, as with this class action noted less than two years ago at my other website, Overlawyered:

Starbucks’s job application asked prospective baristas if they’d been convicted of a crime in the past seven years and added for “CALIFORNIA APPLICANTS ONLY”, at the end, that minor marijuana possession convictions more than two years old didn’t have to be disclosed, in accord with a state law along those lines. Entrepreneurial lawyers then tried to steam-press $26 million or so out of the coffee chain on the following theory: that the clarification was placed too far down the application after the original question; that Starbucks had therefore violated the California Labor Code; and that each and every Starbucks job applicant in California since June 2004, perhaps 135,000 persons, was owed $200 in statutory damages regardless of whether they had suffered any harm. Per John Sullivan of the Civil Justice Association of California, the lawyers also took the position that “it didn’t matter that two of the three job applicants who signed on as named plaintiffs testified in court that they read the entire application and knew they didn’t have to mention a marijuana conviction (which neither had anyway!)” The court refused to certify the class and made the following observations (courtesy CJAC blog):

* “There are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants. Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the every day expressions ‘coffee joint’ and ‘coffee pot.’”… “The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks.”

Ilya Somin at Volokh Conspiracy notes that “the case against the War on Drugs and other ‘morals’ regulations is very similar to the standard conservative critique of economic regulation.” But if a much-needed rollback of morals regulation is made the excuse for an expansion of economic regulation, there may be grounds to wonder whether the goal is truly freedom at all.