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The Barbour of Jackson

[ 0 ] September 19, 2007 |

Brad Plumer and Noam Scheiber have a good article about the loathsome GOP corporate lackey Haley Barbour, the kind of “small government” Republican who ensures that any budget deal contains plenty of tobacco subsidies. And the kind of “anti-tax” Republican who, given an ultra-regressive 7% grocery tax in the second-poorest state in the country, well:

If the tobacco companies were hoping all this would pay dividends for them in Mississippi, they cannot be disappointed. In 2006, the state legislature passed a so-called “tax swap” bill. Supported by Amy Tuck, the lieutenant governor and, until then, a faithful Barbour ally, the measure would have raised the state’s tobacco tax, one of the country’s lowest, and lowered its ultra-regressive grocery tax. Barbour twice vetoed the plan and twisted enough Republican arms to sustain it–despite the fact that some 70 percent of Mississippians supported the legislation. “The tobacco companies, we barely even saw them,” says Steve Holland, chairman of the House public health committee. “They didn’t have to show up because they had the big boy fighting for them.” To this day, few in the GOP have dared cross Barbour on the matter. Recently, lobbyists from the Mississippi Health Advocacy Program asked several Republicans to pledge to raise the tobacco tax. They encountered near-universal resistance. “A lot of Republicans are saying, Do you know what you’re doing? If I sign this thing, then Haley will come and dump more money into my opponent’s campaign,'” says Roy Mitchell, the program’s director.

This year, legislators tried again, introducing two more bills that would have halved the state’s grocery tax and raised the cigarette tax by $1. Barbour didn’t even lift his veto pen this time around–the bills died at the hands of Senate finance committee chairman Tommy Robertson. Oddly, Robertson had been a vocal advocate of previous tax-swap bills. Earlier this year, however, he and two other Republican legislators–who, in their day jobs, are lawyers–had received a $1.2 million contract from the Mississippi Development Authority, which is overseen by the governor, to help homeowners finalize their Katrina grants. The contract raised more than a few eyebrows. (In an interview, Robertson said the contract–which was cleared by the state ethics commission on a party-line vote–had “absolutely nothing” to do with his stance on the tax swap.)

There’s also some good stuff about Barbour’s contributions to the national GOP’s efforts to bring the Mississippi fiscal and cultural system to the rest of the country. Depressing.

Legislative Protection For Abortion Access

[ 0 ] September 18, 2007 |

A good article here about the conflict surrounding a new Planned Parenthood clinic in Aurora, IL. The clinic has been delayed by zoning issues with the local government, which is also threatening to pass an inevitably useless parental involvement regulation. The tactic of arbitrarily using zoning or other regulations as a pretext to shut down clinics — see also Missouri, Mississippi, and Ohio — is particularly important, with the potential to place far more severe burdens on abortion access than any of the regulations explicitly upheld in Casey. Such actions also attract much less attention than trying to ban abortion outright.

Obviously, using litigation is one important element of a strategy to counter these methods. However, local abortion regulations like parental notification have already been held to be constitutional, and given the current composition of the federal courts one can’t be optimistic of an “undue burden” standard being applied with much teeth when it comes to states using regulations to shut down safe abortion clinics. In conservative states, this is a serious problem for the time being. But in pro-choice states, supporters of reproductive freedom should push for uniform access laws that prevent localities from obstructing poor women’s abortion access and also prevent zoning laws from treating abortion clinics differently than other non-residential entities. Thinking about ways to legislatively protect abortion rights — as Elliot Spitzer has done in New York — should be an important part of the pro-choice arsenal.

Confirm Mukasey?

[ 0 ] September 18, 2007 |

Scott Horton makes the case, which I think is correct. There’s obviously no question that Mukasey isn’t someone I would prefer to see appointed as AG. But the relevant universe of options here is not “people qualified to be AG,” but “people George Bush would appoint as Attorney General.” Given that last time Bush managed to select someone far worse than John Ashcroft, I think it’s pretty clear that Mukasey as as good as we’re going to get. (The fact that many conservatives aren’t happy with a clearly qualified candidate tends to reinforce this.) I also agree with Horton that with respect to the cabinet — as opposed to lifetime appointments to an independent branch of government — the President is entitled to considerable ideological deference. This doesn’t mean that he shouldn’t be subject to tough questioning at his confirmation hearings, of course, but it seems clear that Mukasey is far better than anyone could reasonably expect of this administration.

Times Non-Select

[ 0 ] September 18, 2007 |

This has always been a non-issue for me since I subscribe to the dead-trees edition, but for better or for worse most of the Times website is going to be free again. Actually, although we tend to think of the op-ed columnists, the really good news for non-subscribers and bloggers (and teachers) is that the post-1986 archives and the public domain archives are also going free — not only a valuable source of information, but I presume fewer dead links.

Why Not Just Merge With the AEI and Be Done WIth It?

[ 0 ] September 17, 2007 |

Matt points us to this remarkable panel at a think tank often described as “liberal.” Not only does it seem to define Joe Biden as the leftmost acceptable opinion on the Iraq catastrophe, and is it chaired by Brookings scholar and the dead-ender’s dead-ender Michael O’Hanlon, but if features Peter Hoekstra. Yes, that Peter Hoekstra: the guy who did a presser with Dead Senator Walking Rick Santorum — in 2006! — announcing that Iraq really did have scary, scary WMDs. The Peter Hoekstra who claimed that leaks about the administration’s illegal activity may have been “penetrated” by “other nations or organizations.” But whose opposition to leaks is highly selective! That Peter Hoekstra. Truly a credible voice on Iraq, well-situated to share his insights about how national security issues will affect the next election.

Right-Wing P.C.

[ 0 ] September 17, 2007 |

Jack Balkin on Michael Drake‘s feeble defense of his decision to fire Erwin Chemerinsky for transparently political reasons:

Nothing Drake says sheds much light on why it would be reasonable for him to act as he did. Indeed, he only creates greater suspicion that the reasons for the firing were illegal, unethical, and dishonest. He is trying to save his own job by suggesting that there is something wrong with the man he fired, without giving any details or any way for Chemerinsky to defend himself from these unspoken charges.

This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself.

This is even worse than Juan Cole’s rejection by Yale, which at least happened before the fact (although after departmental approval.) Needless to say, if what happened to either had happened to a conservative, we would be hearing these anecdotes recycled for decades (and not without reason.)

Broder Hearts the Fraud Caucus

[ 0 ] September 16, 2007 |

Seriously, how many times can they pull the football away from David Broder before he figures out the scam? (The answer, of course, is “an infinite number.”) However, from this day forward 90 days shall be known as a “Graham Unit.”

Can This Man be the Leading Candidate?

[ 0 ] September 16, 2007 |

I’m still inclined to think that Bush wants a fight, but there seems to be some chance that he’ll go for the more confirmable Michael Mukasey. Jeralyn, persuasively, sees him as definitely conservative but better than, say, Ted Olson. For example, consider this radical idea:

Last month, Mr. Mukasey wrote an op-ed article in The Wall Street Journal in which he seemed to embrace a view shared by the administration suggesting “current institutions and statutes are not well suited” to the military effort against terrorism. He recommended that Congress intervene “to fix a strained and mismatched legal system.”

Whoa, whoa, whoa — he thinks Congress actually has the power to regulate Presidential war powers, and that the President doesn’t just have the power to ignore laws he doesn’t care for? Clearly, he must be some sort of free-thinking anarchist…

The Wait Is Almost Over

[ 0 ] September 15, 2007 |

This is an exciting time for connoisseurs of wingnuttery. Alec “Skips A Generation” Rawls has finally expanded his profound insights concerning the IslamofascistCommieNazi conspiracy behind the 9/11 memorial in Pennsylvania into book format. The race is now on to see whether this or Liberal Fascism will come out first. What a moment for American letters!

If you just can’t wait for the book to come out, you can enjoy other Rawls classics such as “vegetarianism is genocide” and “the appeasement gene.”

Should Opponents Of Safe Legal Abortion Support Rudy?

[ 0 ] September 14, 2007 |

Eric Johnston’s op-ed making the “pro-life” argument for Giuliani is awful in many respects. It repeats many plainly erroneous assertions common to Republican opponents of reproductive freedom: most notably, the claims that abortion would “leave abortion to the states” (a particularly ridiculous argument in light of Carhart II) and that “strict constructionism” actually means anything in constitutional interpretation other than “outcomes consistent with the political platform of the Republican Party.” And as my colleague Bean notes, the idea that Giuliani is OK with Roe being overruled is related to his broader commitment to democracy and constitutionalism is utterly risible. And yet, while he makes many bad arguments in its defense, the overall thesis that supporters of forced pregnancy can support Giuliani without short-term sacrifice is actually quite reasonable. The most important thing a President does with respect to legal abortion is to appoint judges, and the kind of statist reactionaries Giuliani would appoint to the Court would obviously be likely to vote to overturn or gut Roe. Nor would Giuliani be likely to veto any abortion regulation that could actually pass Congress during his tenure. And if Giuliani is the most electable candidate — and he probably is — it’s a better risk for anti-choicers than a Democratic President.

Over the long-term, though, I’m not so sure. One thing he doesn’t mention is that overturning Roe is extremely unpopular, and it’s not obvious why the leadership of one national party has to almost uniformly support a minority position (particularly one that, one suspects, is not a strong priority of most elite Republicans.) If Giuliani can win the nomination and then the election as a pro-choice Republican, this could undermine the power of the anti-choice lobby in the national GOP over the long haul.

The Folly of Local Control In Federal Elections

[ 0 ] September 14, 2007 |

I have a new article up at TAP about how the collective action problems surrounding attempts to “reform” the distribution of California’s electoral votes to help the GOP is an outgrowth of the foolish (or at least anachronistic) decision to leave most of the standards for federal elections up to state legislatures:

The California case illustrates the central problem with America’s severely deficient electoral system: the fact that the administration of federal elections was largely left to the states. The Electoral College is an anachronism that distorts electoral outcomes (most recently, and with disastrous consequences for not only the country but the world, in 2000) and overrepresents small-state minorities that are already overrepresented throughout American political institutions. (As Yale law professor Akhil Reed Amar has pointed out, “the electoral college was designed to and did in fact advantage Southern white male propertied slaveholders in the antebellum era. And in election 2000, it again ended up working against women, blacks, and the poor, who voted overwhelmingly for Gore.”

But privileging “states’ rights” over people’s rights not only constitutes a primary problem with the Electoral College but makes it nearly impossible to change. It produces the kind of collective action problems we can see in the California case (the states that act first will disadvantage their state’s citizens) and gives small states a vested interest in maintaining the less democratic system. This is particularly irksome because, in a modern democracy, the decentralized administration of federal elections is “local control” fetishism at its least defensible.

The value of decentralized power in some contexts is that it can allow for experimentation and policies more attuned with local values. But such experimentation, while logical for a time period in which giving the franchise even to propertied white males was a fairly radical idea, could not be more inappropriate for a modern democracy. It should no longer be acceptable, of course, for states to “experiment” with which adults should get the franchise.

Much more over at TAP.

Checks, Balances and National Security

[ 0 ] September 14, 2007 |

Ben Wittes points out, correctly, that although Jack Goldsmith has been critical of some aspects of the Bush administration he remains a statist conservative. (“Jack Goldsmith is no human-rights lawyer,” says Wittes; he means this as a compliment.) But while I certainly agree that expanding executive power via Congress is preferable to the Yoo strategy of just making farcical arguments about the Constitution granting unlimited arbitrary war-making authority to the executive, it hardly follows from this that all expansions of executive power are desirable. I haven’t received the Goldsmith book yet, so I can’t judge the quality of his arguments, but Wittes seems, as he has before, to simply assume that expansions of executive authority enhance national security. For example, he continues to misconstrue the criticism of the recent Democratic capitulation on FISA:

The idea that the president ought to have a fairly free hand in the war on terrorism, but that the source of his freedom should be congressional permission for bold action, rather than broad claims of inherent presidential power, lacks much of a constituency today. The ire directed at Democrats who supported the recent temporary FISA amendment is one dispiriting indication of that.

Except, of course, that most of this ire was not based on some principle that congressional expansions of presidential power are inherently wrong. To repeat, the Senate leadership and the administration hammered out a deal that would expand power in some ways, but retaining clear definitions and meaningful oversight. Unless “fairly free hand” means “virtually unconstrained arbitrary power,” there’s no necessary contradiction here.

And this is related to the overall problem with the assumption that expansions of executive power — especially those that remove any oversight — improve national security. But this assumption is false. As Stephen Holmes argues in his recent book:

Would weakening the constitutional system of checks and balances, for example, help the executive become more focused and less reckless? This is unlikely. Indeed, the Administration’s desire to circumvent traditional checks and balances patently weakened its capacity for critical thought and self-correction, preparing the way for its gratuitous invasion to invade Iraq. To defend ourselves against our most dangerous enemies, we do not need unrestricted government, We need intelligent government. And no Administration that shields itself compulsively from criticism has a prayer of being even sporadically intelligent.

While Congressional delegation of unconstrained power to the executive may be more legally defensible, it doesn’t solve the underlying problems that caused the framers to place constitutional constraints on executive warmaking power in the first place. Particularly relevant here is that under the FISA bill that was passed Congress has no effective way of knowing in many cases whether the policy is working or not. Not only is this bad for civil liberties, it’s bad for national security, unless you believe that it’s sound policy to place blind faith in the competence and judgment of an administration whose competence and judgment have repeatedly proven to be catastrophically bad.

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