People Are Missing the Senate's Huge and Important Success on Judges

There is a lot of criticism of Senate leadership and most of it is highly debatable and arguably undeserved.  What is not debatable is that Senate leadership has done a great job confirming President Trump’s judicial nominees.  We detailed Senate Judiciary Chairman Chuck Grassley’s efforts to end the abuse of the blue slip process.  As CNBC noted in an important article over the Thanksgiving break entitled "Congress has handed Trump a historic presidential victory":

Grassley correctly noted that Democrats were now trying to use the blue slips tradition to replace the filibuster, and he's having none of that. As recently as last month, the Democrats and much of the news media's punditry were expecting Grassley, who is no fan of the president, to keep the blue slip tradition in place. But Grassley gave Trump this very special gift instead.

Not only has Grassley delivered in the Judiciary Committee but Senate Majority Leader Mitch McConnell and others have on the Senate floor:

Consider that as of November 3rd, 13 Trump nominees to the courts have been confirmed this year. The big name is Supreme Court Associate Justice Neil Gorsuch, but we also have eight new federal appeals court judges, and four new U.S. district court judges. President Trump has now already surpassed the last four presidents' records for first-year judicial confirmations. And he's even tied President Ronald Reagan number of appeals court confirmations in year one.

It must be noted that this was all set in motion by the most partisan of Senate leaders, Democrat Harry Reid:

And that brings us to the Democrat who provided the initial generous source of President Trump's solid triumph: Former Senate Majority Leader, and Democrat, Harry Reid. Reid is a major reason this good fortune has befallen President Trump because Reid was the one who killed the filibuster rule for judicial nominees in 2013. And when he killed it, it was gone for good.

Critics of the Senate and President Trump can’t say this is some Republican abuse of power; it is merely building on what Reid did.  Smart political operatives are now starting to realizing the impact and long-term importance of the focus on judicial nominations of Chairman Grassley, Leader McConnell, and President Trump:

But real history is being made in the courts all thanks to a bad bet made by Senator Reid and remarkable cooperation between the Trump team, Senator Grassley, and Republican Senate Majority Leader Mitch McConnell. While the fights with other senators like Flake et al may grab headlines, these judicial confirmations will have a much bigger impact.

Chairman Grassley: President Trump's Judicial Nominees Entitled to a Fair Shake, too

Chairman Chuck Grassley of the Senate Judiciary Committee has been discussing his blue slip process over the last couple days. He penned an opinion article yesterday in The Hill. In the article, Chairman Grassley discussed the origin of the blue slips and the real history of their use:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor. . . That blue sheet of paper [the “blue slip”] was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. . .

Chairman Grassley went on to explain why this controversy has only recently arisen and is the fallout from the so-called "nuclear option" being invoked by then-Senate Majority Leader Harry Reid in 2013.

Fast forward to today. Some of my Democratic colleagues are attempting to rewrite history, falsely claiming that the blue slip courtesy is meant to give a single home-state senator veto power over the president’s judicial nominations . . . Democratic senators’ recent calls for a historical interpretation of the blue slip courtesy stem from a decision they made in 2013 to end the 60-vote filibuster for lower court nominees. This move, often referred to as the “nuclear option,” effectively silenced half of the Senate during confirmation votes. At the time, many Democratic senators argued it was unfair for a minority of senators to block nominees with majority support . . . But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. . .

Republicans never abused this process in the same way under President Obama or any other Democratic president. In fact, what Democrats are doing is unprecedented obstructionism, which sadly has been effective so far:

As the minority continues its campaign to block President Trump’s nominees, some are looking to the blue slip as a way to halt judicial nominees before they are even considered in committee. To justify this move, they argue that few nominees have been confirmed since 1979 without support from both home state senators. But this talking point ignores the fact that nominees without two positive blue slips were often filibustered on the Senate floor after a committee hearing.

[A]ny suggestion that Republicans abused the blue slip under President Obama is simply untrue. . . Republican senators did not block any circuit court nominees during the first two years of the Obama administration via the blue slip. Meanwhile, Democrats have already attempted to block three of President Trump’s circuit court nominees by not returning blue slips. . . President Obama’s judicial nominees received a fair shake by the Senate. President Trump’s nominees are entitled to the same.

Today, Chairman Grassley made some more news regarding blue slips. Politico is reporting the Senate Judiciary Committee will schedule hearings for two of President Trump's judicial nominees. Chairman Grassley clarified his move by stating, “I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators... But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.”

The RNLA applauds Chairman Grassley for his leadership and his efforts to get President Trump's well-qualified judicial nominees through the confirmation process.

Democrat Leaders All Agreed with President Trump that Comey Needed to Be Fired, Until He Fired Him

Yesterday, President Trump did what Democrats have long called for: he fired FBI Director James Comey.  Of course being Democrats, they disagree with President Trump even when he does what they want.  Here's a list of just a few of the past statements by Senate Democrats calling for Comey to be fired.

SenateMinority Leader Chuck Schumer:

“I do not have confidence in him any longer,” said the New York Democrat, who has criticized as “appalling” Comey’s decision to send a letter to lawmakers 11 days before the election disclosing the bureau’s new review of e-mails potentially pertinent to the investigation of Clinton’s private server.

House Minority Leader Nancy Peloisi:

"Maybe he's not in the right job," Pelosi said. "I think that we have to just get through this election and just see what the casualties are along the way."The former House speaker said Comey had made a "mistake" by sending a letter to Congress about the new review of emails potentially related to Clinton's private server after not recommending prosecution earlier this summer. She alleged that he had a "double standard" given reports that Comey at other points did not want to use his agency to interfere in the election, adding that the new investigation is interfering in the race.

Tim Walz (D-Minn.), ranking member of the Veterans Affairs Committee:

"I was nonjudgmental until the last 15 minutes. I no longer have that confidence in him," Rep. Tim Walz (D-Minn.), ranking member of the Veterans Affairs Committee, said as he left the meeting in the Capitol.

Rep. Adam Schiff,  Permanent Select Committee on Intelligence (Ranking Member)

Rep. Adam Schiff (D-Calif.) on Wednesday criticized FBI Director James Comey’s “disparate” treatment of President Trump and Hillary Clinton during the 2016 presidential election, saying Comey failed to justify his actions during a Senate hearing earlier in the day.

“Nothing excuses the disparate way he handled those,” Schiff said. "I don’t think in any way he justified both what he did and why he treated those investigations so differently.”

Former Senate Democrat leader Harry Reid:

“Comey knew and deliberately kept this info a secret,” he said. Asked whether he believes Comey should step down over the matter, Reid replied, “Of course, yes.”

President Trump did what the Democrat leaders had been asking him to do for months.  This is just another in a long line of examples that the Democrats do not want to work with the President to govern but instead are trying to undermine the government and never stopping their efforts to campaign. 

Today, McConnell Ended What Schumer Began with Estrada Filibuster

There was much hand wringing over Senator McConnell being forced to invoke the constitutional option today to end the first successful partisan filibuster of a Supreme Court nominee, but partisan filibusters of judicial nominees are not a longstanding Senate tradition.  It began with now-Minority Leader Chuck Schumer's filibuster of Miguel Estrada (who was opposed in large part because he was a conservative Latino):

In a world of instant gratification that too often rewards boastful rhetoric over definitive accomplishments, Mitch McConnell stands out for his patience. The Senate majority leader expends political capital with ruthless efficiency, using it only when it can accomplish precisely what he intends. McConnell doesn’t start many fights; he finishes them. 

As the Senate moves toward confirmation of Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, that is exactly what is happening: McConnell is ending a fight that a young senator named Chuck Schumer started nearly 15 years ago by rallying the first-ever partisan filibuster of a nominee to the D.C. Circuit Court: Miguel Estrada. Previously, the Senate’s “advise and consent” role was vigorously deployed with fierce partisan tensions but ultimately settled with simple up-or-down majority votes. . . .  

Predictably, the misuse of the filibuster led to an existential threat to the filibuster itself. To confirm President Bush’s embattled judicial nominees, then-Majority Leader Bill Frist threatened the “nuclear option,” that is, changing Senate rules to ban the use of the filibuster in certain instances. A bipartisan group of senators known as the “gang of 14” de-escalated the situation by voting to confirm most of the filibustered nominees, staving off such a fundamental change to Senate procedure. . . .

In the most ironic plot twist, the man who started it all returns to the stage in the final scene. . . . Nearly 15 years after Schumer started this fight, he will have a front-row seat when McConnell finishes it. A uniquely perfect way for this story to end. Regrettable, perhaps; inevitable, to be sure.

It is important to remember that what happened today on the Senate floor did not abolish the legislative filibuster.  While also not enshrined in the Constitution, the legislative filibuster has a much longer tradition and has always been treated differently by senators.  

So did Leader McConnell "blow up the Senate" today?  No.  He simply completed a process started by then-Majority Leader Harry Reid in 2013 to restore the Senate to standard operating procedure prior to 2002.

Judge Gorsuch Meets All the Democratic Standards for SCOTUS Nominees

Today, Michael Thielen, Executive Director of the RNLA, wrote an op-ed for The Daily Caller pointing out that Judge Gorsuch meets and should be held to all the Democratic Standards as applied to past Supreme Court nominees in recent history.

The Schumer Standard:

First and foremost, the Senate was merely following the Schumer Standard.  In July 2007, current Minority Leader and then-Senator Chuck Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow President Bush the chance to fill it “except in extraordinary circumstances,” as his term was almost over.  July 2007 was seven months sooner than Senate Leader Mitch McConnell invoked the Schumer Standard.  It should also be noted Leader McConnell used the Schumer Standard before Garland was even nominated. . . . Second, the Gorsuch hearing should have nothing to do with Judge Garland or his nomination.  The Garland Nomination in 2016 was not about his qualifications, but solely turned on the Senate process in an election year per the Schumer Standard.  This is a non-issue today.

 The Leahy Standard:

Meanwhile, the next Democratic standard dates to the Reagan Era and was established when considering Antonin Scalia’s Supreme Court Nomination.  The Leahy Standard announced in 1986 by the longest-serving senator and former Judiciary Chairman Patrick Leahy says: “I think as members of the [Judiciary] Committee, we should respect the mandate the president has earned.  The president had told us in 1980 and 1984 he would appoint judges of his philosophy.  He was given a mandate to do that.  This Committee, if the nominees are otherwise qualified, should respect that.” 

Judge Gorsuch more than satisfies both elements of the Leahy Standard.  President Trump went further than President Reagan by announcing a list of 21 potential judges that he would nominate during the 2016 campaign.  Gorsuch was on that list.  President Trump decisively won the Presidency. Therefore, it is clear that President Trump clearly has a mandate to nominate and confirm Gorsuch. . . The second element of the Leahy Standard requires a nominee be “otherwise qualified.”  Fortunately, we do not have to guess what Senator Leahy meant in this case.  Senators Leahy and Schumer have been very clear in the later standard: the American Bar Association’s (ABA) assessment being the “gold standard” in evaluating federal judicial nominations.  Here, the ABA has given Judge Gorsuch its highest rating, unanimously well-qualified.  As such, Gorsuch easily meets these Standards established by the Democrats. 

The Ginsburg Standard:

What if Neil Gorsuch fails to adequately testify at his confirmation?  Well — the reality is by the standards of the Democrats’ beloved Justice — Democrats simply cannot complain.  As liberal icon Justice Ruth Bader Ginsburg stated during her confirmation hearing to the Supreme Court, she could offer “no hints, no forecasts, no previews.” 

The Reid Standard:

However, if Senator Schumer insists on ignoring all his own side’s standards, Leader McConnell can use one last Democrat Standard, the Reid Standard.  Then-Senate Majority leader Harry Reid changed the procedure to requiring a simple majority of votes for all nominees, but Supreme Court nominees.  However, Reid made clear that was a mere formality, when he said last October:  “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority,” he said. “It’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” 

So, the Reid Standard clears the way for the Republicans to confirm a Supreme Court nominee as always been done with a simple majority.  Senator Schumer responded to Reid’s comments by saying: “I hope we don’t get to that”. . . The irony is if the Democrats don’t follow their own clear and articulated standards, Leader McConnell may be forced to make them follow their own former leader’s standards and impose the Reid Standard upon the Senate.

The full article is a good read especially as the Senate Judiciary Committee questions Judge Gorsuch. Yesterday, opening statements were made by the senators on the Judicary Committee and Judge Gorsuch. Today, the first round of questions are proceeding one-on-one by the senators on the Committee. Tomorrow, round two is expected to commence and scheduled to conclude. Thursday, the Committee will hear testimony by various legal experts. 

Follow the RNLA's real-time Twitter commentary today and tomorrow here. Also, please consider signing the RNLA's letter to the Senate in support of Judge Gorsuch's confirmation here.

Debating the Filibuster

There is a legitimate debate on the Senate Filibuster going on within Republican ranks.   Should Republicans end the Senate Filibuster which required 60 votes on legislation?  Two months again Congressman Lamar Smith wrote a letter to Senate Leadership asking for just that:

Our request to eliminate the filibuster for some votes simply underscores that in a democracy the majority should decide. The super-majority now required to advance legislation is 60 votes, which is not serving our country well. We are under no illusion that the elimination of the Senate filibuster for some votes will guarantee the passage of legislation much less its enactment into law. However, a move by the Senate to a majority vote that can approve some legislation would make it much easier for Congress to advance meaningful solutions to challenges our country faces.  

56 other Republican members of the House joined Congressman Smith.  Rep. Smith also said at the time:

A bad Iran nuclear deal merits the use of the Senate’s so-called nuclear option. I respect the separate rules and role of the Senate and do not advocate this change for every small matter. But for the sake of American national security interests we must place every available option on the table to stop this bad Iran deal. Had a simple majority rule been in place this week, both chambers of Congress could have voiced their strong disapproval of the Iran deal. It is time to send a strong signal to this administration that it can no longer disregard the will of the American people and their representatives in Congress.

Longtime staffer to the House, Senate and the George W. Bush White House Bill Wichterman argues the other side:

The long-term damage that abandoning the filibuster would do to our form of government would be substantial. The Framers of the Constitution intentionally hobbled Congress. For the sake of preserving maximum freedom, they wanted to make it difficult to pass legislation. Consistent with that notion, the filibuster protects the rights of the minority and requires at least a minimum level of bipartisanship in legislating. (The passage of Obamacare on a strictly party-line basis was possible only because President Obama briefly had a rare supermajority — it is the only time in our history that a major entitlement program has been enacted on a party-line vote, and Obamacare will forever be controversial because of that.) . . .

The story goes that when Thomas Jefferson, who had been in France during the Constitutional Convention, asked George Washington why they had created the Senate, Washington replied, “We pour our legislation into the senatorial saucer to cool it.” Without the Senate, America would have been one step closer to being a democracy, and not the republic the Founders wanted. James Madison, the Constitution’s principal drafter, derided democracies as “spectacles of turbulence and contention.

Wichterman also points out that:

Conservatives have benefited from the filibuster in the past — using it to stop measures such as the pro-union “card check” and so-called “paycheck fairness,” and to preserve the Bush tax relief when the Democrats tried to rescind it — and we will likely benefit again if we at some point find ourselves in the minority.

It is unfortunate this debate has become necessary do to the extreme partisanship of today’s Democrats.  

McConnell’s Win and Reid’s Loss

Under the leadership of Harry Reid the last few years, the Senate accomplished little and stifled almost all debate. Reid held minority opinions hostage, even when that opinion included members of his own caucus.  He even broke the Senate rules to change the rules just to give Senators in the minority less power by instituting the Nuclear Option. 

But thanks to the leadership of Senator Mitch McConnell and the new Republican majority, the Senate is a different institution today.  The Senate is actually having debates and amendments to bills by its members. 

However, Senator Reid is not done trying to screw up the Senate.  After a Human Trafficking bill passed a Senate committee unanimously and in a bipartisan fashion, Reid held up the bill because he did not like a small provision of the language. 

Reid stopped the bill.  In response, Senator McConnell refused to schedule a vote on Loretta Lynch to be Attorney General until the unanimously agreed on in committee bill on Human Trafficking went forward.  Democrats, led by Reid and Dick Durbin of Illinois even cried racism for the Republicans desire to have a vote to stop human trafficking first. 

Reid’s plan backfired on many levels thanks to McConnell’s leadership. 

First off, Senator McConnell with the power of the majority never wavered and the Human Trafficking bill was passed. 

Second, Loretta Lynch went from a sure thing to in doubt as time went on.  With more time to look at her record and her failure to distant herself from the most partisan Attorney General in recent memory, Lynch’s confirmation was much closer than originally expected with 43 votes in the end against her. 

Senator Reid’s antics accomplished nothing to stop the Human Trafficking bill but did hurt Obama’s choice for Attorney General.

Thank you to Senator McConnell for standing up and defeating Harry Reid.  Hopefully Senator Reid learned something but we doubt it.  We look forward to Senator McConnell continuing to lead an effective Senate.  

Congress puts campaign finance reformers on the naughty list

Campaign finance reformers must have been very naughty this year. As the legislative season ends with a massive $1.1 trillion spending bill, the reformers have assumed their familiar finger-waving posture about a campaign finance rider tucked into page 1599 of the 1603-page bill.

The rider allows individuals to contribute beyond the current two-year maximum to three additional accounts to help parties defray the costs of conventions, buildings, and recounts. In total, the rider would allow individuals to donate over $1.5 million biennially if they max out to all accounts with all the party’s national committees.

This total is a rounding error compared to the unlimited amount an individual can give to a Super PAC. For instance, NextGen Climate Action, run by radical environmentalist Tom Steyer, raised over $77 million this cycle, mostly from his own pocket.

The rider will no doubt aid the political parties who have lost ground to Super PACs and politically active nonprofits in all three of their core functions: fundraising, messaging, and field operations. In some cases, the usurpation has spelled disaster for the candidate, as when Battleground Texas essentially took over field operations for gubernatorial candidate Wendy Davis. The group—brainchild of Obama campaign veterans—refused to share data, clashed with local party organizations, and assured Ms. Davis’s sinking campaign would become a national embarrassment.

FEC Chairman Lee E. Goodman, recognizing the vital role of political parties, welcomed the measure. “This legislation will help the parties serve their essential role in democracy and every dollar contributed to the parties is disclosed to the public.” Even political liberals see the value of redirecting money back into the party system. Noted election law professor Rick Hasen, while bemoaning the McCutcheon decision, praised the effect the case would have on government functioning. And former ACLU counsel Joel Gora coauthored an entire book titled Better Parties, Better Government.

But despite the rider’s obvious benefits to the parties, the reformers were not amused. Democracy 21’s Fred Wertheimer evoked late-Medieval German mysticism, comparing the rider to the central European legend of Faust. According to the myth, the restless scholar—eager for learning and prurient exploits—traded eternal damnation for years of earthly knowledge and the seduction of the innocent maiden ‘Gretchen.’

The reformers expressed their dismay with a strongly worded, but ultimately futile, one-sentence letter to the Senators warning of the corruption the rider will surely presage. But they may have saved their ire for just one. Former Senate majority leader Harry Reid has spent this entire year demonizing wealthy private citizens for participating in politics. His haggard bromides were so familiar they could have come straight from a Campaign Legal Center press release. Evil plutocrats are “buying democracy,” and “drowning out the voices of the American people.” They are un-American industrialists trading commercially gained wealth for access and influence in the political sphere.

Mr. Reid even fully supported a speech-stifling constitutional amendment that would have put Congress in charge of what is “reasonable” when it comes to how much people can criticize a sitting United States Senator. If anyone is standing up for the little guy it’s Harry Reid.

Or not. According to NPR’s Peter Overby, Mr. Reid could have vetoed the rider and kept it out of the bill. Indeed another campaign finance provision promoted by future Majority leader Mitch McConnell to loosen coordination barriers between candidates and parties got the chopping block. But Reid, showing his true colors, allowed the rider, all while he lambasts political money on the Senate floor and cozies to reformers.

The reformers may not have been so much naughty this year as demoralized. The courts look askance at their arguments, their supposed Congressional allies drop them like a poorly researched Rolling Stone article, and even their friends in academia can’t support them. At least they still have Stephen Colbert.

By Paul Jossey

Harry Reid Was All-In for “Independent” Orman in Kansas

Well, it looks like one thing Republicans strongly suspected all along was true: Democrats were working hard behind the scenes to help elect “independent” Kansas U.S. Senate candidate Greg Orman. Even Harry Reid, in his desperate attempt to avoid becoming Minority Leader-in-waiting chipped in a not-insubstantial amount of cash considering Kansas’ affordable media market. Bloomberg reports:

Senate Majority PAC, a Democratic super-PAC run by former political advisers to Majority Leader Harry Reid, sent about $1.5 million to two super-PACs that promoted businessman Greg Orman, who was running as an independent and refused to identify with which party he would caucus. Orman was ultimately unsuccessful in his campaign to unseat Republican incumbent Pat Roberts.

Senate Majority PAC sent $1.31 million to Committee to Elect an Independent Senate in five installments beginning on (you guessed it) Oct. 16, the start of the veiled disclosure period. The Reid-aligned PAC also sent $151,000 on Nov. 3-4 to Kansans Support Problem Solvers, which also backed Orman.

Ironically, Michael Bloomberg himself also kicked in $1 million to one of the Orman Super PACs.

Pre-election, there was some actual debate among pundits on what party Orman would caucus with if he beat Senator Roberts. The trail of money leaves little doubt in that regard. Ultimately, Roberts won by 10%. For such an expected close race, perhaps Kansans ultimately knew they would be getting a liberal gun-controlling Democrat masquerading as an independent had they went with Orman.

Democrats Declare War. . . On the 1st Amendment

This week Democrat Senate Majority Leader Harry Reid has declared war.  He has not declared war on ISIS or Muslim extremists; no he has declared war on the first amendment.  As RNLA Advisory Council Member and former Solicitor General Ted Olson writes:

Led by Majority Leader Harry Reid, these Senate Democrats claim that they are merely interested in good government to "restore democracy to the American people" by reducing the amount of money in politics. Do not believe it. When politicians seek to restrict political speech, it is invariably to protect their own incumbency and avoid having to defend their policies in the marketplace of ideas.

This scheme is doomed to fail when it comes to a vote in the Senate, perhaps as soon as Monday. The Constitution's Framers had the wisdom to make amending the Constitution difficult, and Mr. Reid's gambit won't survive a filibuster. But Senate Democrats know their proposal is a loser. They merely want another excuse to rail against "money in politics" and Supreme Court justices they don't like.

As RNLA life member Professor Ronald Rotunda explains:

S.J.Res. 19 would give political speech less protection than the First Amendment now gives to movies, novels, comic books and Nazis marching through Skokie, Illinois. What about movies that consider political subjects? Remember Fahrenheit 911, the 2004 documentary that political commentator Michael Moore directed? S.J.Res. 19 would authorize Congress or a state to ban that film. First, the language of S.J.Res. 19’s proposal to repeal the First Amendment for political speech is very broad. Second, we know that many of the supporters of S.J.Res. 19 were incensed that the Supreme Court upheld the First Amendment right of Citizens United (an organization with political views contrary to those of Michael Moore) to distribute its 90-minute documentary, called Hillary: the Movie. One movie was an attack on George W. Bush; the other was an attack on Hillary Clinton. Both are constitutionally protected, until S.J.Res. 19 becomes law. –

We will conclude with some quotes from Hans Von Spakovsky who points out the irony of the Democrats trying to destroy a cornerstone of the Constitution so close to September 17 and Constitution Day. 

In testimony before the Senate Judiciary Committee in June, Floyd Abrams, one of the foremost First Amendment litigators in the country, sounded the alarm about this amendment, saying it “is intended to limit speech about elections and it would do just that.” Abrams added that the resolution “would shrink the First Amendment and in doing so set a precedent that would be both disturbing and alarming.”

It is quite disturbing and alarming that nearly 227 years after the signing of the Constitution on Sept. 17, 1787, 48 U.S. senators led by their leader, Harry Reid, are proposing to restrict the First Amendment. This is an ignominious attempt by a group of senators to protect their own incumbency at the expense of a fundamental right guaranteed in the Bill of Rights to all Americans.

With all that is going on in the world right now, it is well worth noting that the Senate Democrats top priority is to pass an amendment to limit speech and protect their incumbencies.  This is another reason why Republicans are favored to take back the Senate.  

Campaign finance reformers knifed in the back by academic studies

Campaign finance reformers have had a tough go of it lately. A near decade-long losing streak at the Supreme Court has been compounded by the demise of public financing for presidential campaigns. Most view proposed fixes, like Harry Reid’s constitutional amendment, as cynical ploys to motivate low-information voters with Pavlovian missives about evil industrialists. Even supposed supporters pay only lip service while calling for “big, fat checks.”

Their unwitting abandonment by academia, however, may be the harshest blow. Despite a shared zeal for speech-stifling regulation, academics are providing reformers little intellectual ammunition. In fact, their findings seem only to further erode the once impenetrable wall of reformer rhetoric.

Reformers’ central premise is private campaign funding—to the exclusion of almost everything else—corrupts the otherwise altruistic public servants roaming Congressional halls. Campaign contributors, they warn, “buy” political favoritism, which distorts legislative outcomes and harms the common good.

Recent scholarship, however, has found otherwise. An exhaustive study from Ohio State found, “There is not one clear and obvious causal mechanism between the campaign funding inputs and legislative outputs – the mechanisms are varied and they change over time in response to regulatory developments, technological innovation, and the shifting interests of the electorate.” In other words, campaign funds don’t easily translate into legislative measurables.

Campaign money, the study further explains, exists as “only one part of a complex ecosystem of power, influence, and personal relationships that connect electoral and legislative politics.” This reality however doesn't exactly make for sexy reformer fundraising appeals. ‘Contribute to our cause and we’ll alter the balance in the complex ecosystem . . .’

Beyond measurable legislative favoritism, reformers argue contributors corrupt because lawmakers provide them “access” and other influences “neither easily detected nor practical to criminalize.” The Ohio State study suggests this too is overplayed:

Does money buy access or influence? Based on our interviews, it is uncertain whether independent spending yields greater access to Members of Congress for the groups that spend directly in support, beyond the level of access and influence the groups already have with Member.” (emphasis added).

A recent Princeton study also seems to refute the notion big funders get their priorities placed at the front of the legislative line. “It turns out, in fact, that the preferences of average citizens are positively and fairly highly correlated, across issues, with the preferences of economic elites . . . Rather often, average citizens and affluent citizens . . . want the same things from government.”

The authors don’t exactly applaud this result, calling average citizens “coincidental beneficiaries.” But the fact remains policy agreement between people funding elections and those that do not is fairly consistent on wide variety of issues.  

Absent policy or legislative distortions all that remains are the elections themselves. The supposed evil here is massive spending distorts our elections by “drowning out” lesser-funded messengers. This in turn skews electoral outcomes. A Demos study analyzing the 2012 elections did not observe the correlation. In close Senate races the overall better-funded candidate lost 81% of the time, in the House they lost 52%.

In fact, the study—designed specifically to bemoan of the evils of private funding—could only muster a tepid response to their findings:Money does not guarantee victory, but all else equal, it improves a candidate’s prospects . . . And, although there are diminishing returns, more is likely better.” In other news, the sky is blue.

  

An empirical study from the University of Missouri quantified the diminishing returns.  Throwing gobs of money into a race has a modest effect; a $1 million-dollar bump adds between 0.1%-1% to a candidates share, making a difference in only the very tightest races.  

While reformers take a hit from the latest academic studies, one disturbing conclusion should give pause. According to the OSU study, “While it is difficult to gauge the effect of the Democrat’s reliance on contributions from the wealthy, it does likely preclude a strong focus on redistributive policies.”

Thus absent private funding, Democrat tendencies toward socialism would be even more pronounced. No further argument for the status quo should be required.

By Paul Jossey

Nuclear Fallout

Anyone who had any doubts of the Democrats real goals on executing the “Nuclear Option” on judges should have no doubts now after the narrow confirmation of Pamela Harris with only 50 votes yesterday.  The Democrats are trying to pack the courts. 

In addition to breaking the rules to change the rules they are also breaking tradition to pack the Circuit Courts to try and influence decisions:

The Senate typically votes on judges in order. That didn't happen with Harris. Senate Majority Leader Harry Reid, D-Nev., brought up Harris' nomination before that of Jill Pryor, who had been waiting for a vote to sit on the Eleventh Circuit. The Senate voted, 50-43, to confirm Harris.

The Fourth Circuit became a key battleground last week over the Obama administration's domestic agenda when a three-judge panel sided with the government in a dispute over health care subsidies. Sen. Chuck Grassley, R-Iowa, took to the floor ahead of the Harris vote to express his dismay about the timing of the confirmation vote.

"Professor Harris is being fast-tracked to the Fourth Circuit, just in time for another en banc appeal, should one materialize," Grassley said.

In a floor statement on Friday, Ranking Judiciary Committee Member Grassley was more explicit:

So, it seems pretty clear to me that the timing of the vote on this nominee is not coincidental.   We know this because of yesterday’s Obamacare decisions handed down by the D.C. Circuit and the Fourth Circuit.

 Last November, when the Majority changed the cloture rule on judicial nominees, I told my colleagues that the decision was a blatant attempt to stack the D.C. Circuit with judges who would view sympathetically the administration’s arguments in upcoming Obamacare lawsuits.

 The other side dismissed the notion that the rules change was designed to tilt the courts in the President’s direction and salvage Obamacare.

Well, as we all know, a three-judge panel of the D.C. Circuit decided the Halbig case yesterday, against the administration.

 And it only took the administration about an hour to announce that it would seek rehearing by the en banc D.C. Circuit, which now includes four of the president’s nominees.

As we all know, the Majority Leader rushed through three of those four immediately after the rules change.  And yesterday the Majority Leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear.

 He said: “I think if you look at simple math, it does.”

So, the Majority Leader isn’t even trying to disguise his intent any more.

 And that’s exactly what’s happening here with this nominee, on her way to the Fourth Circuit.  This nomination is being considered ahead of other circuit nominees on the Executive Calendar.

 Why is this Fourth Circuit nomination being fast-tracked?

 Why fast-track one of the most liberal nominees we have considered to date?

 If history is any guide, the answer is simple.

 It’s all about saving Obamacare.

The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit.  Because the Fourth Circuit hears a disproportionate number significant cases involving federal law and regulations, just like the D.C. Circuit.

And there should be no doubt where Harris stands, it is wherever the party and the left want her to:

As you may remember, Harris is the judicial nominee who thinks the Warren Court wasn’t liberal enough, that the Constitution gets its meaning “from what comes after” its enactment, and who thinks that Supreme Court justices should shift their legal views with the tides of public opinion.

Obama may be a failure as a President but thanks to Harry Reid he is becoming the first President to so blatantly pack the courts.  

Threats to democracy, real and imagined

Events in Washington have a way of colliding unexpectedly, laying bare the vapid emptiness of stock political rhetoric. Recent Congressional hearings demonstrate this axiom.   

First came Senate Majority Leader Harry Reid somberly testifying before the Judiciary Committee. Mr. Reid espoused the evils upon us all from big and dark money infiltrating the American political system. And of course he named names in case anyone doubted his villains’ identities.   

Mr. Reid’s arguments are familiar to even the casual observer of the politics of political money. Indeed his testimony merely amplified the cottage industry refrains of politicians, nonprofit groups, and academics that raise money and wield political influence decrying how others raise money and wield political influence. 

Plutocrats, these “reformers” counsel—unsatisfied with their already enormous wealth—are trying to “buy” America and “drown out” the voice of the little guy. Money buys “access” and “undue influence,” corrupting the system and threating the very foundation of democracy. Indeed so dire the threat, it can only be remedied by overturning a key a portion of the Bill of Rights—an unprecedented move according to famed First Amendment lawyer Floyd Abrams who testified at the same hearing.  

Mr. Reid is, of course, wrong. Money does factor into electoral and legislative outcomes, but it is far from the determining or even most important factor. And proof is more abundant than a recent Virginia primary where the loser outspent his opponent 26-1. In 2012, only 20% of competitive Senate campaigns with an overall spending advantage won. The latest social science bolsters this thesis, a fact acknowledged from as diverse sources as former Obama White House Counsel Bob Bauer and the First Amendment friendly Center for Competitive Politics. 

But unlike Mr. Reid’s empirically challenged posturing, genuine threats to the American political system exist. IRS Commissioner Jack Koskinen recently exemplified one in Congressional testimony about missing documents House investigators had subpoenaed months ago. Mr. Koskinen sat defiant as he ducked, parried, and obfuscated. His answers, and the arrogance with which he conveyed them, are emblematic of a bureaucracy whose dual mission is self-preservation and the ardor for power; what Peggy Noonan called “the ongoing shakedown operation that is the relationship of the individual and the federal government.”

No one versed in the economic theory of public choice would be surprised at IRS bad faith. The theory states government actors, like private ones, make decisions based on self-interest before public benefit or certainly altruism. Instead of profit motive, their currency is expanding the regulatory domain. But what (allegedly) happened at the IRS is worse than bureaucrats looking out for number one. It is the systematic targeting of a president’s political enemies, base disregard of Supreme Court holdings, and the widespread circumvention of federal law in the cover up. And all of this accepts that no one at the White House was involved, a perhaps unlikely scenario considering key IRS figures Sarah Ingram and Nikole Flax were frequent White House visitors. 

If proven true, this Latin American-esque disregard for the rule of law would truly threaten the democratic process and likely cause Americans to lose faith in federal political institutions. 

Indeed Americans already sense something is fundamentally wrong. Poll results are welcomingly bipartisan. Only 11% of independents and 20% of Democrats find plausible the IRS explanation that subpoenaed materials accidently disappeared into an unrecoverable internet ether for seven different people. 

This lack of trust is justified. The IRS has repeatedly lied its way through the scandal from the original whopper about rouge Cincinnati employees to its repeated stance that officials would turn over all emails only to finally be told they had only been turning over those that matched certain internally decided search terms. 

As trust in government institutions continues to plummet, the sad reality is real threats to democracy get treated as temporary “controversies.” Meanwhile excuses to give a government no one seems to trust more power and opportunity for abuse are treated as “solutions.” Such is the political world circa 2014. 

By Paul Jossey