Non Delegation

Scott, QB, I, and probably JNC, are interested in the doctrine of non delegation.  QB directly referred to it in discussing the rise of the bureaucracy and I avoided it in that discussion because I had no idea where it stood after 78 years or so of disuse.  I did allude to “limits” of delegation, not specifically, but in general, that arise in federal cases.  So without doing any research of my own, one of JNC’s many cool links brought up a reference to this:

I think it is very interesting.  Hope you read it too!

A Proposal to Shake Things Up

It is time to revisit the Reapportionment Act of 1929.  That law set the number of Representatives at 435 but did not restate the 1911 provision that districts be contiguous, compact, and equally populated.  The Supreme Court eventually restored “equally populated” in the one-man one vote decisions which were key civil rights cases of the early 1960s, spearheaded by Alabama Attorney General Richmond Flowers.  We have never come back to “contiguous (and) compact.”

435 was set as the number because of the size of the chamber.  I suggest that limitation is a mere logistical issue that can be overcome in many ways that need not be addressed here.

Take the least populated state in each decennial census and give it one Rep.  Then give other states multiples rounded up so that 1.51 WY in 2010 equals 2.  Expand the House as necessary.

Done for 2010, the total membership of the HoR would now be 544.  CA would have 66.  TX would have 44.  NY would have 34.  FL would have 33.  Make the mandate “contiguous and compact, leaving entire municipalities and entire counties within a single district wherever possible.”

Shake things up a bit.  We might get Congress to actually support it because it makes for more Congressmen, each with somewhat more manageable districts for campaign purposes.  Of course, it would effectively end the gerrymander.

What the Hell is a Moderate Anyway?

I enjoy reading political writers who have both a sense of humor and ask thought provoking questions.  When I read this brief piece by booman, it resonated with me.

What constitutes moderation in Democratic politics? Which policies of mainstream Democrats are simply unacceptable to South Dakotans, for example? I think these are questions that need to be empirically tested. South Dakota clearly preferred Mitt Romney to Barack Obama, but it isn’t entirely clear why they felt that way. While Republicans absolutely dominate on the local level, the Democrats have done very well in recent years on the federal Senate/House level. Why is that?

These same dynamics have played out in North Dakota and Montana, where Democrats have over performed in Senate contests. Senators like Max Baucus, Jon Tester, Byron Dorgan, Kent Conrad, Tim Johnson, and Tom Daschle have certainly been frustrating at times, but it’s hard to find all that much commonality between them in terms of their apostasy from the party platform. I suppose they have probably been less environmentally friendly than your average Democrat. They’ve been cozy with the banking and credit card industries. They’ve been a bit more socially conservative than their peers.

If I had to name something really out of whack, it’s been their obsession with the deficit. Because the other stuff is easily explainable by the fact that they represent sparsely-populated states with a lot of mining and financial services activity and not much religious or ethnic diversity, their love of austerity sticks out.

Opposition to big spending seems to be a requirement in these northern plains states. Is that the key ingredient for success? Or is it possible to use a different playbook? How much of a role does personality play? Jon Tester and Max Baucus don’t seem much alike but they both have success. Kent Conrad struck me as quite a bit more conservative than Byron Dorgan, who could be quite openly partisan at times.

I understand the urge to find a candidate who is seen as moderate, but I can’t pinpoint what moderate really means.

I’m working with a group trying to find a congressional candidate to support who will run against our very conservative congressman here.  The last time we came close to beating him was in 2008 and we had a pretty progressive candidate who barely lost.  In 2010 the same candidate lost by a larger percentage.  And 2012 was awful.  We lost by 25 or 30 percentage points I think, but we’re not sure if it was from redistricting or because of a new and relatively unknown candidate.   Both worked against us of course, but which played the larger part?

We’re a very conservative district, perhaps even more so now, and so I’ve been arguing for a more moderate candidate but I think I’m being out voted.  It’s a pretty liberal group so they want the most progressive candidate we can find.

One of the aspects of politics today that I’ve been fascinated watching is the apparent growing split in the Republican Party between the more ideologically driven members of the base or Tea Party and more traditional or moderate conservatives.  As I’m sure everyone has already heard Bob Dole had a few things to say about today’s Republican Party.

“Reagan couldn’t have made it. Certainly, Nixon couldn’t have made it because he had ideas,” he pointed out. “I just consider myself a Republican, none of this hyphenated stuff. I was a mainstream conservative Republican. It seems to be almost unreal that we can’t get together on a budget or legislation,” Dole said, comparing today’s Congress unfavorably with the institution in which he served for decades. “We weren’t perfect by a long shot, but at least we got our work done.”

Another example, of course, would be John McCain’s criticism of the small group of Senators who appear to be blocking budget negotiations.

I consider myself a moderate on some issues and a progressive on others but I’d still rather be represented by a Democrat than a Republican so I’m willing to compromise a bit.

It’s funny, when Kevin picked the name for this blog, I told him I wasn’t a moderate but now I’m not so sure what that even means or if it matters.

I’m also wondering if any of the conservatives here worry about the same things I do.   Are they being too driven by the base, or political purity, when they might have a better chance at winning more elections if the moderates, or more traditional members of the party had a little more influence?  Or is winning with moderates some sort of cop out?


well, jnc4p  was prescient.  And I’m glad it was as relatively clear cut as it was last night, in that Florida is still deadlocked but, as yello points out, irrelevant.  What do you want to see happen in the next four years–and for purposes here let’s not say gridlock (although I know a couple of you think that’s a good thing when it comes to federal government!  :-))

I, for one, am very glad that the PPACA is safe. . . although it’s too much to hope that it can be modified.  I’d like to see the DREAM Act actually become law and I’d like to see one actually liberal Justice get appointed to the SCOTUS.  I’m sure I’ll come up with more as the day goes on.

Plus, what happened with your various states?  I see that pot is now legal in Washington and Colorado (and that last I’m betting had something to do with CO going for Obama last night).

And about that fiscal cliff. . .


P.S.  And I’m very glad that ATiM is around to see it happen.

Things Republican Politicians Do That Drive Me Crazy

Steve Benen wrote this up today and I am at a total loss as to what the Senate Republicans think this is going to accomplish. Hiding reports doesn’t make the facts go away, and while I understand that you can probably find as many economists to disagree with the report as ones that agree with it, it seems to me that a better solution would be to publish a rebuttal.

In mid-September, the non-partisan Congressional Research Service published a detailed report, documenting the fact that reducing taxes on the wealthy does not, in fact, generate economic growth. Instead, the CRS found, the trickle-down model appears to be “associated with the increasing concentration of income at the top.”


But in this case, the CRS presented Republicans with inconvenient truths. A spokesperson for Mitch McConnell said the officials at the research service “decided, on their own, to pull the study pending further review.” While that may be true, the question then becomes how much pressure the CRS officials were under to make this decision “on their own.”

And what is it that Republicans didn’t like about the CRS analysis? McConnell aides offered a series of complaints, including the report’s use of the phrase “Bush tax cuts.”

Apparently, in Republicans’ minds, to say “Bush tax cuts” is to use an inappropriate “tone.”

But putting all of that aside, we simply cannot have a functioning federal system in which neutral, independent offices are ignored, pressured, and/or censored when Republicans don’t like what they have to say. We’ve now seen this recently with the Bureau of Labor Statistics and Congressional Budget Office, and democratic norms dictate that GOP officials cut this out.

Here is the original report, republished by Senate Democrats on their web site.


Letting us in on a secret
By Dana Milbank, Published: October 10

When House Republicans called a hearing in the middle of their long recess, you knew it would be something big, and indeed it was: They accidentally blew the CIA’s cover.

The purpose of Wednesday’s hearing of the Oversight and Government Reform Committee was to examine security lapses that led to the killing in Benghazi last month of the U.S. ambassador to Libya and three others. But in doing so, the lawmakers reminded us why “congressional intelligence” is an oxymoron.

Through their outbursts, cryptic language and boneheaded questioning of State Department officials, the committee members left little doubt that one of the two compounds at which the Americans were killed, described by the administration as a “consulate” and a nearby “annex,” was a CIA base. They did this, helpfully, in a televised public hearing.

Rep. Jason Chaffetz (R-Utah) was the first to unmask the spooks. “Point of order! Point of order!” he called out as a State Department security official, seated in front of an aerial photo of the U.S. facilities in Benghazi, described the chaotic night of the attack. “We’re getting into classified issues that deal with sources and methods that would be totally inappropriate in an open forum such as this.”

A State Department official assured him that the material was “entirely unclassified” and that the photo was from a commercial satellite. “I totally object to the use of that photo,” Chaffetz continued. He went on to say that “I was told specifically while I was in Libya I could not and should not ever talk about what you’re showing here today.”

Now that Chaffetz had alerted potential bad guys that something valuable was in the photo, the chairman, Darrell Issa (R-Calif.), attempted to lock the barn door through which the horse had just bolted. “I would direct that that chart be taken down,” he said, although it already had been on C-SPAN. “In this hearing room, we’re not going to point out details of what may still in fact be a facility of the United States government or more facilities.”

May still be a facility? The plot thickened — and Chaffetz gave more hints. “I believe that the markings on that map were terribly inappropriate,” he said, adding that “the activities there could cost lives.”

In their questioning and in the public testimony they invited, the lawmakers managed to disclose, without ever mentioning Langley directly, that there was a seven-member “rapid response force” in the compound the State Department was calling an annex. One of the State Department security officials was forced to acknowledge that “not necessarily all of the security people” at the Benghazi compounds “fell under my direct operational control.”

And whose control might they have fallen under? Well, presumably it’s the “other government agency” or “other government entity” the lawmakers and witnesses referred to; Issa informed the public that this agency was not the FBI.

“Other government agency,” or “OGA,” is a common euphemism in Washington for the CIA. This “other government agency,” the lawmakers’ questioning further revealed, was in possession of a video of the attack but wasn’t releasing it because it was undergoing “an investigative process.”

Or maybe they were referring to the Department of Agriculture.

That the Benghazi compound had included a large CIA presence had been reported but not confirmed. The New York Times, for example, had reported that among those evacuated were “about a dozen CIA operatives and contractors.” The paper, like The Washington Post, withheld locations and details of the facilities at the administration’s request.

But on Wednesday, the withholding was on hold.

The Republican lawmakers, in their outbursts, alternated between scolding the State Department officials for hiding behind classified material and blaming them for disclosing information that should have been classified. But the lawmakers created the situation by ordering a public hearing on a matter that belonged behind closed doors.

Republicans were aiming to embarrass the Obama administration over State Department security lapses. But they inadvertently caused a different picture to emerge than the one that has been publicly known: that the victims may have been let down not by the State Department but by the CIA. If the CIA was playing such a major role in these events, which was the unmistakable impression left by Wednesday’s hearing, having a televised probe of the matter was absurd.

The chairman, attempting to close his can of worms, finally suggested that “the entire committee have a classified briefing as to any and all other assets that were not drawn upon but could have been drawn upon” in Benghazi.

Good idea. Too bad he didn’t think of that before putting the CIA on C-SPAN.


A bipartisan group of freeloaders  Senators are going for a whirlwind one week junket to Europe so that they can make better policy when they get home.

In more surprisingnews, WaPo reports:

Special interests win in Senate panel’s attempt at tax reform

It was supposed to be a first step toward tax reform. But as lawmakers tackled a list of 75 special-interest tax breaks, the special interests repeatedly won.

An accelerated write-off for owners of NASCAR tracks: That has to stay.

An economic development credit for a StarKist tuna cannery in American Samoa: That stays, too.

A rum-tax rebate for Puerto Rico and the U.S. Virgin Islands worth millions of dollars a year to one of the world’s largest distillers: Check.

A $2,500 credit for electric motorcycles and other low-speed vehicles: That stays. But “in the spirit of tax reform,” its sponsor, Sen. Ron Wyden (D-Ore.), said he agreed that electric golf carts would no longer be eligible.

When the dust settled Thursday, members of the Senate Finance Committee congratulated themselves for agreeing to jettison 20 of the perks, including a $5,000 credit for first-time home buyers in the District and a cash-incentive program for wind-energy projects that has been derided as benefiting foreign companies.

But their failure to weed out dozens more pet provisions clouded prospects for a far-reaching simplification of the nation’s tax laws advocated by President Obama, GOP challenger Mitt Romney and congressional leaders in both parties.

“The opening salvo of tax reform was little more than a whimper,” said Steve Ellis, vice president of the nonprofit watchdog group Taxpayers for Common Sense. “If this is as bold as they’re going to go, it doesn’t bode very well for fundamental reform.”

Rather than criticize themselves for not hacking through the layers of loopholes and tax favors, committee leaders noted that they had, for the first time in memory, refused to automatically renew them all. Thursday’s 19 to 5 vote not only reversed a decades-long trend, they said, it demonstrated a rare ability to work across party lines at a time when a protracted stalemate over taxes and spending threatens to throw the nation back into recession early next year.

“By doing this, we’ve come a long way toward functionality,” said Sen. Orrin G. Hatch (Utah), the panel’s senior Republican. “This is a major achievement. It certainly is not tax reform. But . . . it’s a step in the right direction.”
“I’m proud of what we’ve done as a committee,” added Finance Committee Chairman Max Baucus (D-Mont.). It’s “more than baby steps. This is not the first steps the baby’s taking. We’re walking.”

With Congress headed home for an August recess, the full Senate cannot vote on the measure until at least September. If approved, it would face an uncertain fate in the House, where the Ways and Means Committee is also reviewing the temporary tax breaks collectively known as “tax extenders” because Congress has not made them permanent.

The provisions are instead regularly renewed for a year or two “in the dark of night,” as Hatch put it, often as an amendment to must-pass bills. In 2008, for example, the Senate tacked them onto the Troubled Assets Relief Program bank-bailout legislation.

The extenders include many popular provisions, such as a credit for domestic research and development and a deduction for college tuition. The package approved Thursday also would protect millions of middle-class families from the alternative minimum tax through 2013, by far the most costly provision.
All told, the measure would add $143 billion to next year’s budget deficit, according to of­ficial estimates, with about $40 billion going to the special-interest breaks. Over 10 years, the cost would swell to $205 billion.

In a tentative deal reached late Tuesday, Baucus and Hatch agreed to wipe out more of the loopholes. But lawmakers in both parties appealed, and Baucus presented a rewrite Thursday morning that brought several back to life.

Lawmakers were by turns defiant and sheepish in defending favored provisions. The breaks, they said, are critical to home-state employers facing a tough economy. It would be easier to wipe them out, they said, as part of full-scale reform, when Congress can offer lower tax rates as a consolation prize.

“Big tax reform is where we need to look at all this stuff,” said Sen. Debbie Stabenow (D-Mich.), who joined Sen. Jon Kyl (R-Ariz.) in petitioning Baucus to preserve the break for NASCAR tracks.

For now, Stabenow said, the write-off for improving the tracks is “an economic development issue for Michigan,” where owners of the Michigan International Speedway west of Ann Arbor recently added 20 deluxe track-side camping spaces.
Sen. John Thune (R-S.D.) defended an array of energy incentives, including a wind-energy tax credit that Romney has targeted for elimination.

“The bigger game is going to be tax reform. This is just kind of the opening act,” he said. “I’ve made that pretty clear to folks in the industry” that when tax reform gets underway, “we’ll need to look at what we can do to start phasing these things out.”
Sen. Jeff Bingaman (D-N.M.), who has jurisdiction over U.S. territories as chairman of the Committee on Energy and Natural Resources, said he asked Baucus to save the credit for American Samoa, which has, in the past, subsidized a StarKist tuna cannery that employs more than half the island’s population.

“Samoans are U.S. citizens. This is U.S. territory,” Bingaman said. “We should not in a casual way take action that would dramatically and adversely affect their economy. If the next Congress thinks there are good and sufficient reasons for doing that, then that’s their business.”

Asked why the Samoan credit was preserved, Baucus said simply: “Jobs.”

Still, the scramble to preserve narrowly targeted perks left some steaming.

“Nobody wants to make the hard choices around here,” said Sen. Tom Coburn (Okla.), one of five Republicans who voted against the measure. Getting rid of 20 tax breaks is “better than nothing. But it ain’t anywhere close to where we need to be if we’re going to fix this country.”

“They’re good people,” he said of his Senate colleagues, “but I don’t get it.”


IMHO, Coburn gets it, committee does not.

CONGRESS IS BROKEN verse 1, repeated

Federal bench continues with huge vacancies and case backlogs.  Austin’s two federal judges have the first and second largest dockets in America and Congress has promised relief for eight years.  Congress is not worth its 9%-13% approval rating.

Report on Manufactures

5 Dec. 1791Papers 10:302–4

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.

The Founders’ Constitution
Volume 2, Article 1, Section 8, Clause 1, Document 21
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961–79.

Axelrod’s Accusations

This was discussed in the comments to MsJS’s excellent post so I thought I would give it it’s own post.

I’m sure most people are familiar with the story, but in case they aren’t our old buddy Greg has a good summary. This jist is that Axelrod is accusing Republicans of purposefully hurting the economy in order to damage Obama’s reelection prospects.

As several here have already pointed out, this isn’t exactly a new political tactic. However, given the context of the present political situation, I do think it is an interesting development. Nobody in DC is popular right now, but Congress seems to be less popular than Obama. So perhaps placing the blame on the unpopular kid is a decent strategy.

On the other hand (others ponted this out) this move could potentially make Republicans look stronger than they really are and blaming someone else is not generally the kind of leadership people are looking for from their President.

My opinion? Glad you asked. There is some truth to the notion that Republicans want to block anything Obama supports. But I don’t think it’s a nefarious effort to destroy the economy. Given Obama’s general unpopularity, it’s probably not even a bad political strategy (although it doesn’t appear to be making them more popular). Greg frequently cites polls that show Americans support various portions of Obama’s economic and health care plans as evidence of a variety of things ranging from Republicans not listening to Americans to Americans being less conservative and many more. My takeway is that Obama is unpopular and if you put his name next to rainbows, the popularity of rainbows would take a hit. As a result, it makes sense politically for Axelrod to point the finger at Republicans and for Republicans to oppose most anything Obama proposes.

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