Political staws in the wind, nationally and locally

Some readers may recall this time-honored advice for attorneys: When the law is on your side, argue the law. When the facts are on your side, argue the facts. When neither the facts nor the law are on your side, change the subject (ad hominem attack, legal objections, etc.)

Similar principles seem to apply in political debates. They promote posturing and wrangling in that context, which is likely to result in stalemate and/or poor policy choices.

We aren’t suggesting unilateral disarmament; conservatives would be foolish not to recognize and defend against hardball tactics. But could better results be achieved if they stopped trying to please everyone (an impossibility) and focused on fighting for the best answers?

Some issues that were discussed at the SAFE board meeting last week may be illustrative. We’d like to believe that rational consideration of policy choices could produce better results than the federal and Delaware governments have been delivering.

I. Federal issues

A. DEFICITS/DEBT – Their claim to be the party of fiscal responsibility tends to be honored when Republicans are in the minority. When the shoe is on the other foot, it seems to erode.

Being currently in the majority, Republicans would appear responsible for the deficiencies of the omnibus spending bill that was enacted in March. Nearly half a year late - big boost in spending across the board - wholesale restoration of special interest tax breaks – token funding for the border wall that the president has promised – federal funding for Planned Parenthood – massive package published at the last minute and passed without an opportunity for the members of Congress to read, let alone debate it.

An angry reaction from conservatives probably prompted the president’s avowal that he was only signing the bill for national security reasons and would never sign another bill like it. Rebooting the budget process,
4/9/18.

Republicans must now consider whether there is anything they can do before the elections to repair their reputation for fiscal responsibility (and hopefully advance the SAFE agenda in the process). Here’s a list of options that have been identified:

Rest on their laurels, touting GOP accomplishments during this session of Congress. Passing a tax cut bill - rolling back regulations - generally improving economy – seeming progress in the negotiations with North Korea - good faith effort to repeal and replace GovCare even though this effort fell short.

Assessment: The tax cut bill is being characterized by Democrats as a boon for the affluent and big corporations; most Americans won’t make up their minds until (months after the mid-term elections) they file their tax returns for 2018. The other successes that could be cited are primarily attributable to the president (who isn’t on the ballot this year) rather than Republican congressional candidates.

Enact legislation to improve on the tax bill by making individual tax cuts permanent, thereby countering the argument that Republicans were more intent on cutting taxes for corporations than cutting taxes for people.

Assessment: Most Americans aren’t thinking that far ahead, so the potential upside is limited. It’s doubtful that the bill could pass unless Senate Republicans were willing to “go nuclear” and abolish the filibuster rule (according to Sen. Ted Cruz in a conference call on 5/3/18, conservatives don’t have the votes to do this). If the bill was passed in the House only to die in the Senate, the outcome would underscore GOP ineffectiveness.

Rescind (claw back) unasked-for spending authority in the omnibus spending bill. Under the Impoundment Control Act of 1974, the president could take such action subject to congressional approval (within 45 days; no filibusters).

A rescission proposal is reportedly planned, but the timing keeps getting delayed and the amounts involved are shrinking. Trump admin poised to cut $25 billion from big spending bill, Robert Donachie, westernjournal.com,
5/2/18.

Assessment: Whatever spending categories were targeted, it’s unclear that a majority of both houses of Congress would back the president. Offering a proposal along these lines that wound up being defeated would be counterproductive.

Following up on the president’s earlier suggestions, propose a vote on a balanced budget amendment and/or line item veto amendment to the Constitution.

Assessment: There would be no realistic possibility of attracting a 2/3 majority in both houses of Congress, as required by the Constitution, so the vote(s) would be purely symbolic. If there are to be constitutional amendments to rein in the federal government, they will necessarily be proposed at a Convention of States called for by 2/3 of the states. Washington won’t reform itself, Conservative Caucus of DE blog,
9/10/17.

Get serious about completing the appropriation bills for fiscal year 2019 by Oct. 1, and “go nuclear” in the Senate to get it done. Some conservative priorities could be built into these bills, e.g., more funding for a border wall and defunding of Planned Parenthood.

Assessment: Unlike an effort to rescind previously enacted spending authorizations, this plan would be forward looking. If successful, Republicans could cut spending in FY 2019 and align the spending that was proposed with conservative priorities instead of waiting until after the elections when they might not be in a position to prevail.

Many congressional Republicans are ambivalent about cutting spending, however, so it could prove difficult to line up the necessary support. Also, would voters be impressed by the seemingly mundane feat of getting all the appropriation bills done on time?

Two overarching issues were pointed out in the SAFE discussion, which ended without any definite conclusion.

First, Americans don’t seem to really care about balancing the budget; unless and until this changes, fiscal responsibility will be a tough sell. Is there any way to change this mindset; how would one go about it?

Second, there are no strong sanctions for failure to meet procedural deadlines and, so long as this is true, members of Congress will game the system when it suits their political purposes. This leads to consideration of the next issue, a process review being conducted by the Joint Select Committee on Budget and Appropriations Process Reform (JSC).

B. BUDGET/APPROPRIATIONS PROCESS – The bipartisan/bicameral JSC has 16 members, four each appointed by the House Speaker, House Minority Leader, Senate Majority Leader and Senate Minority Leader. Created pursuant to the Bipartisan Budget Act of 2018, the JSC held its first public working session on April 17.

The session was taken up by opening statements of JSC members and a dialog with two expert witnesses (Martha Coven, JD & Dr. Douglas Holtz-Eakin). Video (2h, 26 min),
4/17/18.

Some general impressions of the proceedings: collegial, general recognition that budget process isn’t working, upbeat attitude. Sen. James Lankford (R-OK) described himself as in the “early optimistic stage,” but he suggested things might not seem as bright when the JSC moved from discussing problems to considering solutions.

Whatever comes from the JSC’s deliberations, some interesting points were made in this session. Stay tuned for our analysis and suggestions for the path forward.

C. MUELLER PROBE – There has been no coherent explanation of why a special counsel was appointed in the first place. If the concern was truly Russian meddling in the 2016 elections, why wasn’t a commission appointed to investigate this activity (as Harvard Law School Professor Alan Dershowitz has suggested) rather than a special counsel to conduct what amounts to a criminal investigation?

What was the suspected misconduct, e.g., collusion (which absent conspiracy would not be a crime) with the Russians? If so, what evidence existed that such misconduct occurred? Why was the “salacious and unverified” Steele dossier used as a basis for FISA warrants without verification of the information and disclosure to the court that the Clinton campaign paid for the work?

Why has the Department of Justice/FBI been stonewalling documentary requests from congressional committees – ignoring deadlines, responding only under threat of imminent contempt citations or impeachment, and heavily redacting the documents provided with the apparent aim of withholding information that might embarrass high ranking employees (some departed, some still on the job) of the DOJ/FBI? The FBI shouldn’t be above the law either, David Harsanyl, townhall.com,
5/4/18.

There are no effective limits on time, money, or the subjects to be investigated. Mueller’s team has gone far beyond alleged “Russian collusion,” and the presumption of innocence has seemingly been turned on its head. Is “can’t prove untrue” new standard in Trump probe? Byron York, Washington Examiner,
4/23/18.

An early morning raid on one of the president’s attorneys was so unprecedented as to effectively represent a declaration of war. FBI raid offices of Trump Attorney Michael Cohen, S.A. Miller & Jeff Mordock, Washington Times,
4/9/18.

A request for an interview with the president (backed by threatening to issue a subpoena for his appearance before a grand jury) - questions that have been described as more like 40 subjects than 40 questions and an obvious set-up. Democrats and the Trump impeachment trap, Byron York, townhall.com,
5/2/18.

The president’s attorneys supposedly don’t have security clearances to access the relevant information, so how can they effectively represent him? Trump lawyers said to lack security clearance amid Mueller talks, bloomberg.com,
5/2/18.

It seems increasingly doubtful that mutually agreeable terms will be worked out, and therefore that an interview will take place unless the Mueller team issues the threatened subpoena and this action is upheld by the US Supreme Court. In any case, don’t expect the investigation to be completed this year.

Given the foregoing questions about the investigation, is it possible that Mr. Mueller and/or Deputy AG Rod Rosenstein who appointed him will be fired at some point? Yes, although such a move would exacerbate an already poisonous situation. Let’s hope the president shows patience and restraint.

Appointing a special counsel was unwarranted, in our opinion, and the pendency of this proceeding is diverting attention from the fiscal problem and other national issues. The president’s political opponents should have stuck to opposing his agenda on policy grounds.

D. SECOND SPECIAL COUNSEL – There will be many books about the Russian collusion claims and ensuing activities (see previous section), several of which are already out.

One of them is a book by former FBI Director James Comey, whose firing led to the appointment of a special counsel. In his book and otherwise, Mr. Comey has attempted to justify his own actions while trashing the president’s reputation.

For a very different take, see Killing the Deep State, Jerome Corsi,
2018, which posits that a coterie of high ranking officials in the Obama administration (DOJ, FBI, and national security posts) hatched a plot to reverse the results of the 2016 election and force President Trump from office.

Dr. Corsi’s previous books include exposes of Democratic presidential candidates John Kerry (in 2004) and Barrack Obama (2008), so he may not be an objective observer. However, his analysis is consistent with a lot of other information that has come out about the Mueller probe and related matters.

Corsi’s current book concludes that the president and his allies should retaliate by pushing for criminal investigation and prosecution of the individuals who hatched or supported the plot against an outsider candidate that didn’t fit in their political universe. The counterattack would logically begin with the appointment of a second special counsel, a step that a number of conservatives have suggested, and Hillary Clinton would be at the top of the target list.

While there are surely reasons to suspect misconduct, it would be wise to beware of unintended consequences from this sort of tit for tat response. When political infighting becomes habitual, it can spiral out of control and eventually lead to violence. The dynamic is very hard to stop once it gets started. Cicero Ancient Classics for English Readers, Collins, Rev. W. Lucas
1817-1887.

There are some parallels in the political situation in late republican/early imperial Rome and the increasingly bitter tone in our political system today. Will there come a time when the US political system breaks down too, as voters lose faith in the results and the factions turn from debate to violence? Time will tell, but one gets an eerie sense from this book of how things could go wrong for America.

E. ATTACKS ON SCOTT PRUITT – The EPA administrator hasn’t been batting 1.000 on policy matters, but there has been some encouraging progress in dialing back Obama-era actions by the EPA et al. US withdrawal from the Paris Climate accord – proposed repeal of the Clean Power Plan – pausing higher mileage goals for new motor vehicles – stopping the use of “secret science” as a basis for regulations – etc.

Critics have fought back by claiming ethical lapses. Pruitt lived in a DC condo owned by a lobbyist, was $50/night fair market value for the room? He had some pricey travel arrangements, including military aircraft flights and 1st class tickets, although records showed his predecessors had spent similar amounts on transportation. Costly security measures were taken, including having a soundproof booth for sensitive telephone conversations installed in his office (at a cost of $43K).

The real goal is not to combat government waste, it is to discredit Pruitt, keep him off balance, and attempt to force his firing or resignation. Don’t let the Left do it to Pruitt, David Limbaugh, townhall.com,
4/6/18.

The left -- always projecting its own malicious practices onto its political opponents -- is framing this as its benign campaign to protect the rule of law. Leftists claim that it is Pruitt, appointed by Dr. Donald Evil himself, who is imposing his political agenda. These Alinskyites understand the impact of words and the force of propaganda. Anyone who doesn't swallow whole their radical assumptions on the environment is a menace, especially one who is in a position to make a policy difference.

Delaware’s senior senator has accused Mr. Pruitt of imperiling the EPA’s mission, to the detriment of the US public, and gone on to assert that “green” regulations boost the economy. We believe the law of diminishing returns applies to EPA regulations, like much else in life, and also that CO2 is not a pollutant and more expensive energy doesn’t boost the economy. I’m fighting Trump on environment, Sen. Tom Carper, News Journal,
4/22/18.

Senator Carper et al. also complained to Rep. Trey Gowdy, head of the House Oversight Committee, about various alleged lapses on Pruitt’s part including the $43K phone booth and related administrative actions. Gowdy gets security document dump, John Siciliano, Washington Examiner,
4/23/18.

Once again, it seems that critics of the government’s policies should challenge the policies (as Senator Carper did in his op-ed, even though we don’t agree with his conclusions) instead of launching personal attacks.

II. Delaware issues

F. GUN CONTROLS VS. GUN RIGHTS – In the wake of the horrific Parkland, Florida shooting, anti-gun legislation has made headway in Delaware as well as elsewhere around the country. However, pro-gun sentiment remains strong in the First State. Pro-gun crowd takes over debate at school, Scott Goss, News Journal,
4/18/18.

The gun control legislation seems sensible and was enacted on a genuinely bipartisan basis: (1) stiffer penalties for straw man purchases; (2) police confiscation of firearms based on mental healthcare provider reports of credible or imminent threat; (3) bump stock ban (passed by both houses of the General Assembly, although differences in the bill language still need to be reconciled).

Other bills are pending that seem more troublesome: (4) impose an “assault weapon” ban; (5) raise minimum age for purchase of long guns from 18 to 21; (6) create a regulatory body called the Delaware Commission on Concealed Carry Licensing to handle applications for concealed carried permits (this has been described as a way to streamline the process, but it would slow down applications and increase the cost involved by creating a new level of bureaucracy).

Governor John Carney has advocated putting all gun control bills to a vote, even if some of them are defeated. And Delaware’s largest newspaper ran an editorial along the same lines, which hardly seems like an invitation for thoughtful, fact-based legislation. Time to put up or shut up on gun control, News Journal,
4/26/18.

Although we’re not privy to the details, Senator Chris Coons gave a talk about gun controls to 400 AP students in the Appoquinimink School District. The News Journal published a SAFE letter about this talk – should not have been scheduled during school hours, there should have been a second speaker re gun rights - on
4/22/18 (two days after the talk took place).

Demands for additional restrictions on guns will undoubtedly be an issue in the fall elections. Although this isn’t a core issue for SAFE, we would urge that the constitutional protections for gun rights be faithfully observed. Furthermore, claims that stricter rules would save lives should be objectively evaluated, not accepted as “obviously true.” Stricter gun controls aren't the answer,
4/2/18.

G. OFFSHORE WIND POWER - Last December, after a series of meetings, the offshore wind power working group recommended that Delaware not emulate Maryland et al. by jumping into offshore wind power projects. At the time, we expressed the hope that this decision would prove to be final. SAFE newsletter,
Winter 2017.

Surpassing our expectations, the WG report rejected the idea of piggybacking on the MD projects while committing to further study of other options including “procurement of other renewable resources in lieu of offshore wind.” Points to be considered in the further study would include “how should an offshore wind subsidy be paid for” and “what effect would higher electric power costs have on economic development and jobs throughout the state?” Fingers crossed, here’s one bad idea for government action that may be dead!

Perhaps Governor Carney was disappointed by the WG’s recommendation; in any case, there was another WG meeting on
April 23 re hiring a consultant to study (and no doubt “debunk”) the objections to offshore wind power.

Offshore wind power is inordinately expensive, intermittent (so it doesn’t add to grid capacity), and offers no clear-cut environmental advantages. Delaware’s involvement in such projects didn’t make sense in the first place, and this will continue to be the case no matter how much the idea is studied.

H. HEALTHCARE BENCHMARKING PROPOSAL – The Carney administration has launched an initiative aimed at slowing the growth of healthcare costs in Delaware, which was advocated by DHSS Secretary Cara Odom Walker in a series of News Journal columns and stories. To us, the proposal seemed “too good to be true.” Indeed, the “all gain, no pain” outcome was reminiscent of the pitch used to sell GovCare in 2009-2010.

Benchmarking healthcare costs may be useful, but it doesn’t bring them under control. There was no suggestion of incentivizing patients (with the advice of their doctors) to spend their healthcare dollars more carefully. We inferred that the real (albeit unstated) agenda was to use the benchmarking data as a basis for de facto healthcare rationing.

Delaware hospitals have expressed their opposition to the proposal on similar grounds. Hospitals, health secretary at odds over cost-cutting, Meredith Newman, News Journal,
4/13/18.

A recent letter from Wayne Smith (president of the Delaware Healthcare Association) to the governor, endorsed by leaders of “every hospital in Delaware,” explicitly challenges the benchmarking proposal. According to Mr. Smith, the DHCA “will not support the benchmark without a fundamental reset of this process, including consideration of what other options exist for addressing rising healthcare costs in Delaware.” The letter goes on to characterize the proposal as “a price control regime” and say it would compel hospitals to curtail “certain services.”

Kudos to the DHCA for speaking up; we think this proposal should be thoroughly vetted before it goes any further.
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