Thursday, August 6, 2015

21st Century Legislating?

The Congress doesn’t run-it waltzes.
— Charles Joseph, Prince de Ligne, Comment to a colleague (1814)

A number of people have written to inquire how legislation is passed in the Congress. There are, of course, many ways, but two of the most popular are addressed here this week. The first is for a sponsor of legislation to attach the proposed legislation as an amendment to a bill under consideration. This can be done repeatedly in the hope that at some point it will not be noticed and will become law, either because of the inadvertence of colleagues, or because the underlying piece of legislation to which it is attached is so important that the amendment will be accepted even though it has nothing to do with the underlying legislation. The recent consideration of long term funding for highways by the Senate is a good example of this process.

No one disputes that America’s infrastructure is in the worst shape anyone can remember. Tangible evidence of its crumbling is offered with some frequency. One of the best examples took place seven years ago when a bridge outside Minneapolis on Interstate 35 collapsed killing 35 people and injuring 145 more. In late July the Wall Street Journal had a piece by David Harrison about the consequences of deteriorating road conditions in this country. Highway spending in the U.S. has fallen by 19% from its peak in 2002. The gas tax of 18.4 cents a gallon hasn’t been raised in 22 years. The last time Congress approved long term funding was in 2005. Since that date there have been 35 short term funding measures including the one passed by the House and Senate the end of July. The casual observer might assume that since both the majority in the House and Senate agree that the infrastructure is crumbling, the obvious thing to do would be to pass long term funding and get on to other business. That is not how the process worked in the Senate before it went on vacation.

When the Senate was considering long term funding in late July, assorted amendments were proposed that appeared to have little to do with highways. Senator Ted Cruz from Texas (who consistently draws into question the value of an Ivy League education) proposed an amendment to the highway funding bill that would block the lifting of sanctions on Iran. To the observer the only thing Iran and infrastructure have in common is the first letter of each word. When that attempt failed, another senator tried to amend the highway bill to include a provision banning funding for Planned Parenthood. That seemed to have even less relevance than the Iran proposal. When the Senate finally passed a six year extension of highway funding at the end of July it included a provision reauthorizing the Export-Import Bank. Although that didn’t seem to have any more relevance to highways than Planned Parenthood or Iran, it was agreed by a majority of those in the Senate that it was essential to reauthorize the bank and that seemed the only place it could be done before the Senators went off on vacation. By the time that was passed in the Senate, however, House Members had already left for their holidays so there was no chance that Bill could be considered by the House until it got back to work in September. Since highway funding was really important, the Senate had no choice but to approve a three months stopgap spending bill to finance federal highway and transportation projects for the next few weeks. The Export-Import Bank remained in limbo. The House plans to be in session for two weeks in September and during that time it may find the time to consider the Senate’s long term funding bill and the life of the Export-Import bank.

An equally popular way for people in Congress to pass what they consider to be essential legislation, is to jump up and down in the manner of the petulant four-year old and refuse to do anything until he or she has his or her way. The advantage to that kind of conduct by a four year old is he or she can be sent to his or her room until reason prevails. No such remedy is available where members of Congress are concerned. The “jump up and down” method of legislating will be on display when Congress returns in September. It pertains to funding for Planned Parenthood.

Planned Parenthood has a budget of $1.3 billion of which $528 million came from the federal government in 2014. It serves 2.7 million clients, most of them low-income women who have no insurance. The organization offers cancer screenings, birth control counseling and other reproductive services. Federal funding for abortions has been banned for years except in cases of rape, incest, or when a woman’s life is in peril.

As a result of surreptitiously made recordings of conversations with Planned Parenthood personnel discussing the sale of fetal issue,. opponents of Planned Parenthood have been revitalized. Congressional opponents want to cut all funding to Planned Parenthood irrespective of the purposes to which the funds are put. The word is out that if Republicans cannot block funding for Planned Parenthood any other way, they may once again resort to the “Jump up and Down” method of legislating by attaching the defunding to budget bills needed to keep the government functioning. If not passed, there may once again be a government shutdown. Should that occur, the government will remain on hold until petulance subsides and funding is restored.

There are better way of governing. Someone should tell members of Congress. They lack the sense to figure it out themselves.


Thursday, July 30, 2015

Immigrants, Guns and Congress

Such as do build their faith upon,
The holy text of pike and gun.
—Samuel Butler, Hudibras

It depends on two things-who is the actor and who is the victim. Those two things determine how people respond. The one thing it does not depend on is what the actor used to create the victim. It all came to mind during the month of July. July 26th was the 207th day of the year 2015 and that was the day that we celebrated the 206th mass shooting of the year. That does not mean that there had only been 206 occasions when guns were in the news. Quite the contrary. According to the Gun Violence Archive as of July 29, 2015 there had been 7,360 deaths in the United states in which the gun was the important actor. The individual activities of the gun, however, do not, normally, inspire a lot of response except from the usual people who use frequent gun related incidents to suggest there should be some sort of gun control in this country. Mass shootings, on the other hand, get a great deal of attention. Not all mass shootings are the same and responses to them vary.

In the case of the Sandy Hook Elementary school shooting in 2013 there was a suggestion from the NRA that there should be armed guards in every school in the country but that suggestion was never acted on in part, perhaps because that would have required as many as one million newly armed guards. Following the July 26, 2015 movie theater shooting in Lafayette, Louisiana, presidential candidate Rick Perry was asked whether the proper response to movie shootings should be to permit all attendees to bring weapons with them. The former governor responded that the proposal made “a lot of sense”. There is little question but that the possibility of a movie shooter being suddenly confronted in the dimly lit space with a theater full of armed patrons who begin shooting at whomever the patron believed fired first would introduce a sense of calm and security to moviegoers that is presently lacking.

Churchgoers would also be better off if fellow worshippers were armed. Churches are typically well lit so that the possibility of a firefight erupting in the church and the wrong people being shot seems less likely. Attendees could, therefore, worship in a peaceful place, secure in the knowledge that an armed intruder would be swiftly dispatched to his maker.

With respect to the shooting in Chattanooga, TN that resulted in the death of military personnel, U.S. Attorney Bill Killian said that the shootings in that city are being investigated as an “act of domestic terrorism” although as of this writing the act has not been classified as a terrorist act. It is not clear why that shooting should be dealt with any differently from the other acts of violence that July gave us except that the victims happened to be military personnel.

Aside from Rick Perry’s agreement with the suggestion that movie theaters should become armed camps, only one of the many shootings that took place during July elicited a response from members of Congress and the occasion was not a mass shooting. It was the shooting of Kate Steinle on July 1, 2015. She was shot and killed by Juan Francisco Lopez Sanchez, a Mexican native who had seven felony convictions in this country and had made a number of illegal entries. Although she was only the 2d person shot during the month of July, her death evoked a strong response from members of Congress. To everyone’s surprise, however, the Congressional response did not finally acknowledge the need for something to be done about all the guns in this country. Instead it precipitated a call to, of all things, do something about illegal immigration. Members of Congress who spoke publicly were not concerned that this was simply the latest of several hundred gun inspired death that had already occurred in the United States during 2015. They were upset that the shooter was an illegal immigrant.

Less than a week before they rushed home for their well-deserved five weeks of rest and relaxation, a variety of bills was introduced to crack down on illegal immigration. The legislation was aimed at cutting off funding to so called “sanctuary cities”, localities that offer safe harbor to illegal immigrants. Rep. Steve King of Iowa explained that “The appetite for amnesty has diminished dramatically after we see the carnage in the streets of America at the hands of criminal aliens that should’ve been removed from the country. That means that now, the climate is much better to try to move down the line on enforcement.” The fact that not any of the well-known mass shootings over the last few years has been conducted by a criminal alien is of no moment as far as members of Congress are concerned. Referring to the Steinle killing, Rep. Lamar Smith of Texas pulled an idea out of the cloud in which many members of Congress get their best ideas. He said: “Someone in this administration probably should be arrested for negligent homicide or for any of another dozen crimes that are so frequently committed by illegal immigrants in this country who shouldn’t even be here.” Someone should tell Rep. Smith that it’s not illegal immigrants that are the problem-it’s the guns.


Friday, July 24, 2015

Vetting Voters?

As long as I count the votes, what are you going to do about it?
— William Marcy Tweed, Tammany Hall Statement (1871)

The flag goes down and the bars go up. There’s a nice synchronicity to it. Of course it was nothing more than a coincidence. The efforts to raise the bar have been going on at least as long as the efforts to lower the confederate flag. In the overall scheme of things the bar may be more important than the flag. The flag is symbolic. The bar is practical with a significant political impact. The bar is, of course, the efforts of Republican legislators in some southern states to make it more difficult for minorities to vote. A challenge to North Carolina’s efforts opened in a federal court on July 13, 2015. The question for the court to answer was whether or not the new rules discriminate against black voters.

The U.S. Supreme Court paved the way for the new laws when, in 2013, it struck down the heart of the Voting Rights Act of 1965. The tone of the opinion was set during the oral arguments in which those who favor voting barriers asked questions of the lawyers appearing before them. Justice Scalia was very concerned with something called “racial entitlement.” As he explained during oral argument when the voting rights act was being considered by him and his colleagues, it was important for them to put an end to “racial entitlement” because only he and his colleagues had the courage to do it. Members of Congress, said he, are afraid of coming out against Sections 4(b) and 5 of the 1965 Voting Rights Act because they don’t want to be seen as being against such a popular act. (Section 5 of the Act requires States to obtain federal permission before enacting any law related to voting and Section 4(b) imposes that requirement only on States in which there had been entrenched racial discrimination in voting.) Since not all states were required to have preapproval from the federal government before changing their election laws Chief Justice Roberts in the majority opinion said there had to be a good reason to treat one state differently from another and in his opinion he said the Court found no such reasons. As Chief Justice Roberts explained, in striking down Section 4(b), the exceptional and unique conditions that once existed with respect to how some southern states treated voters and, therefore, justified that section of the statute, no longer exist.

No sooner did the U.S. Supreme Court issue its opinion than North Carolina and other southern states began enacting tougher election laws. In North Carolina state officials explained that the changes were intended to treat all voters equally and were designed to prevent fraud, ensure electoral integrity and reduce administrative burdens.

Elimination of fraud has been one of the most frequently cited reasons for strengthening the election laws and especially the voter ID laws in states in which those changes have been introduced. Examples of the perceived presence of fraud abound. All that is missing is fraud itself. Three examples suffice.

In 2012 Colorado’s Secretary of State observed there were 11,805 non-citizens on the voter rolls, a number he then reduced to 3,903. After sending out letters to those people he concluded there were 141 non-citizens on the voter rolls or .0041 of the voters in the state. In Florida the Division of Elections said there might be 180,000 non-citizens on the roll but that number, too, proved elusive. There were 207 non-citizens on the rolls and none of them had ever voted. South Carolina found 3 cases of voter fraud since 2000 and used that alarming finding as justification for toughening its election laws.

In North Carolina the legislation that is being challenged in federal court in a trial that began in mid-July put an end to same day voter registration, reduced the number of early voting days and ended a program to pre-register high school students. Arguing in support of the law’s provisions, North Carolina’s attorney general says that what those objecting to the new provisions are seeking is “the equivalent of election law affirmative action.” Plaintiffs, said he, “are arguing for practices that are favored by political organizations dedicated to maximizing Democratic turnout.” It is obvious to him that if fairness in voting practices is the goal of a group it is important to make sure that they are not seeking fairness only to benefit one political party but to benefit the entire voting process. A federal court will determine who is right.

If the case ends up before the U.S. Supreme Court as presently constituted, the outcome is a foregone conclusion. The majority will echo the words of Thomas Farr, one of the attorneys representing North Carolina. Speaking rhetorically he asked: “What’s the dastardly thing that North Carolina has done? What they did was they enacted regulations that represent majority rule throughout the United States.” Although a singularly awkward and meaningless explanation of what is at stake, one can easily imagine it being used by Justice Scalia should he be asked to write the majority opinion. The words have a nice ring to them and intoxicated with the sound of his own words, Justice Scalia always favors ring over substance.