Tag: Tea Party

Obama Shellacking and the Federal Budget

A lot has happened since President Obama introduced his last budget in February 2010. His party took an historic “shellacking” at the polls for its big government policies, his Fiscal Commission recommended serious spending cuts, and European governments have illustrated the severe problems of deficit spending.  

Given all this, did the president adopt a more frugal and prudent approach in his new budget yesterday? Not at all–the spending levels in his new budget are virtually the same as the unsustainably high spending levels in his February 2010 budget.

The chart shows Obama’s proposed spending for FY2012 from last year’s budget, and his proposed spending for the same year from his new budget.  His new budget proposes slightly more discretionary and entitlement spending for next year than did his last budget!

  • Last year, Obama planned to spend $1.301 trillion on discretionary programs in FY2012, but now he plans to spend $1.340 trillion.
  • Last year, Obama planned to spend $2,107 on entitlement programs in FY2012, but now he plans to spend $2,140.

So take that Tea Party!

Obama claimed in his “Budget Message” yesterday that “taking further steps toward reducing our long-term deficit has to be a priority,” but looking at his actual budget numbers shows that isn’t true.

For more budget numbers, see my NRO summary.

Patriot Reauthorization Vote Fails… Now What?

First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast-track a one-year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate’s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315-97 vote.

Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two-thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast-track approach, as there haven’t been any hearings or mark-ups on Patriot legislation.

That said, the tide does seem to be shifting somewhat. The failure of the fast-track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:

Lone Wolf

So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”–but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.

Roving Wiretaps

Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” warrants that name neither a person nor a specific “place” or facility–disturbingly similar to the “general warrants” the Founders were concerned to prohibit when they crafted the Fourth Amendment. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of “John Doe” warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.

Section 215

Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power–requiring some demonstrable connection to terroris–initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose.

So those are the sunsetting provisions–though a lot of the debate last year very justifiably centered on the need to reform National Security Letters, which we know to be constitutionally defective, and which have already been subject to serious abuses. One reason reform keeps getting postponed is that Congress is busy and tends not to make time for these issues until the sunset deadlines are right around the corner–at which point a reliable band of pundits and legislators imply that absolute bedlam will ensue unless every single surveillance authority is extended–meaning reform will have to wait until later, at which point it will be an emergency all over again. Once you start looking at the numbers, though, all these Chicken Littles begin to look faintly ridiculous.

The Lone Wolf provision is such an essential intelligence tool that it has never been used. Not a single time. And again, by the terms of the statute, it only applies under circumstances where a criminal wiretap warrant would already be available if Lone Wolf authority didn’t exist. Roving authority is granted by the FISA Court an average of 22 times per year, and in many (if not most) of those cases it never actually has to be used–surveillance is limited to named facilities. To put that in context, the FISA court issued 1,320 electronic surveillance orders in 2009, and that was the first time in 5 years the number fell below 2,000. So we’re talking about maybe 1 percent of FISA surveillance, which judging by internal oversight reports, is a good deal less than the portion that ends up sitting untranslated for months anyway. Similarly, there were 21 business records orders under §215 issued in 2009–and remember, that authority doesn’t disappear if this provision sunsets, it just reverts to its narrower, pre–Patriot version, where the court needs to see actual evidence that the records have some connection to a suspected terrorist. Surveys by the Inspector General’s office found no instances in which a major case development resulted from 215 information. The idea that we’d somehow be in grave danger if these provisions lapsed for a few months just doesn’t hold up, but there’s no reason Congress can’t pass a two-month extension while they consider some of the reforms already on the table, just as they did last year.

So let’s stop living in a state of perpetual panic. Some of these provisions we’d be better off without. Some, like roving wiretaps, just need minor tweaks to close loopholes for misuse. Some–I’m looking at you, National Security Letters–require substantial reform. Many of these changes ought to be common sense, and have attracted bipartisan support in the past. But let’s stop kicking the can down the road and saying we’ll debate the proper limits on the surveillance state when there’s time. It’s important enough that Congress can make time.

Patriot Act Extension Runs Into Conservative Opposition

Reports the Los Angeles Times:

A House GOP push to permanently extend expiring provisions of the Patriot Act is running into opposition from conservative and “tea party”-inspired lawmakers wary of the law’s reach into private affairs.

Congress has made a practice of kicking the Patriot Act can down the road, but it could be that the new crop of legislators isn’t inclined to go along.

Julian Sanchez has blogged here about the complexities of this government surveillance law. His podcast on the topic, released yesterday, is titled “The Patriot Act Sneaks to Renewal.” Maybe it can’t sneak through after all…

Tea Party Isn’t Mellowing GOP Militarism

Lindsay Graham isn’t alone when he imagines an emerging “isolationist wing” of the Republican Congress. Pundits have lately both lamented and celebrated the arrival of a Tea Party foreign policy, where deficit fears restrain military adventures and Pentagon spending.

I wish there were such a thing. My op-ed in yesterday’s Philadelphia Inquirer shows that there isn’t.  I report there on research that I did (really research that intern Matt Fay did) on support among Republicans in the House and Senate for cutting defense spending and getting out of Afghanistan. I found little.

I also tested the idea that the Tea Party is restraining Republican militarism, by comparing the 101 freshmen that largely claim adherence to that movement to other Republican members. Freshmen are not more dovish than the rest, suggesting that the Tea Party reflects Republican politics more than it guides it. A post I put up yesterday on the National Interest’s Skeptics blog illustrates this point with charts.

As Tad DeHaven notes, Congressional Republicans, including leaders in both Houses, have increasingly said that they would support defense cuts as part of a deficit reduction package. But those taking that position remain a minority of their party–fifteen percent by a generous accounting, comprising roughly equal fractions of new and old members. And the cuts that the minority of Republican want are likely to be cosmetic, trimming fat and chasing efficiencies, not taming the beast by taking on less missions and cutting force structure. For these reasons, it’s not surprising that the symbolic spending cut resolution up for a House vote Tuesday exempts the nearly two-thirds of domestic spending labeled as “security,” as I discussed in another Skeptics post.

GOP support for indefinite war in Afghanistan is stronger. Only ten Congressional Republicans are obviously against that war, and not one is a Senator or a freshman. That last bit bears repeating: none of the 101 new Republican members of the House and Senate are clearly against the war in Afghanistan.

The difference between new and old Republicans on these issues is that the new members are less likely to have firm positions. They got elected largely without expressing coherent views on defense issues. Since then, many seem to be reading the tea-leaves and keeping quiet about those matters.  But they will soon be tied into positions as they justify votes. So the coming months are crucial in determining how a big chunk of Republicans vote for some time.

I am not optimistic that many will side with those of us that would like to vastly scale back our foreign policy. In the Skeptics post I explain why:

The GOP has been in the habit, probably since the 1970s, of out-hawking the Democrats and equating military aggressiveness with support for the military and American virtue. Whether that is winning political strategy I’m not sure (yes in 2004, no in 2008), but it is at least a powerful habit, reinforced by decades of neoconservative warbling, whose authors are now ensconced in the nation’s most prominent op-ed pages and think tanks.

Beyond that, military spending bestows its munificence in many districts, generating bipartisan support. But, on the left, the prospect of spending caps creates countervailing interests. Caps force defenders of other domestic spending to be dovish on defense. Health care’s cost competes with the Navy’s, especially under budget caps. That’s not as issue on the right.

The most important force keeping Republican fond of military adventure, however, is common to Democrats: international opportunity. We have expansive foreign policies because we can. Balancing is weak. The costs of adventurism are few and diffuse. For Europeans alive 100 years ago, foreign policy failures could bring conquest and mass death. Even successful wars would kill many sons and consume a considerable portion of societal wealth. For most Americans, especially since the draft ended, foreign policy disasters bring marginally higher tax rates. Ideologies justifying expansive policies—liberal internationalism on the left, neoconservatism on the right—grow popular because they justify the behavior this structure allows.

Doves say that the United States cannot afford its foreign policy. The problem is that it can, even when recessions make the load a bit harder to bear. Unsustainable things end. The United States can afford to do all sorts of foolish things.

Justice Scalia Speaks to the Congressional Tea Party Caucus

Today POLITICO Arena asks:

Is there anything inappropriate about Justice Scalia’s speaking about the Constitution before Rep. Michele Bachmann’s Tea Party Caucus, as the New York Times editorial board suggests? Is it time to drop the fiction of a judicial monastery with justices detached from the political process?

My response:

There is nothing inappropriate about Justice Scalia’s speaking today before the congressional Tea Party Caucus – or any other group, for that matter, that is well within the mainstream of American politics. As POLITICO reports, Rep. Bachmann’s event is open to all members of Congress, and several Democrats have said they’ll attend.

The complaint by the editorial board of The New York Times –  that “the Tea Party epitomizes the kind of organization no justice should speak to” –reflects nothing more than that corner’s refusal to accept the legitimacy of the Tea Party, notwithstanding last November’s elections. When the board goes on to condemn the Tea Party’s “well-known and extreme point of view about the Constitution,” it might better direct its wrath at James Madison. After all, as the principal author of the Constitution, he’s the Framer who promised in Federalist 45 that the powers of the new government would be “few and defined” – the “extreme” view the Times editorialists regularly condemn.

In deciding cases, judges and justices need to be detached from politics, of course: They belong to the “non-political branch.” But that hardly precludes them from talking about the Constitution in political contexts. If anything, it is the Congress that needs to be more attentive to the Constitution its members take an oath to uphold. That, in fact, is the root of our problem today. And we have the Tea Party to thank for noticing it.

Government and Violence

Radley Balko writes:

[I]t’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence… is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

The worst outcome would be for all dissent to become suspect. “Anti-government” is a concept used, essentially, to stifle debate, by conflating reasonable criticisms with the actions of lunatics. Both — of course! — are “anti-government,” and both are therefore guilty. It should be obvious what sort of agenda this furthers: Everything “government” is good.

Toward Restoring Constitutional Government

Today POLITICO Arena asks:

In light of today’s reading of the Constitution in the new House, what misinterpretations of the Constitution do you regularly see in American politics? And are House Republicans implying that the previous Democratic majority did not have a firm grasp of the government’s founding document?

My response:

Thanks to the Tea Party, as I wrote in Tuesday’s Wall Street Journal, Congress seems to be rediscovering the Constitution – or at least many House Republicans seem to be. When members read the document aloud today, apparently for the first time in the nation’s history, they’ll be throwing down a marker: “We take the Constitution seriously, and intend to abide by its principles.” If true, how refreshing.

This is not a partisan matter. As many Republicans have said – albeit, some only after November’s elections – both parties for years have ignored the Constitution’s limits on political power. To confirm that, we need look no further than to James Madison, the principal author of the document, who assured skeptical ratifiers in Federalist 45 that the powers authorized by the Constitution were “few and defined.” That hardly describes today’s federal behemoth.

Thus, the main “misinterpretation” has been over the very idea of constitutional limits – particularly as inherent in the doctrine of enumerated powers, the principle that “We the People” gave Congress only 18 enumerated powers. The Commerce Clause, for example, was written mainly to ensure interstate commerce unfettered by state interference, not to enable Congress to regulate every aspect of life. And the General Welfare Clause was meant to limit Congress’s taxing power pursuant to its enumerated ends to objects of national, not particular, concern: it wasn’t meant to enable Congress to redistribute private wealth at will.

The great change came during the New Deal, of course, after FDR’s infamous Court packing threat, when a cowed Court began turning the Constitution on its head. But don’t take my word for that constitutional legerdemain. Here’s Roosevelt, writing to the chairman of the House Ways and Means Committee in 1935: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” And here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his handiwork some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” They knew exactly what they were doing.

So when today’s liberals tell us the Constitution authorizes the vast federal programs that now reduce so many Americans to government dependents, they reveal their historical ignorance – or their political ambition. And they’re reduced to the silliness we saw in Tuesday’s New York Times, where the Times editorialists ranted against today’s constitutional reading as “a theatrical production of unusual pomposity.” Illustrating their own penchant for pomposity, they then dug into their bag of adjectives and let loose: “a self-important flourish,” “their Beltway insider ritual of self-glorification,” “a presumptuous and self-righteous act,” “an air of vacuous fundamentalism,” ”all of this simply eyewash,” “a ghastly waste of time.” They must have been emotionally drained when they finished their screed.

The Constitution is not a blank slate, details to follow, as decided by transient majorities. Were it that, it never would have been ratified. After all, we fought a revolution to rid ourselves of overweening government, and fought a Civil War to institute at last the grand principles of the Declaration of Independence. Nor will those principles be restored in a day. But today’s reading will start a debate that is sorely needed, at the end of which one can hope for restoration.