Topic: Government and Politics

Did Gay Marriage Bans Help Bush Win in 2004?

By
David Boaz

Dan Balz writes in the Washington Post, as many reporters have this week, 

In 2004, Republicans used ballot initiatives barring same-sex marriage to spur turnout among their conservative voters. That strategy helped then-President George W. Bush win reelection.

But did it? I argued in 2006 that it didn’t:

It’s true that states with such initiatives voted for Bush at higher rates than other states, but that’s mostly because the bans were proposed in conservative states. In fact, Bush’s share of the vote rose just slightly less in the marriage-ban states than in the other states: up 2.6 percent in the states with marriage bans on the ballot, up 2.9 percent in the other states.

Political scientist Simon Jackman of Stanford has more here (pdf). He concludes that the marriage referenda tended to increase turnout but not to increase Bush’s share of the vote. And in a county-by-county analysis of Ohio, he found no clear relationship between increased turnout, support for the marriage ban, and increased support for Bush.

Matthew Dowd made the same point yesterday:

Speaking from experience as the chief strategist in 2004 for President Bush, I saw in close detail how little gay marriage could influence turnout of conservatives or evangelicals.   In 2003 and 2004, we did a series of public opinion tests on different messages related to the micro targeting project that would cause voter groups to turn out more in President Bush’s favor.  We tested social issues as well as messages related to the economy, national security, taxes and the size of the federal government.  Not a single social issue (which included gay marriage) fell on the effectiveness scale in the top eight messages.

Further, in analyzing the election returns in the aftermath of the 2004 presidential race an interesting set of data was revealed.   In states that had gay marriage amendments on the ballot including key target states, there was no statistical difference in turnout of conservatives from states that did not have these amendments on the ballot.  Gay marriage had no effect on turnout even among the most conservative potential voters in both the data before Election Day and the returns on Election Day.

Other senior officials from the 2004 Bush campaign confirm: It wasn’t gay marriage that brought social conservatives to the polls, it was national security and the war on terror.

At any rate, as Balz noted, the politics of gay marriage have changed for sure, in Ohio and elsewhere.

Topics: 
Government and Politics

Booming Industry Warrants Federal Support. Apparently.

By
Sallie James

As if U.S. agriculture isn’t subsidised enough already. Sen. Charles Schumer (D-NY) visited a hops yard yesterday to raise the profile of, and inevitably seek federal support for, what he hopes will be New York’s first commercial hops yard. In the second subtitle of his press release, Senator Schumer sings the praises of NY’s “booming craft beer industry” and yet simultaneously makes the somewhat contradictory claim that the industry suffers from a lack of capital:

NYs Booming Craft Beer Industry Has Created Demand for Locally Grown, Organic Hops, But NY Is One of Few States Without a Major ‘Hop Yard’ & Capital Is Major Obstacle – Startup Costs Run as Much as $100K For Equipment Alone

The solution seems pretty obvious to me. That “booming” industry would provide steady demand for hops, making it sound like a worthwhile investment for private financiers. Perhaps Senator Schumer can pony up the $100K, since he’s so bullish about the industry. Not so fast. The next sentence?:

Schumer: Federal Loans & Loan Guarantees Would Provide Important Growth Spurt for Budding Hudson Valley Hops Industry

Topics: 
Government and Politics, Tax and Budget Policy

Jim DeMint’s Misfire on Marriage

By
David Boaz

Jim DeMint, former senator and future president of the Heritage Foundation, writes a column for USA Today opposing gay marriage. But like so many social conservatives, he supports his position with a sleight of hand. DeMint writes:

Without strong families grounded in marriage, we cannot hold back the ever-expanding power of government. As the marriage culture weakens, Big Government grows. Just look how the welfare state has expanded as the unwed childbearing rate has grown from single digits in the 1960s to more than 40% today.

Marriage policy exists to encourage a man and a woman to commit to each other permanently and exclusively as husband and wife and to be father and mother to any children. Sound marriage policy strengthens civil society and reduces the role of government.

The erosion of marriage costs taxpayers. And it’s not just conservatives who say this. Even the left-leaning think tank, Brookings Institution, attributed $229 billion in welfare expenditures between 1970 and 1996 to the breakdown of marriage.

Yes indeed. Stable families are less likely to be on welfare. As Ron Haskins and Isabel Sawhill of Brookings write,

Our research shows that if you want to avoid poverty and join the middle class in the United States, you need to complete high school (at a minimum), work full time and marry before you have children. If you do all three, your chances of being poor fall from 12 percent to 2 percent, and your chances of joining the middle class or above rise from 56 to 74 percent. 

But DeMint and other social conservatives make a logical leap when they connect that point to gay marriage. Gay people making the emotional and financial commitments of marriage is not the cause of family breakdown or welfare spending.

When DeMint says that “family breakdown” is causing poverty – and thus a demand for higher government spending – he knows that he’s really talking about unwed motherhood, divorce, children growing up without fathers, and the resulting high rates of welfare usage and crime. 

So why raise the problems of broken families and then propose to prevent gay people from getting married? Why all the focus on issues that would do nothing to solve the problems of “family breakdown” and what DeMint has elsewhere called “the high cost of a dysfunctional society”? Well, solving the problems of divorce and unwed motherhood is hard. And lots of Republican and conservative voters have been divorced. A constitutional amendment to ban divorce wouldn’t go over very well with even the social-conservative constituency. A legal ban on premarital sex would address the problem, but even social conservatives realize that it would be an imprudent exercise of state power. Far better to pick on a small group, a group not perceived to be part of the Republican constituency, and blame them for social breakdown and its associated costs.

But you won’t find your keys on Main Street if you dropped them on Green Street, and you won’t reduce the costs of social breakdown by keeping gays unmarried and not letting them adopt orphans.

Topics: 
Government and Politics

Issa: IRS Is Violating ObamaCare by Illegally Taxing Employers in 33 States

By
Michael F. Cannon

House Committee on Oversight and Government Reform chairman Darrell Issa (R-CA) writes in the Washington Examiner: 

To combat the sticker shock of Obamacare’s numerous requirements on health insurance premiums, the law creates expensive subsidies, which take the form of tax credits, for individuals who purchase a government-approved insurance plan. In order to avoid the appearance of a federal takeover of health care, the law ties the availability of these premium tax credits to an “Exchange established by the State.” Importantly, the way the law was written, if tax credits are not available within a state, then the expensive employer mandate tax does not apply to companies within that state.

With so many states refusing to play the role the law’s drafters envisioned, the Obama administration has embarked on a legally dubious effort to bypass the plain language of the law. Obama’s IRS has issued a rule that delivers the expensive subsidies through federally run exchanges as well. If it stands, this extralegal rule will undermine the decision-making role offered to states by Obamacare, and cause hundreds of billions of dollars of taxes and spending not authorized by the president’s health care law…

The language that limits tax credits to state-established exchanges should not now shock Obamacare’s supporters. Early in 2009, legal scholar Timothy Jost, one of Obamacare’s leading proponents, explicitly suggested linking the tax credits to state-established exchanges as a way to encourage states to set up the exchanges.

The Obama administration may be surprised and disappointed that many states have not found the refundable tax credit to be a sufficient incentive to set up their own exchanges, exposing their citizens to the other taxes and penalties associated with the law. But this does not justify the administration’s effort to ignore the plain language of the law that Obama championed and signed.

For more on this issue, see Jonathan Adler’s and my Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”

Topics: 
Government and Politics, Health Care

Targeting Multinationals, the OECD Launches New Scheme to Boost the Tax Burden on Business

By
Daniel J. Mitchell

I’ve been very critical of the Organization for Economic Cooperation and Development. Most recently, I criticized the Paris-based bureaucracy for making the rather remarkable assertion that a value-added tax would boost growth and employment.

But that’s just the tip of the iceberg.

Now the bureaucrats have concocted another scheme to increase the size and scape of government. The OECD just published a study on “Addressing Base Erosion and Profit Shifting” that seemingly is designed to lay the groundwork for a radical rewrite of business taxation.

In a new Tax & Budget Bulletin for Cato, I outline some of my concerns with this new “BEPS” initiative.

…the BEPS report…calls for dramatic changes in corporate tax policy based on the presumption that governments are not seizing enough revenue from multinational companies. The OECD essentially argues that it is illegitimate for businesses to shift economic activity to jurisdictions that have more favorable tax laws. …The core accusation in the OECD report is that firms systematically—but legally—reduce their tax burdens by taking advantage of differences in national tax policies.

Ironically, the OECD admits in the report that revenues have been trending upwards.

…the report acknowledges that “… revenues from corporate income taxes as a share of gross domestic product have increased over time. …Other than offering anecdotes, the OECD provides no evidence that a revenue problem exists. In this sense, the BEPS report is very similar to the OECD’s 1998 “Harmful Tax Competition” report, which asserted that so-called tax havens were causing damage but did not offer any hard evidence of any actual damage.

To elaborate, the BEPS scheme should be considered Part II of the OECD’s anti-tax competition project. Part I was the attack on so-called tax havens, which began back in the mid- to late-1990s.

Read the rest of this post »

Topics: 
Finance, Banking & Monetary Policy, Government and Politics, International Economics and Development, Tax and Budget Policy

When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional?

By
Ilya Shapiro

Readers of this blog know that Cato filed a brief in Hollingsworth v. Perry arguing that state prohibitions on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment.  But since when have they done that?  More broadly, to quote a colloquy between Justice Scalia and Ted Olson in the Perry argument:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? …

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

With due respect to Ted Olson, a former solicitor general who’s argued more cases than I’ve watched, I think he missed the mark on this one.  How do rights spontaneously emerge?  To pick up on one of the above examples, was segregation constitutional in 1900 but then somehow not 50 years later?  No, Plessy v. Ferguson was incorrectly decided in 1896 and Brown v. Board of Education overruled it rather than merely asserting that there was an “evolutionary cycle.”  Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision.

And so, either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.  Josh Blackman and I wrote about doing this “originalism at the right time” in our exegesis of the Privileges or Immunities Clause in the context of the right to keep and bear arms, Keeping Pandora’s Box Sealed.  (Josh later extended that analysis in a short piece on gender equality and sex discrimination.)

Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what “equal protection of the laws” in 1868 and apply that understanding accordingly.  As Elizabeth Wydra, my co-counsel on our Perry brief, wrote on the Constitutional Accountability Center’s blog:

While race was obviously at the forefront of the minds of the Amendment’s drafters – after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That’s not the point. No originalist – not even Justice Scalia – believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren’t drug-sniffing police dogs in 1791, doesn’t mean their use can’t violate the Fourth Amendment’s protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to “any person.” In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one’s choice thus contravene the original meaning of the Fourteenth Amendment.

See also Josh Blackman and Orin Kerr.  And for more on the original meaning of the Equal Protection Clause, see my op-ed with CAC’s president, Doug Kendall.

Topics: 
Government and Politics, Law and Civil Liberties

Oral Argument in Prop 8 Case: Kennedy Is Key but Technical/Non-Decision Likely

By
Ilya Shapiro

To the extent oral argument is a predictor of anything – recall how set the Supreme Court was to strike down Obamacare a year ago – the most likely outcome in Hollingsworth v. Perry is a non-decision of some sort.  Only three justices (Scalia, Kennedy, Alito) seemed willing to find that the Prop 8 proponents had standing to bring the case to the Court and one of those (Kennedy) didn’t seem comfortable either striking down or upholding California ban on gay marriage.  

Indeed, the main thing this argument did was to bring back questions of why the Court took the case in the first place.  Unlike the Defense of Marriage Act case of United States v. Windsor, which will be argued tomorrow, the lower court’s ruling in Perry affected only California’s peculiar circumstances: granting gay marriage (by judicial opinion), then taking it away (by popular vote), and otherwise granting same-sex couples all the rights and benefits of marriage except the word.  The Supreme Court tends to use any excuse available not to hear controversial cases, and this one was chock full of them (as even Ted Olson and David Boies argued in their opposition to the petition for certiorari).

But now we’re left with two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place – so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.

Or we could have one other intriguing non-decision scenario: The Court sets the case for further briefing and re-argument on any number of potential issues – the factual evidence regarding asserted state interests (e.g., outcomes for children raised by gay couples, the effect of allowing gay marriage on marriage and divorce rates more broadly), the historical meaning of equal protection (see Cato’s brief), or some other real or pretextual reason for kicking this can down the road.  Because if there was agreement on one point this morning – other than that the U.S. government’s argument that states’ only options were granting same-sex marriage or not giving gay couples any rights at all (the logical consequence of the Ninth Circuit’s ruling) – it was that gay marriage is a very new phenomenon that at present takes the Court into “uncharted waters” (to quote Justice Kennedy).  And so the justices may want to let the social science (and public opinion) develop for a while.

But, of course, these concerns – as well as the procedural complications – were present when the Court took the case in December, so why take it in the first place?  It could well be that either the “conservative” or “liberal” justices wanted to force Justice Kennedy’s hand. Well, it was clear today that the gentleman’s not for forcing.

For further analysis, which I’m gratified to see is substantially similar,see Tom Goldstein and Lyle Denniston at SCOTUSblog.

Topics: 
Government and Politics, Law and Civil Liberties

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