Topic: Government and Politics

Ideological Battles and GOP Politics: Will 2008 Mirror 1964?

I recently read William Middendorf’s A Glorious Disaster: Goldwater’s Presidential Campaign and the Origins of the Conservative Movement, which provides an interesting behind-the-scenes look at Barry Goldwater’s 1964 presidential run. While the book focuses primarily on campaign strategy, it is impossible to ignore the bigger picture — that is, the many parallels that exist between Goldwater’s era and today.
 
For instance, the Republican Party of the early 1960s faced an ideological struggle between small-government and big-government conservatives that closely mirrors the GOP infighting we have witnessed in the past few years.

Middendorf’s book notes a 1965 newspaper column by Goldwater in which he lashes out at a newly formed liberal Republican group that “is roughly dedicated to the proposition that the best way to be a Republican is to be a frugal or efficient Democrat, to follow the same philosophy, advocate the same bureaucratic solutions, but promise to do it better or for a few cents less.”

Similarly, in his forthcoming book, Leviathan on the Right, Michael Tanner notes how roughly four decades later, the GOP is embroiled in essentially the same fight:  

Goldwater and Reagan-style conservatism is increasingly being supplanted by a new trend in conservative thought, which might loosely be termed big-government conservatism. This type of conservatism believes in a strong and activist government that intervenes in many areas of our lives, from dealing with issues such as poverty or health care to protecting the cultural institutions of our society. Increasingly it has come to resemble contemporary liberalism in its means, if not its ends.

While Middendorf does not really address current politics in his book, the 1964 election appears to share some odd similarities with the 2008 race. In ’64, the frontrunners for the GOP nomination included a maverick senator from Arizona (Goldwater), a governor named Romney (George of Michigan) and a moderate executive from New York (Nelson Rockefeller).  The early front runners in 2008 are once again a maverick senator from Arizona (John McCain), a governor named Romney (George’s son, Mitt of Massachusetts) and a moderate executive from New York (Rudy Giuliani). Of course, in 1964 Goldwater won the nomination and was trounced in the general election by President Lyndon B. Johnson.   

While I’m not sure he’s a proper heir to the limited government legacy of Goldwater, McCain is arguably the frontrunner for the ’08 GOP nomination. And it might well be time for the senator from Arizona to take note of the failures of his predecessor’s campaign. Goldwater made his fair share of blunders during the campaign, but in the end he was beaten handily primarily because the general public believed his foreign policy views were too hawkish and could lead America into World War III — not because he espoused a reduction in the size and scope of the federal government. If McCain fails to learn from history, his success in the general election may mirror that of Goldwater.

Irony, in the Alanis Morissette Sense

Here’s a nice book-end to Chris Edwards’ recent post — and the flurry of controversy — about federal compensation reaching precisely double the national average: 

Tax Prof Blog (via Volokh) notes that federal employees owe $2.8 billion in taxes. Tax Prof lists and compares the “scofflaw” rates of different agencies and departments, with the U.S. Commission on Civil Rights coming in just shy of 10 percent.

How Large are Federal Oil Subsidies?

Yesterday, I co-authored an op-ed with Peter Van Doren on the Democrats’ energy bill scheduled for a vote today in the House.  The bill is advertised as an exercise to eliminate the subsidies going to “Big Oil” and to use that money instead to subsidize renewable energy (the fact that “Big Oil” is also in the renewable energy business and will simply find that the federal checks are going to different corporate in-boxes has apparently not occurred to anyone, but I digress).  But did the Democrats wipe out all the subsidies, or did they leave some big subsidies behind?

A lot of people think that the Democrats left a lot of money on the table.  Today in the Christian Science Monitor, for example, economist Doug Koplow argues that the biggest subsidy left untouched by Pelosi & Co. relates to the military protection of oil producing facilities and shipping lanes abroad, a mission which costs the taxpayer at least $19 billion a year. 

While the Ds certainly were less than thorough in their anti-oil-subsidy crusade, I’m not so sure that the subsidies are anywhere near as large as many people think.

Quantifying the national security costs associated with ensuring the safe and reliable delivery of foreign oil is difficult.  The Congressional Research Service estimated in 1997 that those costs may be anywhere between $0.5-65 billion, or 1.5 cents to 30 cents per gallon for motor fuel from the Persian Gulf.  Agreement about the extent of the military’s “oil mission” is difficult because military and foreign policy expenditures are generally tasked with multiple missions and objectives, and oil security is simply one mission of many.  Analysts disagree about how to divide those missions into budgetary terms. 

Debate about the size of the U.S. military’s oil mission and related foreign policy expenses, however, is not particularly relevant to a discussion about whether and to what extent oil companies are subsidized by this kind of thing.  From an economic perspective, the key question is whether an elimination of U.S. military and foreign aid expenditures dedicated to “the oil mission” would result in (a) greater corporate expenditures to secure oil from abroad, and/or (b) an increase in the price of oil, and, if so, how much?  That is the true measure of the subsidy if it indeed exists.  That’s because, if the oil mission provides no value to multinational oil companies or oil consumers - as I maintain - than it is not a subsidy.  Measuring the subsidy by the amount of money government spends on the oil mission is at best a measure of how much politicians believe the national security externalities might be.  Political assessments may or may not be accurate.            

To be sure, if the termination of the American “oil mission” implied the termination of all military, police, and court services in the region, petroleum extraction investments would become more risky, extraction of oil might decrease, and prices would increase.  But remember that oil companies in the Middle-East are creatures of government.  So the question is really whether Middle-East governments would produce less oil because the United States ended its oil-related military mission and foreign aid.  Or would oil producing states provide – or pay others to provide – military services to replace those previously provided by the United States?           

I strongly suspect that a cessation of U.S. security assistance would be replaced by security expenditures from other parties.  First, oil producers will provide for their own security needs as long as the cost of doing so results in greater profits than equivalent investments could yield.  Because Middle-Eastern governments typically have nothing of value to trade except oil, they must secure and sell oil to remain viable.  Second, given that their economies are so heavily dependent upon oil revenues, Middle-Eastern governments have even more incentive than we do to worry about the security of production facilities, ports, and sea lanes.  

In short, whatever security our presence provides (and many analysts think that our presence actually reduces security) could be provided by other parties were the United States to withdraw.  The fact that Saudi Arabia and Kuwait paid for 55 percent of the cost of Operation Desert Storm suggests that keeping the Straits of Hormuz free of trouble is certainly within their means.  The same argument applies to Al Qaeda threats to oil production facilities.           

If oil regimes paid for their own military protection and the protection of their own shipping lanes, would U.S. Middle-East military expenditures really go down?  The answer might very well be “no” for two very different reasons.  First, the U.S. Middle-East military presence stems from our implicit commitment to defend Israel as well as the region from Islamic fundamentalism, and those missions would not likely end simply because Arab oil regimes paid for their own economic security needs.  Second, bureaucratic and congressional inertia might leave military expenditures constant regardless of Israeli or petroleum defense needs.              

Thus, U.S. ”oil mission” should not be viewed as a subsidy that lowers oil prices below what they otherwise would be.  Instead, the expenditures are a taxpayer-financed gift to oil regimes and the Israeli government that has little, if any, effect on oil prices or corporate profits.  Now, I’d be happy to see the oil mission go, but “Big Oil” won’t be any poorer for it.

More on Bush’s Surveillance Flip-Flop

Based on the DOJ briefing regarding the NSA surveillance about-face, it appears that the Foreign Intelligence Surveillance Court (FISC) is not approving surveillance on a program-wide basis.  Instead, it is issuing individualized surveillance orders against particularized targets.  It remains unclear, though, how exactly the FISA orders have changed to permit more “speed and agility” and, because so much is taking place within the dark, all suggestions are pure, unadulterated guess-work.

One compelling theory is Orin Kerr’s:  namely, that the FISA court is issuing anticipatory warrants (warrants based on a finding that there is probable cause to search when a future triggering condition appears.)  As Kerr notes, that’s consistent the one bit of evidence we can glean:  that the FISA court is limiting the approval orders to a 90 day period, rather than the full statutory one year period permitted under FISA.  Shorter review is consistent with ensuring that the triggering condition for the search and the probable cause requirement mesh.  It also helps explain the timing, since the Supreme Court approved anticipatory warrants in United States v. Grubbs last term.  (For more on Grubbs, read Professor David Moran’s article on last term’s Fourth Amendment cases, The End of the Exclusionary Rule, Among Other Things, in the latest Cato Supreme Court Review.)

Kerr’s theory, however, doesn’t explain one part of the puzzle:  multiple sources’ statements to the Washington Post that the orders touch on ”programmatic” issues.  What might this mean, if FISC is approving orders on a case-by-case, rather than program-level, basis?

One possibility is that DOJ has adopted a streamlined internal approval process for emergency FISA applications within the executive branch, and that FISC has approved it.  FISA imposes some internal pre-approval requirements for emergency applications–including review by the AG and a cabinet level official with foreign affairs responsibility.  In February testimony last year, Gonzales complained at length that this statutory approval process had become overly cumbersome:

To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances. 

But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance. 

This requirement can be cumbersome and burdensome.  Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.  Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.  

But even this is not the end of the story. 

Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI. 

Finally, a judge must review, consider and approve the application.  All of these steps take time. Al Qaida, however, does not wait.  … Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.  

In the briefing on the new FISA process, however, the administration noted that one change that made compliance with FISA possible was a change in executive branch “infrastructure”:

[O]ne thing that did change was – authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will – be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.

One way to read this is that the new FISC order finds that new streamlined executive branch procedures for internal review of emergency applications accords with FISA.  Its hard, unfortunately, to guess exactly what such procedures might be, but it almost certainly includes eliminating duplicative layers of legal oversight within the executive.

Less Redress, More Grievances

The first bill proposed in the U.S. Senate in the new session of Congress attacks freedom of speech.

Some organizations use direct mail and other means to urge the public to contact members of Congress on a variety of issues. Currently some of those groups do not have to disclose those efforts to prompt public input.

Sen. Joseph Lieberman (I-CT) is not happy with such freedom from regulation. He has proposed that such organizations should be forced to disclose these efforts if they spend more than $25,000 a quarter and do not have a dues-paying membership (see S1, Sec. 220).

According to CQ Today, Lieberman’s spokeswomen said, “There’s nothing in this measure that will stop, deter or inhibit anyone from petitioning the government.” If that were true, no one in Congress would support Lieberman’s proposal. Congress passes restrictions on First Amendment rights primarily to discourage political activity, thereby increasing the discretion of a member while decreasing their accountability.

This particular measure imposes new costs on the groups who exercise their First Amendment rights. It will also expose the groups and their supporters to abuse and attacks in the political arena. Both costs increase the price of petitioning the government for redress of grievances and thereby reduce its likelihood.

Is Lieberman’s bill constitutional? The U.S. Supreme Court has said that mandatory disclosure of activities tied to First Amendment rights (like say, “the right to petition the government for redress of grievances”) may be justified to prevent corruption (or its appearance) and to inform the public better about candidates or legislation. The groups give money to the U.S. Post Office or other direct mailers, not to members of Congress or other policymakers. Hence, quid-pro-quo corruption is not at issue here. The groups are also informing the public about issues and urging them to contact Congress. How any of this constitutes the “appearance of corruption” is anyone’s guess.

I suspect the traditional justifications for mandatory disclosure do not matter much here. No one seriously believes these direct mail campaigns corrupt politics. Members of Congress no doubt believe that these direct mail groups have more influence than they should have. In particular, members of the new majority running the Senate may believe the direct mail efforts to foster contacts with Congress give “undue influence” to their conservative opponents. Hence, Sen. Lieberman comes up with a bill to throw some sand in the gears of the conservative political machine.

If you ever doubt why the First Amendment exists, consider this: the first thing mild-mannered Joe Lieberman did when a new majority took control of the Senate was to attack the constitutional rights of those who disagree with him.

Next Up: Democrats’ Plan for Tax Augmentation

The Washington Post reports:

[Sen. Chuck] Hagel, a Vietnam veteran, angrily condemned the “escalation” of the [Iraq] war. “To ask our young men and women to sacrifice their lives to be put in the middle of a civil war is … morally wrong. It’s tactically, strategically, militarily wrong.”

“I don’t see it, and the president doesn’t see it, as an escalation,” [Secretary of State Condoleezza] Rice replied.

Hagel looked stunned. “Putting 22,000 new troops, more troops in, is not an escalation?”

“Escalation is not just a matter of how many numbers you put in,” Rice ventured.

“Would you call it a decrease?” Hagel pressed.

“I would call it, Senator, an augmentation.”

The War Decider

I can answer the question Senator Webb put to Secretary Rice yesterday. The answer is, yes, it is “the administration’s position that it possesses the authority to take unilateral action against Iran in the absence of a direct threat without congressional approval.” They haven’t yet directly said “we can launch a war with Iran and we don’t need anyone’s permission,” but it’s not hard to read between the lines:

In April 2002, John Yoo, then with the Justice Department’s Office of Legal Counsel, testified  before the Senate Judiciary Committee that ”the President has the constitutional authority to introduce the U.S. Armed Forces into hostilities when appropriate, with or without specific congressional authorization.” In an internal memorandum prepared shortly after September 11, 2001, Yoo had put it even more starkly: “In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” 

That is consistent with Vice President Cheney’s long-held view of the president’s powers, as can be seen in this Frontline interview in which Cheney discusses his role as secretary of defense during the Gulf War:

Q: The Congressional vote. Do you recall discussing with the President what he would have done if he’d lost the votes. 

Cheney: It was my view at the time [that] we were absolutely committed to getting Saddam Hussein out of Kuwait one way or the other, no matter what we had to do. We had to have the Saudis as allies in that venture, but if no one else had been with us, if it had just been the United States and Saudi Arabia, without the United Nations, without the authorization of the Congress, we were prepared to go ahead. I argued in public session before the Congress that we did not need congressional authorization…. I was not enthusiastic about going to Congress to ask for an additional grant of authority. I was concerned that they might well vote NO and that would make life more difficult for us, or that even if they voted YES and then we had a disaster on our hands and it didn’t work, they’d still be against us….

Q: But if you’d lost the vote …?

Cheney: If we’d lost the vote in Congress, I would certainly have recommended to the President we go forward anyway.

If and when Secretary Rice provides her promised written answer to Senator Webb, I doubt that it will say: “The president has the constitutional authority to launch wars at will, anywhere in the world, at any time of his choosing, without anyone’s permission. So yes, of course he can start a war with Iran.” But that is the administration’s view.

(Hat tip: Matt Yglesias