Will Democrats Become the Party of Educational Liberty?

The swing vote has swung. As I write this on November 7th at 10:30pm PST, the Democratic party has taken control of the U.S. House of Representatives and seems headed for victory in the Senate as well.

Democrats ran, and won, largely on voter dissatisfaction with the status quo. But political honeymoons are shorter than Hollywood marriages. Before too long, Democrats will have to show that they bring something to the table beyond the fact of not being Republicans. They will have to prove that they can once again become a party of ideas – and good ones, at that.

Short of a miracle, they are not going to come up with any political silver bullets in the foreign policy arena. It’s doubtful that anyone could. That leaves domestic policy. As it happens, though, a growing number of state and local Democratic politicians are already showing compelling leadership on an issue of importance to every parent, child, taxpayer, and business in America: education.

In recent weeks, several prominent Democrats have thrown their support behind education tax credit programs that would bring real school choice to families that have little if any such choice today. In NJ, state Sen. Raymond Lesniak and Assemblyman Joseph Cryan – both Democrats – are among the “new and powerful backers” of a scholarship donation tax credit. The proposal would allow businesses to donate money to private scholarship-granting organizations which in turn would provide tuition assistance to low-income families. Yet another high-profile NJ Democrat to come out in favor of the policy is popular Newark mayor Cory Booker, who sent a letter to state legislators urging them to support it.

They aren’t alone. Elliot Spitzer, NY state’s new governor-elect (D - landslide), has also come out in favor of education tax credits.

These endorsements will most likely be characterized as departures from the party’s recent anti-school-choice stance. Much more importantly, they represent a return to its historical principles and policy solutions. Democratic U.S. Senator Daniel Patrick Moynihan championed an education tax credit bill back in the early 1970s, and it very nearly passed. He later mourned the political calculus that caused his party to spurn school choice, saying:

I do not think that the prospect of change in [education] is enhanced by the abandonment of pluralism and choice as liberal ideas and liberal values. If that happens it will present immense problems for a person such as myself who was deeply involved in this issue long before it was either conservative or liberal. And if it prevails only as a conservative cause, it will have been a great failure of American liberalism not to have seen the essentially liberal nature of this pluralist proposition.

School choice was rejected by Democrats because the party was so beholden to public school employee unions, and because some Democrats were fearful, according to Moynihan, of educational pluralism. But in blue states such as New Jersey and New York, absolute obeisance to union demands is not essential to Democrats’ political survival. And over the course of the past several decades, Democrats have consistently voiced support for educational diversity, and praised more humanized, child-centered approaches to learning. Both are far more compatible with a system of parental choice than with the factory-like public school monopoly we have today.

And support for school choice through education tax credits is not without its own appealing political calculus for Democrats. What other single policy could promote the loyalty of the libertarian swing voters who have just helped Democrats to power, while also meeting the demands of inner-city voters who have been clamoring for school choice.

Democrats, in other words could very easily steal the school choice issue from Republicans. Best of all, they wouldn’t actually be stealing it. Education tax credits were a Democratic idea more than thirty years ago. The torch has been passed from Moynihan at the national level to current state party leaders. Now it’s up to them to spread that fire of educational liberty, or let it fizzle out. And more than their party’s future depends on their decision.

Where There Is Too Much Vision, The People Perish

As the country heads to the polls, that old debate about whether it’s rational to vote is getting rehashed at Reason and the Volokh site.  I intend to regularly exercise my right to complain, but as a disenfranchised DC’er, I’m rather less tempted to pull the lever (touch the touchscreen?) than I’d ordinarily be.  I always find it disturbing when you exit the booth and they give you a little “I Voted!” sticker, like they do when you’re seven years old and they want you to show the world that you didn’t have any cavities.  If this is a civic duty, let’s at least try to make it dignified for the grown-ups.  Either that, or bring back Tammany and the kegs of rum. 

On the Cato homepage, we have a number of useful links on the merits of divided government.  Meanwhile, on today’s Washington Post op-ed page there are dueling columns over which party should be condemned as the party of “no ideas.”  E.J. Dionne says it’s the GOP.  Michael Kinsley wades through the pablum of “A New Direction for America,” the Democrats’ campaign manifesto, and suggests it’s the Ds. 

Ideas can be overrated, though.  I’d certainly like to see either or both parties run on libertarian ideas, but failing that, a nice mix of gridlock, investigations, and scandals is preferable to a robust “vision thing” based on either perpetual war or muscular redistribution, which is what the “idea-heavy” wing of each party offers.  Mencken marked the end of the Coolidge administration by saying, “There were no thrills while he reigned, but neither were there any headaches. He had no ideas, and he was not a nuisance.”  For Mencken, this was praise.  He was on to something. 

Are the Bush Tax Cuts Really in Jeopardy?

Deroy Murdock has a piece on National Review Online about the threat of tax and spending hikes under a Democratic Congress.     

The threat seems to me exaggerated.  Yes, Democrats would love to raise taxes.  But just because Charlie Rangel would be House Ways and Means chairman doesn’t mean tax hikes are a foregone conclusion.  I actually think President Bush would remember where he stashed his veto pen if his tax cuts were really in jeopardy and it’s unlikely the Democrats will have a veto-proof majority in Congress. (Mark the day: I’ve finally said something complimentary about the president!)  That’s assuming a bill raising taxes even passes out of the House in the first place, of course.  After all, 15 Democrats did vote to extend the capital gains and dividend tax cuts earlier this year.    

On government spending, the same logic applies.  The Democrats are just not likely to have enough votes to get everything they want.  The 30-plus fiscally-moderate Democratic members in the Blue Dog caucus will also have more clout in a closely divided Congress.  The back-bencher GOP members who have always fought against profligate spending – Jeff Flake of Arizona, Mike Pence of Indiana, Jeb Hensarling of Texas, et al – will still be around and have more pull in this scenario, too, especially in the wake of the inevitable post-defeat purge of the current leadership ranks.  Indeed, many Republicans who were quite fond of Big Government when they were pulling the levers might suddenly become budget hawks now that the “other guys” are in charge. 

So, such a scenario would probably not result in a reversal of current tax policy.  The ensuing gridlock would probably result in a slower rate of budget growth as it has in the past (which is something I’ve pointed out before).  The world wouldn’t end.  Indeed, it might actually look a little brighter – at least in the short term – for those hoping to see restraint in the growth of government.                

Voters Yawn over Global Warming

I’ve long argued that enviros don’t have anywhere near the electoral clout most people think and that no one is going to gain much political capital donning the garb of “Mr. Green Jeans.”  Today, the trade publication Greenwire (subscription required) agrees.  And believe me, these are the last people who want to make this argument.

CAMPAIGN 2006: Voters cool to climate issue in torrid midterm races

Darren Samuelsohn, Greenwire senior reporter

Five Northeastern Republicans facing fierce re-election battles turned just before the latest congressional recess to global warming in hopes the issue would boost their chances in their suburban House districts.

But the lawmakers apparently got little traction from climate change in a campaign dominated by voter concerns about the Iraq war, President Bush’s unpopularity and overall dissatisfaction with Republican leadership.

“It’s been very difficult for any of these incumbents whose problems are bigger than themselves, or whose problems have been themselves,” said Bernadette Budde, a senior vice president for the Business and Industry Political Action Committee. “They have had a hard time changing the subject.”

The five – Reps. Curt Weldon (Pa.), Mike Fitzpatrick (Pa.), Christopher Shays (Conn.), Nancy Johnson (Conn.) and Rob Simmons (Conn.) – cosponsored in September what some consider the most aggressive bill to date aimed at limiting heat-trapping greenhouse gas emissions. The bill’s lead sponsor is Rep. Henry Waxman (D-Calif.), the presumed new chairman of the House Government Reform Committee if his party wins a majority of House seats.

“Doing it before Congress goes off to campaign is telling,” said Howard Reiter, chairman of the political science department at the University of Connecticut. He added that global warming is a nuanced subject that comes with an important caveat: It may require constituents to make sacrifices in their day-to-day lives.

“The problem with global warming is its incremental,” Reiter said. “It’s not as if there’s an immediate crisis people can see.”

Massie Ritsch, spokesman for The Center for Responsive Politics, a nonpartisan organization that tracks campaign spending, said the recent media frenzy over climate change – from Hollywood-style documentaries to mainstream press coverage – did little to stir voters this year. “For all of the attention Al Gore’s movie got, it hasn’t stayed a major election issue,” he said.

The lack of voter interest in climate change is not due to a lack of effort from environmental groups ….

Reporter Michael Burnham contributed to this report.

Get Your Laws off My Body … of Constitutional Rights

One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights.  Exhibit A:  The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart

The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart:  ban partial birth abortion without providing any exception for the health of the mother.  Why does Congress think it can tread where Nebraska couldn’t?  Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health.  The Solicitor General, in turn, contends that those findings deserve deference.

Now, I’m no fan of Roe or partial birth abortion.  But the case is about more than abortion:  If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.

The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving.  Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military.  Should that trigger a compelling interest exception to strict racial neutrality?  Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40?  Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?

If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.

This danger underscores one of the toxic costs of Roe:  When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges.  Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.

Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:

1.  Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure. 

2.  Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.

3.  Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter.  Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.  

By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny.  By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs.  (Of course, the Court could go even farther:  by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)

The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban.  Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny.  And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.

Gannett to Use Peer Production

News outlets are fascinated with the news business, so quite a few stories have been flying around the last few days about the Gannett newspaper chain’s decision to use citizen journalists.

Writes the Washington Post, for example:

Gannett is attempting to grab some of the Internet mojo of blogs, community e-mail groups and other ground-up news sources to bring back readers and fundamentally change the idea of what newspapers have been for more than a century… . 

The most intriguing aspect of Gannett’s plan is the inclusion of non-journalists in the process, drawing on specific expertise that many journalists do not have. In a test at Gannett’s newspaper in Fort Myers, Fla., the News-Press, from readers such as retired engineers, accountants and other experts was solicited to examine documents and determine why it cost so much to connect new homes to water and sewer lines. The newspaper compiled the data and wrote a number of reader-assisted articles. As a result, fees were cut and an official resigned.

It’s all quite reminiscent of Friedrich Hayek’s articulation of how the price system turns local knowledge into a useful form and thus better organizes human action than any centrally planned system.

The blogosphere (writ large) can and often does surface relevant knowledge better than any group of reporters, no matter how smart or dedicated. Gannett is wise to recognize this and incorporate superior local knowledge-gathering into its business model.

Direct Democracy

Aside from voting for “Congress critters,” Americans in many states today have a chance to directly control government fiscal policy.

They will be voting on whether to approve $80 billlion in government bonds in states and cities across the country, including a huge bond package in California endorsed by Governor Arnold Schwarzenegger. Voters usually approve about two-thirds of proposed bonds, but hopefully they will be more skeptical this year given their generally foul mood toward politicians and government. 

In addition, voters have a chance to approve new budget limits on spendthrift politicians in Maine, Nebraska, and Oregon. Most states already have detailed restrictions on their budgets such as balanced budget requirements. This year’s proposals would impose limits on annual increases in taxes and spending, similar to the successful TABOR limit in Colorado. Such limits recognize the fact that politicians love to spend, but they often lack the discipline to make the needed tough trade-offs in budgeting priorities. 

Here [.pdf] is a useful summary of ballot measures across the country, both fiscal and nonfiscal.