MayerBlog: The Web Log of
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Tricks and Treats
It’s Halloween – time for “trick or treat” (that annoying custom in most American residential neighborhoods) – and also time for some brief comments on current developments in politics and popular culture in the good ol’ USA:
· Trick: The “CIA leak” case Democrats and their political allies in the news media were near-orgasmic in their glee over the news that Vice President Dick Cheney’s top aide, I. Lewis “Scooter” Libby, has resigned after being indicted on charges of perjury and obstruction of justice. Libby’s indictment apparently is the culmination of a two-year investigation by Special Counsel Patrick Fitzgerald into the case involving the “leak” to the news media of the identity of a CIA official, Valerie Plame, who was married to former ambassador Joe Wilson, a critic of the Iraq war. Significantly, the indictment against Libby alleges no crime involving the leak itself (under either the Intelligence Identities Protection Act or the 1917 Espionage Act); the person who leaked Mrs. Wilson’s name to conservative journalist Robert Novak (himself a critic of the Iraq war) remains unknown, although opponents of the Bush administration would dearly love to see Mr. Bush’s key political strategist, Karl Rove, indicted for that “crime.” To anti-Bush fanatics, the pathetically puny denouement of Fitzgerald’s investigation must be a great disappointment – although that did not stop them from assailing alleged White House “corruption.” The Bush administration has a long, long way to go before it even approaches the level of corruption that was rampant throughout the Clinton administration. Clinton’s housing secretary, Henry Cisneros, resigned in 1996 and a year later was indicted on 18 counts of conspiracy, obstruction, and lying to the FBI. (He subsequently plead guilty to a misdemeanor and was fined $10,000.) Clinton’s agriculture secretary, Mike Espy, resigned in 1994 and later was indicted on 39 counts alleging he received financial gifts from Tyson Foods, one of the companies his department regulated. (He was acquitted on all counts in 1998.) In 1993 White House travel office chief Billy Dale and his entire staff were fired by the Clinton administration, on what appeared to be trumped-up charges (Dale was indicted in 1994 on two counts of embezzlement and conversion but was acquitted of all charges in 1995), designed to replace them with Clinton cronies. “Travelgate” was one of several major scandals of the Clinton presidency – along with “Filegate,” the illegal misuse of hundreds of FBI files for political purposes, and the Whitewater affair, the fraudulent land scheme involving both Bill and Hillary Clinton – which were never prosecuted (except for the McDougals, the Clintons’ partners in the Whitewater scheme, who were sent to jail, until Clinton in one of his “Midnight Pardons” freed Susan McDougal). Clinton himself, of course, was impeached on charges of perjury before a federal grand jury and obstruction of justice – essentially charges no less serious than those against “Scooter” Libby – but was acquitted by the Senate, acting on political grounds, and also was not prosecuted for his crimes. Mr. Libby, on the other hand, faces 30 years in prison and fines of $1.25 million if convicted of lying about the leak of a CIA agent’s name. It’s a legitimate question whether this alleged “leak” involved any wrongdoing at all. Just as with the prosecution of Martha Stewart – who was similarly charged with the “crime” of lying to federal agents, when the government was unable to prove any underlying offense of insider stock trading – this case sets an ominous precedent that ought to concern all Americans. As the Wall Street Journal noted in recent editorial, “The indictment itself contains no evidence of a conspiracy, and Mr. Libby has not been accused of trying to cover up some high crime or misdemeanor by the Bush administration. The indictment amounts to an allegation that one official lied about what he knew about an underlying `crime’ that wasn’t committed.” This prosecution involves, “at bottom, a policy dispute between an elected Administration and critics of the President’s approach to the war on terror, who included parts of the permanent bureaucracy of the State Department and CIA [Mr. and Mrs. Wilson]. . . . [This] indictment looks like a case of criminalizing politics” (“Obstruction for What?” Oct. 29-30). Whoever blew the whistle on the Wilsons – whether Libby or Karl Rove, or someone else – ought to be commended, not prosecuted, for doing the nation a great service by exposing the political chicanery of Mr. and Mrs. Joe Wilson. The “leak” in this case exposed the truth about Mr. Wilson, a critic of the Bush administration who was lying to the press about his trip to Niger to investigate whether the country sold uranium to Iraq for use in nuclear weapons – and also lying about why an Administration critic was sent on so politically sensitive a mission. (It turns out that Wilson was sent at the behest of his wife, Valerie Plame, whose work at the CIA under “non-official cover” apparently was not so secret in Washington.) As the Journal observed in an editorial several months ago, “If there’s any scandal at all here, it is that this entire episode has been allowed to waste so much government time and media attention, not to mention inspire a `special counsel’ probe” (“Karl Rove, Whistleblower,” July 5). And as Christopher Hitchens suggests in a thoughtful op-ed column in today’s Journal, what the whole ridiculous episode really shows is the folly of U.S. “secrets” laws – “Why should [the CIA] be the only agency of the government that can invoke the law, broken or (as in this case) unbroken, to protect itself from leaks while protecting its own leakers?” – laws that ought never to have been passed in the first place and which ought to be voided as palpable violations of the First Amendment.
· Treat: The nomination of Judge Samuel Alito to the Supreme Court President Bush has partially made up for the Harriet Miers fiasco by today nominating Judge Samuel A. Alito to succeed Sandra Day O’Connor as associate justice on the U.S. Supreme Court. (I say “partially” because, to many of us, Bush’s pick of Miers, a crony who was clearly unqualified for the Court, was an unforgivable act that reveals his contempt for the Constitution.) Judge Alito is superbly qualified for the Court: he began his distinguished career in the U.S. Justice Department (where his approximately 15 years of service included a stint as Assistant to the Solicitor General, arguing 12 cases on behalf of the federal government in the U.S. Supreme Court); and after being confirmed unanimously by the U.S. Senate in 1990, has served 15 years as a federal appellate judge, on the U.S. Court of Appeals for the Third Circuit – giving him more federal judicial experience than 105 of the 109 Supreme Court justices appointed in U.S. history. By all accounts, Judge Alito is a solid jurisprudential conservative. He’s been described by some as “within the mold of [Justice] Scalia” – and even has been called “Scalito” by some – which strikes me as perhaps an unfair stereotype of Italian-Americans, Catholics, and conservatives. As I have noted previously, there are different types of jurisprudential conservatives, and it’s especially simplistic and unfair to lump Justices Scalia and Thomas – who have distinctive and distinguishable approaches to constitutional interpretation – into the same category, as President Bush and both his supporters and opponents have tended to do. Personally, I’d favor someone more in the “mold” of Justice Thomas – someone who’s more of a libertarian conservative than a social conservative, someone who’s more of an originalist than a strict textualist – but any type of jurisprudential conservative is preferable to the left-liberal constitutionalists who now hold four of the nine seats on the Court (and frequently get a fifth vote from either Justice Kennedy or O’Connor). In terms of being a good successor to Justice O’Connor, Alito probably would help preserve the positive legacy of the Rehnquist Court (by voting as O’Connor did, generally, in favor of the Court’s so-called “New Federalism”) and also solidify the Rehnquist Court’s revival of conservative constitutionalism in some areas where O’Connor joined with the left-liberals (such as abortion, “affirmative action,” and government “establishment” of religion). (In my view, the loss of O’Connor’s “moderate” vote is unfortunate only with respect to the last category of cases.) Alito’s judicial philosophy – and especially the position he’s likely to take on particular issues or cases – nevertheless is not relevant to the Senate’s consideration. As I have previously discussed here, the sole legitimate question for the members of the U.S. Senate, in exercising their “advise and consent” powers to confirm Alito’s nomination, is whether he is qualified to serve on the Supreme Court. Undoubtedly, he is. But, as I’ve also previously discussed, the Senators, both Democrat and Republican, will not act according to their responsibility under the Constitution but rather according to political expediency. Left-wing political activist groups and compliant Democrats will oppose Judge Alito because they consider him “right-wing, a “radical” who’s “outside the mainstream”; conservative activist groups and their Republican allies will support Judge Alito because they regard him as a reliable conservative who eschews left-wing “judicial activism.” Republicans hold a majority in the Senate, so Alito will be confirmed; the only question that remains is, By what margin?
· Trick: Bush’s “flip-flop” on Bacon-Davis During the 2004 presidential campaign, supporters of President Bush rightly criticized his Democratic opponent, John Kerry, for his many changes in position, or “flip-flops.” As president, however, Mr. Bush has had his own fair number of policy switches. One recent Bush “flip-flop” concerns whether companies awarded federal contracts for Hurricane Katrina recovery projects will need to comply with the Davis-Bacon Act, a “New Deal”-era law that requires federally-funded construction projects to pay the “prevailing” wage rate (which usually is the amount that’s the pay scale in local union contracts). After having first announced that the Davis-Bacon mandate would be lifted from storm recovery work, Mr. Bush reversed course and reinstated the U.S. Department of Labor’s Davis-Bacon regulations. The Bush administration apparently caved in to pro-union political pressure from a group of “moderate” Republicans (including Representatives Peter King of New York and Frank LoBiondo of New Jersey) from union-heavy districts, who met recently with White House Chief of Staff Andrew Card. This flip-flop is particularly disappointing because the Davis-Bacon Act is a bad law. As critics of Davis-Bacon (including scholars like Professor David Bernstein, of George Mason University School of Law) have shown, the 1931 law is anti-competitive and biased not only in favor of labor unions but against members of minority races, particularly African-Americans, who were excluded from major labor unions in the 1930s. (See Chapter 4 of Prof. Bernstein’s 2001 book, Only One Place of Redress: African-Americans, Labor Regulations, & the Courts from Reconstruction to the New Deal, which maintains that Davis-Bacon “harmed African American construction workers for decades” and continues to do so to the present day. The law originated with New York Congressman Robert Bacon, who was upset that an Alabama contractor had brought a largely black construction crew to build a federal hospital in his district. The president of the American Federation of Labor testified in favor of the law, in the Senate hearings, by complaining that “colored labor is being brought in to demoralize wage rates.” And as the Wall Street Journal noted in a recent editorial, this “relic of the Jim Crow era” continues to be a cause of minority unemployment in the construction sector today, as many economists realize. “In addition to that ugly history, Davis-Bacon is known for creating mountains of paperwork and unnecessary compliance costs” (“Davis Bacon Flip-Flop,” Oct. 27).) By reversing its previously sensible decision to suspend Davis-Bacon, the Bush administration has caved in to “Big Labor” and its supporters in Congress, preserving organized labor’s unfair advantage at the expense of those whose lives have been destroyed by Hurricane Katrina.
· Treat: Oil company profits Major U.S. oil companies have reported record profits in the third quarter of 2005: ExxonMobil, for example, recently reported profits up 75% and revenue up 32%. Critics immediately pounced on the news, demonizing “Big Oil” and showing both their anti-capitalist biases and their ignorance of basic economics. The top two GOP leaders in Congress, House Speaker Dennis Hastert and Senate Majority Leader Bill Frist, called for hearings on why oil company profits are up at a time when energy prices are so high. Well – duh! – as industry analysts have observed, oil companies have earned those profits because the wholesale price of gasoline rose more rapidly than the price of oil. As everyone knows, Hurricanes Katrina and Rita ripped through the industry’s Gulf Coast infrastructure, causing oil and natural-gas production to fall during the quarter (Exxon’s fell 5% and 9%, respectively). With the hurricanes also damaging refining capacity, the average wholesale price of refined gasoline rose 51%, compared to the 44% increase in the average price of oil compared to a year ago. Consumers did pay more, but they were not “price-gouged” by the industry: the average price of gas charged to consumers rose more slowly, only 35% (actually less than the increase in oil prices). And as anyone who has purchased gasoline for their vehicles recently, consumer prices are now falling back to pre-Katrina levels. It’s Economics 101, the law of supply and demand: when supplies fall while demand remains constant, prices will increase. The goal of all businesses – oil companies included – is to make profits. The oil companies earned their profits, and their success should be cheered, not criticized. Those profits will help give the industry the capital it needs to develop new sources of oil and natural gas – provided the government removes the obstacles that it has put in the way, at the behest of radical environmentalists – and more drilling will help satisfy consumer demand for the companies’ products. Three cheers for capitalism and for market pricing! The demagogues in Congress should just shut their mouths and let the free market work.
· Trick: Columbus City Council The Democrat-monopolized City Council of Columbus, Ohio continues to foist its left-wing paternalism on the city’s residents: After having banned smoking in all bars and restaurants (thereby depriving customers of their freedom to enjoy cigarettes and business-owners of their right to use their property as they wish) and then banning so-called “assault weapons” (thereby depriving residents of their constitutionally-guaranteed right of self-defense), the all-Democrat Council voted recently to install red-light cameras on selected intersections in the city. Ostensibly a public-safety measure, the scheme not only wastes public dollars by awarding a lucrative contract to the supplier of the camera devices, but it also arguably makes intersections less safe. The waste of taxpayer dollars is especially egregious given the haste with which the social engineers on Council acted, while the Ohio General Assembly is currently considering legislation to forbid such red-light cameras statewide. One ray of hope for those of us disgusted with the Democratic busy-bodies and anxious for some real “diversity” on City Council: in next week’s elections, three capable Republican candidates are challenging the three Democratic incumbents on the ballot. Unfortunately, however, the three incumbents are heavily favored, not only because of the advantages of incumbency, but also because of the absence of district voting. With all seats on Council being elected at-large, and with registered Democrats outnumbering registered Republicans within the City of Columbus, it’s likely that one-party rule will continue.
· More Tricks: State Issues 1-5 in Ohio Also on the Ohio ballot next week are five statewide referendum issues, each of which is a superb illustration of why public policy ought not to be made by popular referendum. (The referendum is yet another unfortunate legacy of the so-called “Progressive era” of the 20th century. It represents one of the major problems with American government today: an excess of democracy. America’s Founders, thankfully, did not create a democracy, for democratic government is susceptible to many problems, not the least of which is majoritarian tyranny. Rather, the Founders made the United States a constitutional republic, with various checks on political power and safeguards for individual rights. Referendums undermine republican government by substituting for the careful deliberations of the people’s representatives in the legislature the uninformed will of the majority of idiots who vote on Election Day. For more on this, see my previous essay “A Republic – Not a Democracy,”June 6.) Issue 1 is a constitutional amendment authorizing the state to issue bonds to finance “infrastructure” (road and bridge construction and repairs) as well as economic development. It’s the latest incarnation of the so-called “Third Frontier” project proposed by Governor Bob Taft (whom I call “Boob Daft” because the man truly is an idiot). A couple years ago Ohio voters rejected this boondoggle; the governor and his “Daft-y” advisors stubbornly keep bringing it back, hoping this time it will pass by being coupled with infrastructure funding. There’s a good reason why the Ohio Constitution since 1851 has prohibited taxpayer money for private economic development: in the early 19th-century, the state ruinously overextended its credit with a veritable orgy of subsidization of road and canal projects. But Ohio policymakers, who are ignorant of this history, keep trying to repeat these past mistakes. If they really want to “create jobs” and “stimulate economic growth” in the state (which is how they’re trying to sell this scheme), they should do more to reduce Ohio’s tax and regulatory burden which makes this state so inhospitable to all businesses. Issues 2-5 are a package proposed by an organization called “Reform Ohio Now,” which is a front for Democrat activists and their Big Labor allies, who are trying to seize political power in this closely-divided state. It wasn’t that long ago (a little over a decade or so, when I first moved to Ohio) that Democrats controlled state government; now that Republicans have been dominant for several years, Democrats are suddenly in favor of various “reforms,” each of which is designed to help them seize the power that they cannot honestly obtain through the normal electoral process. (A big part of the reason why Republicans have been so successful in winning statewide office is that the Democrats have run mediocre candidates; another part of the reason is that the state’s electorate is slightly more Republican than Democratic, as President Bush’s electoral victories in both 2000 and 2004 show.) Issue 2 would needlessly load the Ohio Constitution with liberal rules allowing “no-fault” absentee voting – needlessly, because the General Assembly already has passed a new early-voting law that permits this. Issue 3 would impose draconian limits on contributions to political campaigns – limiting individuals to $1000 for legislative candidates and $2000 for candidates for statewide office, while permitting labor unions to contribute up to $10,000 or $20,000, respectively, for these candidates through the device of aggregating “small-donor” PACs – and thus is stacked in favor of Big Labor. And like all other campaign-finance regulatory schemes that limit contributions to candidates, it would help entrench incumbents and have a devastating impact on third-party and independent candidates, who historically have depended on large contributions from supporters to finance their campaigns. Issue 5 would create a new, five-member state redistricting commission that would usurp the traditional power of the legislature to redraw legislative and Congressional districts each decade. It would replace one form of “gerrymandering” (for political purposes, to favor the party holding a majority in the legislature) with another (gerrymandering for the purpose of creating so-called “competitive” districts, as determined by the appointed “experts” on the new commission.). And Issue 5 would strip the election-oversight duties from an elected official, the secretary of state, and give them to a new unelected, nine-member statewide Board of Elections Supervisors. (As the Columbus Dispatch aptly characterized this proposal in a recent editiorial, it’s “a needless overreaction to the overt politicking of the current secretary of state, J. Kenneth Blackwell,” whose support for President Bush’s reelection help fuel the paranoia of conspiracy theorists who perceived skewed results in the bitterly-contested 2004 presidential race.) These proposals are particularly objectionable because they’re offered as constitutional amendments, which would load the Ohio Constitution (which, like the constitutions of most states, is already overloaded) with details that don’t belong in constitutions. The purpose of constitutions is to limit the powers of government and to safeguard the rights of individuals – not to make public policy with arcane rules that belong more appropriately in statutory law. And Issues 4 and 5, by giving state judges (including members of the Ohio Supreme Court) part of the responsibility for choosing members of the two new bureaucracies the proposals would create (the redistricting commission and the new state board of elections), would inject the judiciary into purely political decision-making (non-justiciable matters that don’t belong within the legitimate scope of judicial powers), violating the fundamental principle of separation of powers.
· Treat: One sensible referendum, in the “Mile-High” city Although referendums are generally quite dangerous, every so often an issue comes along that is appropriate for popular vote because it’s too hot for legislators to handle. Voters in Denver, Colorado next week will have the chance to vote on one such proposal: a measure that would make it legal for adults to possess up to an ounce of marijuana. Although a “yes” vote probably won’t make much difference, practically – for the city attorney’s office has announced that Denver police would simply file marijuana-possession charges under state law – it’s evidence that some Americans are beginning to see through the bullshit offered in justification of the “War on Drugs.” Viewed rationally, decriminalization of marijuana use and possession makes a great deal of sense: the overwhelming weight of evidence supports the conclusion that marijuana is no more “dangerous” a drug than existing legal drugs such as alcohol or nicotine in tobacco, and that all the horrible “side-effects” that anti-drug warriors claim result from marijuana use, really should be attributed not to the drug itself but to its criminalization. Sadly, however, in the United States today drug policies are determined not by reason but by emotion; and irrational anti-drug hysteria continues to sway public opinion.
· Trick: Daylight Saving Time Early Sunday morning, in most parts of the U.S., Daylight Saving Time (D.S.T.) ended and Americans set all their clocks back one hour, back to Standard Time. Once again, we’ve all been forced to go through the inconvenience of resetting all our clocks, in order to comply with this trick – supposedly to “save energy” during the summer months – mandated by government. Thanks to the omnibus “energy bill” passed by Congress this summer, starting in 2007 D.S.T. will begin three weeks earlier, the second Sunday in March, and end a week later, the first Sunday of November. Rather than extending D.S.T., Congress should have abolished it: government should stop tinkering with time.
· Treat: The end of D.S.T. (for now) As noted, Daylight Saving Time ended yesterday. For the next five months, we all can enjoy normal “Standard” time.
| Link to this Entry | Posted Monday, October 31, 2005 | Copyright © David N. Mayer |
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