Category: reason

Citing Trump’s Rhetoric, Education Secretary Betsy DeVos Resigns

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Education Secretary Betsy DeVos resigned on Thursday, becoming the second Cabinet secretary to exit the administration in opposition to President Trump’s irresponsible encouragement of the rioters who surrounded the U.S. Capitol building on Tuesday, which resulted in violence and several deaths.

“That behavior was unconscionable for our country,” said DeVos in her resignation letter, according to The Wall Street Journal. “There is no mistaking the impact your rhetoric had on the situation, and it is the inflection point for me.”

DeVos’ resignation follows that of Transportation Secretary Elaine Chao, who said the deadly storming of the Capitol building—which forced Congress to halt its certification of President-elect Joe Biden’s win—was “entirely avoidable.” Chao is the wife of Senate Majority Leader Mitch McConnell (R–Ky.).

For her part, DeVos lamented that the riots had overshadowed the administration’s accomplishments. Indeed, education policy has been on of the brighter spots of Trump’s tenure. Under DeVos’ leadership, the Education Department initiated arduous but much-need reform of Title IX, the federal statute that prohibits sexual misconduct in schools. Title IX had become a weapon for college administrators to deprive accused students of due process and infringe on free speech rights; DeVos’ new Title IX rules, which underwent a full notice-and-comment period as required by law, restored basic fairness to these procedures.

The education secretary is also a vocal supporter of school choice, and has expressed concern that the pandemic is exacerbating the achievement gap between students who have many education options and students who are trapped in the public school system, which has increasingly relied on wholly inadequate remote learning during COVID-19.

“If there’s anything that this pandemic has shown us, it’s what I’ve been talking about for decades,” DeVos told me when I interviewed her for Reason‘s November issue. “Kids have got to have more choices, and the whole K–12 system has got to be changed to allow for and facilitate those kinds of choices on the part of parents.”

DeVos was entirely correct to call out Trump’s horrendous behavior. With any hope, the president is sufficiently chastened and will not cause further trouble during the short time he has left in office.

“Impressionable children are watching all this,” said DeVos in her resignation letter. “And they are learning from us.”

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Will the Democrats Truly Have Control of the 50-50 Senate?

Democrats prevailed in both Georgia Senate runoff elections this week. Once those election results are certified, there will be 50 Senators caucusing with each party in the Senate (as two independents—Sens. Sanders and King—caucus with the Democrats). This has happened before—most recently in 2001—but it is quite unusual.

The general presumption is that a 50-50 Senate will give Democrats effective control of the Senate once Kamala Harris is sworn in as Vice President on January 20. Under Article I, Section 3 of the Constitution, the Vice President serves as President of the Senate, with the authority to cast the tie-breaking vote when the Senate is “equally divided.”

Vice President Harris will certainly be able to cast the deciding vote when the Senate splits along party lines, but will the Democrats actually have control of the Senate? As it turns out, that is a bit more complicated.

50+1 is greater than 50, but it’s not quite the same as 51-49 split. Numerically, there is less margin for error, and operationally it can be difficult to maintain control. When Vice President Harris is present, the Democrats will have a majority, but she will not always be present. (She will have a day job to attend to, even when not attending the funerals of foreign dignitaries.) And, as a practical matter, the 50-50 split creates a real possibility that Republicans could have a temporary majority of those physically present at any given point, with the opportunity to create mischief, including asserting majority control (even if only temporarily).

The last time the Senate was equally divided was in 2001. Each party had fifty Senators, and George W. Bush was in the White House, so Vice President Dick Cheney held the tie-breaking vote. Senate Republicans expected to assert majority control, with all of the attendant privileges, but it was not to be.

Largely due to the insistence of Senator Tom Daschle, the Senate adopted a power-sharing agreement  (embodied in this resolution) that gave Republicans an edge, but fell far short of true control. As recounted by Marty Paone, who served as Secretary for the Minority at the time, the agreement produced even splits on Senate Committees, equal staff levels and equal office space, but gave Republicans a slight edge in agenda control and created a mechanism to ensure items could not be bottled up in committees by tie votes.

A CRS report detailing the power-sharing agreement summarizes its provisions as follows:

Committees

  • All Senate committees would have equal numbers of Republicans and Democrats;
  • a full committee chair could discharge a subcommittee from further consideration of a measure or matter, if it was not reported because of a tie vote; and
  • budgets and office space for all committees were equally divided, with overall committee budgets to remain within “historic levels;”

Discharging Measures or Matters

  • If a measure or nomination was not reported because of a tie vote in committee, the majority or minority leader (after consultation with committee leaders) could move to discharge the committee from further consideration of such measure or nomination;
  • this discharge motion could be debated for four hours, equally divided and controlled by the majority and minority leaders. After the expiration (or yielding back) of time, the Senate would vote on the discharge motion, without any intervening action, motion, or debate; and
  • if the committee were discharged by majority vote, the measure or matter would be placed on the appropriate Senate calendar to await further parliamentary actions.

Agenda Control and Cloture

  • The agreement prohibited a cloture motion from being filed on any amendable item of business during the first 12 hours in which it is debated;
  • required both party leaders “to seek to attain an equal balance of the interests of the two parties” in scheduling and considering Senate legislative and executive business; and
  • noted that the motion to proceed to any calendar item “shall continue to be considered the prerogative of the Majority Leader,” although qualifying such statement with the observation that “Senate Rules do not prohibit the right of the Democratic Leader, or any other Senator, to move to proceed to any item.”

Will the Senate do something similar this year? I have my doubts, but we will see. On the one hand, it is the most recent applicable precedent, and some of the practical downsides of trying to maintain control of the Senate. On the other hand, partisan divisions are much greater today than they were back then, and both parties have engaged in opportunistic obstruction and retaliation against the other, to the point that there is little trust or comity between the parties. (And it is not as if yesterday’s fiasco helped in that regard.)

Whether this sort of agreement is adopted or not, I think that Senate Democrats will find that 50+1 does not create the sort of stable majority for which they had hoped, particularly when there are some Senators (e.g. Joe Manchin) who may not be on board with everything the Democratic caucus wishes to do, and Vice President Harris may not want to spend all of her time in the Senate. For these reasons, I suspect Senator Schumer will ultimately seek some sort of accommodation with Senator McConnell, if for no other reason to ensure an orderly Senate for the next two years. If so, it will be interesting to see what that deal looks like, and whether it reflects the accommodation of 2001.

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Will the Democrats Truly Have Control of the 50-50 Senate?

Democrats prevailed in both Georgia Senate runoff elections this week. Once those election results are certified, there will be 50 Senators caucusing with each party in the Senate (as two independents—Sens. Sanders and King—caucus with the Democrats). This has happened before—most recently in 2001—but it is quite unusual.

The general presumption is that a 50-50 Senate will give Democrats effective control of the Senate once Kamala Harris is sworn in as Vice President on January 20. Under Article I, Section 3 of the Constitution, the Vice President serves as President of the Senate, with the authority to cast the tie-breaking vote when the Senate is “equally divided.”

Vice President Harris will certainly be able to cast the deciding vote when the Senate splits along party lines, but will the Democrats actually have control of the Senate? As it turns out, that is a bit more complicated.

50+1 is greater than 50, but it’s not quite the same as 51-49 split. Numerically, there is less margin for error, and operationally it can be difficult to maintain control. When Vice President Harris is present, the Democrats will have a majority, but she will not always be present. (She will have a day job to attend to, even when not attending the funerals of foreign dignitaries.) And, as a practical matter, the 50-50 split creates a real possibility that Republicans could have a temporary majority of those physically present at any given point, with the opportunity to create mischief, including asserting majority control (even if only temporarily).

The last time the Senate was equally divided was in 2001. Each party had fifty Senators, and George W. Bush was in the White House, so Vice President Dick Cheney held the tie-breaking vote. Senate Republicans expected to assert majority control, with all of the attendant privileges, but it was not to be.

Largely due to the insistence of Senator Tom Daschle, the Senate adopted a power-sharing agreement  (embodied in this resolution) that gave Republicans an edge, but fell far short of true control. As recounted by Marty Paone, who served as Secretary for the Minority at the time, the agreement produced even splits on Senate Committees, equal staff levels and equal office space, but gave Republicans a slight edge in agenda control and created a mechanism to ensure items could not be bottled up in committees by tie votes.

A CRS report detailing the power-sharing agreement summarizes its provisions as follows:

Committees

  • All Senate committees would have equal numbers of Republicans and Democrats;
  • a full committee chair could discharge a subcommittee from further consideration of a measure or matter, if it was not reported because of a tie vote; and
  • budgets and office space for all committees were equally divided, with overall committee budgets to remain within “historic levels;”

Discharging Measures or Matters

  • If a measure or nomination was not reported because of a tie vote in committee, the majority or minority leader (after consultation with committee leaders) could move to discharge the committee from further consideration of such measure or nomination;
  • this discharge motion could be debated for four hours, equally divided and controlled by the majority and minority leaders. After the expiration (or yielding back) of time, the Senate would vote on the discharge motion, without any intervening action, motion, or debate; and
  • if the committee were discharged by majority vote, the measure or matter would be placed on the appropriate Senate calendar to await further parliamentary actions.

Agenda Control and Cloture

  • The agreement prohibited a cloture motion from being filed on any amendable item of business during the first 12 hours in which it is debated;
  • required both party leaders “to seek to attain an equal balance of the interests of the two parties” in scheduling and considering Senate legislative and executive business; and
  • noted that the motion to proceed to any calendar item “shall continue to be considered the prerogative of the Majority Leader,” although qualifying such statement with the observation that “Senate Rules do not prohibit the right of the Democratic Leader, or any other Senator, to move to proceed to any item.”

Will the Senate do something similar this year? I have my doubts, but we will see. On the one hand, it is the most recent applicable precedent, and some of the practical downsides of trying to maintain control of the Senate. On the other hand, partisan divisions are much greater today than they were back then, and both parties have engaged in opportunistic obstruction and retaliation against the other, to the point that there is little trust or comity between the parties. (And it is not as if yesterday’s fiasco helped in that regard.)

Whether this sort of agreement is adopted or not, I think that Senate Democrats will find that 50+1 does not create the sort of stable majority for which they had hoped, particularly when there are some Senators (e.g. Joe Manchin) who may not be on board with everything the Democratic caucus wishes to do, and Vice President Harris may not want to spend all of her time in the Senate. For these reasons, I suspect Senator Schumer will ultimately seek some sort of accommodation with Senator McConnell, if for no other reason to ensure an orderly Senate for the next two years. If so, it will be interesting to see what that deal looks like, and whether it reflects the accommodation of 2001.

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Trump Returns to Twitter, Concedes Election

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After being temporarily banned from Twitter yesterday, President Donald Trump returning this evening with a video condemning the “heinous attack on the United States Capitol,” before acknowledging that he lost November’s election and conceding.

“A new administration will be inaugurated on January 20th,” he says in the video. “My focus turns to ensuring a smooth, orderly, seamless transition of power. This moment calls for healing and reconciliation.”

In the nearly three-minute video, he says he’s outraged by the “violence, lawlessness, and mayhem” that took place in his name Wednesday. He claims that he immediately deployed the National Guard to secure the building, which is not what officials were telling the media. It was allegedly Vice President Mike Pence who handled the coordination.

Trump did not in the video repeat his frequent claims that he actually won the election and had been cheated out of a second term due to voter fraud. Instead he says his “only goal was to ensure the integrity of the vote. In doing so [he] was fighting to defend American democracy.” He adds that he still believes that election laws need to be reformed to assure the identity of voters.

The video concludes with Trump calling on unity to work together to end the coronavirus pandemic: “It will require a renewed emphasis on the civic values of patriotism, faith, charity, community, and family.”

He concludes, “To the citizens of the country, serving as your president has been the honor of a lifetime and to all of my wonderful supporters, I know you are disappointed, but I want you to know, our incredible journey is only just beginning.”

Watch below:

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Trump Returns to Twitter, Concedes Election

Trumpconcede_1161x653

After being temporarily banned from Twitter yesterday, President Donald Trump returning this evening with a video condemning the “heinous attack on the United States Capitol,” before acknowledging that he lost November’s election and conceding.

“A new administration will be inaugurated on January 20th,” he says in the video. “My focus turns to ensuring a smooth, orderly, seamless transition of power. This moment calls for healing and reconciliation.”

In the nearly three-minute video, he says he’s outraged by the “violence, lawlessness, and mayhem” that took place in his name Wednesday. He claims that he immediately deployed the National Guard to secure the building, which is not what officials were telling the media. It was allegedly Vice President Mike Pence who handled the coordination.

Trump did not in the video repeat his frequent claims that he actually won the election and had been cheated out of a second term due to voter fraud. Instead he says his “only goal was to ensure the integrity of the vote. In doing so [he] was fighting to defend American democracy.” He adds that he still believes that election laws need to be reformed to assure the identity of voters.

The video concludes with Trump calling on unity to work together to end the coronavirus pandemic: “It will require a renewed emphasis on the civic values of patriotism, faith, charity, community, and family.”

He concludes, “To the citizens of the country, serving as your president has been the honor of a lifetime and to all of my wonderful supporters, I know you are disappointed, but I want you to know, our incredible journey is only just beginning.”

Watch below:

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U.S. Courts: SolarWinds Hack May Have Affected CM/ECF Filing System

Yesterday, the Administrative Office (AO) of the U.S. Federal Courts issued a remarkable press release, titled Judiciary Addresses Cybersecurity Breach: Extra Safeguards to Protect Sensitive Court Records.

In mid-December, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued an emergency directive regarding  “a known compromise involving SolarWinds Orion products that are currently being exploited by malicious actors.” The Administrative Office of the U.S. Courts (AO) immediately notified courts of this development and in response, the Judiciary has suspended all national and local use of this IT network monitoring and management tool.

The AO is working with the Department of Homeland Security on a security audit relating to vulnerabilities in the Judiciary’s Case Management/Electronic Case Files system (CM/ECF) that greatly risk compromising highly sensitive non-public documents stored on CM/ECF, particularly sealed filings. An apparent compromise of the confidentiality of the CM/ECF system due to these discovered vulnerabilities currently is under investigation. Due to the nature of the attacks, the review of this matter and its impact is ongoing.

Wow! Did hackers gain access to sealed files on CM/ECF? The U.S. Courts will have to make disclosures of all sensitive information that was at risk.

How are the courts addressing this system compromise? Highly sensitive court documents will now be filed by SneakerNet!

Under the new procedures announced today, highly sensitive court documents (HSDs) filed with federal courts will be accepted for filing in paper form or via a secure electronic device, such as a thumb drive, and stored in a secure stand-alone computer system. These sealed HSDs will not be uploaded to CM/ECF. This new practice will not change current policies regarding public access to court records, since sealed records are confidential and currently are not available to the public.

I recently criticized federal court web site for not even having SSL certificates. Now, the scope of their security failures becomes far more glaring.

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U.S. Courts: SolarWinds Hack May Have Affected CM/ECF Filing System

Yesterday, the Administrative Office (AO) of the U.S. Federal Courts issued a remarkable press release, titled Judiciary Addresses Cybersecurity Breach: Extra Safeguards to Protect Sensitive Court Records.

In mid-December, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued an emergency directive regarding  “a known compromise involving SolarWinds Orion products that are currently being exploited by malicious actors.” The Administrative Office of the U.S. Courts (AO) immediately notified courts of this development and in response, the Judiciary has suspended all national and local use of this IT network monitoring and management tool.

The AO is working with the Department of Homeland Security on a security audit relating to vulnerabilities in the Judiciary’s Case Management/Electronic Case Files system (CM/ECF) that greatly risk compromising highly sensitive non-public documents stored on CM/ECF, particularly sealed filings. An apparent compromise of the confidentiality of the CM/ECF system due to these discovered vulnerabilities currently is under investigation. Due to the nature of the attacks, the review of this matter and its impact is ongoing.

Wow! Did hackers gain access to sealed files on CM/ECF? The U.S. Courts will have to make disclosures of all sensitive information that was at risk.

How are the courts addressing this system compromise? Highly sensitive court documents will now be filed by SneakerNet!

Under the new procedures announced today, highly sensitive court documents (HSDs) filed with federal courts will be accepted for filing in paper form or via a secure electronic device, such as a thumb drive, and stored in a secure stand-alone computer system. These sealed HSDs will not be uploaded to CM/ECF. This new practice will not change current policies regarding public access to court records, since sealed records are confidential and currently are not available to the public.

I recently criticized federal court web site for not even having SSL certificates. Now, the scope of their security failures becomes far more glaring.

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Capitol Police Failed To Contain a Riot, Then Killed a Woman in the Chaos

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The Capitol Police are coming under well-deserved scrutiny after they failed to prevent rioters from storming the Capitol building yesterday, then killed an unarmed woman who joined the break-in.

“I think it’s pretty clear that there’s going to be a number of people who are going to be without employment very, very soon,” said Rep. Tim Ryan (D–Ohio), the lead House appropriator for Capitol Police, on a conference call with reporters yesterday. “This is the U.S. Capitol building with the House and the Senate in session. We knew. Donald Trump signaled this. There was enough time to prepare.”

The House’s sergeant-at-arms has already resigned. House Speaker Nancy Pelosi (D–Calif.) is demanding the resignation of Capitol Hill Police Chief Steve Sund. Chuck Schumer (D–N.Y.), soon to be the Senate majority leader, says he’ll fire the Senate’s sergeant-at-arms when his party takes over that chamber.

The Wall Street Journal reports that federal authorities made a deliberate decision to maintain a light police presence on the ground yesterday in an effort not to escalate tensions and to avoid the unsavory optics of riot police on the Capitol steps.

As it turned out, the crowd needed no help in escalating things: The small number of Capitol Police on the scene were easily overwhelmed when things turned violent. Worse still, that initial light-touch approach to security didn’t even manage to contain police violence. Videos from yesterday show obviously panicked and overwhelmed officers punching protestors from behind skimpy metal barricades.

During the chaos that followed, as rioters broke into congressional offices, one Capitol Police officer fatally shot Ashli E. Babbitt, a 35-year-old Air Force veteran. Three other people died after experiencing unspecified “medical emergencies,” according to D.C. police.

It took about four hours for police to regain control of the Capitol building, with the D.C. National Guard and state police from Maryland and Virgina dispatched as reinforcements.

Yesterday’s riot is drawing lots of comparisons to the violence that accompanied the George Floyd protests last year. It’s interesting to note that law enforcement failed during those protests in a strikingly similar, if chronologically reversed, way. In Minneapolis, the police killed George Floyd and then failed to contain the riots that followed. In D.C., police failed to contain a riot and then ended up killing an unarmed person. (Both events also saw police arrest reporters on camera.)

It goes without saying that police are given a very hard job in these kinds of circumstances. They are tasked with protecting people’s First Amendment rights to protest and preserving others’ rights to not have their persons and property assaulted by violent demonstrators.

But just because that balance can be hard to achieve doesn’t mean we should stop demanding it.

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Capitol Police Failed To Contain a Riot, Then Killed a Woman in the Chaos

reason-dcpolice

The Capitol Police are coming under well-deserved scrutiny after they failed to prevent rioters from storming the Capitol building yesterday, then killed an unarmed woman who joined the break-in.

“I think it’s pretty clear that there’s going to be a number of people who are going to be without employment very, very soon,” said Rep. Tim Ryan (D–Ohio), the lead House appropriator for Capitol Police, on a conference call with reporters yesterday. “This is the U.S. Capitol building with the House and the Senate in session. We knew. Donald Trump signaled this. There was enough time to prepare.”

The House’s sergeant-at-arms has already resigned. House Speaker Nancy Pelosi (D–Calif.) is demanding the resignation of Capitol Hill Police Chief Steve Sund. Chuck Schumer (D–N.Y.), soon to be the Senate majority leader, says he’ll fire the Senate’s sergeant-at-arms when his party takes over that chamber.

The Wall Street Journal reports that federal authorities made a deliberate decision to maintain a light police presence on the ground yesterday in an effort not to escalate tensions and to avoid the unsavory optics of riot police on the Capitol steps.

As it turned out, the crowd needed no help in escalating things: The small number of Capitol Police on the scene were easily overwhelmed when things turned violent. Worse still, that initial light-touch approach to security didn’t even manage to contain police violence. Videos from yesterday show obviously panicked and overwhelmed officers punching protestors from behind skimpy metal barricades.

During the chaos that followed, as rioters broke into congressional offices, one Capitol Police officer fatally shot Ashli E. Babbitt, a 35-year-old Air Force veteran. Three other people died after experiencing unspecified “medical emergencies,” according to D.C. police.

It took about four hours for police to regain control of the Capitol building, with the D.C. National Guard and state police from Maryland and Virgina dispatched as reinforcements.

Yesterday’s riot is drawing lots of comparisons to the violence that accompanied the George Floyd protests last year. It’s interesting to note that law enforcement failed during those protests in a strikingly similar, if chronologically reversed, way. In Minneapolis, the police killed George Floyd and then failed to contain the riots that followed. In D.C., police failed to contain a riot and then ended up killing an unarmed person. (Both events also saw police arrest reporters on camera.)

It goes without saying that police are given a very hard job in these kinds of circumstances. They are tasked with protecting people’s First Amendment rights to protest and preserving others’ rights to not have their persons and property assaulted by violent demonstrators.

But just because that balance can be hard to achieve doesn’t mean we should stop demanding it.

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Josh Hawley Played With Fire and Burned His Political Future

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I wrote last year that Sen. Josh Hawley (R–Mo.) is the ultimate Karen. Out of touch with reality and combative when he doesn’t get his way, the senator’s short tenure in federal government has been infused with classic Karen-esque trademarks. He might be missing the bob, but mark his words—he wants to speak to the manager.

Yesterday gave us more of the same, with Hawley demanding to speak to the manager of the 2020 election over vague allegations of widespread voter fraud that he has not been able to substantiate. The day was different in other ways, including the fact that the U.S. Capitol was overtaken by people who had been emboldened by the steady stream of delusion that Hawley and some of his GOP colleagues fed them over the last two months—a riot that culminated with the fatal police shooting of a woman.

After the chaos had subsided, Hawley resumed that familiar perch. “This is the appropriate place for these concerns to be raised, which is why I have raised them here today,” Hawley said, expounding on accusations of “voter irregularities” while also managing to say nothing at all. “And I hope that this body will not miss the opportunity to take affirmative action to address the concerns of many millions of Americans.”

Hawley was not able to provide much information on his own allegations, because he doesn’t have it. Though there are peculiarities in every election, evidence of something metastatic simply doesn’t exist. The courts have rejected a slew of post-election lawsuits from President Donald Trump, with some of the biggest eyerolls coming from his own judicial appointees. And asking that Congress engage in election reform during a legislative session is one thing; urging that it overturn the results of an election, as Hawley has implied it should, is something else entirely.

Those details likely matter very little to Hawley himself, who is almost certainly aware that he’s painting a bogus picture. He knows there is no manager to speak to, but he hopes you don’t.

That’s because the performance is more important the outcome. Or rather, the actual desired outcome—the one someone like Hawley is searching for—has less to do with prescriptive policy solutions and more to do with the outrage he can whip up and the attention he can draw to himself. He has written the play and cast himself as the hero.

Yesterday lawmakers grappled in real time with the consequences of peddling fictions completely divorced from the real world. Some Republicans changed course and revoked their electoral objections, including Kelly Loeffler, the ultra-Trumpian senator recently defeated in Georgia’s runoff. For his part, Hawley cheered on the mob earlier in the day and sent out a fundraising pitch while the riot was underway.

“Thank you to the brave law enforcement officials who have put their lives on the line,” Hawley said in a statement. “The violence must end, those who attacked police and broke the law must be prosecuted, and Congress must get back to work and finish its job.”

By any standard, that’s a lily-livered response. But it’s especially so for anyone familiar with Hawley’s history of misleading people in a flamboyant fashion. There was the myth about the about the Asian sex trafficking ring he cracked. (He didn’t.) There was the wild accusation that Amazon had engaged in criminal behavior with their data practices. (It hadn’t.) There is his free flow of vitriol against social media companies for acting as publishers in violation of Section 230, the law that allows those firms to moderate content online. (That’s not even what the law says.) In each of those cases, his responses to his critics have been scathing and condescending, as if Twitter taking down a tweet is somehow more worthy of condemnation than a violent mob.

That’s not a mistake. The senator is an intelligent lawyer who understands the rules and regulations he distorts. He knows far more than he lets on. But what’s the point of letting on when you’re performing? This time, the deception’s results played out in the most public way possible. Hawley got the audience he was looking for, but he didn’t get to play the hero’s part he’d written. He’s the villain, and it’s time the curtain came down.

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