Category: reason

This column at Politico (by Republican political consultant Juleanna Glover) argues:

By most everyone’s judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn’t have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?

A secret impeachment ballot might sound crazy, but it’s actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.

But I don’t think that’s right; article I, section 5 of the Constitution provides (emphasis added),

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes “shall … be” made public. You’d need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution’s text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I’m sure others have as well.)

The column has an UPDATE, reading,

Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on “any questions,” but “questions” are defined as “Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal.” No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.” Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.

That, though, seems wrong to me. First, the Constitution doesn’t limit “any questions” to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate’s web site, which doesn’t seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples (“such as”) of “questions.” Whether to remove a President from office strikes me as well within the term “any question,” and for that matter within the Senate site’s phrase “Any matter on which the Senate is to vote.”

Second, that “excepting such Parts as may in their Judgment require Secrecy” precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.

Third, while article I, section 5 does leave each house with the power to “determine the Rules of its Proceedings,” that general power is limited by the specific constraints in the same section:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

I take it that we wouldn’t think that the Senate could expel a Senator by a 51-49 vote, simply by creating a “Rule[] of its Proceedings” that authorizes that; the “Concurrence of two thirds” needed to “expel a Member” is an express limitation on the Senate’s powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate’s powers, including its powers to make rules for operating in secret.

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Rep. Tulsi Gabbard (D–Hawaii) has made quite the impression as she attempts to secure the Democratic presidential nomination. Her efforts were unwittingly elevated by former Secretary of State Hillary Clinton, who recently appeared to liken Gabbard to a “Russian asset.” The congresswoman is now threatening Clinton with a defamation lawsuit over that statement.

“Your statement is defamatory, and we demand that you retract it immediately,” Gabbard’s attorney said in a letter to Clinton, urging that the 2016 Democratic candidate post the retraction to Twitter and disseminate it to CNN, Fox News, MSNBC, The New York Times, The Wall Street Journal, and The Washington Post.

“In making the statement, you knew it was false. Congresswoman Gabbard is not a Russian asset and is not being groomed by Russia,” the letter said. “Besides your statement, no law enforcement or intelligence agencies have claimed, much less presented any evidence, that Congresswoman Gabbard is a Russian asset. This fabricated story is so facially improbable that it is actionable as defamation.”

While Clinton’s allegations were certainly odd, they are nowhere near the threshold for illegal slander, making this nothing more than political grandstanding. That’s particularly apparent in that, while Clinton did speculate that a third-party run was imminent for Gabbard, it would come at the behest of Republicans—not the Russians. And while Clinton did drop a name, it wasn’t Gabbard’s.

“They are going to do third party again,” said Clinton in a conversation about GOP strategy in the 2020 election with David Louffe, a former campaign manager for Barack Obama. “I’m not making any predictions, but I think they’ve got their eye on someone who is currently in the Democratic primary and are grooming her to be the third-party candidate. She’s a favorite of the Russians and they have a bunch of sites and bots and other ways of supporting her so far. That’s assuming Jill Stein will give it up, which she might not because she’s also a Russian asset.”

When a CNN reporter sought to confirm that Clinton was referring to Gabbard, Clinton spokesperson Nick Merrill responded, “if the nesting doll fits.” But Merrill also clarified that Clinton said it is the GOP that is “grooming her.” That makes far more sense in the larger context of the conversation between Clinton and Louffe. It also lines up with a certain public perception of Gabbard, who has been maligned by the left for her regular appearances on right-leaning Fox News programs.

In any case, how could such comments by Clinton possibly amount to defamation, which requires someone to circulate a “false statement of fact” with malice or negligence for the sake of harming another’s reputation? In my view, Clinton’s comments amount to nothing more than silly, unfounded speculation. Clinton never directly claimed that Gabbard is a pro-Russian traitor.

It’s understandable why Gabbard would take issue with Clinton’s comments, which were presented without concrete evidence. But ill-founded criticism is not the same thing as illegal speech.

Regrettably, Gabbard’s understanding of how the First Amendment works seems equally shaky across the board. In July, for example, she sued Google for violating her First Amendment rights after it suspended her advertising account for a few hours following June’s initial Democratic debate. The company alleges that her wave of support temporarily triggered an anti-fraud freeze; she accuses the company of bias and of trampling her free speech rights. Perhaps she has good reason to be upset, but the First Amendment protects her against government censorship, not from the business decisions made by private companies.

In this case, if Gabbard had her way, all sorts of overheated political rhetoric could become subject to costly defamation suits. I fundamentally oppose Clinton’s unsupported political finger-pointing, including her blurb about Gabbard. But the irony surrounding Gabbard’s counterclaim is difficult to ignore: It sounds less compatible with American society, and perhaps more suited to that of Russia.

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CTPharma, a Connecticut company that supplies cannabis products to dispensaries under that state’s medical marijuana program, recently announced that it is collaborating with researchers at Yale University on a federally approved study of CBD and THC as treatments for pain and stress. This appears to be the first time that the Food and Drug Administration (FDA) has signed off on a medical study involving U.S.-grown cannabis from a source other than the National Institute on Drug Abuse (NIDA), heretofore the only legal supplier of marijuana for research in this country.

Researchers have long complained about the quality and variety of Uncle Sam’s cannabis, which is grown at the University of Mississippi under an exclusive contract with NIDA. They have also noted that NIDA marijuana cannot be used for commercial purposes, which means it cannot be used in Phase III clinical trials, the last step before FDA approval of a new medicine. The drug that subjects take at that stage has to be the same as the drug that will be sold to patients once the medication is approved.

The Drug Enforcement Administration (DEA), which for years refused to license additional suppliers of marijuana, changed its mind in 2016, the last year of the Obama administration, when it announced that it would start accepting applications from would-be growers. But under the Trump administration, the DEA has dragged its feet in fulfilling that promise. As of August, Mike Riggs noted, the DEA had received 33 applications, but so far it has not granted any licenses.

CTPharma is not licensed by the DEA to produce marijuana. In fact, its entire operation, like those of every other state-licensed marijuana supplier, remains illegal under the federal Controlled Substances Act. It is therefore rather surprising that Yale researchers were allowed to use its products—specifically, tablets containing plant-derived CBD and THC—in an FDA-approved Phase I clinical trial. “All the formulations are in tablet,” says CTPharma COO Rino Farrarese. “The FDA wanted very specific formulations.”

The study will be conducted at the Yale Stress Center, which is part of the university’s medical school. Farrarese says the DEA would not let a pharmacist at Yale dispense the tablets but withdrew its objections after the researchers proposed a different plan: The subjects will pick up their tablets at Affinity Health & Wellness, a dispensary in New Haven, and bring them to Yale for the study.

The first stage of the study involves recreational cannabis consumers who will be randomly assigned to receive either placebos or various doses of CBD, sometimes in combination with THC, over a six-week period. The second stage involves people with chronic pain. The researchers will record subjective drug effects, stress and pain ratings, heart rate, blood pressure, and blood levels of CBD, THC, and their metabolites.

Depending on what they find, the researchers may decide to include subjects with other conditions, such as post-traumatic stress disorder. “With increasing levels of use of medical marijuana products in the U.S. today,” lead researcher Rajita Sinha, a Yale professor of psychiatry and neurobiology, said in a press release, “it is imperative that we understand the science of how these products are working to alleviate patient symptoms.”

Farrarese noted that “an English company has the only FDA-approved plant-based medical marijuana product in our market”: Epidiolex, an oral CBD solution made by GW Pharmaceuticals from cannabis the company grows in the U.K. Last year the FDA approved Epidiolex as a treatment for two rare forms of epilepsy. CTPharma hopes to follow in the British company’s footsteps, although the process may take three to seven years.

Meanwhile, CTPharma seems to have accomplished a first of its own. Farrarese says he is not aware of any other FDA-approved study using marijuana produced in the United States that does not come from NIDA. “I’m pretty sure it’s the first one,” he says.

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South Bend, Indiana, Mayor Pete Buttigieg has been unrolling more and more policy proposals as his polling numbers rise in Iowa, putting him in the same tier as Democratic presidential front-runners Sen. Elizabeth Warren (D–Mass.), former Vice President Joe Biden, and Sen. Bernie Sanders (I–Vt.).

On Friday, Buttigieg revealed “An Economic Agenda for American Families: Empowering Working and Middle Class Americans to Thrive,” his expensive proposal to push for even greater amounts of federal spending and regulation in housing, child care, college, and the workplace.

This is hardly a surprise from a Democratic candidate, even a self-styled moderate like Buttigieg. He says in the proposal’s introduction that he “doesn’t mean government taking over the economy.” But he nevertheless argues that government is supposed to have a “vigorous presence” in our economy to make sure it “actually works for all.”

And by “vigorous,” we’re talking about $1 trillion in new federal spending in housing and child care over a decade, not unlike Warren’s own proposals. Buttigieg wants to spend $430 billion dollars in federal funds to “unlock access to affordable housing” for more than seven million families. He wants to do so by using various federal grant funds to send more money to local governments to fund housing programs.

While that’s better than having the federal government directly decide what gets built, what he’s really doing is increasing spending on existing programs and propagating the perpetual political obsession with homeownership as the ultimate goal of housing policy. And he’s talking about sending more money to programs like the Community Development Block Grant (CDBG), a program that has been plagued by local officials directing money away from projects and programs to help the poor to those that help their friends, or even themselves. More CDBG grant funding gets spent on local government projects than on housing.

As always, government involvement in housing development turns it into a big gravy train that rewards those who are connected and have the ears of local officials. Often times, government-mandated affordable housing is anything but, thanks to the competing demands and interests of both government officials and those who lobby them for a piece of that funding. Consider, for example, prevailing wage regulations that affect both federal and sometimes local construction costs, setting an artificial floor on construction costs typically based on what local unionized workers make. Prevailing wage laws are an example of the government putting the thumb on the scales in favor of connected union officials. Since California mandates that low-income housing developers pay laborers the “prevailing wage,” this inevitably jacks up the cost of such housing. The result: housing shortages.

Buttigieg’s housing plan is not all horrible, at least on paper. He appears to be keenly aware that zoning laws contribute to housing shortages, particularly in big cities, and says that he wants to “work with states and cities to reform zoning laws to make it easier to build housing for working and middle-class families.” That’s a nice sentiment that unfortunately has little to do with the role of the president.

Buttigieg wants to spend a cool $700 billion in federal funds on pre-kindergarten and after-school programs, justifying it as a tool to allow parents to “participate as fully in the labor market as they choose.” His campaign says he’ll be going after the typical Democratic whipping boy—the capital gains tax rate—to try to raise the money for this spending.

For college costs, Buttigieg wants to spend another $500 billion to make public college tuition free for families who earn less than $100,000 a year. Buttigieg notes that college price tags have tripled in the past three decades but completely fails to note how much of it is a result of dramatic increases in administrative costs and non-faculty staffing. And the subsidies that the feds have been providing to colleges have a very clear connection to colleges raising tuition rates. Buttigieg’s proposal flippantly deals with this clear economics 101 problem with a simple, “To keep tuition costs in check, in exchange for receiving federal dollars states will guarantee to invest in their public higher education systems and constrain tuition increases.” That doesn’t actually mean anything other than a vague suggestion that colleges will have to justify tuition increases through whatever boilerplate language they’ve been using all along.

And to be clear, there will be increases, and not just because of the federal subsidies here. A good chunk of Buttigieg’s proposal also talks about raising incomes, expanding tax credits, passing a $15 minimum wage, giving every American 12 weeks of comprehensive paid family and medical leave, and increasing wages for teachers. He says he wants to double union membership across the United States and end “right-to-work” laws.

All of these labor promises, if they ever went into effect nationwide, would drive up the costs of everything that Buttigieg says he wants to make “more accessible” to more Americans. In California, for instance, government labor demands (and lawsuits against developers that resist) have driven up housing costs. When President Barack Obama proposed free community college to students back in 2015, the price tag of the cost jumped from $60 to $90 billion just during the process of drafting a bill. It also included a whole host of institutional reforms to “improve student outcomes,” by which the Obama administration meant more spending on student support services outside the lecture hall. This fundamentally meant creating even more non-faculty college positions, thereby driving up, not down, the price of college.

This isn’t a policy paper. It’s a fantasy wish list with no relationship to reality.

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Two months ago, former South Carolina governor and congressman Mark Sanford launched what he acknowledged was a long shot primary challenge to President Donald Trump, in the hopes of sparking “a real conversation on debt and deficits and government spending.” After 60 days of a national conversation about everything but, Sanford this afternoon put an end to his experiment in competitive fiscal conservatism.

“You’ve got to be a realist, and what I did not anticipate is an impeachment,” the self-described libertarian Republican told reporters at the New Hampshire Statehouse.

While it’s true that the House impeachment inquiry is dominating national political conversation, there’s no evidence to suggest that Republicans (let alone campaign reporters) would otherwise be focusing on fiscal issues. The federal deficit in the just-completed fiscal year hit $984 billion, without any meaningful resistance from Sanford’s former colleauges in the House Freedom Caucus.

Trump, who Sanford has been calling the “king of debt,” has been systematically wiping out any hint of internal GOP competition. The South Carolina GOP canceled its third-in-the-nation primaries under heavy pressure from the Trump campaign literally the day before Sanford entered the race (the decision is being litigated). A half-dozen state Republican Party machines have already effectively declared their 2020 winners.

Such leg-sweeping tactics, in addition to the president’s considerable popularity among Republicans (among whom his approval rating has not dipped below 87 percent all year), has led to some brutal disparities between the candidates. The Trump campaign and Republican National Committee (whose organizations have been unprecedentedly merged) raised a combined $125.7 million in the third quarter, compared to Sanford’s $60,400. That’s a ratio of 2,111 to 1.

Sanford has fared little better in the polls. The RealClearPolitics national polling average has the president with more than an 80-point lead: 85.4 percent, compared to 2.6 percent for former Massachusetts governor Bill Weld, 2.2 percent for former Illinois congressman Joe Walsh, and 1.8 percent for Sanford.

“Mark Sanford’s voice in the primaries will be missed,” Weld said in a statement Tuesday. “A true fiscal conservative, he has advocated the common sense policies too seldom heard from Donald Trump or anyone else in Washington. It is shameful that the Trump-controlled South Carolina state party cancelled a primary in which Mark could have been a real factor.”

So Sanford has gone from being a lonely Trump critic in the House GOP, to loser of a GOP primary to a Trump-backed candidate for his seat (which is now held by a Democrat), to long shot presidential challenger, to Republican roadkill. Might now be a time to seek a political party that shares his concern about the national debt and looming entitlement bomb?

I asked six Libertarian Party presidential candidates 10 days ago to name any major-party candidate then running for president who they’d most like see switch to the L.P. Only one—former 1996 vice presidential nominee and South Carolina resident Jo Jorgensen—named Sanford, saying: “Mark Sanford acted like a Libertarian through most of his political career, and a lot of people here were big fans even after his horrible indiscretion—the people of this state still elected him back to Congress. He’s libertarian at heart, and while I commend Tulsi Gabbard for her good no-war stance, everything else about her is just wrong. I don’t see any other libertarian leanings in her, but I do see many libertarian leanings in Mark Sanford.”

(The “horrible indiscretion” in question was Sanford’s infamous marital infidelity in 2009, which noted family-values pol Trump has occasionally mocked him for.)

While Sanford certainly has more political name recognition than any of the dozen or so declared Libertarian presidential candidates, he would (if at all interested) face the same skepticism that would greet any GOP-switcher. After three successive presidential nominations given to formerly elected Republicans, Libertarians are wary about going to that particular well a fourth consecutive time.

Whatever he decides to do with his own future, Sanford’s parting message about ours is both sobering and necessary in 2019 America:

I am suspending my race for the Presidency because impeachment has made my goal of making the debt, deficit and spending issue a part of this presidential debate impossible right now. From day one, I was fully aware of how hard it would be to elevate these issues with a sitting president of my own party ignoring them. Impeachment noise has moved what was hard to herculean as nearly everything in Republican party politics is currently viewed through the prism of impeachment.

This is hardly a lens through which I want to look at things as I believe the debate of ideas is vital for both the conservative movement and for the American voter. What’s needed here is simply a national conversation on whether or not we believe in math. Ours does not add up in Washington and continued denial here could end the American civilization and the dreams that come with it. Unfortunately, with impeachment the wagons are circled, tribes and allegiances are declared and this obliterates the chance to debate and address a host of critical issues.

More than anything we need a debate about our debt and how we pay for this political season’s many grand promises and the ones already accumulated in Washington. We also need a robust debate on trade and tariffs, our belief in institutions, the President’s tone and a whole lot more, but those things will not happen in a Republican primary embattled with impeachment.

Finally, I would like to thank the people of New Hampshire and people from across this country for the conversations we have had on the need for financial sanity. It’s my hope and intention to find new ways to raise and elevate these vital themes.

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