The Disasters of 1913

One hundred years ago big government liberals had a banner year. Woodrow Wilson, the father of modern liberalism, began his first term as President. The 16th Amendment creating the income tax became law in February. The method of electing Senators – purposefully specified in the US Constitution – was replaced by the 17th Amendment in May. And the Federal Reserve System became law in December. Disasters all.

Each of the disasters of 1913 is worthwhile blog fodder. But since the centennial of the 17th Amendment passed just a few months ago, that act of monumental madness can be examined with the perspective of a hundred years to understand how it helped create the greatest threat to individual liberty today – our massive federal government.

First, a bit of history.

Lest they might produce a Frankenstein monster, the 55 Founders who met in Philadelphia in the summer of 1787 to hammer out the details of a central government were as concerned about what they must not create as they were about what they should create. We have Madison’s notes to tell us what they fretted over and argued about in the Constitutional Convention, and we have the Federalist Papers which sought to sell the product of their labors to the farmers of New York and their state’s ratification convention.

Unlike the intellectual pygmies in Washington today, these 55 men were brilliant individuals. They were well-read in the strengths and weaknesses of governments back to ancient times. Most could read multiple languages, especially Greek and Latin texts, and many spoke several languages. They were prolific letter writers – which is our best evidence that all were thoughtful and analytical. Thus, they were the “best and brightest” that their states could send to the Convention.

What they produced was ingenious. Understanding the corruptible nature of man, they were able to fashion a governance structure that protected the rights of state governments from federal power – which was a big deal to them. They were able to almost equalize the representative influence of big and small states in national governance. Their system of checks and balances was intentionally complex forcing compromise, cooperation, and deliberation in order to get anything done. Their creation was a design that restricted the central government’s predictable lust for power. In Federalist 62 Madison explained that their arcane system would tamp down “the facility and excess of law-making [that] seem to be the diseases to which our governments are most liable.”

The legislative branch they conceived consisted of two separate and intrinsically different bodies – the House of Representatives and the Senate. The members of the House were elected for short two-year terms to make them responsive to their constituency, i.e. the citizens of their state who elected them biennially by direct vote. The House was apportioned by population because its purpose was to directly represent the people in their district – i.e. one person, one vote. Vacancies were filled by popular election – not by the state’s governor.

In contrast, the Senate was elected to long six-year terms arranged so that one-third is replaced every two years. The long terms were intended to make the Senate a deliberative body, unlike the raucous House whose short terms biased them toward government activity. Also, unlike the House, the Senate was not popularly elected; it was elected by their state legislatures, which made legislators their constituency. Beholden to legislatures for election, Senators “took their orders” from them rather than the people. Senators were thus intended to function as agents of their sovereign state congresses – in a sense “state ambassadors” to a federal congress. Senate vacancies were filled by the vote of legislators. If they were not in session, the governor could make a temporary appointment until the legislature resumed session and made a permanent replacement for the remaining senatorial term. Finally, unlike the House, the Senate was not apportioned by population. Each state had two regardless of size.

Because they had different constituencies, the Founders gave the House and Senate different duties that reflected their constituent interests. For example, only the Senate confirmed Supreme Court justices. As representatives of their state legislatures, it was presumed that Senators would approve justices who were sympathetic to state interests and state sovereignty.

The interests of the Senate and House were purposely not aligned. As Madison explained in Federalist 62: “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.” Stated differently, Madison said that no law can pass except with a majority of the House, which represents the people, and a majority of the Senate, which represents the states via their legislatures.

Since the President is elected by state electors, whose number is equal to the sum of each state’s Senators and Representatives, each political component of government (House, Senate, Executive) is elected differently by different electors (the people, the state legislature, and the electoral college.) This reinforced the separation of power by which governance is checked and balanced.

The method for electing the President is more than symbolic. After a candidate receives a simple majority, additional votes count for nothing because the electors have been won and only electors can vote for President. Presently there are 100 Senators and 435 Representatives which equate to 535 electors. To win the presidency therefore requires 268 electors. This means a presidential candidate must win electors in a number of states – not a popular majority in a few states. In a mobile society the number of state electors will change, which means states can change “colors” and relative power among themselves. Does it surprise you that liberals want to abolish the electoral system – citing Gore’s majority of the 2000 popular vote but loss of the electoral vote?

Given the Founder’s design, states had more power to govern their citizens than the federal government. This was as it should be. When governance begins to interfere with individual liberty, it’s easier to push it back at the state level than at the national. State government is closer to the people and thus more accountable than national government could ever be. State government is better equipped to know and address its citizens’ needs. State legislators live among the people they serve. They are elected by their neighbors.

Since legislatures elected the Senate, they could put a brake on any expansion of federal power that interfered with state power by instructing their Senators to prevent it. The legislatures of the states have agendas that compete with the agenda of a national government and by controlling the Senate, states had not only a way to push back but also a strong voice in national government decisions.

When the Bill of Rights was in debate, Madison said,

T]he State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.

And Jefferson, who championed state rights, wrote similarly in his Notes on Virginia:

An elective despotism was not the government we fought for, but one which should not only be founded on true free principles, but in which the powers of government should be so divided and balanced among general bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others.

There is no way to misunderstand the balance the Founders intended between state and national government. They did not intend that states be regional administrative departments of the federal government as they have become. Nor did the Founders make the federal government an independent layer of government as it has become. The elegant structure they created integrated state and federal government – primarily through the Senate – and limited national governance so that it could never overpower the state. In fact in Federalist 45 Madison argued:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

As if to engrave the principle of federalism in granite, the 10th Amendment of the Bill of Rights says explicitly:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Well, this well-designed balance of power was defenestrated by the passage of the 17th Amendment. The election of Senators by their state’s legislators was replaced with popular election – a method that is no different than the House of Representatives. In fact, direct election of Senators is worse than House elections. House members are accountable to the citizens of their district – which today average about 650,000 citizens. Senators are elected at-large, meaning the constituency of each Senator is the population of the entire state – an average of over six million citizens per Senator. In California, it’s 38 million per Senator.

So, whatcha’ think? Did the 17th Amendment make the Senate more accountable to the citizens as its advocates a century ago claimed it would? I can almost hear the spirits of the Wilsonites in the afterlife telling the Founders how they “updated” their Constitution, and the Founders saying, “You did what!”

Thanks to these geniuses, we have the obscenities of ObamaCare, Dodd-Frank, an out-of-control judiciary, including the Supreme Court, and jaw-dropping deficits. Of course we also have the legislative atrocities of the past – Social Security, Medicare, Medicaid. Power has shifted from the states to Washington and from the Congress to the White House whose current resident is on the verge of ignoring the Congress altogether. Unelected federal agency appointees have more power than Congress, ruling the land through their byzantine regulations. At least half of the Supreme Court and probably more than half of the lower federal courts see the US Constitution as a marginally useful list of suggestions, not a governing document. Perverse interpretations of the Commerce Clause have been used to justify outrageous intrusions into our lives and to limit our constitutionally-mandated liberty. Government at both the state and federal level is a grotesque imitation of what the Founders created.

Would any of these miscarriages of government have happened if the Senate was answerable to state legislatures? I doubt it. As it was originally conceived, the Senate was the load-bearing wall for federalism – the ingenious political architecture for power-sharing between state and national government. With that gone, the states lost their place at the national table, and Jefferson’s prophetic warning in a letter to a friend came true:

When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will . . . become as venal and oppressive as the government from which we separated.

Led by William Jennings Bryan, the proponents for overthrowing the constitutional method for electing Senators gave two justifications for direct election: corruption in which Senate seats were bought and sold between candidates and legislators and deadlocks among legislators which left Senate seats vacant for long periods.

There is no hard evidence that bribery in state houses was widespread. In 50 years only three cases had been investigated. Bribery exists with today’s method for direct election of Senators. We just happen to call it a campaign contribution.

Deadlocks did occur, and at least one Senate seat remained vacant for four years. But in the decades preceding 1913, keeping the US Senate in operation was not a high priority in busy state legislatures. Most of the deadlocks occurred in newly-admitted western states which had inexperienced legislatures and weak party discipline.

It defies logic to think that popular election of Senators, making them accountable to millions, was an improvement over the Founders’ design, which made them accountable to a hundred or so legislators. Instead of schlepping around to 48 state houses to influence Senate elections, lobbyists would be able to do one-stop influence peddling in Washington. Instead of indirectly influencing Senate business through state legislators, lobbyists would have direct influence after the 17th Amendment. Instead of ending the buying and selling of Senate seats between candidates and some legislators, corruption went underground where the buying and selling of influence was impossible to detect. The 17th Amendment was another failed attempt of government to reform itself.

Yet over two-thirds of the votes in the Senate (four abstentions) and House (110 abstentions) allowed the proposed amendment to be voted on by state legislatures. Constitutional amendments require two-thirds of the Congress and three-fourths of the state legislatures to approve. If the Senate abstentions had gone with the opposition, the proposed amendment would have passed anyway, but if the House abstentions had gone with the opposition, it would have failed. The Senate seemed to be more interested in changing the election method than the House, and no wonder. It has become predictably unaccountable to its electors.

Forty of the 48 states ratified the 17th Amendment. The states sowed the wind. Now they are reaping the whirlwind. It didn’t take long for the states to realize the mistake they had made. The issues that concerned their citizens – taxes, education, and welfare among them – slipped from their grasp and became mandates from Washington, often unfunded mandates. The federal judicial system, now totally insulated from the states, failed to defend the 10th Amendment states’ rights and indeed began to hand down rulings contemptuous of the rights of states and its citizens. Before the 17th Amendment the federal government remained small and influentially modest. Following the 17th Amendment, national government has grown in size, cost, and power, while state governments have slipped into political ignominy.

The “corrupt,” “unaccountable” Senate allegedly extant when the 17th Amendment was ratified was re-nominated and, to the man, went on to win back their seats in the first popular election of 1914. A hundred years later, we can only stand agog and wonder which of the purported special interests and corruptions were defeated by the 17th Amendment.

Periodically there are calls to repeal the 17th Amendment and restore the election of Senators to state legislatures. That has about as much chance of happening as congressional term limits. Senators and their fellow hogs at the trough know they’ve got it as good as it gets and they aren’t about to change.

Six more years would pass before another monument to the hubris of the “Progressive Era” would appear – the 18th Amendment prohibiting the production and sale of alcoholic beverages. It and the 16th Amendment became appropriate bookends to the Wilsonian age of arrogance.

Will E-Verify Become a National ID System?

Last month I blogged that the ObamaCare data hub would make individual privacy an artifact of the past. The immigration bill that’s making its way through Congress contains an equally scary provision that essentially gives the federal government the power to determine if you and I can be employed. It’s called E-Verify. Incredibly, it has bipartisan support.

Here’s how it works.

E-Verify is an Internet-based system operated by the Department of Homeland Security. Its purpose is to verify that every person seeking employment in the US is “eligible” – i.e. approved by the federal government to be employed. The program is currently deployed in pilot programs between 16 state governments and the federal government.

When you apply for employment you must complete an I-9 form and furnish personal information (name, DOB, Social Security Number, and verification of your citizenship or immigration status) for E-Verify to process. Processing involves comparing the information you furnish with the information in databases maintained by the Department of Homeland Security (DHS) and Social Security Administration (SSA). If all of the information matches, E-Verify notifies the employer that you are eligible to work. A future feature of the system will furnish the employer a digital image of the applicant, as is now done for passports, which the employer must confirm matches the job applicant.

If the information doesn’t match for any reason – for example, maybe the applicant’s immigration status doesn’t allow working in the US or perhaps there is an error in the government’s record – the employer is sent a “Tentative Non-confirmation” (TNC) and the applicant has eight working days to contact DHS and/or SSA and sort out the problem. If the problem isn’t resolved in eight days, E-Verify sends a “Final Non-confirmation” notice to the employer, who is required by law to fire the employee.

Why not hold off hiring the person, you ask, until eligibility is received from E-Verify? Because, we are told, E-Verify is not to be used until someone is hired – i.e. it’s not for screening candidates we might hire. The employer must therefore incur the onboarding process and expense in order to lawfully use E-Verify.

The purpose of the E-Verify program is to prevent illegals from obtaining employment. The method of the E-Verify program is to require that everyone in the US to obtain permission from the government before being employed. Everyone – you and I – must prove we are who we say we are before we can earn a living. Theoretically, the entire American workforce – estimated currently to be between 130 million and 150 million – must go through the verification process in order to prevent an estimated eight million illegals from getting jobs (mostly low wage, labor-intensive work).

Proponents of E-Verify argue, hey, you have to put up with a certain amount of hassle in order to get a driver’s license and auto tag, comply with the TSA to board a plane, obtain a building permit; what’s the beef? The beef is I don’t have to drive a car, travel by air, or make an addition to my house – but I do have to make a living. Whoever controls my right to make a living has a lot of control over my life.

“But it takes only minutes,” supporters insist. Yep. Minutes. When it works. When it doesn’t work, whose problem is it? Well, it’s not the employer’s or the government’s problem. It’s mine. And I’ve got eight days to sort it out with a faceless bureaucracy.

Show me one thing that the “expertise” of an unaccountable government bureaucracy made better by its involvement. Schools? The Post Office? Amtrak? Anything? A national employment verification system has been the holy grail of employment managers for years. The E-Verify in the 16-state pilot has been in trial use for over a decade. You’d expect that if credit card issuers can monitor credit card use and spot fraudulent activity, that E-Verify would have some sort of fraud profile to spot identity theft. Yet of the 3.5 million transactions entered over the three year period ending March 2007, approximately 744,000 transactions – 21% – were Social Security numbers used multiple times. That means people using the same name and Social Security number were concurrently working at multiple locations.

Ironically E-Verify can’t do what it was designed to do: i.e. deny work to illegal aliens.

The most recently available audit of accuracy found 54% false positives – that is, people who were verified as eligible to work weren’t legally in this country.

Determining false negatives – people rejected who should have been approved – is a bit tricky because a person can be rejected because of illegally being in the US or being legally in the US but having an error in the person’s database record. Muzaffar Chishti, who is with the non-partisan Migration Policy Institute, says the E-Verify error rate, once between eight and ten percent, has “improved” to two percent. Sounds small, but it’s almost three million of the present workforce. True, the entire workforce does not change jobs every year, but an average of 13% do and that’s almost 400,000 who are wrongly denied employment. How would you like to be one of them and spend several months sorting out an error in the system?

Consider the case of Jessica St. Pierre, the daughter of Haitian and Bahaman immigrants. She was born in Florida. When she went to work for a telephone company, E-Verify rejected her as an unauthorized worker. She went to her local Social Security office to find the error and was given a print-out showing that her records were correct. She showed the print-out to the employer, but her information still couldn’t process her through E-Verify. She contacted other government agencies, even the E-Verify Hotline, and no one could find an error in her database record. She was fired as required by law and was out of work for three months. With the help of the National Immigration Law Center, the error was finally found. The telephone company had entered her name into the system without a period after the “St.” and it wouldn’t match in E-Verify. The telephone company wouldn’t give back her job and she had to take a job making $2 per hour less.

Yep. Only takes minutes. When it works.

As I mentioned in last month’s blog on ObamaCare’s data hub, consolidated data is an identity thief’s dream come true. Hackers from around the world employ the latest technology to access databases that aggregate millions of records. And when/if E-Verify becomes mandatory, it will be a prime target for hackers because there – in one place – is someone’s phone and Social Security number, email address, work history (since E-Verify must be used with each job change), and photos (if the plan to add state driver license data succeeds.)

If a photo or driver license data requirement is added to the E-Verify system, we will have the essential elements for a national identification structure on every working and retired person, even though the E-Verify provision of the immigration bill forbids a national ID card. It won’t be called a national ID system but it will have all of the necessary functionality to be one. Missions always creep. Don’t forget that the Social Security card began as an account number. For years Social Security cards were imprinted with "Not for Identification Purposes." That restriction was removed in the 1980s. Today it’s impossible to function in society without a Social Security account number as our unique identifier. E-Verify will be a more robust identifier than a Social Security number.

One would hope that recent abuses by IRS, FBI, and NSA would persuade citizens that if there’s a way for government to misuse its power, ultimately it will. The Social Security account number was expanded well beyond its original purpose, despite a congressional ban when Social Security was launched. E-Verify will be expanded beyond its intended purpose. The potential usefulness of E-Verify as an all-purpose ID check will be too irresistible. Politicians always push the envelope.

The opportunities for abuse in this program are staggering. If driver’s license information is added to E-Verify, why not add a person’s driving record – traffic tickets and DUI? How about adding criminal background? Travel history? Instead of using a driver’s license to prove identity, why not the convenience of E-Verify? Incidentally, what was the transaction associated with that E-Verify check? That should go in your database record too. Then the government would know everything you buy.

Do we have an illegal immigration problem? Sure we do. Even though immigrants take jobs most American citizens won’t perform, if we have laws we ought to enforce them. The solution must include the illegal cross-border traffic. I remain unpersuaded that duplicating Hadrian’s Wall or the Great Wall of China at a cost of $4 million per mile for 2,000 miles is the right solution when we have the ability to read a license tag from a spy satellite.

But this blog isn’t about the immigration debate. It’s about freedom and privacy and their gradual erosion by a central government that is growing too powerful. If the solution to the immigration problem is less freedom and less privacy, it’s too expensive. We have to find a different solution.

E-Verify is another government meat-axe solution: “Better to let the innocent suffer than the guilty escape.” In order to prevent eight million illegals from working, 150 million have to comply with rules intended for those eight million. If either the government or employer makes a mistake in data entry, it’s the employee’s problem to straighten it out.

We’ve seen the meat-axe approach before. The Transportation Security Administration puts every person through the hassle of having to arrive early to allow time for security delays. No one is exempt from the intrusive groping including the ridiculous searching of crying children and blue-haired grammas. But to avoid “profiling” and in the name of political correctness, let’s not focus on the travelers who any intelligent person would suspect.

ObamaCare is another meat-axe government solution. It will destroy a healthcare system that worked for 270 million people because 40 million were uninsured. I didn’t say 40 million were denied healthcare. Everyone had access to healthcare even if it was delivered in a hospital emergency department. But remove from the 40 million those who are temporarily uninsured because they are between jobs or unemployed for less than 12 months. And remove those who are voluntarily uninsured because they are young and healthy and money spent on insurance could buy a flat screen TV. Remove those two groups and there are only 10 million truly uninsured. We could have found a more cost effective way to care for those ten million. But the meat-axe won out.

Procedures are required for citizens to leave or reenter the country. These procedures not only give the government knowledge of our comings and goings, but also potentially put government in the position to prevent our travel. Has government used that power? Not yet.

We can’t withdraw large sums of our cash from our bank accounts without government knowledge. There are limits on the amount of cash we can take out of the country. The government gets involved when we open a bank account, take out a loan, and are issued a credit card.

E-Verify is another step toward greater government control of every aspect of our lives.

The ObamaCare Train Wreck

When Obama delayed the implementation of the ObamaCare insurance mandate last month it sent a signal that Max Baucus, the author of this abominable law, may not have been far wrong to characterize it as a “train wreck.” Three years ago in this blog I gave my reasons why ObamaCare would fail completely. The law is too big, too complex, and too naïve in its assumptions. Supporters never took into account the second-order and third-order effects that destabilizing the US healthcare system, indeed the US economic system, would cause. Now, we’re about to find out.

In their lemming-like march toward European socialism, the Democrat architects of The Patient Protection and Affordable Care Act (ObamaCare) defined “full-time” as 30 hours per week. Yes, 30 hours! It’s right there in Section 1513 (p. 137.) The traditional 40-hour work week harks back to the 1938 Fair Labor Standards Act (don’t you love the high-sounding names of these laws?) which required time worked in excess of 40 hours to be paid as “overtime” at a “time and a half” rate. The mandated overtime pay rate worked as a disincentive (pay for 90 minutes and get 60 minutes of work) to exceed 40 hours per employee. Employers hired another employee instead who could be lawfully paid at a “regular time” rate. Thus economics, not legal definitions, drove the 40-hour work week into the national psyche to create the notion of “full-time” and “part-time” as well as “over-time.”

Recently, several bills were launched by Republicans and Democrats to replace the ObamaCare 30-hour definition of “full-time” and specify full-time to be 40 hours. They needn’t have bothered. First, modifications to the definition of full-time haven’t a chance in Harry Reid’s Senate. Reid said during a PBS interview last week that the US needs to “work our way past” an insurance-based healthcare system and have a single payer system. He is disinclined to make ObamaCare workable even if that were possible. And while there is a chance that the Democrats will lose the Senate in the 2014 elections, any such bill would be DOA at the White House. Its resident will be there until 2016.

Second, the well-intentioned bills to restore the traditional understanding of “full time” as 40 hours solve the wrong problem. A careful reading of ObamaCare defines a “small” business as one employing less than 50 full-time employees, whereas a “large” business is defined as employing 50 or more full-time employees. Since “full-time” is defined as an average of 30 hours worked per week, many employers had resorted to capping work per employee at 29 hours a week. But the “small” business section of ObamaCare defines employment in terms of hours of work produced by the company, not the work produced by individuals. Simply stated, at the margin 50 people working an average of 30 hours per week represent 1,500 hours per week. Any company producing 1,500 and more weekly hours – regardless of the number of people employed in producing that 1,500 hours – is considered a “large” business under ObamaCare and is subject to the employer mandate to provide insurance or pay a fine.

Switching from full time to part time employees doesn’t solve the problem because ObamaCare counts full-time equivalent employees (FTEs) to determine if the 50-employee limit has been reached or exceeded. It doesn’t matter if there are 50 employees working 30 hours per week on average or 100 employees working 15 hours per week on average. Both amount to 50 FTEs. Both produce 1,500 hours per week.

Suppose an employer’s workforce is all part-time workers or a mix of part-time and full-time. How is the number of FTEs determined if the part-timers work variable amounts – more hours in some weeks and less in others? The provisions specify a “look-back” period of not less than 90 days and not more than a year. The number of hours worked in the “look-back” period divided by the number of weeks in that period determines the number of FTEs. If the number equals or exceeds 50 FTEs based on 30-hour weeks, the employer is subject to the insurance mandate. Keep in mind that most “full-time” employees work 40 hours per week, so it isn’t hard to run up a total of hours worked that kicks in the mandate using the 30-hour rule.

If an employer is subject to the mandate and fails to offer insurance to all “full-time” employees, the employer must pay a $2,000 fine per employee whose work equals or exceeds 30 weekly hours, but 30 employees are excluded in the fine calculation for reasons known only to the idiots who wrote this law.

Here’s an example. A company is subject to the mandate because it had an average of 50 (or more) FTEs in the look-back period. There are 35 employees identifiable by name who worked full time – an average of 30 hours per week during the look-back. Since 30 are excluded in the fine calculation, five are the basis for the fine, a total of $10,000 which is levied and payable at a rate of 1/12th per month for every month insurance was not offered to ALL 35 full-time employees.

The employer’s choice is to pay the fine – $10,000 per year – or buy insurance. It doesn’t take a genius to determine that unless insurance could be purchased for 35 employees for $10,000 or less, about $285 annually for each of them, the company will pay the fine. Do you know of any health plans costing $285 per year? I don’t. According to the Congressional Budget Office, employers are projected to pay $130 billion in fines over the next decade.

Incidentally, if an employee has been “full time” in the look back period, he is considered full time over the same period going forward – regardless of the number of hours the employee works. So, if Joe Smith averaged 30 hours per week in a 90-day look-back, Joe Smith is a full-time employee for the coming 90 days. If full time over a six-month look-back, old Joe will be full time for six months in the future. Apparently the geniuses who wrote this gibberish wanted to remove any incentive to cut old Joe’s hours to avoid the mandate going forward. Anyone who has been “full time” in the past will be full time for some period in the future. No doubt this was done in hope that some part of an employer’s workforce calculations in the future can be jerry-rigged into the full time classification regardless of hours worked. If Joe and 29 other employees worked “full time” in the past, only 20 additional full timers are needed to push the company into ObamaCare in the future.

Oh, one more thing just in case you thought there was an end to this nightmare. If an employer tries to get around the mandate by forming multiple companies and counting them separately to avoid the mandate rule, don’t bother. ObamaCare has an “aggregation” provision that makes it very difficult to claim businesses are separate entities if they have common or nearly common ownership. If you have a perverse interest in the language of the law it says, “All persons treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue Code of 1986 shall be treated as one employer.” So if you own a chain of restaurants, incorporating each as a separate business entity won’t cut it. Obama counts every employee as if collectively they work for the same company even if one group works in a grocery store, another works in a hardware store, still another group works in a restaurant, and a fourth group works in a retail clothing store.

Passing a bill to define “full time” as 40 hours instead of 30 simply means the margin for compliance with the employer mandate moves from 1,500 hours to 2,000 hours – a 33% increase. What such a law doesn’t change is the fact that ObamaCare’s employer mandate is fundamentally a tax on business growth. As the law currently stands, when the 1,500th hour is worked in any week, the employer’s costs immediately increase $40,000 ($2,000 for 20 FTEs since 30 FTEs are exempted) and for every FTE thereafter the employer pays at least $2,000 tacked on to the annual salary.

So, Mr. Employer; business is booming and you’ve been keeping your workforce just below 50. But the demand for your product or service would let you employ 60 FTEs. Well, get your checkbook out. You can exempt 30 employees but you’ll pay a $2,000 fine to Obama for the other 30 – a whopping $60,000 for the privilege of growing and employing more people. But you could comply, the liberals tell you, and avoid the fine if only you’d buy your folks insurance. Let’s say the cheapest plan you can find has a $1,500 annual premium (let me know if you find anything that cheap.) But, don’t forget, you have to buy it for all full time employees. Let’s see, that comes out to $90,000. Hmm; $60,000 fine or $90,000 in insurance? Those extra sales I’d like to make had better be really profitable or else I best stay small.

This Kafkaesque universe was created by politicians – people like Obama, who have never held a real job in the real economy in their entire lives. They haven’t a clue how cost-benefit decisions are made by business people who risk their fortunes (sometimes those of others) to run a needless gauntlet created by byzantine laws. But, hey, that’s why they are politicians! Unfortunately they know how to write asinine laws like ObamaCare, and somehow they managed to get people to vote them into office so they could destroy the economy, which is where ObamaCare is going to take us.

None of this should really surprise us. Social Security, Medicare, Medicaid … they are all political scams that force the private sector to pay for expensive benefits that politicians can’t afford to finance through taxation if they want to get reelected. ObamaCare is going to cork economic growth and, to pay the fines or excessively expensive insurance, raise prices and lower wages and salaries.

I’ll give this much credit to Obama. He was politically astute enough to see the handwriting on the wall and realize that the employer mandate had to be delayed until after the 2014 elections. Maybe he’ll get lucky and find enough clueless voters to keep the Senate in Democrat hands. I think the House is out of the reach of Nancy “Let’s-Pass-ObamaCare-to-See-What’s in-It” Pelosi.

A one year delay in the employer mandate won’t make the choices any better than they are today. And since the IRS will be looking at 2014 to determine FTEs in 2015 – the year ObamaCare’s mandate begins – business owners don’t have that much time to make adjustments to their businesses, assuming anything can be done. It will give business owners time to realize that converting their workforce to part time and setting up a Potemkin village of “separate” businesses to avoid the mandate isn’t going to work if their workforce is producing 1,500 hours a week. Do you know what “checkmate” means?

There is one tired old bromide I’d like to put to rest before I end this blog and go take an Alka-Seltzer and it’s this: “96% of the businesses in the US have fewer than 50 employees, which illustrates the improbability of the detrimental effects that some claim [ObamaCare] will have on business.” That’s a quote right off of the pages of Forbes, if you can believe it. It was in an article written by the CEO of a PR company, whom I’d advise to go back to doing whatever CEOs of PR companies do. I don’t know if he came to that conclusion on his own or read it somewhere. The “96%” justification is grossly misleading.

The 96% statistic is the number of business entities reporting 50 or less W-2s issued. Since most people work 40 hours, some of those companies exceed Obama’s 1,500 hour limit. In fact 37.5 FTEs working 40 hours would be subject to the ObamaCare mandate. More than “just 4% of all businesses” – the line used by ObamaCare defenders – will be subject to the law. But most of them already carry employer-based health insurance for their employees. So what problem does ObamaCare solve?

Second, the “96%” statistic assumes it’s the same 96% of firms forever. Since virtually all employment growth comes from small businesses, many if not most of these companies will graduate from the “96%” and be replaced by new firms in the future – if there is a future under ObamaCare. The law will dampen the incentive to grow.

Speaking of incentives, guess who doesn’t want ObamaCare?  The same people whose unions pushed it in 2009 and 2010. A survey published last week showed that over 92% of federal employees want to keep their cushy health plans paid by taxpayers rather than be herded into ObamaCare like the rest of us cows.

However, our elected Congress and their staff employees succeeded in exempting themselves from the law last week. ObamaCare, it seems, is good for thee but not me.

Cris Carter’s Journey

“Always a bridesmaid, never a bride” initially described a woman who was unlucky in love. In time it has come to describe anyone who consistently came close but never achieved a long-pursued goal.

Cris Carter must have thought he was the poster guy for the expression. Since becoming eligible for induction into the professional football Hall of Fame, the Valhalla for every player who dedicated the years of his youth and often his health to the game, Carter was passed over five years in a row. Each year he wasn't chosen allowed players who were still actively playing to improve their records. The records of eligible players for the Hall of Fame are static since they are no longer playing. Therefore they become less impressive each year because the way football is played changes. It has become more pass-friendly in recent years, allowing receivers to improve their records. Carter was a wide receiver when the game was more rushing-friendly. Passing and pass receptions were less frequent.

Carter finally made it into the Hall of Fame this year with the nominations for the 2013 class. He and others were inducted in Canton Ohio last week.

Only one other time has my blog veered off into the world of professional sports, and that time it was to talk about character, not sports. As I listened to Cris Carter’s emotional induction speech, excerpts of which were broadcast several times, my interest was not about his 16-year football achievements as a wide receiver, which included 1,100 receptions – 130 of them touchdowns – for almost 14,000 yards. I was more interested in hearing Carter speak about the “backstage” people who made his remarkable career and comeback possible.

Carter’s impromptu speech rambled without notes or rehearsal for more than half of the nearly 17 minutes that he spoke. But as he began wrapping up his comments, he recognized several people to whom he had a special debt for shaping his life at critical times. He predictably began with his “Mama,” Joyce Carter. It was obviously not a gratuitous acknowledgement. Like too many black families, Cris Carter’s was large – and fatherless.

“My mama, Joyce, stand up, please. Now you should know that woman right there dropped out of high school at 17, had seven kids, went back and finished her high school diploma when she was about 40, and when she was 50, she ended up with her Masters. Mama, I got to tell you, I didn't have to wait to get a call from the Hall to tell me I was a Hall of Famer. You've been telling me since I was little. … But, Mom, I've got to tell you. I have to apologize. I'm so sorry for the bumpy flight and the bumpy ride, but I got to tell you, Mama, it's a smooth landing.”

The matriarchal “Mama” Joyce Carter moved the family into project housing in Middletown Ohio, the People’s Place Apartments, where the opportunity for youth sports was better. Little is publicly known about the Carter family and especially Joyce Carter. If she was like many single black mothers, she was fiercely supportive of her children and determined that they would not repeat her life. From all evidence, she succeeded.

Children, especially black children, who are raised in fatherless homes often live in poverty and don’t escape it as adults. The Carter family was poor; too poor to afford even a phone, not to mention a television or electronic games. So the four Carter brothers passed time with physical workouts. They played on recreational sport teams and later excelled on high school teams. Their high school workouts paid off and their skills were recognized by scouts. But the only way recruiters could contact them was to call their neighbors to fetch one of the Carter boys to the phone.

Each boy got college athletic scholarship assistance. The oldest brother, Butch, went on to an NBA career as a player and coach. The youngest, Cris, played professional football. John and George had non-sports jobs after college. Unfortunately George also spent 16 months in prison for burglary and forgery. After his release he influenced Cris to sign with an agent and accept money while he was still in college, causing Cris to lose his senior college year of football eligibility with Ohio State. Notwithstanding the different paths their lives have taken, the four brothers, now in their late 40s and 50s, remain close and talk with each other every day.

But another woman also influenced Cris Carter’s journey – Melanie, his wife of 23 years. He first caught sight of her crossing the Ohio State campus and told his roommate, even before meeting her, that he intended to marry “that woman.” They did marry later and had two children – a son now 22 years old and a daughter now 19.

“Through all the things we've been through. I appreciate your sacrifice. I remember early in my career you told me, ‘Cris, I had a dream and I was going to be successful, but if you want to pursue pro football, I'm willing to put my dream on the back burner, because I believe in you.’”

It wasn’t an easy marriage. Cris struggled with drugs and alcohol after leaving college and the two and a half years he was with the Philadelphia Eagles. His intense competitive aggressiveness spilled over into every relationship. He and Melanie married in February 1990. Eagles head coach Buddy Ryan cut Cris later that same year after the fall preseason because of his addictions and poor work ethic. It was a crushing professional defeat. But it probably saved his life and certainly his career and marriage. Carter called it “the best thing that ever happened to me.” As his speech recalled that painful last meeting with Ryan, tears welled:

“Buddy Ryan drafted me, and he tried to grow me up in the league. What Buddy Ryan did was the best thing that ever happened for me when he cut me and told me I couldn't play for his football team. But he told me a story. He told me the night before he [had] talked to his wife, and he asked his wife what he should do. And his wife told him, don't cut Cris Carter. He's going to do something special with his life. So Buddy Ryan, and your lovely wife, I thank you.”

Cris Carter was without a job, fighting an addiction, and trying to start a life with his new wife.

Getting fired had a good outcome for Cris Carter. I recalled another firing that happened early in the American Civil War that didn’t work out as well. Abraham Lincoln was struggling to find a general who would press the fight against the seemingly invincible Robert E. Lee. The darling of the Union Army, George B. McClellan, called Little Napoleon by his admirers, had been given charge of the Army.

McClellan, however, proved better at preparing to fight than engaging Lee in a fight. After many attempts to prod his cautious commander to act, Lincoln fired McClellan when he failed to follow up Lee’s retreating army following the battle of Antietam. Several McClellan supporters appeared at the White House to plead a case for reconsideration. Defending his decision, Lincoln argued that McClellan “had the slows.” McClellan would have been a better man, in Lincoln’s opinion, had he encountered some humbling reverses in his early years. He would have been a better general when he took over the Eastern command had he been tested in his first battles by possible or actual defeat. Instead, his modest victories reflected an unwillingness to take risks. His termination, still in his mid-30s, essentially ended McClellan’s professional life, although he would live another 30 unremarkable years.

The position Lincoln took with McClellan’s pleaders was sage: some lessons in life are only learned with blackened eyes and bloodied noses. McClellan had experienced neither. We don’t know the words that passed between Buddy Ryan and Cris Carter when the 25-year old was cut from the Eagles, but as Lincoln observed, there are times in life when failure is the best feedback a person can give or get.

The Minnesota Vikings claimed Carter off waivers in September 1990 for a $100 fee. Almost immediately he went into team-sponsored substance abuse rehab. The team ownership was determined to help him get his life under control if he would accept help. All of the coaches and management got behind the plan. Now it was up to Carter. The team substance abuse counselor, Betty Triliegi, challenged him to go one week without drinking. That challenge was made on September 19, 1990, and Carter has been sober since.

He gave credit to the Vikings’ program in his speech.

“The Minnesota Vikings, we have one of the best employee assistance programs, cutting edge as far as substance abuse, people struggling with it and our ownership at the time was a group of people, but one of the owners was named Wheelock Whitney. When the Vikings acquired me from Philadelphia, like most pro teams, they don't know the intel on the player until they get the paperwork, but they had already had my contract by then. But Wheelock Whitney hooked me up with a good friend of his, whose name is Betty Triliegi, and she happens to be one of the best friends a person could ever have. The reason why: she didn't teach me how to catch or run routes, but she taught me how I could live a life and have power over my life. And my demons didn't have to always haunt me.

“She asked me on September 19, she said, Cris, can you just not have a drink for one week? And since September 19, 1990, because of Betty Triliegi, and Wheelock Whitney, I've been able to keep that program together. And but for them, I would not be going into the Hall, and I greatly appreciate and I honor them tonight.”

In his second year at Minnesota, Carter began working hard to improve his game. It showed in his receptions, touchdowns, and yardage gained after a catch. He finally invested himself mentally and decided he would chase Jerry Rice’s records as a wide receiver. When former San Francisco 49er running back Roger Craig was traded to Minnesota in 1992, Carter asked Craig how he and Rice were able to play at such a high level. Craig revealed their secret: both worked as hard at their off-season regimens as they did for regular season conditioning. Carter hired a trainer and was determined to achieve year-round fitness. It paid off. In his remaining 10 years with the Vikings he had eight straight seasons of 1,000 or more yards.

As he concluded his Hall of Fame speech, Carter closed with a tribute to Reggie White. Formerly a defensive end and defensive tackle for the Philadelphia Eagles, the Green Bay Packers, and the Carolina Panthers, White was one of the most decorated players in football. During college he had become involved with the Fellowship of Christian Athletes and became an ordained minister, a role he actively continued throughout his professional football career. Reggie White died from a fatal cardiac arrhythmia the day after Christmas in 2004 at the age of 43.

Carter remembered him.

“And the fifth person I met [along the way to the Hall of Fame] was the ‘Minister of Defense’ and his name was Reggie White. I grew up in a single parent home. Reggie White, when I was 22, was the first man to tell me he loved me. And he said, ‘Cris, through God all things are possible.’

“Now there might be a lot of people you might question where they're at, but I know, Big Dog. I know you (sic) looking down, and I know you're happy with me. I appreciate you, Reggie. I love you.”

Every life – yours and mine – is a story. It’s a story in the making whose last chapter, thankfully, has yet to be written. And every day is an opportunity to shape that last chapter.

Every life is a story of the choices and the associations we make, you and I. Both have consequences – some good, others bad.

Every life is a story of how our associations have changed the stories of other people’s lives, and how associations have changed our life … for better or worse. The imprint of the lives we carry with us should be cause for frequent reflection. They have changed our story. They have reshaped our last chapter.

He wasn’t eloquent but Cris Carter understood who changed his story. He acknowledged the people who had influenced him, people who shared the wisdom gathered into their own lives, who gave him courage to persevere in difficult times, and helped him find hope when it eluded him. They helped shape his last chapter. Induction into the Hall of Fame is no more than a subtheme in Carter’s story. I doubt that he believes that today. But I hope he will someday.

Who are the people influencing your story? Whose stories are you influencing? Is either question an important concern to you? A man who lived 2,500 years ago thought so. Pericles, called the “first citizen of Athens” by a contemporary, the historian Thucydides, was the highest statesman and chief general during the Greek golden age. Therefore it fell to him to give the funeral oration for those who had died in the Peloponnesian war – the Gettysburg Address of its time. Pericles used the occasion to make a timeless statement about human relationships:

This whole earth is the tomb of illustrious men,
Whose true epitaph is not engraved on monuments of stone,
On columns in lands far from their own,
But rather woven into the stuff of other men’s lives,
A record unwritten, with no monument to preserve it,
Except that of the heart.

I had this read at the funerals of my parents.

I hope my family will have it read at mine.

Why the Senate Should Retain the Filibuster

Last week’s blog discussed why the Senate isn’t “filibusted” as critics of that procedure allege and why the Senate, unlike the House, isn’t dominated by the majority party. This week’s blog argues the rationale for continuing the filibuster rule in Senate procedures.

Obama has been pushing Majority Leader Reid and the Democrats to get rid of the filibuster so he can get his left-leaning agenda through Congress. At least that’s his position since he’s become President. When Bush was President and Obama was a Senator-in-training in the minority party, he was all for the filibuster as the Democrats’ only means for blocking the evil Bush agenda.

Reid’s recent threat to “go nuclear” and change Senate rules by a simple majority flies in the face of Senate Rule V. That rule clearly states “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” What are “these rules”? They include Senate Rule XXII which requires two-thirds of the Senators to change rules and three-fifths for all other business. The entire Democrat caucus does not contain 66 Senators. Therefore Reid’s threat to go “nuclear” had no chance of passing. Even a Senate rules amateur like me knew that. Nevertheless, Minority Leader McConnell, another Republican dinosaur who along with Boehner needs to be ousted, caved and allowed three of Obama’s seven nominees for the NLRB to be confirmed if Obama would symbolically replace two of the nominees. What a deal!

Democrats have repeatedly warned Republicans in the past not to try to change the rules because the Republicans wouldn’t always be in the majority. Did anyone hear Republicans make the same warning to Democrats last week? I didn’t. McCain and his fellow RINOs couldn’t get to the negotiating table fast enough so they could make concessions to Reid’s empty threats.

The pressure to “reform” the Senate filibuster rules – a euphemism for eliminating the filibuster – represents a serious misunderstanding of the concept of divided government as embodied in the Constitution. Understandably the Democrats want to make it easier for a Democrat President to get his way with Congress. What will happen when there is a Republican President? A Republican Congress? Like Scarlett O’Hara, I guess the Democrats will think about that tomorrow.

Absent the Damoclean sword of the filibuster, what happens to the system of checks and balances that the Founders envisioned in governance when the legislative branch is too cozy with the executive branch? The Founders intended for Congress to protect its constitutional power against the encroachment of the executive branch instead of deferring more power to the White House.

James Madison appealed to this understanding in Federalist 51:

“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others … Ambition must be made to counteract ambition.”

Since the Roosevelt Administration of the 1930s, however, Congress has increasingly become a wholly-owned subsidiary of the Executive when the same party occupies the White House and one or both chambers of Congress. Congress moreover has ceded growing power to the administrative rule makers in government agencies making the Executive more powerful even when his party is the congressional minority. How? Because arguably more enforceable law governs the lives of American citizens today which originates in government agencies than originates in Congress. Just think of the regulations promulgated concerning air and water quality, the use of public and private land, energy exploration, travel, education, welfare, you name it. Who governs these agencies and their regulatory machinery? The President.

Weakening the filibuster’s brake on presidential power by Congress would exacerbate the declining influence of Congress in governing. How? By diminishing the minority party’s participation in legislating, in approving agency appointments, and in confirming judiciary replacements. Congress would become two chambers with “rocket dockets” with no real deliberation and deal-making. ObamaCare and Dodd-Frank legislative monstrosities would become the norm regardless of the party in power.

Congress should pass legislation that appeals to a broad segment of the majority party and some of the minority party. If extremist legislation appeals only to a narrow segment of the majority party, the filibuster should prevail to defeat it. When legislation appeals to the majority party and some of the minority party, it will prevail even if filibustered.

The sense of the US Constitution is violated when the minority party is denied opportunity to influence the political process. The party in the majority has no monopoly on good government ideas. Reasonable legislators should therefore welcome opposing minority ideas to broaden the appeal of laws to the citizenry, assuming citizens pay attention to what’s happening in Congress.

Neither the White House nor the House of Representatives has any incentive to protect the rights of the minority party which Senate rules currently do. The filibuster prevents the President from dominating the Senate, and thereby, the Congress. The filibuster forces common ground to be sought and compromises made. The filibuster prevents radical policy shifts from administration to administration and thus makes for more stable government.

Here’s how.

Even in today’s politically polarized environment, which includes one party’s use of the filibuster to obstruct the other, more moderate legislation will result. The more divergent each party’s ideological positions are the more they are pushed to the center by the filibuster to get anything done. ObamaCare and Dodd-Frank will haunt Americans forever and cost trillions of taxpayer dollars. Neither law could have passed in their present form, if at all, had the filibuster been operative. A scaled down version of ObamaCare and Dodd-Frank might have passed if amended to represent opposing ideologies, and if that had happened both would have been indisputably better law than what we now have.

A second reason for keeping the filibuster is that it makes for better government. Given each party’s ideological tilt, it’s safe to assume that when the Democrats are in charge, their base is going to pull policies to the left. When Republicans are in charge, their base will pull policies to the right. The majoritarian House will easily follow the dictates of the party in power since only 218 of 435 votes are needed to pass a bill. The Senate is a different story if the filibuster isn’t neutralized. Each vote gets more expensive in terms of trading power. Even in the filibuster-proof 111th Congress Democrat Mary Landrieu’s vote cost Democrat Leader Reid the “Louisiana Purchase,” Democrat Max Baucus, the author of ObamaCare, got massive Medicaid concessions, and Democrat Ben Nelson sold his soul for the “Cornhusker Kickback.” It would have been much easier to have passed ObamaCare if only 51 deals had to be made – which a simple majority would require – instead of 60 – which a filibuster requires. The filibuster was toothless because there were 60 Democrat Senators, so no accommodation with Republicans had to be made. However, the law didn’t sail through the Senate because Democrats are politicians first and Democrats second. Their constituents were watching them.

A third rationale justifies keeping the filibuster. If Senate ideology was rank-ordered so that the 20th Senator is less liberal than the 19th and the 50th is less liberal than the 49th, the 60th Senator needed for cloture is less liberal than the 59th and every Senator which preceded him. If Senate bills can pass with 51 votes rather than the 60 needed for cloture, more liberal legislation will pass. If the Republicans are in power, more conservative legislation will pass without a filibuster. When the majority party doesn’t have an overwhelming majority, the process of finding the 60th vote moderates legislation through amendments and compromise. Less may get done during a congressional session, but what gets done is better law.

Here’s a fourth reason for keeping the moderating influence of the filibuster. It works retrospectively as well as prospectively. Suppose Republicans held the White House and both chambers of Congress today. Their base would push for repeal of the hated ObamaCare and perhaps Dodd-Frank. Could they do it? The filibuster would make it much harder. Maybe impossible. There is a chance that parts of ObamaCare that are disliked by both parties could be repealed. There’s a chance that Democrat Senators who are up for reelection and have constituents who dislike the law might see political advantage in partial repeal. But there is almost no chance for total repeal which would require 60 Senate votes. Years if not decades must pass before the enthusiastic supporters of ObamaCare are totally out of the Senate, if ever. So repeal of ObamaCare isn’t likely.

But how about if only 51 votes were needed to repeal ObamaCare? Far-reaching change could follow every administration change. A new administration could undo previous administrations. Subsequent administrations could undo the current administration’s legislative achievements. Political instability would occur making it impossible to plan for the future.

It’s unlikely that the political factionalism will moderate in the future. There is almost no political center in either party. And political factions have long memories. Revenge will be on ideological minds for years to come. History will likely remember Obama as the most divisive President since the Republic began. George Bush may have been divisive but he didn’t work at it. Obama did.

The filibuster could be the best hope for dealing with the political polarization of future administrations. It operates on both the majority and minority parties, albeit in different ways. And it moderates the extremism of each party. A simple majority rule would embolden the extremists in the majority party and antagonize the minority. Whatever comity exists today would evaporate.

There is one change to the filibuster I would like to see. The threat of a filibuster works today as well as an actual filibuster. That is why, with the exception of Senator Rand Paul’s recent filibuster, we haven’t seen the real thing in a long time. That should not be. Real filibusters should expand the debate on controversial bills moving through the Senate. I would be in favor of forcing every Senator who threatens a filibuster to get off of his butt and filibuster. He should stand up on the Senate floor and make his case. Appeal to colleagues who haven’t read the law they are about to vote on. Argue a reasoned position so the public understands the issue if it is inclined to listen.

Threats to filibuster don’t extend debate; they prevent debate by side-tracking legislation and taking no action on it. No one is forced to talk. This cheapens the filibuster by making it cost nothing to the Senator threatening it. Of the hundreds or so “filibusters” that have taken place in the past few decades, only a few involved true debate.

This reminds me of the corruption that occurred among the plains Indians during the 19th century. A warrior who came into physical contact with an enemy – an Indian in an opposing tribe or a white man – was acknowledged for putting his life at risk. For his bravery he was allowed to notch his coup stick – as a gun fighter might notch his gun. In time, the practice became corrupted so that an Indian warrior could get credit for physically contacting an enemy by using the coup stick itself, which was often several feet long. A notch was a notch whether it represented a physical struggle with the enemy or touching him from the relative safe distance of several feet with a coup stick. It didn’t take long before the young bucks in a tribe figured out that they could ride through an enemy camp harmlessly touching opponents left and right with their coup stick. This gained lots of notches, making them look quite brave among their fellows. The practice was called “counting coup.”

“Counting coup” is what happens when a Senator threatens to filibuster but is not forced to perform the actual act. The practice should be terminated immediately.

The nation’s business needs to get done, although I prefer to see that in the quality of laws rather than in their volume or scope. We rarely repeal law – even bad law. No Child Left Behind comes to mind. Instead we patch bad law. The filibuster assures fewer reforms and patches will be enacted. But those that make it will be more broadly appealing in a diverse Republic like ours.

Harry Reid’s warning that the “nuclear option” is still on the table would be a fatal mistake if used, for the same reason he and other Democrats warned Bill Frist not to use it in 2005. Reid has said he seeks only to prevent Obama’s agency nominations from being filibustered and that legislation and judicial nominations would remain subject to 60 vote cloture. But Obama has nominated bad – arguably unfit – candidates before who should be rejected. Janet Napolitano is an example, and her performance as Homeland Security Secretary is Exhibit A of her unfitness for the job.

If Reid somehow finds a way to circumvent the meaning of Senate Rule V and makes non-judicial nominees filibuster-proof, what would prevent Republicans from “going nuclear” in their own way – filibustering all of Obama’s legislation and every judicial nominee?

In 2005 Democrat Senator Ted Kennedy saw the slippery slope that the threat of the nuclear option represented:

“By the time all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the Senate floor…They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war.”

Good advice. I hope Reid takes it.

A Filibusted Senate?

The legislative debacle by which ObamaCare was passed showed what happens when there is not a functioning filibuster. The 2008 elections gave the legislative and executive branches of government to the same party with sufficient margins in the House and Senate that the minority party – the Republicans – could have taken the next two years off and gone fishing. 

The Senate Democrats had the votes to overcome any Republican filibuster until the death of Ted Kennedy. His Republican replacement, Scott Brown, forced Senate Majority Leader Harry Reid to resort to procedural, if not illegal, chicanery to complete the conferencing required to reconcile the House and Senate versions and pass it into law.

As I’ve noted in previous blogs, ObamaCare was illegally birthed in the Senate in violation of the Origination Clause of the US Constitution. By disemboweling an unrelated House bill for military housing and stuffing the carcass with 2,700 pages of bureaucratic gibberish, the Democrats hijacked the private sector of the US healthcare system. No meaningful Senate debate was allowed among Senate members. No time was allowed for Republicans to inform the American public about the pending law. Reid limited the amendment process in order to rush the bill, which most Senators hadn’t read, to a vote failing to garner a single Republican.

This is what life without a filibuster looks like.

The Senate and the House operate very differently to produce legislation. The House “rocket docket” passes bills very quickly with a simple majority vote. Most House bills that pass have majority party defections. No matter. The majority needs half of the 435 House votes plus one. Therefore, little debate or consensus-building for legislation occurs. If the Speaker allows Representatives to speak prior to a vote, he may limit appeals to influence the pending vote to 30 seconds or a minute.

Unlike the House, things move slowly in the Senate. The minority party may stall a vote by a filibuster, which requires 60 votes to cut off. This compels issues and different points of view to be debated, compromises must be struck, amendments are often incorporated which reshape the original bill, and this continues until 60 votes can be rounded up to overrule the holdouts. Deliberation requires majority leaders to prevent losses among their caucus while minority party votes are wooed and accommodated – except in the 111th Congress. From the 2009 swearing in of new Senators until the February 2010 swearing in of Scott Brown, 60 Senators conducted the business of the Senate. Forty were sidelined. ObamaCare and Dodd-Frank were among the leading examples of the abominable legislation that resulted. This is what happens without the right to filibuster. Whether the left or the right of the political spectrum is the minority the filibuster puts the brakes on extremism.

This past week we heard threats from Reid about resorting to the “nuclear option.” This ominously-sounding parliamentary procedure would have changed Senate rules by simple majority in violation of existing rules. Had this happened as Reid wished, it would have allowed presidential nominees for executive branch positions to have been approved by a simple majority. The rules for approving judicial nominees and legislation would have continued to be subject to filibuster and could only be cut off by the supermajority rule of 60 votes.

A few years back, however, Minority Leader Reid sounded quite different about the filibuster rules change. George Bush was then in the White House and the Republicans controlled the House and Senate, albeit not by filibuster-proof margins in the Senate. The Democrats frequently used the filibuster. Majority Leader Bill Frist grew as tired of the deadlock as Reid is today and threatened the “nuclear option” – a term coined by former Republican Majority Leader Trent Lott – to change the Senate’s rules by simple majority vote in which the Republicans would have prevailed. Democrats became apoplectic.

The filibuster is the last check we have against the abuse of power in Washington. Republicans are in power today, Democrats tomorrow. A simple majority ... should not be able to come in here and change willy-nilly a rule of the Senate.

Well, that was Reid vintage 2005. Harry Reid vintage 2013 should take his own advice. Bullying an agenda through the Senate does not produce good legislation, does not properly vet candidates for executive positions, and does not deliberate the suitability of a judge for a lifetime position.

Several years ago, Common Cause joined four House Representatives and three illegal aliens in Common Cause v. Biden, a lawsuit in federal court challenging the constitutionality of the filibuster. Common Cause claimed the filibuster was “inconsistent with the principle of majority rule.” The four House members claimed the Senate filibuster rule nullified their votes on bills. The illegals claimed they were denied a path to citizenship under the DREAM Act because the Senate couldn’t cut off the filibuster. The judge called the suit frivolous and threw it out. None of the plaintiffs had standing in the case, and Judge Sullivan rightly concluded that …

… to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings…the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

By what logic would the Founders have created a bicameral legislature having two nearly identical houses? In its zeal to advance a political agenda, Common Cause and the individual plaintiffs failed to comprehend that the Founders never intended for the Senate to be a majoritarian body like the House. It is a very different institution. There are two Senators from each state regardless of state size or population, unlike the House which is apportioned by population. Originally, Senators were elected by state legislators (and I think still should be) whereas House members are popularly elected. In each new Congress, the Senate is a continuing body – two-thirds of it remains intact with every election and its rules carry forward. The entire House is replaced every two years and its rules are adopted for each new Congress even though some may carry forward by choice. The Senate rules protect minority party rights to participate in shaping legislation and other matters. House rules do not.

As Judge Sullivan aptly lectured the plaintiffs above, Article I, Section 5 of the Constitution states that “each house may determine the rules of its proceedings.” This means the Senate makes rules governing debate and the House does likewise.

In the first Congress of 1789, each chamber therefore created its own rules of order. It happened that both employed a parliamentary rule that harked back to the English parliament known as “the previous question motion.” This was equivalent to saying, “shall we move to a vote?” or “shall the question by now put?” Nay votes postponed a vote; yea called for a vote. This was so in both House and Senate. It was not a simple majority cloture vote. A nay vote on “the previous question motion” postponed a vote and the legislative body moved on to other business. A yea vote continued debate. In 1811 House rules were changed so that a yea vote immediately ended debate and brought the question to a vote. This is how the House adopted simple majority cloture.

The early Senate sessions continued the previous question motion to end debate and move on without voting until March 1805 when it was dropped from Senate rules. Erroneous folklore has been concocted by those seeking to overturn the Senate filibuster, saying that it was created accidentally by Aaron Burr, Jefferson’s departing Vice President. No it wasn’t. The word "filibuster" wasn't even used until the 1850s – a decade and a half after Burr died. Burr recommended dropping “the previous question motion” because it duplicated the motion for indefinite postponement and because “the previous question motion” had only been used once in the Senate’s history.

The “filibuster by accident” fairy tale originates from the diary of John Quincy Adams, which includes the following account of Burr’s speech to the Senate after his lethal duel with Alexander Hamilton ended his political career:

He [Burr] mentioned one or two of the rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment.  That was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.  (Memoirs of John Quincy Adams, edited by Charles Francis Adams, vol. I, p. 365)

Dropping the “previous question motion” eliminated a way to end debate. That was not problematic in those days because the gentlemanly thing to do was to allow a Senator to speak before a vote, even if winning the support of fellow Senators was futile, at least his position would be recorded in the Senate log. Such was the dignity of early debate and deliberation.

It would be 1837, the year after Burr’s death before a minority block of Whig Senators engaged in an extended debate to prevent a resolution of censure against Andrew Jackson from being deleted by his supporters. It’s unlikely that the Whig minority thought of themselves as engaging in a filibuster.

Seven years would pass before a similar debate tactic was used in 1841 to block the charter of the Second Bank of the United States whose sponsor was Kentucky Senator Henry Clay. When Clay tried to “move the previous question” and end debate by simple majority vote, Alabama Senator William King accused Clay (the two had threatened to duel each other several times) of trying to gag free debate and told Clay he "may make his arrangements at his boarding house for the winter.” John C. Calhoun of South Carolina rose in high dungeon to accuse Clay of a “palpable attempt to infringe the right of speech” and promised to defend the minority’s “undoubted right to question, discuss, and examine those measures which they believe in their hearts are inimical to the best interests of the country.” Missouri Senator Thomas Hart Benton reprimanded Clay for attempting to stifle the Senate's right to unlimited debate. Thoroughly scolded by his colleagues, Clay backed down.

The term filibuster derives through Spanish to a Dutch word which meant “privateer” or “pirate.” It entered the legislative lexicon when Representative Albert G. Brown in 1853, referred to a speech by Representative Abraham Venable against "filibustering" intervention in Cuba – i.e. the practice of overthrowing Central American governments by private US citizens. As political-speak filibuster was used in 1889 as a pejorative for an obstructionist of the political process. It probably was understood to characterize the overthrow of legislative routine and pirate control.

As more states entered the Union and the volume of Senate business grew, so did the practice of filibustering. Senator Robert Byrd, the longest serving member of the Senate and an authority on its history, noted the following in his book The Senate, 1789–1989:

An effort to reinstitute the “previous question” on March 19, 1873 failed by a vote of 25 to 30. Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.

The point I’m attempting to demonstrate is that the early history of the Senate makes clear that the filibuster was not an accident of history, as its opponents try to characterize it. The filibuster was a creation of early Senate rules. Later Senators had many opportunities to rein in or eliminate the filibuster and resisted it.

In 1917 Woodrow Wilson prevailed upon the Senate to establish a cloture rule to end debate. Senate Rule XXII was enacted which stated that debate may be terminated by the votes of two-thirds of the Senators present and voting. A Senate quorum is 51 Senators, so as few as 34 could cut off a filibuster. On important legislation, however, it is likely that more will be present and voting on the floor, meaning more will be needed to close debate. Two years after Senate Rule XXII was established, it was used to cut off debate filibustering against the Treaty of Versailles. In 1975 the Senate modified the cloture requirement, lowering the number of senators needed to end debate to 3/5ths of those “duly chosen and sworn,” which would be 60 Senators normally.

Most of us have seen the 1939 Frank Capra film starring Jimmy Stewart as Senator Jefferson Smith in Mr. Smith Goes to Washington. Stewart’s character is framed in a land scam and engages in a 24-hour filibuster to defend his innocence. In the 1930s Senator Huey P. Long used filibusters to advance his liberal agenda against bills he believed favored the rich over the poor. Reading Shakespeare and cooking recipes he once held the floor for 15 hours. Senator Strom Thurmond holds the record for the longest filibuster – 24 hours and 18 minutes – to prevent the Civil Rights Act of 1957 from passage.

Few of these kinds of filibusters happen today, however. Just the threat of filibuster produces the same result. In order to prevent filibusters or their threat from bringing the business of the Senate to a halt, Democrat Majority Leader Mike Mansfield in the 1970s implemented a multi-track system for legislation so that bills threatened with a filibuster could be sidetracked while other bills made their way through the Senate.

Taking into account that the filibuster empowers the minority in the Senate, it is remarkable to hear Republican Speaker of the House, John Boehner (R-OH), whine that the Republicans hold only one-half of one-third of the the Congress and White House legislative process. He obvious doesn’t understand the power of the filibuster in the Senate.

Notwithstanding the arguments of its opponents, the Senate should retain the filibuster. In next week's blog I'll give the reasons why I believe that.

Remembering Janet Napolitano

Department of Homeland Security Secretary Napolitano announced last week that she will be leaving the Obama Administration in September. She will become president of the California University System – a position which pays $750,000 annually, almost triple her current federal salary. The move has yet to be approved by the California Board of Regents, but approval is not in doubt. Napolitano was nominated by a secretive search committee made up of several regents.

Napolitano’s nomination culminated a process of unknown duration that considered over 300 candidates. Napolitano, who has no advanced degree other than a law degree and has no experience in academic administration, was selected, according to the committee chair Sherry Lansing, for her “passion for education and for being “a remarkably gifted candidate.” Are we talking about the same Janet Napolitano? Having spent 20 years in university academia I know how universities function. There are more big ego PhDs per square yard of university real estate than any other place on earth. Universities are as unlike government organizations as black and white or night and day or similes and metaphors.

Ms. Lansing continued,

While some may consider her to be an unconventional choice, Secretary Napolitano is without a doubt the right person at the right time to lead this incredible university. She will bring fresh eyes and a new sensibility – not only to UC, but to all of California. She will stand as a vigorous advocate for faculty, students and staff at a time when great changes in our state, and across the globe, are presenting as many opportunities as challenges.

Wow! What’s this California regent been smoking? Not only is Napolitano unfit to lead the California University System, she was unfit to lead the Department of Homeland Security. Her preparatory experience for the latter was one and a half undistinguished terms as Arizona’s governor unless stacking the state’s courts with radical judges counts as an achievement. Before that she was her state’s Attorney General for a term in which her only notable achievement was to ban Christmas decorations on public property. When Clinton became president, he selected her to be the US Attorney for the District of Arizona. And prior to that, she was a partner in the second largest Arizona law firm during which she represented Anita Hill in the Clarence Thomas hatchet job. David Brock’s book, The Real Anita Hill, reports that Napolitano interrupted the testimony of her own corroborating witness during the Thomas Senate hearings when the witness began disputing Hill’s version of the facts. After they conferred “off the record” for a few minutes, Napolitano's witness had a sudden attack of amnesia.

Napolitano is an anti-conservative zealot who early in her DHS tenure issued a report entitled Rightwing (sic) Extremism: Current Economic And Political Climate Fueling Resurgence In Radicalization And Recruitment, which admitting no proof, nevertheless opined “… that right wing extremists may be gaining new recruits by playing on their fears about several emergent issues. The economic downturn and the election of the first African American president present unique drivers for right wing radicalization and recruitment." It is unexpurgated garbage.

Napolitano's rationale for singling out conservatives was they prefer local to federal government, Christians  believe in the “end time,” and single-issue groups oppose abortion, illegal immigration, and embrace Second Amendment rights. She alleged they had “the potential to turn violent,” citing former veterans like Timothy McVeigh. They’re all from the same mold in Napolitano’s brain.

Is this the “remarkably gifted candidate” Ms. Lansing had in mind?

The Department of Homeland Security was created in the aftermath of 9/11 by aggregating the Immigration and Customs Enforcement, Customs and Border Protection, Transportation Security Administration, Coast Guard, Secret Service, and Federal Emergency Management Agency under a single agency oversight – allegedly to improve cooperation and information-sharing that helped allow 9/11 to happen. Notice that I said “aggregate” not “integrate.” The 45 agencies have been trying to integrate since 9/11 and a dozen years later have yet to accomplish it. Napolitano did little to provide the leadership it needs.

Instead she created a hyper-partisan agency that has done little to improve homeland security. Napolitano became Obama’s lap dog by expunging the word “terrorism” from the official lexicon as part of the Obama agenda to “understand” and “reflect” the grievances of local Muslim communities. Engagement became more important than counterterror policing. Experts who showed the connection of acts of terror and jihad were silenced or purged. An advisory board established by Napolitano looks like a “Who’s Who” of Muslim Brotherhood moles in this country.

While Tamerlan Tsarnaev was abroad getting his Boston bomb instruction – unknown to DHS – Napolitano was busy having her agency buy up hundreds of millions of rounds of ammunition to keep them away from those bad old Second Amendment Right Wingers who fought and defeated Obama’s gun control agenda in Congress. Claiming they were only bought for target shooting training (that’s a lot of training), an unamused reporter noted these were lethal hollow points, not the type needed for practice. Facts are such pesky things.

Among her several duties, Napolitano is responsible for securing the borders – a constitutional obligation. She met that duty with the same indifference she met most of her duties. She lied a lot. Claiming that the border was more secure than it had ever been, a member of the Senate pointed out to her that arrests of illegal border crossers (aka undocumented Democrats) increased on her watch. When ranch thefts and several border area murders moved Arizona Governor Brewer to pass enforcement laws for her state, Napolitano and Holder formed a tag team to defeat its enforcement, claiming border security was federal turfdom – which DHS and DOJ continued to ignore.

When Napolitano was the governor of Arizona she vetoed seven bills intended to fight illegal immigration. As DHS Secretary, she fought the border fence. “Show me a 50-foot fence,” she was known to say, “and I’ll show you a 51-foot ladder.” The CBO reported that millions of undocumented Democrats will enter the country over the next decade if something isn’t done. The immigration bill being haggled over in Congress at the present would give the Secretary of Homeland Security sweeping discretion in how to implement it – including waiving sections of the law. The Gang of Eight wasn’t anxious to put that power in Napolitano’s hands. They are glad to see her gone.

Einstein once said that the main difference between intelligence and stupidity was that intelligence had limits. When Farouk Abdulmutallab’s underwear exploded on a Christmas Day flight in 2009, Napolitano pushed the limits of sheer stupidity in her public statement. “The system worked,” she claimed when reporters asked our principal protector of homeland security how this kid boarded a US-bound plane armed for an act of pubic terror. Abdulmutallab was on a terrorist watch list, being a known protégée of Anwar al-Awlaki. His father had warned US officials in Nigeria of his son’s radicalization. The kid bought a one-way ticket with cash and carried no luggage. The system worked?

The greatest invasion of personal privacy occurred on Napolitano’s watch. The intimate pat-downs, genital touching, creepy examinations of screaming children, women forced to drink their breast milk to prove it harmless, brainless examinations of breast cancer reconstructions, passengers forced to get out of their wheelchairs to show they weren’t faking, treating grey-haired grannies as potential terrorists, naked x-ray screening – all of this was Napolitano’s meat axe mentality in administering airline security.  She succeeded more in reducing airline travel.

Lawsuits dogged Napolitano’s incompetence. Her cronyism in placing personal friends in key agency positions was commonplace. One suit alleged discrimination against male employees who were passed over to promote less qualified female staff. Another suit involved Suzanne Barr, a woman who worked for Napolitano as her gubernatorial aide. Napolitano brought her to Washington and Barr managed to get her boss sued for sexual harassment. Affidavits stated that Barr, the chief of staff, cultivated a “frat house” working environment and on one occasion told a male staffer “you are a sexy (expletive)” before asking about the dimensions of his genitals. Lewd messages were sent on agency Blackberries and heavy drinking while on official business took on the nature of a Roman bacchanal. When a complaint was filed with the EEOC, Napolitano initiated investigations against the whistleblower. Barr got away with misconduct for three years before she was forced to resign.

Not surprisingly, Napolitano’s Secret Service agents were involved in well-publicized scandal last August when they “entertained” prostitutes in the rooms in a Cartagena, Columbia hotel prior to Obama's arrival for the Summit of the Americas. Prostitution is not illegal in Columbia and consorting with them is not specifically prohibited in Secret Service regulations. The incident was discovered before Obama’s arrival and the 12 agents involved were ordered back to Washington and put on unpaid leave. The investigation of a special inspector general was restricted by Napolitano who refused to let him travel to Cartagena for interviews. Moreover, at least one White House employee involved in the romp, the son of a powerful lobbyist, was protected. An investigating agent revealed this in his report and refused to redact it when ordered. Napolitano put him on administrative leave and refused to respond to inquiries about it from Senator Ron Johnson (R-WI) – another indication of the agency culture Napolitano permitted.

Ah, and then there are the sequestration cuts which Obama seems to have ordered his cabinet secretaries to make as painful as possible. Obama painted the bleakest of consequences, you’ll recall, including the early release of illegal detainees. Before the cuts even went into effect, however, Napolitano began releasing detainees from immigration jails. She and the Immigration and Customs Enforcement said only a few hundred had been freed. In fact an Associated Press report exposed an internal document stating that about 2,000 had been released for “budget reasons.” Napolitano disputed the AP report, calling it “not really accurate.” Unfortunately for her, a House oversight committee called ICE Director John Morton into a hearing and under oath he revealed that 2,228 people had been released.

Senator Jeff Sessions (R-AL) hit the nail on the head when he recently said, "Secretary Napolitano's tenure at the Department of Homeland Security was defined by a consistent disrespect for the rule of law."

Janet Napolitano is a partisan hack who is unqualified by experience, intellect, ethics, and judgment to serve as the leader of the university system of the largest state in the country. That the university system would even consider her calls the judgment of the Board of Regents into question. Perhaps the regents and Napolitano deserve each other. I predict their relationship will not last long. California may be the Left Coast, but academics are a weird lot and they don’t suffer fools gladly. Even qualified university leaders have ripped their pants on a faculty. Ask Larry Summers.

I for one am glad to get her off the Homeland Security payroll. She can and has done real damage there. Her record on terrorism has been abysmal – the Boston bombings killed three and injured 264. Abdulmutallab almost succeeded in doing more damage than turning himself into a eunuch. The Times Square car bomber made it all the way to a departing airplane seat before he was captured. Napolitano called that incident a “one-off” which showed how clueless she is in performing security work. All terror attacks are “one-offs.”

The timing of her resignation is odd, however. Cabinet level members of an administration leave after the president’s first term, even if they don’t have an immediate job to move into. The fact that she waited six months into a new term can’t be explained by a sudden opportunity coming up. Napolitano and the California search committee would have been discussing this opening for months. And even if that were not the case, she would not have been a less viable a candidate for the position if unemployed.

No, my guess is that something is about to hit the DHS fan that will be the largest scandal to date. One involving her directly.

Stay tuned.