Reining in the emergency clause

In Washington State, the Governor has what is known as a partial veto. The Governor can veto not only entire bills but also individual sections within bills, and individual appropriation items within sections. This is significant as regards the emergency clause because emergency clauses are always in their own sections. The Governor could veto an emergency clause without vetoing the rest of the bill, and has done so occasionally in the past.

The Governor’s partial veto is the key to checking the legislative use of the emergency clause. If the Governor chooses to make a stand on the issue, he or she could eliminate the use of the emergency clause for non-emergencies, or based on whatever standard he or she felt was appropriate or politically feasible. The following is my proposal for how an incumbent governor could reassert the constitutional right to referendum:

1. Campaign on it: The incumbent governor should include the emergency clause issue as a minor plank in his or her reelection platform. This will not lose the governor any votes, since there is not constituency or special interest that is in favor of the emergency clause. It will also gain the governor a small number of votes from direct democracy populists. The number of votes picked up will likely be insignificant, but if spun right, the platform will give the governor a more populist air. Therefore this strategy will be most beneficial for a governor who suffers from seeming like an Olympia insider or too cozy with the powers that be. The main benefit of including the platform in a campaign is that legislators have fair warning. If a sitting governor just began vetoing emergency clauses without signaling a policy shift, legislators would be angry, and justifiably so. They might even overturn the vetoes. Including the emergency clause stand as a campaign promise gives them warning and more importantly makes it clear that the governor isn’t going to back down. Doing so would be breaking a campaign promise; something that legislators can understand as out of the question.

2. Set standards: The Governor should not veto emergency clauses that seem to be constitutionally appropriate. If the bill needs to be enacted within 90 days (i.e. is an emergency) or is for the support of existing public institutions, the emergency clause is appropriate and the governor will lose credibility and political capital by vetoing it. The governor should make this clear in his or her platform.

The nightmare scenario here is that the governor vetoes a bill that is non-emergent, but has the capacity to avert a tragedy. If the governor vetoes a sex offender bill which isn’t emergent, and a child gets hurt within the 90 days the bill would have been in effect with the emergency clause, the governor would be in serious political trouble and might have to drop the whole program. Not only is vetoing those sorts of public safety bills dangerous, those bills are rarely going to be challenged by referendum. The governor should therefore make it clear that he or she will not veto emergency clauses on those types of public safety bills. This prevents the governor from appearing to cause a tragedy and fails to protect the referendum right solely in situations where it isn’t likely to be exercised. These two exceptions, actual emergencies and public safety bills, essentially focus the governor’s veto program on the real problem areas: non-controversial bills that the sponsor wants to speed up, and controversial bills that the sponsor wants to protect from referendum.

If the governor uses the issue in his or her reelection campaign, and applies the two exceptions outlined above, the legislature and public should be at least neutral and probably happy with the program. The governor will have single-handedly saved the referendum from demise, earning him or her the admiration and possibly the votes of independent populists. If the governor vetoes every inappropriate emergency clause consistently for four years, it is likely to become a tradition, and it may be a near-permanent fix. If the next governor does not continue the tradition, the cycle can be started again by the governor after. Once the idea is used successfully once, any governor who feels the emergency clause is being overused can step in to protect the people’s rights, with virtual impunity. In this way, the right to referendum can remain meaningful in Washington forever.

I'll See Your Feingold and Raise You a Reid

Just when you thought Democrats couldn't pick a dumber issue to attack Bush on than being "too tough on terrorism," as Senator Feingold did in calling for censure, now their Senate Minority Leader has decided to expend political capitol fighting to keep illegal immigration flowing freely. To draw the line in the sand against the feelings of 75% of Americans on an issue seems to me to be less than politically wise, and would surprise me if the Democrats hadn't shown their political ineptness so many times.

I know, I know - they have a real plan, too, and they won't do amnesty, and they have a "better idea"... Yawn. Too many prominant democrats have used too much hyperbolic language against any attempt at immigration reform (such as Sen. Clinton's "police state" remarks) for this to be anything other than manna from heaven politically for the Republicans. At this point, it doesn't matter how good their ideas are. They've already defined themselves as "pro illegal immigration".

Once again - Democrats insist on hitting the Republicans where they are the strongest. Or worse, misunderstanding so badly WHY they're unpopular that they actually come out on a LESS popular side of an issue. It's like attacking a castle with only one wall by beating on the wall with your fists, instead of walking around to the other side. Wile E. Coyote would be proud.

Do All Wisconsin Senators Have No Shame?

E. J. Dione has a piece today lamenting that Senate Democrats a running from Sen Russ Feingold's call for a censure of President Bush for the NSA secret wiretap program. As usual, he completely misreads the issue, the electorate, and the facts on the ground.

First, I have to say that rarely is there a columnist who gets it so consistently wrong as Mr. Dione. I mean every single time. He even somehow avoids getting things right on accident, as even a broken clock accomplishes twice a day.

In this case, he thinks that Feingold's "bold leadership" will energize the base around an issue that he mistakenly thinks most Americans disagree with the president on. He repeats the lame canard about Democrats needing to not cede the issue of national security to the Republicans, and that the GOP is somehow hyping up the terror threat to stay in power, because they have a better relationship with their base. None of it really makes any sense, unless you get your entire sense of the electorate from the Daily Kos.

If Russ Feingold is the Democratic nominee in 2008, the loss for the Dems will be catastrophic - losses Barry Goldwater and Walter Mondale would wince at. The GOP could run Homer Simpson and still be assured 60% of the vote. The reason is because we live in a fairly conservative country, and Mr. Feingold is making the cardinal error of being honest about the liberal agenda. That, and the left won't have Bush the Boogy Man to rally against any more.

Bush's number are down not because people are tired of the conservative agenda and are yearning for some liberal ideas (even if they had them). They're down because of increasing frustration that Bush isn't conservative ENOUGH on issues ranging from immigration, spending, the port deal, etc. Does anyone really believe the Democrats will spend less, get tougher on the border, or will be more aggressive when killing terrorists? That's why when election time comes, and people have to make a choice instead of just complain, the Dems will continue to lose.

Sen. Feingold claims that it's not about who's tough on security, but about breaking the law. But does anyone believe it? Was he at the forefront of the impeachment movement when President Clinton committed perjury in federal court, or call for his censure when he used warrantless wiretapping far more widely and less narrowly focused than Bush, for the sole purpose of "formulating policy"? Is he proposing amendments to the woefully inadequate 1978 surveillance law that would meet today's technologies, today's threats, and today's need for speed? Is he being honest about what the "domestic" wiretapping is - calls to or from foreign nations known to sponsor terrorism, made to or from people known to have terror ties? Of course not.

Some Democrats are starting to get a little religion, and realize that as cathartic as the Russ Feingolds of the world might be to the rabid Bush Hating left, his agenda is a recipe for disaster electorally. E. J. Dione doesn't understand that, and probably never will. And as long as the party base insists on following such terrible advice, they will continue to lose. This accomplishes nothing except to continue allowing the GOP free rein to spend too much and ignore critical problems, such as the border. And as I've said many times, that is bad for the country.

And of course, all of this doesn't even address the motivation this kind of circus provides to our enemies. "Even his own government is turning on the criminal Bush!" Our enemies most powerful weapon is their propaganda machines, so effective in a world that has never known a free press. Does Senator Feingold really not think these fascists will not be emboldened by this?

So shame on Senator Feingold. And shame on the misguided, such as Mr. Dione, who would harm our nation by rallying to his cause.

A Military Victory Over Law Professors

Today the Supreme Court unanimously reversed the 3rd Circuit's decision striking down the Solomon Amendment on free speech grounds. The amendment requires Universities who accept federal funds to allow military recruiters on campus despite the incompatible policies on homosexual hiring between the military and Law School career service offices. The case is Rumsfeld v. Forum for Academic and Institutional Rights, and Chief Justice Roberts' opinion is here.

Last week, a professor told me that although he respected the military and students who chose to serve, he despised the Solomon Amendment. I don't understand how you can reconcile that. It seems to me self-evident that where you ask for tax money from the government, it's OK for the government to ask for a little something in return, such as helping maintain the military which protects the silly academics' right to be opposed to the military. If academia despises the Solomon Amendment, they should likewise despise the government funding that allows them to take home 6 figures, and reject it.

And honestly, how the 3rd Circuit could come to the opposite conclusion after South Dakota v. Dole is simply beyond me. "Don't Ask, Don't Tell" is a silly policy, but it's Constitutional, and it doesn't erase the academic dependence on federal tax dollars, nor does it cut the strings that legitimately come with that cash.

To me, the despicable thing isn't that the Solomon Amendment exists, but that it should have to exist. Let's face it. The law schools opposed to it aren't free speech advocates. That's merely their back door. Nothing stops them from openly and loudly opposing the military policies, and in fact they do just that with disclaimers on E-mail and signs in the hallways saying, "The JAGs are coming, but that doesn't mean we like it." In fact, if they REALLY believed in free speech, they would let MORE groups with whom they disagree access the Law School and its students, so we can make our own decisions after hearing all sides.

The actual opposition is to two things - first, the military itself. Alas, we aren't as far from the days of spitting on the troops as I used to think we were.

But far more than that is the continued loss of their precious insulation from the real world. The Solomon Amendment forces academia to recognize that being a citizen involves not just rights, but responsibilities. It forces them to admit other people have legitimate, if different, points of view, and that they aren't all knuckle-dragging baby- killing ignorant gorillas. And it forces them to remember they are dependent on the good graces of the taxpayers for their grants, salaries, offices, research funds, and access to academic journals to publish their ideas. In short, it rudely reminds them they are not entitled to "free" money.

I do have to say that even before this ruling came down, this Law School allowed the military access, although they did have pretty hostile disclaimers. I don't know if they did before the Solomon Amendment was passed, though. But there is a large population of law students affiliated with the military here, and I hope UW continues - and in fact improves - its support of them.

Kelo v. New London Debate

I just want to thank Professor Bob Anderson, The Institute for Justice's Bill Mauerer, and the Executive Board for putting on a great debate today. For me, it was informative, interesting, and shed a lot of light on the issue. And I love that Mr. Mauerer had the opportunity to explain the difference between the free market and politicians being "pro-business".

What did other people think?

Does Direct Democracy have a place in the individual rights arena?

As we speak, Tim Eyman is preparing a direct democracy one-two punch which he hopes will knock out the recently passed anti-discrimination bill that would outlaw housing and employment discrimination on the basis of sexual orientation. Ever since he announced the effort (days before the anti-discrimination bill was actually signed into law), gay rights advocates have remarked that individual rights should not be put up to a vote of the people, or that minority rights should not be decided by majority rule. This is farcical. But it is an idea not at all confined to the political left. You could have heard these arguments (if you were listening hard enough) from the beleaguered smoker’s rights forces during the I-901 campaign, urging the majority not to take away individuals’ and businesses’ right to smoke and allow smoking in bars and clubs.

There are two reasons why the arguments seem especially ridiculous and inconsistent in this case: the anti-discrimination bill was passed by a bare majority of the democratically elected legislature, and gay right’s advocates just years ago attempted to pass similar legislation by initiative, in the same process many now deride as an improper forum for legislating on the subject of individual rights.

The anti-discrimination bill passed, as it often has in the past, by a large margin in the House of Representatives. It went on to the Senate where it passed 25-23, about as close a margin as you can get. Both of those votes were by democratically elected legislators who have to answer to their constituents, and who are swayed by the same arguments and interests as those back home who they represent. The legislative passage of the anti-discrimination bill was nothing more than a majority legislating on the rights of minorities. The vote was roundly praised by some minorities and condemned by others (conservative Christians) who notably raised the arguments that their associational rights were being trampled by the new law. In fact, if any of them had been thinking ahead, they could have claimed at the time that a majoritarian democratic forum is inappropriate for determining minority rights—the same argument being used by those in favor of the new law.

In the 1990’s gay rights activists, frustrated by an apparently blocked legislative process, tried to pass their anti-discrimination legislation into law via initiative. It was crushed at the ballot box, perhaps feeding the current attitude among gay rights activists that the public can’t be trusted with a decision on the subject of gay rights. I can understand their change of heart, but it hardly seems reasonable for one side to argue that a forum is inappropriate just because that side tried to use the forum and lost. If they believed that individual rights were not an appropriate initiative subject, they should not have written an initiative to further their goals in the first place.

It is time to reframe the issue. The central question isn’t gay rights; the central question is whether the initiative is as appropriate a forum for legislating any issue as the legislature. If not, the second question is how we can make that distinction in a broad, principled way, not case by case. Once we have had an open discussion about when initiatives are appropriate, we may be able to develop a consistent system rather than changing sides on this issue as different propositions threaten to make the ballot.