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A Growing Cancer on Congress: The Curse of Party-Line Voting (Forbes.com) December 13, 2017

Posted by daviddavenport in Op/Eds, Politics.
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Just as White House Counsel John Dean famously proclaimed the Watergate cover-up of the 1970s a “cancer on the presidency,” there is now a growing cancer on Congress.  The rapid and pervasive rise of party-line voting is a cancer that is eating at the effectiveness of both the House of Representatives and the Senate.  As a consequence, what was once the world’s most deliberative body, the US Senate, hardly deliberates at all, and what little is accomplished in Washington is done through party-line votes and executive orders, with devastating consequences.

The recent tax reform bill is Exhibit A, with zero Democrats voting for it in either the House or the Senate.  One Republican in the Senate and 13 in the House broke ranks to vote against it, largely out of a concern over its predicted increase in the federal debt.  With only one party at the table working on the bill, its provisions were developed last minute, with handwritten edits presented on the floor.  Deliberation, if it happened at all, was limited to one side of the aisle and a very narrow range of choices were considered in a short time frame.

Unfortunately party-line voting has become the new normal.  As recently as the early 1970s, party unity voting was around 60% but today it is closer to 90% in both the House and Senate.  If you think about the major legislative accomplishments of recent presidents, beginning with George W. Bush, you can see the problem.  Campaigning for the presidency by touting his work across the aisle as governor of Texas, Bush found that more difficult in Washington.  In his first year as president, Congress passed his No Child Left Behind education bill with strong bipartisan support, 384-45 in the House and 91-8 in the Senate.  But his next major legislation, prescription drugs for seniors, was hotly debated and the vote came largely on party lines, at least in the House, with only 8 Democrats supporting it and 8 Republicans against.

Part of Barack Obama’s “hope and change” message as a candidate included making Washington work in a bipartisan way, but that got little traction.  The Affordable Care Act, perhaps the most important piece of domestic legislation in 50 years, was passed on a straight party-line vote of Democrats.  Bipartisanship completely fell apart when Senate Majority Leader Mitch McConnell said Republicans’ “single most important thing” was making sure Obama was a one-term president, and Obama announced that he had “a pen and a phone” and would just take executive action to get things done.

Now we are shocked when Senator John McCain flies back to the Capitol from cancer treatments to announce he would not vote to repeal and replace Obamacare without a bipartisan conversation involving both parties to find the best solution.  An opinion piece in the conservative Washington Times called him “a traitor to the conservative cause.”  Apparently party discipline is more important than finding the right solution to the complex set of health care issues.

One unfortunate consequence of all this party-line voting and executive action is that policy swings back and forth or is held in the balance.  Obamacare is passed on a party-line vote and nearly repealed on one.  The same is true for Dodd-Frank.  Obama’s executive orders are simply overturned by his successor Donald Trump.  Is this any way to run a government?

One underlying problem is that the two major parties are now better sorted than before.  Whereas both the Republican and Democratic parties had some liberals, moderates and conservatives in an earlier day, now Republicans are predictably conservative and Democrats are liberal.  But another problem is that all politicians seem to care about in Washington is how a vote will best position them and their party for the next election, rather than what will make for a great piece of legislation.  Congress has devolved to marketing and winning, not deliberation and great policy.

Only when a few statesmen and the American voters stand up against party-line voting will anything change.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/12/13/a-growing-cancer-on-congress-the-curse-of-party-line-voting/#5ff0b67f6139

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Potomac Fever Seizes Republican Leaders Over Federal Spending And Debt (Forbes.com) November 29, 2017

Posted by daviddavenport in Op/Eds, Politics.
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A funny thing happened to Republicans on their way to controlling both houses of Congress and the White House:  They can’t remember what they believe in, especially about federal spending and debt.  Perhaps it’s a case of early onset Alzheimer’s, unable to recall what got you there or what your core principles are, but more likely it’s a bad case of Potomac Fever as power and politics overtake principle.

Historically Republicans have been the party of fiscal discipline, at least rhetorically.   But now Washington, DC has become about marketing and positioning yourself and your party for the next election, not deliberating over the best policies for the country.  So, in the age of Trump, the self-proclaimed “king of debt” in his business career, Republicans no longer worry about the federal debt.  As Treasury Secretary Steve Mnuchin said recently on “Face the Nation,” government spending is “not an issue we’re focused on right now.”

Reports suggest it’s time to be focused on it since the proposed new tax plan is projected to produce around $1.5 trillion of new debt over the next decade, even taking economic growth into account.  To paraphrase a quotation attributed to the late Senator Everett Dirksen (R-IL): a trillion here, a trillion there, and pretty soon you’re talking real money.  But even the very conservative Freedom Caucus in the House of Representatives seems unconcerned.  One of its members, Congressman Scott Perry (R-PA) said, “Somehow, apparently, you can’t do tax reform and save money at the same time,” concluding he’d rather achieve one of those than neither.

Let me propose, however, that there is still a powerful case for reducing federal spending and the national debt.  For starters there remains a strong moral case for limiting debt.  Admittedly we’re not in the 1920s when President Calvin Coolidge called “carelessness” in the “expenditure of public money” a “condition characteristic of undeveloped people, or of a decadent generation.”  But there is an inherent unfairness and lack of discipline in the Baby Boomer generation transferring trillions of dollars of debt to its children and grandchildren to pay for their own entitlements.  Sadly we have come to view government deficits as just another tool of economic policy, detached from any moral underpinnings.   But as former President Herbert Hoover reminded us:  “Blessed are the young for they shall inherit the national debt.”

The economic case for growing the debt is predictive, with experts on both sides.  A group of noted economists sent a letter to Treasury Secretary Mnuchin this week saying that the corporate tax cuts should lead to significant economic growth.  On the other hand, a survey of 42 economists by the University Of Chicago Booth School Of Business was more pessimistic, with most responding that they were uncertain or that it was unlikely that the proposed tax cuts would lead to significant growth.  The problem is that other forces are in play:  will there be spending reductions, will entitlement reform be undertaken, will the economy be otherwise robust?  Even Ronald Reagan, who championed supply side economics and tax cuts, produced disappointing growth in the federal debt, explained in part because a Democratic Congress would not cut spending.

There is even a national security case for shrinking the national debt, with China and other nations holding huge inventories of US debt instruments.  As former chairman of the Joint Chiefs of Staff, Mike Mullen, pointed out:  “The single biggest threat to our national security is our debt.”

But in the end, it appears that the political case will carry the day.  It is far easier to vote to cut taxes and put money back into voters’ pockets than it is to insist on the sort of spending cuts that should accompany tax relief.  Even the chair of the conservative House Freedom Caucus, Representative Mark Meadows (R-NC) acknowledges that the “need to put up some major legislative victories…certainly factors into how flexible…a number of us are going to be.”  Flexibility to win victories in the face of principle is a classic symptom of Potomac Fever.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/11/29/potomac-fever-epidemic-seizes-republican-leaders-over-federal-spending-and-debt/#f4071e865f77

Free Speech on the Decline (National radio commentary, Salem/Townhall) November 28, 2017

Posted by daviddavenport in Radio Commentaries.
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One reason to be concerned about the future of America is the reduced commitment of its young people to freedom, starting with free speech.

A recent survey from the Brookings Institution indicates that 44 percent of millennials do not believe hate speech is protected by the Constitution. Moreover, 51 percent believe it is appropriate to shout down a controversial speaker, with 19 percent saying it is ok to use violence for that purpose. Mistakenly, 62 percent say the First Amendment requires one controversial speaker to be balanced by another speaker.

Today’s college students are coddled by helicopter parents and seek safe spaces on campus, not freedom. And, with little or no civic education, students do not understand the First Amendment.

Founder Benjamin Franklin said that “whoever would overthrow the liberty of a nation must begin by subduing the freedom of speech.” Wake up, America, the message from our campuses is that free speech is on the decline and, ultimately, so is freedom itself.

http://www.townhallreview.com

We’re Number 45 (National radio commentary, Salem/Townhall) November 15, 2017

Posted by daviddavenport in Radio Commentaries.
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For nearly 50 years now, Freedom House has published its annual survey of the freest countries in the world. This year’s report contains some troubling news.

First, with an increase in authoritarian regimes and populism, overall freedom in the world declined in the past year.

Second, the United States, after dropping a point in freedom last year, lost another point this year. Where would you rank the U.S. among the freest countries? Number one or two, certainly in the top 10? No, the U.S. is now tied for 45th.

Though we are still rated as “free,” the U.S. is heading in the wrong direction. Burdened by over-regulation, with attacks on our political system from within and without, American democracy is seen as troubled.

Abraham Lincoln wisely said, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.” When it comes to freedom, we should never be content to say, “we’re number 45.”

Balancing Religious Rights with Health Care (National radio commentary, Salem/Townhall) November 13, 2017

Posted by daviddavenport in Radio Commentaries.
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This is David Davenport of the Hoover Institution for Townhall.com.

Public policy is full of difficult dilemmas, tough cases where there are strong interests on both sides.  Such dilemmas are not usually solved as much as they are managed.

That’s why two federal departments recently expanded the rights of religious employers.  During the Obama years, the federal government had required religious employers to provide birth control coverage in their health insurance plans even when contrary to their religious beliefs.  And the government had limited the rights of religious employers to hire or favor people who shared their beliefs.

This action properly swings the pendulum back in favor of religious rights, which are protected by the First Amendment.  Civil rights are also constitutionally protected, which is what creates the tension.  In the end, both rights are powerful, but neither is absolute.

A liberal president pushes too far in one direction and a conservative administration appropriately pushes back.  Ultimately, the Supreme Court may well have to decide how to manage this difficult dilemma.

I’m David Davenport.

Civic Education to Save the Republic (Forbes.com) November 13, 2017

Posted by daviddavenport in Education, Op/Eds.
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If the American republic is in trouble, better civic education is the answer.  That is the conclusion reached by a number of papers and studies in recent years, including “The Republic is (Still) at Risk—and Civics is Part of the Solution” presented to the Democracy at a Crossroads National Summit a few weeks ago.

Consider a few compelling data points:

  • In the last National Assessment of Educational Progress testing, only 18% of 8th graders were “proficient” or above in history, and only 23% in government.  A mere 1-2% were “advanced.”  By the way, if you believe students learn what is tested, those exams are no longer given in the 4th and 12th grades, only in the 8th

 

  • Xavier University found that one-third of Americans could not pass the civics portion of the American citizenship test, whereas immigrants pass at a 97.5% rate.

 

  • A poll of 18-34 year-olds found that 77% could not name a senator from their home state. And don’t remind me about those who think Judge Judy is on the Supreme Court.

While civic ignorance is itself a major problem, its effect is compounded when it is applied to particular issues of the day.  For example, a You.gov poll found that those under 30 preferred socialism over capitalism 43%-30%.  Similarly, a Reason-Rupe poll of 18-24 year olds showed that 58% supported socialism.  But when Reason-Rupe asked a follow-up question whether governments or markets should manage the economy, young people said markets by a 2-1 margin.  Essentially, they do not understand what socialism is.

The same ignorance is manifest in a recent study about free speech and the First Amendment by Hoover Institution and Brookings Institution fellow John Villasenor.   Hate speech is not protected by the First Amendment, say 44% of college students, with 51% saying it’s ok to disrupt an offensive speech with which you disagree, and 19% saying it’s fine to use violence for that purpose.  Another 62% of college students mistakenly believe the First Amendment requires a controversial speaker on one side to be balanced by a speaker on the other side.  Wow.

Part of the problem is that civics and history are not required by most of our colleges and universities, so those going into the teaching profession are not well prepared themselves.  Moreover, these days the emphasis in colleges and schools is on “civic engagement”—getting involved—rather than civic education or knowledge.  One would think the latter should precede the former.  The recent and heavy emphasis on STEM (science, technology, engineering and math) has been important, but it has also crowded out courses and investments in civics and history.

A few states are awakening to the problem and beginning to address it.  Florida now requires a middle school course in civics with follow-on testing with good results.  Illinois mandates a high school civics course with teacher development to support it.  The Ashbrook Center in Ohio has gone national with its programs to retrain history and civics teachers to teach using primary documents, rather than relying exclusively on typically boring and frequently biased textbooks.  There are several points of light, but not nearly enough.

A statement attributed to Abraham Lincoln delivers a frightening prospect:  “The philosophy of the school room in one generation will be the philosophy of government in the next.”  If you are concerned about the direction of America, it is time to do something about the study of civics, which is the real long-term solution.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/11/13/civic-education-to-save-the-republic/#6f8830c359e8

Civic Education to Save the Republic (National Radio Commentary, Salem/Townhall) October 31, 2017

Posted by daviddavenport in Radio Commentaries.
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A recent report reminds us that if the future of the American republic is in question, doing a better job with civic education is the answer.

The report for the “Democracy at a Crossroads National Summit” provides plenty of reasons for pessimism: people don’t trust their government, they don’t vote, they don’t take part in churches or other civic organizations like they used to. And young people lack civic knowledge, with only 23% of high school seniors scoring at a proficient level on tests.

But some states are awakening to the solution: better civic education in our schools. Florida now requires a middle school course in civics and tests the students, with strong results. Illinois requires a high school civics course, and other states are looking at new requirements.

The report is surely right when it says, “Civic learning, when done properly, is the best vehicle to train young people to sustain our democracy.” I hope it’s coming soon to your state.

Not All “Free Speech” Is Constitutionally Protected (National Radio Commentary, Salem/Townhall) October 22, 2017

Posted by daviddavenport in Radio Commentaries.
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But here’s one thing you should know that many don’t: Even though the phrase free speech is thrown around, the players have no constitutionally protected right to protest the anthem.

The First Amendment prohibits the government from limiting free speech, not a football team. In fact, sports teams are businesses and their leagues may regulate all kinds of things, from tucking in your shirt to what patches you wear. If there is any legal angle here, it is a matter of labor negotiations between the players’ union and management or the League. But it’s not a matter of constitutional law under the First Amendment.

Sadly our society knows so little about the Constitution, but this teachable moment is about free speech.

http://www.townhallreview.com

The Culture War’s Latest Battlefront: The 1st Versus The 14th Amendments (Forbes.com) October 18, 2017

Posted by daviddavenport in Op/Eds.
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The culture wars of recent decades have largely pitted a growing secularization of America against its more traditional Christian culture.  The secular left has sought to push religion out of the public square—whether from schools, or over public monuments, or in public expressions (coins, pledges, holidays).  Meanwhile the religious right has pushed back, becoming a major political and legal force.  The culture wars are a series of battles in elections, legislatures, executive offices and the courts.

But a new and important battleground is emerging as a clash between the rights to the free exercise of religion and free speech of the First Amendment to the Constitution with the growing civil rights protections afforded under the equal protection clause of the 14th Amendment.  Battles over conflicting constitutional rights are especially difficult, with few easy answers and none that will satisfy everyone.

For example, two federal departments recently announced changes in federal policy that enhance religious rights, with the Department of Health and Human Services rolling back a requirement that employers must offer birth control coverage in their health insurance plans if they violate religious principles.  Meanwhile the Justice Department eased Obama-era limitations that prevented religious organizations from faith-based preferences in employment decisions.  House Speaker Paul Ryan called the changes “a landmark day for religious liberty” but others said they were a license to discriminate.  A liberal president had pushed in one direction and a more conservative administration pushed back.

A similar issue is raised in a case to be heard before the US Supreme Court this fall involving a Colorado baker who refused to decorate a wedding cake for a gay marriage because it was against his religious beliefs.  The baker asserts his 1st Amendment rights to the free exercise of religion and speech while a state law banning discrimination by public businesses claims this amounts to civil rights discrimination.  The lower court decisions have gone against the baker, but the Trump Justice Department has filed a brief in favor of his free expression of religious principles.  Many predict a 5-4 Supreme Court decision, with Justice Kennedy left to choose between two rights he favors:  gay marriage under the 14th Amendment and free speech under the 1st.

Once the Supreme Court makes a decision such as in the Obergefell gay marriage case, the implications can play out for years in the courts.  A case in Arkansas, for example, raised the question whether listing both same-sex parents on the birth certificate was legally required (no, said the Arkansas Supreme Court, later reversed by the US Supreme Court).  The Texas Supreme Court recently ruled that same-sex spouses of government employees need not be provided benefits.

The clash between the 1st and 14th Amendments in these matters is more of a dilemma to be managed than a problem to be solved.  Both religious and free speech rights are fundamental and receive special protection under the 1st Amendment.  Gay and transgender rights are newer but nevertheless protected under the 14th Amendment now.  Given the conflict between two core rights, neither can be absolute—some balance or accommodation must be found.

There are plenty of bad ideas out there for managing this dilemma.  New York Times columnist Frank Bruni’s suggestion was that Christians must now “[bow] to the enlightenments of modernity,” effectively turning their backs on an ancient yet living faith.  On the other hand, it should not be the case that a Christian running an ordinary business may decide to exclude certain classes of customers.

Although it would be better for society as a whole if the people and their elected representatives, rather than the courts, were creating new civil rights, in the end perhaps only courts can provide the delicate balance needed to manage the dilemma between 1st Amendment and 14th Amendment rights.  It will be a mighty task—we’ll have a chance to see this fall whether the high court is up to it.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/10/18/the-culture-wars-latest-battlefront-the-1st-versus-the-14th-amendments/#362c6b26683f

The Myth That All “Free Speech” Is Constitutionally Protected (Forbes.com) October 2, 2017

Posted by daviddavenport in Op/Eds.
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We live in a litigious society, ready to make a federal case out of all kinds of slights and indignities.  We are also quick to claim broad constitutional rights, asserting that whatever we do in the name of religion or anything we say is protected by the First Amendment’s freedoms of religion or speech.  But let’s be clear about this:  a professional athlete taking a knee during the national anthem is not engaged in constitutionally protected free speech.

The First Amendment, like other provisions in the Bill of Rights (the first ten amendments to the Constitution), protects our freedoms from government intrusion.  The Founders, and especially the Antifederalists, feared that replacing the Articles of Confederation with the Constitution created a federal government that was too powerful.  As a consequence, there was a move to establish a Bill of Rights, making it plain that the federal government had no power to intrude upon a whole set of individual freedoms.

The language of the First Amendment states that “Congress shall make no law…abridging the freedom of speech.”  This was later broadened by the courts to include other branches and agencies of the federal government, and ultimately to prohibit all government from limiting speech.  Such abridgement of speech no longer requires the government entity to make a formal “law” since action may also limit speech.  In addition, government is more broadly defined, with a state university, for example, unable to limit speech in ways that a private college might.

Sports leagues and teams are businesses that may establish and enforce all kinds of rules, right down to whether you must tuck in your shirt and what kind of patches you may display on your uniform.  These are not matters of free speech—certainly not of constitutionally protected speech—but rather are business practices that leagues and teams may legally require their employees to follow.  As Commissioner Adam Silver recently reminded NBA teams, the league rules require players and coaches to stand for the national anthem and he expected the rule to be followed.  There is no constitutional right to do otherwise.  It is a matter of dispute whether the NFL has such a rule or merely a policy.

Protestors are quite simply off base when they claim that there is any kind of First Amendment free speech issue here.  Some may wish athletes were free to protest during the national anthem at sporting events, but the Constitution provides no protection for that.  If athletes wished to invoke any sort of legal backing for their action, it would be more in the nature of labor relations law than constitutional law.  Players unions and management might negotiate what freedoms athletes are allowed in this regard, just as all kinds of business practices are negotiated.

Even President Trump’s remarks on the matter do not create a First Amendment problem.  He merely stated that he wished owners would stand up and fire athletes who protested during the national anthem.  Again, this is a matter of labor relations and business practice, not a question of constitutional law or protection.  President Trump, along with everyone else, is free to say what he wishes.

Of course, there are bigger questions to be raised.  Why do we need such a close tie between patriotism and sports?  Even if the First Amendment does not protect the ability of athletes to say or act out what they want, many would like to live in the kind of society where people had such freedoms.  But of course with that comes the freedom for others to protest and object to that speech or action, creating the clashing and jarring of ideas in truly free speech.  Moreover, might owners and leagues be unwise to prevent such speech and protests, even if they are not constitutionally protected?

Kneeling and protesting during the national anthem presents a number of difficult questions, but free speech under the First Amendment is not among them.

 

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/10/02/the-myth-that-all-free-speech-is-constitutionally-protected/#3c2d2d314fcb