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Separation of Powers is Slow but Alive (National Radio Commentary, Salem/Townhall) July 18, 2016

Posted by daviddavenport in Politics, Radio Commentaries.
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Two recent court cases are a welcome reminder that the separation of powers doctrine may be slow to act, but is still alive.

A federal judge declared that the U.S. Department of Interior did not have the power to issue rules about fracking on federal land. And the U.S. Supreme Court, on a split 4-4 vote, allowed a court of appeals decision to stand holding that the president does not have the power to unilaterally allow those in the country illegally to remain. Only Congress has these powers, the courts said, not the executive branch.

The Obama administration has been pressing the envelope of executive power for years, using executive orders to carry out its agenda on gun control, immigration, environmental regulations and the like.

The founders separated powers so that no one–not even the president–could act alone on important matters. It may take years for other branches like the courts to catch up (at least in this case) but they finally have.

To listen to the audio, go to

Stop the Marijuana Rush in California (National Radio Commentary, Salem/Townhall) July 14, 2016

Posted by daviddavenport in Radio Commentaries.
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There is a new gold rush in California, a rush for the pot of gold promised by the legalization of marijuana. Although California voters rejected it in 2010, it is on the ballot again and current polls show it winning. With the 6th largest economy in the world, California’s vote is especially important.

What have we learned from the states that have already legalized marijuana: Colorado, Washington, Oregon, Alaska and D.C?
• First, it’s not quite the economic boon the states expected, with people buying on black markets or avoiding the taxes in other ways.
• More important, a Colorado report shows increases in marijuana-related traffic deaths, hospital visits, school suspensions and other legal problems, and:
• Legalization sometimes causes prices to fall and increases use and related disorders.

It’s no wonder that the California measure is opposed by law enforcement, prison officials and health groups. It’s not merely a question of freedom or lifestyle—it’s doubling down on serious societal problems.

To listen to the audio at Townhall.com:


Hillary’s Email in the Court of Public Opinion (National Radio Commentary, Salem/Townhall) July 13, 2016

Posted by daviddavenport in Politics, Radio Commentaries.
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The FBI concluded that Hillary Clinton’s email practices were “extremely careless” but not criminal. That’s the court of law, but the court of public opinion will speak on this matter at the ballot box November 8.

Let’s face it, there is plenty of room for the electorate to draw a different conclusion about electing a president than the FBI reached on a criminal indictment. “I’m extremely careless but not a crook” isn’t a great slogan for a campaign bumper sticker.

What should voters weigh about this?
• 110 emails in her personal account contained classified information

• Thousands of her emails were deleted and not made available

• It is possible, the FBI said—probable I would say—that other countries hostile to our interests hacked her insecure emails.

Voters, who already say they are concerned about Clinton’s integrity, are right to consider her lack of care and openness in handling this vital matter of national security.





Gaming The Election: Little-Known Efforts To Tip Elections Are Underway (Forbes.com) July 6, 2016

Posted by daviddavenport in Op/Eds, Politics.
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“Vote early and often” is a cynical joke attributed to three different Chicagoans:  gangster Al Capone and former mayors William Hale Thompson and Richard J. Dailey.  Unless it’s the Major League All-Star ballot, which you can apparently submit 35 times, you can’t vote often, but nowadays in most states you can vote early.  And that’s just one of several devices now used or under consideration to influence election outcomes.  Call it a little pre-election gaming, and some of the little-known ideas are downright dangerous if not unconstitutional.

As a starting point, many people do not understand that an election for federal office is basically 50 different state (plus the District of Columbia) elections, per the Constitution.  States control the “times, places and manner of holding elections” for U.S. Senators and Representatives (Article I, Section 4) and the popular vote for President is actually a series of state elections for “Electors” appointed “in such Manner as the Legislature thereof may direct” (Article II, Section 1).  So nearly all these election games are played out state-by-state, which may be one reason they don’t gain more notoriety.

A classic example you’ve never heard of is the National Popular Vote bill, which is an end-run around the Electoral College that has now passed and been signed into law in 11 states with 165 electoral votes and still campaigning hard.  Believing the Electoral College system to be undemocratic, and doubtless frustrated by the electoral victory of George W. Bush over the popular vote winner Al Gore in 2000, supporters of the Bill seek a compact of states holding more than the 270 electoral votes required to win the presidency to agree that they will cast their electoral votes for the winner of the national popular vote.  So if California, which has signed on, votes for the Democrat, but the Republican wins the national popular vote, California will cast its electoral votes for the Republican, which seems to disenfranchise state voters.  It’s clearly an end-run to eliminate the Electoral College without doing so constitutionally, through an amendment.

Then there are the early votes, currently allowed in some form in 37 states and D.C.  Voting in some states begins as early as 45 days before an election, with the average starting time 22 days ahead.  Of course this eliminates the impact of any developments or campaigning over the last several weeks.  Although this was done to make voting easier, a recent Government Accountability Office study shows that early voting has no effect or may actually reduce voter participation.  Obviously this needs more study.

A truly wild card idea, perhaps prompted by 2016 candidates with record negative impressions among voters, is the possibility of voting no for a candidate, not just yes.  The notion would be that the negative votes are subtracted from the positive votes and a net vote becomes the final word.  The Negative Vote Association has tested the idea in Taiwan and hopes to get traction in the U.S. as well.  My worry would be that in some elections no one would win!

Finally the parties constantly battle over voter registration, with Democrats trying to ease registration requirements and boost the vote while Republicans seek to restrict them.  Federal courts are inevitably called upon to referee these contests, with cases now or recently under review in Ohio, North Carolina, Texas and Wisconsin.  The issues raised include voter ID requirements, voter registration deadlines and the like.  Ultimately the Supreme Court may have to clarify the constitutional requirements for voter registration.

Recent presidential elections have been surprisingly close, with Barack Obama winning by fewer than 200,000 votes in 2012 and George W. Bush defeating John Kerry by less than 120,000 votes in 2004.  The stakes are high and this is why all this behind-the-scenes gaming of the vote merits a lot more attention.

To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/07/06/gaming-the-election-little-known-efforts-to-tip-elections-are-underway/#2651b6021079

Happy 4th of July from Newsweek, Davenport and Lloyd! July 4, 2016

Posted by daviddavenport in Op/Eds.
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Sorry to share this quiz again, but we are excited that it is posted at Newsweek this morning.  Happy 4th!


Two Court Cases Remind Us That Ours Is Not An ‘Instant Grassification’ Constitution (Forbes.com) June 28, 2016

Posted by daviddavenport in Op/Eds, Politics.
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As I drove down a California freeway, I saw a truck hauling sod to someone’s new yard.  But it was the sign on the truck that really caught my attention:  “Instant Grassification.”  Although we live in an instant gratification society, that is precisely the opposite of what the founders sought to establish in our Constitution.  Instead, they wanted the “cool, deliberate sense of the community” over time (Federalist 37, 51, 63) to be the governing principle.  To accomplish this they set up checks and balances and separations of power to be sure no one part of government could rise up and unilaterally assert control.

Two federal court cases in two different parts of the country reaffirmed last week that the separation of powers doctrine is still alive, if sometimes slow to assert itself.  A federal judge in Wyoming ruled that the U.S. Department of the Interior had not been given the power to regulate fracking on federal lands as it had sought to do.  And the U.S. Supreme Court, by virtue of a 4-4 tie vote, let stand a decision of the U.S. 5th Circuit Court of Appeals that President Obama does not have the power to unilaterally allow millions of those in the country illegally to remain.  In each case, the courts said, only Congress could authorize those actions.  Like the wheels of the Gods that grind slowly but fine, the court decisions were a delayed response to earlier action.  For example, President Obama’s key executive order on immigration came in 2014.

In our modern society, the separation of powers doctrine is increasingly unpopular and under assault.  Some argue that it contributes to our present gridlock in government—indeed, Obama had said that the inability of Congress to move on immigration justified his unilateral action.  Sometimes the government is just in too big of a hurry—Obama has used executive orders to kick off new domestic initiatives on gun control, immigration and other hot button issues of the day.  Of course the purpose of executive orders is to “execute” legislation passed by the Congress, not to initiate new federal policies.  Some even argue for a new constitutional convention to peel away these so-called antiquated protections.

But these essential questions about federalism ought always to be asked before the government acts:

  1. Is this a matter for government, as opposed to individual, action?
  2. If so, is it a matter for local, state or federal government action?
  3. And should it be done by the legislative, executive or judicial branches?

Unfortunately, in an effort to provide instant gratification, increasingly the federal government leaps into action first, with the leadership of the President or some federal executive agency.  But that’s not how the system is designed.  It is, as Benjamin Franklin famously said, “a republic if you can keep it.”  It has lots of moving parts and we wait for them to work together, not on their own.

Fracking is a relatively new phenomenon and Congress has not authorized agencies to begin promulgating rules, even for federal land.  On state and private land, we should appreciate the states providing labs of experimentation before we would even consider a federal law.  Not a bad idea to have our policy debates and make inevitable mistakes at a lower level.  And a change in something as basic as immigration policy that affects millions needs action by Congress, not the unilateral decision of one man, even if he is the president.

With Hillary Clinton favoring a larger federal government doing more things, and Donald Trump showing little appreciation for constitutional processes such as checks and balances and separations of power, I’m nervous that our instant gratification society will overtake the cool, deliberate sense of the community.  And with an open seat on the Supreme Court, I fear that the corrective we saw in two federal courts last week will be weakened.

To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/06/28/two-court-cases-remind-that-ours-is-not-an-instant-grassification-constitution/#61962bb14280

4th of July Quiz (syndicated by Insidesources.com to various newspapers and outlets) June 28, 2016

Posted by daviddavenport in Op/Eds.
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How much do you know about the 4th of July holiday?  Take the following civic education quiz coauthored with Gordon Lloyd to find out!



Why Business CEOs Don’t Make Effective Political Leaders (Forbes.com) June 22, 2016

Posted by daviddavenport in Op/Eds, Politics.
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Let’s imagine that a major business CEO wanted to run for president of the United States.  Oh wait, we don’t have to imagine:  the Republicans ran Mitt Romney, longtime CEO of Bain Capital, in 2012 and appear set to nominate Donald Trump, CEO of his own brand, in 2016.  What do we know, then, about how well business leaders are able to cross over and become effective political leaders?  Basically it works about as well as elite athlete Michael Jordan trying to cross over from professional basketball to baseball:  not very well.

Why is that so?  Well, for one thing, the context of leadership does matter.  John Sculley was an effective CEO of Pepsi who had, at best, a mixed record as CEO of Apple, a firm with a very different product and culture.  More than a few business and military leaders have become university presidents, only to be driven out of office because they didn’t really get that very different context.  And, for the record, Michael Jordan, the best athlete ever to play basketball, batted a miserable .202 in his one season in professional baseball.

Leaders in business have a single overriding goal which must be proven to a well-defined audience of investors:  making a profit, measured every quarter.  By contrast political leaders have multiple goals, few of which are clearly stated or predominate over the others.  They have multiple constituencies and a plethora of responsibilities measured primarily by the vagaries of political polls and elections.  They have a lot of responsibility but, unlike, a corporate CEO, relatively little authority to get things done.  Theirs is the realm of persuasion, not power.  They can only get done what they convince Congress and others to join in.

A further disconnect between business and political leadership is that success in the former is based more on pragmatism while success at the latter requires a philosophy or point of view.  As Milton Friedman famously said, a businessman might be passionately in favor of free markets, but seems eager to lobby for a little special government subsidy or lighter regulation for his own company.  Business leaders must be pragmatic, they must make things work, they are responsible to hit a bottom line.  But while they love their product and their company, rarely are they philosophers.

This explains conservative frustration with Romney and especially Trump:  they don’t seem to stand for anything except winning.  Trump’s so-called policy positions are generally more like one-liners:  on immigration, let’s build a wall; on trade, let’s build a tariff wall; on terrorism, let’s win.   You also see more than the average amount of flip-flopping with candidates like Romney and Trump.  On one hand, Trump said tax rates for the wealthy should be cut, but later said they would go up.  He said he would not raise the minimum wage, but then acknowledged he was “looking at it.”  He’s been on several sides of the abortion question.  This does not elicit much enthusiasm from conservatives, who want principled positions.  But a businessman puts pragmatism ahead of philosophy—in fact, they may not even get political philosophy.  Remember when President George H.W. Bush acknowledged he didn’t get “the vision thing?”

As a consequence, when you look at great presidents you don’t see a lot of business leaders on the list.  Most have been lawyers or career politicians—21 were both.  The only businessman of modern times who made a success in the presidency, Harry Truman, had been a failure in business.  Neither Jimmy Carter nor George W. Bush, both businessmen, is regarded as a great modern president.  Mitt Romney’s suggestion that we had a provision to the Constitution requiring a president to spend at least 3 years working in a business appears to be off base.

Donald Trump has essentially operated his own family business, not a major public company with a strong board and vocal shareholders.  He’s not used to the kind of pushback he has experienced, with mixed results, in a political campaign.  If he can’t bring his own party together, he says he’ll go it alone.  All this sounds likely to produce something akin to Michael Jordan’s .202 batting average.


To read at Forbes.com:


No to 16-Year Old Voting (National Radio Commentary, Salem/Townhall) June 18, 2016

Posted by daviddavenport in Op/Eds.
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Ever on the bleeding edge of change, San Francisco is placing a measure on the November ballot to allow 16-year olds to vote.  Two cities in Maryland have already done this, and an effort to lower the voting age nationally is underway.

The last time the voting age was lowered, it was done by constitutional amendment when young men were fighting in Vietnam at 18 and it didn’t seem right that they couldn’t vote on their national leaders until they were 21.

But the case this time is weak.  Proponents argue it will help get kids more engaged, or even “trickle up” to their parents.

In every other area—the drinking age at 21, driving without conditions up to 17 or 18 in most states, the law is requiring more maturity ahead of greater responsibility.

It’s another bad idea that should be stopped.



State Lawsuits Over Bathrooms About Federal-State Power (National Radio Commentary, Salem/Townhall) June 13, 2016

Posted by daviddavenport in Op/Eds.
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Many cases before the U.S. Supreme Court seem to be about healthcare or education or civil rights but, at a deeper level, they are about federal versus state power.  In fact, that is why 11 states recently sued the Obama administration over federal guidance about transgender bathroom rights.

Historically K-12 education has been a classic matter of local and state control.  But first came No Child Left Behind, then Common Core, now transgender bathrooms, and it would appear that the federal government is very much taking over our schools.  Since the Constitution does not empower the federal government to run education, this is all accomplished by threatening to give or withhold federal funding.

Yes the case is about transgender civil rights, and also the privacy and religious rights of other students.  But it is also an attempt by the federal government to carry out a social experiment on state and local schools.

As Texas governor Greg Abbott put it, “Obama is not king.”

To listen to the audio at Townhall.com:




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