Mojo - November 2012

Conservatives: If You Can't Win the Presidency, Make It Weaker

| Sat Dec. 1, 2012 8:08 AM PST

It's one thing to expand executive powers when your guy is in the White House—but what if the other party holds the Oval Office? That's what elite conservative legal minds were mulling at an American Enterprise Institute event Friday headlined "Founders betrayed? New threats to US democracy and rule of law." Conservative luminaries, including Bush-era torture-justifier John Yoo, warned of a grave constitutional threat in the Obama administration's use of executive power.

CATO institute fellow Nicholas Rosenkranz said Obama had seized a "vast amount of executive power" by allowing people who entered the country illegally as children to stay (though as my colleague Adam Serwer pointed out last summer, presidents from both parties have long claimed the authority to grant stays of deportation). He was also concerned about the possibility that the DOJ may decline to enforce federal drug laws in states that recently legalized pot. (This coming from the same school of thought that says the 10th amendment allows states to ignore federal laws they don't like.) "For those of you who are nervous about some of the tendencies of of this particular president," Rosencranz said, "I would keep your eye on the executive choices like declining to execute law."

He said Congress should clarify that the president must enforce federal laws. Would this, then, apply to Obamacare under a "President Ryan in 2017," asked moderator Henry Olson, director of AEI's National Research Initiative. Well, yes, Rosencranz said—yes, it would.

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We're Still at War: Photo of the Day for November 30, 2012

Fri Nov. 30, 2012 12:12 PM PST

A Soldier watches the impact area as rounds are fired during a live fire exercise in eastern Afghanistan, Nov. 25, 2012. U.S. Army photo by Staff Sgt. Nicolas Morales.

The Senate Voted to Outlaw Indefinite Detention...or Did It?

| Fri Nov. 30, 2012 10:09 AM PST

"If you don't have a right to trial by jury, you do not have due process," Sen. Rand Paul (R-Ky.) said as he urged passage of Senator Dianne Feinstein's (D-Calif.) amendment blocking indefinite detention of US citizens and legal residents captured on US soil Tuesday night. "You do not have a Constitution. For goodness' sakes, the trial by jury has been a long-standing and ancient and noble right. For goodness' sakes, let's not scrap it now." 

The Senate seemed to have concurred as it passed Feinstein's amendment in a 67-29 vote, with mostly Republicans voting no. After a year of trying, Feinstein had gotten her colleagues to agree that any American apprehended on US soil should have the right to a trial.

Or had she? Consider this: Senators Carl Levin (D-Mich.), Lindsey Graham (R-S.C.) voted for the Feinstein amendment, though they were among the most vocal supporters of indefinite military detention for US citizens in the past. According to their floor speeches, the Feinstein amendment actually legalizes indefinite detention rather than blocking it. 

The question of what the Senate actually did hinges on language in the amendment that reads: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States unless an Act of Congress expressly authorizes such detention" (emphasis mine). It's that "unless" that the supporters of indefinite detention latched onto.

"Senator Feinstein's amendment…does not prohibit military detention if it is expressly authorized by law," said Levin, "which I read as a statute authorizing the use of military force itself or some other act of Congress." Since Congress did authorize the use of military force against Al Qaeda in 2001, Levin argued, Feinstein's amendment expressly allows military detention without trial of US citizens, even if captured on US soil. (An opponent of indefinite detention, Rep. Justin Amash (R-Mich.), actually had a similar interpretation.)

"That was strange indeed," said Raha Wala of Human Rights First, who isn't buying Levin's interpretation despite having opposed the Feinstein amendment because it didn't protect all persons in the United States. "I don't think that argument works."

Levin's Republican allies seemed to think otherwise. Ayotte, delivering her remarks in front of a large poster of the US-born radical Anwar al-Awlaki holding a bazooka, said she agreed with Levin's interpretation (though she did vote against the amendment). "I wanted to add my support for [Levin's] interpretation of the current Feinstein language," Ayotte said. "Would we want to tell a member of someone who had committed an act like 9/11 against us, an act of war against our country, the first thing they hear is you have the right to remain silent?" Ayotte asked, perhaps unaware a French national named Zacarias Moussaoui was tried and convicted in federal court for his part in the 9/11 attacks without ever being held in military detention. Graham also called Levin's take "incredibly sound."

Feinstein spoke shortly after Levin, Graham, and Ayotte. She thanked the chamber for a spirited debate, particularly Graham, for expressing himself "in a very spicy way." But Feinstein said that the Levin interpretation was incorrect, and that based on a federal court decision in the case of Jose Padilla (the only American accused of terrorism to be held in military detention in the US) the 2001 AUMF doesn't count as an authorization to detain US citizens captured on American soil indefinitely. 

One thing might explain Levin, Graham, and Ayotte's insistence that Feinstein doesn't understand what her own amendment does: They may be hoping that if an American citizen apprehended on US soil is detained without trial, and that detention is challenged in court, judges will take their remarks as evidence of Congress' true "legislative intent" and decide that the law does authorize domestic indefinite detention. Ironically, conservatives generally frown on that kind of legal interpretation

That seems like a long shot, however, which means that despite the flaws of the Feinstein amendment, if it makes it into law, it may mark one of the few times since 9/11 that Congress has acted to protect the due process rights of American citizens rather than narrowing them. 

This post has been edited for content since publication.

App Rates 2012's Most Loved and Hated Attack Ads

| Fri Nov. 30, 2012 4:08 AM PST

Thanks to several smartphone apps created just for the 2012 election, TV viewers could fact check attack ads from the comfort of their couches. One of these programs, the Super PAC App, allowed viewers to hold up their iPhones when a TV ad aired and—provided the phone could pick up the audio—get a report back with links to articles that addressed the ad's claims and data about the group behind it. Viewers could also opine on the spot by selecting one of four ratings: fail, fair, fishy, or love.

Earlier this week, Glassy Media, the maker of the Super PAC App, uploaded the results of the more than 38,000 votes cast from its app. We dug into the data to determine the top vote-getters for each of the four ratings (as selected from the 40 ads that were tagged the most by app users):

Fail: "Join Our Fight to Repeal Obamacare"
Restore America's Voice is a PAC that spent nearly $3.4 million against Democrats in 2012. None of that money is evident in this amateurish, low-budget ad, in which Mike Huckabee urges viewers demand the repeal of Obamacare. Of the 179 Super PAC App users who voted on the ad, 66 percent gave it a "fail." The Super PAC App links to a CNN article that backs up the ad's claim that Democrats introduced a $940 billion health care plan, but it also points to PolitiFact posts that dispute the claim that Obamacare will eventually cost $1.76 trillion and say Huckabee's claim that Obamacare is the "largest tax increase in American history" is pants-on-fire false.

 

Fair: "Romney/Ryan Bromance: You Complete Me"
About 35 percent of the 360 viewers who voted on this ad from the liberal super-PAC American Bridge 21st Century thought it was fair. It features Mitt Romney repeatedly saying that his budget policy is identical to Paul Ryan's. The Super PAC App links to articles that back up the ad's implication that Romney incorporated his running mate's idea to privatize Medicare into his campaign and shed a few details on Ryan's budget plan. (American Bridge spent $8.7 million during the election.)

 

Fishy: "Failing American Workers"
The Super PAC App wasn't foolproof: It still reports that "no specific claim [was] found in this ad," a Romney campaign spot that claims that 582,000 manufacturing jobs have been lost under Obama and that the president failed on seven occasions to "stop China's cheating." But according to PolitiFact, the country has actually gained half a million manufacturing jobs under Obama. PolitiFact ranks the ad's claim that Obama failed to stop China's cheating as half true. Yet 24 percent of the 226 viewers who voted on this ad deemed it fishy.

 

Love: "Pants on Fire"
This ad from the Democratic Governors Association's super-PAC, which spent $1.6 million on the election, juxtaposes clips of Republican governors allegedly lying about health care with a cartoon of Yosemite Sam inadvertently blowing himself up. The Super PAC App fact-checks Virginia Gov. Bob McDonnell's pants-on-fire claim about a Medicaid mandate and Florida Gov. Rick Scott's false assertion that Medicaid would cost his state $1.9 billion a year with the same PolitiFact articles that the ad cites. The app links to a different PolitiFact article in response to Sarah Palin's death panel claim; this one doesn't call it the "lie of the year," but it still gives it a pants-on-fire rating. Viewers enjoyed the ad: Of the 155 who voted on it, 66 percent gave it a "love."

 

Erick Erickson Mulling Whether to Be Next Todd Akin (UPDATE: He Won't)

| Fri Nov. 30, 2012 4:08 AM PST
RedState founder Erick Erickson.

Update: On Friday morning Erickson announced that he had decided not to challenge Chambliss. As he explained"Were I to run for the Senate, it would be a terribly nasty campaign. It’d actually be really awesome, but it’d be really nasty. I have a seven year old, a soon to be four year old, and a wife who does not like being anywhere near a stage. I’m not putting my family through that when the best outcome would mean a sizable pay cut in pay and being away from my kids and wife all the time huddled in a pit vipers often surrounded by too many who viewed me as a useful instrument to their own advancement." But, he added, Chambliss shouldn't rest easy: "We will find someone to catapult into the arena."

Erick Erickson has the itch. After years of backing conservative primary challenges to moderate GOPers, the RedState founder and CNN contributor is mulling a primary challenge of his own. He's thinking of taking on Sen. Saxby Chambliss, the Georgia Republican who last weekend took the occasion of the fiscal cliff debate to publicly criticize anti-tax activist Grover Norquist. "Saxby Chambliss is waffling around like a dog off its leash for the first time," Erickson wrote in a post for RedState on Tuesday, before speculating that "[a] conservative from metro-Atlanta could put Saxby Chambliss in peril and we should work to make that happen." By then, he was telling his radio show listeners that he just might be the man for the job: "I've been very adamant, I wasn't going to do it, but after a few conversations today with a few heavy hitters in Washington, D.C. and some here in Georgia, I should at least consider it."

From his perch at RedState, Erickson has scored a few big wins in his plan to make the Republican Party walk and talk a bit more like Erick Erickson. He beat the drum early on Marco Rubio, back when then-Gov. Charlie Crist was the toast of the Republican establishment. He backed Ted Cruz for Senate when the former Texas solicitor general was flailing in the polls.

But he's chosen jesters as often as he's picked kings—and it's cost the Republican party dearly. He endorsed Sharron Angle in Nevada. He was among the first prominent conservatives to back Richard Mourdock's campaign against Sen. Richard Lugar. He backed Christine O'Donnell in her primary against former Rep. Mike Castle.

The only way Republicans could possibly stand any chance of losing a Senate seat in Georgia in 2014 is if they they nominated someone with a history of degrading comments about women and inflammatory views on abortion. That is, someone like Erick Erickson.

To recap, Erickson:

  • Expressed his surprise that "feminazis" had complained about then-Denver Broncos quarterback Tim Tebow's pro-life Super Bowl ad in 2010. As he put it: "That's what being too ugly to get a date does for your brain." That was followed by this tweet: "Turned on Twitter today and there was a barrage of angry feminists upset with me telling them to get in the kitchen and learn to cook."
  • Once called Michelle Obama a "Marxist Harpy Wife."
  • Referred to the first night of the Democrat National Convention as the "Vagina Monologues."
  • Dismissed bullying of a presumed gay classmate as: "Mitt Romney cut a hippy's hair at his preparatory high school."
  • Argued that civil war may be unavoidable if Roe v. Wade is not overturned. As Erickson put it: "[O]nce before, our nation was forced to repudiate the Supreme Court with mass bloodshed. We remain steadfast in our belief that this will not be necessary again, but only if those committed to justice do not waiver or compromise, and send a clear and unmistakable signal to their elected officials of what must be necessary to earn our support."
  • Called for more Willie Horton ads, citing the invisible scourge of the New Black Panthers: "The Democrats are giving a pass to radicals who advocate killing white kids in the name of racial justice and who try to block voters from the polls. The Democrats will scream racism. Let them. Republicans are not going to pick up significant black support anyway."
  • Contemplated shooting bureaucrats:

At what point do the people tell the politicians to go to hell? At what point do they get off the couch, march down to their state legislator’s house, pull him outside, and beat him to a bloody pulp for being an idiot?

At some point soon, it will happen. It’ll be over an innocuous issue. But the rage is building. It’s not a partisan issue. There is bipartisan angst at out of control government made worse by dumb bans like this and unintended consequences like AIG’s bonus problems.

If the GOP plays its cards right, it will have a winning issue in 2010. But it is going to have to get back to "leave me the hell alone" style federalism where the national government recedes and the people themselves will have to fight to take their states back from special interests out of touch with body politic as a whole.

Were I in Washington State, I'd be cleaning my gun right about now waiting to protect my property from the coming riots or the government apparatchiks coming to enforce nonsensical legislation.

  • Contemplated shooting bureaucrats again:

I'm not filling out this form. I dare them to try and come throw me in jail. I dare them to. Pull out my wife's shotgun and see how that little ACS twerp likes being scared at the door. They're not going on my property. They can't do that. They don't have the legal right, and yet they're trying."

On the plus side for Georgia Republicans, at least Herman Cain's not running.

Lindsey Graham Wants the Government to Be Able to Lock You Up Forever Without a Trial

| Thu Nov. 29, 2012 3:11 PM PST
Republican Sen. Lindsey Graham of South Carolina

Sen. Lindsey Graham (R-S.C.) is not happy that the government might have to actually convict a suspected terrorist of a crime before locking them up forever and throwing away the key. So he's working on an amendment to the pending defense bill that would make it clear that if the government thinks you're a terrorist, it can put you in prison without ever having to prove beyond a reasonable doubt that you so much as vandalized a dive bar bathroom wall. 

The text of the amendment, which is circulating on the Hill but has not yet been formally introduced, would affirm the government's power to "detain under the law of war" any individual "who joins al-Qaeda, the Taliban, or an associated force" and "plans or participates in a belligerent act against the United States on behalf of such forces anywhere within the United States and its territories." In other words, you could be deprived of your freedom in a war with no definable end, based on the mere suspicion that you've committed a crime. During the debate over last year's defense bill, Congress agreed to leave open the question of whether or not military detention authority applied to US citizens apprehended on American soil. This amendment would ensure that it does.

The amendment is a response to the one proposed by Sen. Dianne Feinstein (D-Calif.) and Sen. Mike Lee (R-Utah) that would prevent the government from detaining Americans and legal permanent residents suspected of terrorism without charge or trial. That amendment wouldn't protect all non-citizens apprehended on US soil however, so civil liberties and human rights groups are opposing it as unconstitutional. "Any approach to dealing with indefinite detention should be consistent with basic constitutional principles, which say that all persons are guaranteed due process," Human Rights First's Raha Wala said in a statement emailed to reporters.

Instead, these groups are backing amendments from Sen. Mark Udall (D-Colo.) that would ensure that any person—citizen or otherwise—apprehended on US soil could not be deprived of their freedom without due process of law. You know, like it says in the Constitution.

 

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White House Makes Laughable Defense Bill Veto Threat

| Thu Nov. 29, 2012 1:59 PM PST

President Barack Obama has threatened to veto the 2013 National Defense Authorization Act if the final version includes certain provisions, including continuing restrictions on Guantanamo Bay detainee transfers that make it impossible for the administration to close the prison. The statement was issued Thursday, as the Senate debated the defense bill.

Legislators should be forgiven for not taking this threat too seriously.

The first big restrictions on Gitmo transfers passed in 2010. Attorney General Eric Holder called them "dangerous," but the administration did nothing. Then in January 2011, the administration's ability to move detainees out of Gitmo was curtailed again. The administration did nothing. They issued a formal veto threat in 2011 over provisions in that year's National Defense Authorization Act, then backed down.

Obama reiterated his intention to close the Guantanamo detention camp on Jon Stewart's Daily Show just prior to the 2012 election. But Congress has hemmed him in with those transfer restrictions, and bringing suspected terror detainees to US soil is even less popular than it used to be.

Civil liberties and human rights groups have urged Obama to veto the defense bill if it retains the transfer restrictions, since they would make it impossible for Obama to fulfill his promise to close Gitmo. It's also the only way for the administration to convince Congress that it's actually serious when it says the restrictions are unacceptable. 

But they probably aren't serious, at least not if we're defining "seriousness" as being actually willing to veto the bill. Not if the past is any indication.

We're Still at War: Photo of the Day for November 29, 2012

Thu Nov. 29, 2012 10:42 AM PST

U.S. Army Capt. Peggy Hu, Zabul Provincial Reconstruction Team civil affairs, speaks with a local child during a routine patrol in the local area Nov. 21. U.S. Air Force photo.

Study: ALEC Is Bad for the Economy

| Thu Nov. 29, 2012 9:08 AM PST

The American Legislative Exchange Council, the corporate-funded group that generates nearly a thousand pro-business model bills per year and feeds them to state legislatures nationwide, is holding its annual policy summit in the nation's capital this week to meet with new state lawmakers and "prepare the next generation of political leadership." This coincides with the release of a report showing that ALEC's economic prescriptions are not good for the economy.

Each year, ALEC ranks the states on how tightly they adhere to the group's policy recommendations—from personal and corporate tax rates, to public sector employment levels, to right-to-work laws—as a predictor of their economic growth. The study released Wednesday, by the Iowa Policy Project and Good Jobs First, two policy groups that promote economic growth at the state level, introduces those rankings to reality. It concludes: "A hard look at the actual data finds that the ALEC…recommendations not only fail to predict positive results for state economies—the policies they endorse actually forecast worse state outcomes for job creation and paychecks." (Though the report is careful to maintain that though ALEC policies are correlated with less prosperous state economies, that doesn't necessarily mean the policies caused economic decline.)

Let's take a look. In six key measures of economic growth, ALEC's "Economic Outlook Rankings" fail to coincide with the actual economic outlook of a state over time. On the horizontal axis we have all 50 states' ALEC economic grades from 2007, when ALEC started its ranking system. The vertical axis shows the percent change in actual economic performance from 2007 until last year. If ALEC's fortune-telling were correct , the plotted points would form an upward, rightward line, with a better score corresponding with a better economy. But what happens is pretty much the opposite:

 

Note the downward slope:

 

Whoa, downward slope:

 

A better economy means higher incomes, means more tax revenue, right? 


 

Aaaaand upward slope:

Instead of boosting states' fortunes, the report finds that ALEC's preferred policies seem to provide "a recipe for economic inequality, wage suppression, and stagnant incomes, and for depriving state and local governments of the revenue needed to maintain the public infrastructure and education systems that are the true foundations of long term economic growth and shared prosperity."

Good Government Group: No Corporate Cash for Obama's Inauguration

| Thu Nov. 29, 2012 8:50 AM PST
A screenshot of CNN's coverage of President Obama's first 2009 inauguration.

President Obama's second-term inauguration ceremony will take place on January 21, 2013, which is also the third anniversary of the Supreme Court's historic Citizens United decision. Citizens United freed corporations and unions to spend money from their treasuries directly on politics, and opened the door for the creation of super-PACs.

With that anniversary in mind, Public Citizen, the good-government group founded by Ralph Nader, is pressuring Obama to reject corporate donations to his inauguration ceremony. Public Citizen president Robert Weissman writes in a November 29 letter to Obama that the public would likely be left in the dark about which corporations gave money and states that there is a "very real risk of corruption" from letting corporations underwrite the ceremony. Weissman's letter comes after the Wall Street Journal reported that the Obama administration is mulling whether to take corporate money for the inauguration. Obama banned corporate donations for his 2009 inauguration, and instead raised $50 million from hundreds of individual donors.

"The corporate donors to the inauguration will expect—and receive—something in return," Weissman writes. "The concern is less that they get a tax break in exchange for their million-dollar donation than that they get better access—their calls returned faster, their proposals reviewed in a more favorable light."

If the inauguration needs to rely on private donors and not just public funding this time around, Weissman says, that outside money should come in the form of small-dollar donations from individuals.

If inauguration planners do break with the precedent set by the corporate-free 2009 inauguration, it wouldn't be the first time Democrats backtracked on this kind of issue. Rep. Debbie Wasserman Schultz (D-Fla.), chair of the Democratic National Committee, told reporters a year before her party's 2012 national convention that planners would not accept corporate money to put on the convention. But strapped for cash, convention planners ended up taking millions from corporations anyway, breaking their pledge.

Read Weissman's letter to Obama urging a ban on corporate inauguration money:

Public Citizen letter to President Obama on corporate inauguration donations