To save the Reagan Revolution and the 10th Amendment, we may need a brokered convention

This column originally appeared at Big Jolly Politics:

In the wake of the Iowa Caucus results yesterday, it would be fair to say that I am disappointed with the direction in which the Republican nomination process is headed. There was essentially a three-way tie between a managerial Republican of the Eisenhower mold from Massachusetts, a pro-life statist Republican of the William Jennings Bryan mold who lost his last statewide election by 18%, and an anti-government libertarian who has never been elected to office outside his Congressional District in Texas. If this race continues along this course, I am afraid that the budding Reaganite movement to resurrect and implement the principles of the 10^th Amendment will die on the vine. In a year when we Conservatives have the greatest chance since 1980 of not only winning the Presidency, but changing the direction of the country, this development is depressing.

Then, I read here that a number of self-anointed leaders were being invited to convene at a Texas ranch to try to short-circuit the nomination process and pick a “conservative” candidate for us to support. Given the track record of the leaders of this group, I have no confidence that the candidate they choose to support will be Conservative, or will give a hoot about the 10^th Amendment. As depressed as I am at the current state of the race, this attempt to hijack the process is wrong. I, for one, am not inclined to support anyone anointed through such a process.

As hard as it is to watch this nomination process unfold, it should be allowed to unfold. It should be allowed to go through all of the primaries, and then to the convention. Let’s still give our 10^th Amendment candidates, like Perry and Gingrich, the chance to continue to make their case through the primaries, and let’s really see if any of these candidates has what it takes to win this nomination. Then, if no candidate receives a majority of the delegates before the convention starts, let the convention pick the nominee. Those are the rules of our party, and the rules under which we started this race, so let’s follow them.

In fact, the way that this race is unfolding, I believe that a brokered convention could lead to the nomination of a strong Conservative candidate—one who understands the real promise of the Reagan Revolution and the 10^th Amendment, and one who is fighting in the trenches to make conservatism work. One who believes the following:

… Americans, in a vast majority, are still a people born for self-governance. They are ready to summon the discipline to pay down our collective debts as they are now paying down their own; to put the future before the present, their children’s interest before their own. …
We should distinguish carefully skepticism about Big Government from contempt for all government. After all, it is a new government we hope to form, a government we will ask our fellow citizens to trust to make huge changes. …

… If freedom’s best friends cannot unify around a realistic, actionable program of fundamental change, one that attracts and persuades a broad majority of our fellow citizens, big change will not come. Or rather, big change will come, of the kind that the skeptics of all centuries have predicted for those naïve societies that believed that government of and by the people could long endure. …

The second worst outcome I can imagine for next year would be to lose to the current president and subject the nation to what might be a fatal last dose of statism. The worst would be to win the election and then prove ourselves incapable of turning the ship of state before it went on the rocks, with us at the helm.

The man who spoke these words was Governor Mitch Daniels of Indiana, in his address at last year’s CPAC convention (full text here). Daniels is one potential candidate, other than Perry or Gingrich, who the convention delegates could turn to, but there are others—like Governors Walker of Wisconsin, Snyder of Michigan, Kasich of Ohio and Christie of New Jersey, who are fighting to rebuild their state governments consistent with principles of Reagan’s New Republican Party, and like Paul Ryan, who has championed a new vision for government through his bold proposals. One or more of these men could still jump into this race before the April “winner-take-all” primaries begin if Perry or Gingrich don’t catch fire, or they could still answer the call of a brokered convention.

So, let this process unfold, and, while doing so, let’s fight for our future through the rules provided. Let’s not let any self-anointed group choose our nominee—let’s control this process to the very end. If we do, I still believe we will choose someone, either through the primaries or at the convention, who not only will beat Obama, but will lead us through the changes we need to implement to preserve the promise of the country for our children and grandchildren.

The Importance of the 10th Amendment

This column originally appeared at Big Jolly Politics:

This past weekend, ABC News held a debate between George Will and Paul Ryan on one side, and Barney Frank and Robert Reich on the other, during which they argued over whether our government was too large and intrusive. The focus of the discussion was on the role of the federal government in Washington. By omitting any discussion of state and local governments, they impliedly equated the role of all government with the role of the federal government. This debate, though intelligent and interesting, appeared to ignore the real debate that is raging outside of Washington over the size and role of government.

There are two major concerns that have been percolating among voters over the size and role of government, especially among those who embraced the Tea Party movement in 2009. These concerns can be distilled as follows:

• Too much responsibility and power have shifted to Washington from individuals, local governments and state governments, which is contrary to the proper allocation of responsibilities under the Constitution, and which has created tremendous economic inefficiencies for, and imposed artificial costs on, society; and
• All levels of government—local, state, and national—have been operated without a proper focus on their primary responsibilities, and have been managed inefficiently and too expensively, which has caused them to incur an unsustainable debt burden to fund their operations.

Citizens now see that the net impact of these developments has been

• a transfer of power and revenue to the federal government with a commensurate reduction of individual liberty and wealth, and
• the creation of an unsustainable tax and debt burden for future generations.

Our neighbors want politicians who will address these concerns now and take the bold actions to fix them—not just manage them better. It is in this context that so many people have responded positively to the conservative argument to re-invigorate and apply the principles contained in the 10^th Amendment to the U.S. Constitution, which has been championed by Rick Perry and others.

For a guy like me, who studied Constitutional Law in the early 1980s, this new embrace of the 10^th Amendment is remarkable. Back then, the overwhelming view of the 10^th Amendment (and the 9^th Amendment, too) was that it was merely “surplusage” or a “truism”, which provided no real limit to the responsibility of the post-New Deal federal government. To understand this view, let’s look at the actual language of two constitutional provisions—the 10^th Amendment and the “Necessary and Proper Clause” of Article I, Section 8:

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.
******
The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

By the early 1980s, so many responsibilities and powers had been usurped by Congress, the President and the federal bureaucracy under Congress’ expanded application of the Necessary and Proper Clause (which was blessed by the Supreme Court), that the 10^th Amendment was viewed as simply recognizing that whatever power Congress had chosen not to usurp remained within the responsibility of the States or the people to exercise. Such an interpretation willfully ignored the concept of Federalism underlying the Constitution, and no longer provided any limitation on the power of the federal government.

In fact, judicial interpretations actually created a perversity of the Necessary and Proper power: as Congress broadened its authority, it expanded the scope of what was necessary and proper to exercise that authority; which, in turn, broadened the federal government’s authority into new areas of responsibility and, thus, broadened the scope of what was necessary and proper to exercise such new authority. It is this continuing and expanding spiral that has led the federal government to exercise the power to do things like regulate all forms of local economic development to protect the life of a local lizard or frog, as well as to underwrite our health and retirements.

Now it is true that the power of the federal government to legislate actually is a little broader than what is just necessary and proper to implement or enforce the responsibilities listed in Article I, Section 8. The specific list of responsibilities in that section are—

• to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; …
• to borrow Money on the credit of the United States;
• to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• to establish an uniform Rule of Naturalization,
• [to establish] uniform Laws on the subject of Bankruptcies throughout the United States;
• to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
• to provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
• to establish Post Offices and post Roads;
• to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
• to constitute Tribunals inferior to the supreme Court;
• to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
• to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• to raise and support Armies, …
• to provide and maintain a Navy;
• to make Rules for the Government and Regulation of the land and naval Forces;
• to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [and]
• to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

In addition to Article I, Section 8, the original text of the Constitution vests other powers in the federal government that Congress can pass laws to effectuate the following:

• to establish rules for its own procedures;
• to make or alter laws regulating the election of Senators and Representatives;
• to suspend the Writ of Habeas Corpus in cases of rebellion or invasion;
• to publish a regular statement and account of receipts and expenditures of public funds;
• to approve the receipt of any award by a citizen from a foreign government;
• to allow States to impose certain taxes on the movement of goods in commerce;
• to allow for States to keep a defense establishment in a time of peace;
• to provide for the conduct of the Executive functions outlined in Article II;
• to establish the scope of jurisdiction of the federal courts beyond the enumerated issues in Article III;
• to establish the place for federal criminal trials;
• to establish the punishment for treason;
• to proscribe the manner by which States may provide full faith and credit to the laws of other States;
• to allow States to form Compacts;
• to admit new States to the Union;
• to regulate Territories and other property of the Union;
• to guarantee a Republican form of government to every State; and
• to protect the States from domestic violence or invasion.

Finally, amendments to the Constitution have given these additional responsibilities to Congress since 1789:

• to prohibit slavery;
• to protect individual rights to due process and equal protection of the laws, and to the privilege and immunities of citizenship;
• to allow Confederates to have full citizenship;
• to lay income taxes;
• to provide for and protect the right to vote for former slaves, women, and 18-20 year-olds, and against poll-taxes;
• to provide for rules as to who will serve as President if no one qualifies to serve as President or Vice-President, or if those who would qualify would have died, by the time a Presidential term should start; and
• to allow for the appointment of Electors from the District of Columbia to serve in the Electoral College to elect the President and Vice-President.

Now, I don’t know about you, but, though these lists appear to be long, the listed powers are really pretty narrow and specific, which is consistent with the concept of Federalism. The sphere of responsibility delegated to the federal government was to be very narrow and specific. The trust to exercise these specific responsibilities were, in turn, vested in a group of representatives, while, closer to home, the people would be more directly involved in the politics of their States and communities where most of the work of government would continue to be done.

Not only did this allocation of responsibility protect and preserve the rights and obligations we call “liberty,” it also made profound economic sense. The specific allocation of the listed responsibilities to the federal government controlled the transaction and administrative costs associated with the operation of government, by reserving most governmental responsibility to local and state governments that could exercise those responsibilities with less bureaucracy and cost. Those activities closest to home—like providing for schools, roads, public safety, public hospitals and clinics, and community support—would be paid for and regulated through local and state governments in coordination with private organizations in each community. One government, one agency, and one bureaucracy would be needed to address each responsibility at each level.

But in today’s world, local and state governments have lost focus and fiscal discipline as the federal government has usurped their responsibilities (and while the federal government fails to perform its proper responsibilities effectively or efficiently). We now have multiple agencies and bureaucracies at each level of government, which overlap in responsibility and power. They each absorb scarce tax dollars to provide these redundant activities; the resulting redundant policies and enforcements often conflict; and the redundant bureaucracies often end up doing nothing because the bureaucrats assume another agency is addressing the problem. Add on to these layers of inefficiency the cost and inefficiency of redundant programs within each level of government (and a trend toward increasing salaries and benefits of public employees to a level that exceeds the level of private sector benefits), and you have the seeds of our current fiscal mess at all levels of government.

Therefore, resurrecting the 10^th Amendment is the natural first step to not only restoring the proper balance of power to protect our liberty, it also is the natural first step toward restoring fiscal sanity to government. But restoring this balance does not set-up the false choice that the debaters on ABC’s program seemed to be discussing—the false choice of government v. no-government. Under a proper application of the 10^th Amendment there will be government, there will be schools, there will be roads, there will be public safety, there will be public hospitals and clinics, and there will be help to those in our communities who need it—but those activities will return where they belong: to responsibility of the State and local governments, and to the people to provide. This re-balanced approach to government should produce less and more cost-effective government in the long-term, but it will not eradicate government—as progressives fear and libertarians hope.

The challenge to conservatives will be to commit to engage in the new balance that will arise if we are successful in resurrecting the 10^th Amendment. This new balance only will work if we individually engage and participate in the operation and oversight of our school districts, our cities, and our state to fix the fiscal messes they face, to hold our local elected officials accountable to re-focus their efforts on those responsibilities they should be exercising, to require that those functions be performed cost-effectively, and to participate in the private organizations that will be needed to help provide certain services in our communities.

If we don’t accept these responsibilities, then our demand for a return to the principles of the 10^th Amendment will be empty, and the vacuum eventually will be re-filled by those who want to centralize all power, responsibility and revenue in Washington.

Is it a Ponzi Scheme?

This column originally appeared at Big Jolly Politics:

I don’t know about the rest of you, but I thought the last two Republican Presidential debates on MSNBC and CNN have produced pretty good political theater, in large part because of the participation of Governor Perry.  Although I may be a little biased, I think he has more than held his own and is, right now, the best candidate among the field (and I am still more than just a little amazed by all of this).  That is not to say that the other candidates would not make better Presidents than our current Commander-In-Chief—they all would—but Perry has impressed me the most so far.

The dust-up in the last debate over the vaccination-mandate fiasco of 2007 was to be expected, for it was one of the biggest blunders of Perry’s tenure as Governor.  To his credit, he has responded to the criticism the only way he should—he has explained why he did it, and acknowledged his mistake.  There will be some who will never forgive him for this blunder and try to decipher corrupt motives from his actions; but, for many others (including those, like me, who often have been skeptical of his leadership over the years), he showed in the last debate that he learned a lesson from his mistake and has grown from the experience—a valuable and, indeed, necessary trait for a leader in the times we face.

But the really interesting debate that has emerged is over Social Security—and what a welcome and instructive debate this has become.  Essentially, three lines of debate have formed:

1. Governor Perry has framed the debate by calling the current system a “Ponzi scheme” and a “monstrous lie”, by saying it was an improper use of federal authority when it was first enacted, and by committing himself to fixing the system for future beneficiaries;


2. Mitt Romney has confronted both Perry’s descriptions of the system, and his reflection on its history, as being too provocative, while also committing himself to fixing the system; and


3. The rest of the candidates have committed to fixing the system one way or another, while trying not to get in the middle of the argument over the wisdom of Perry’s remarks.

So, what is the net outcome of this debate so far?  It is now refreshingly clear that Republicans are united in fixing the Social Security system to make it solvent for future beneficiaries; but, so far, only a few of the candidates are willing to confront and describe the actual problem with the system and give us an indication as to how they would approach fixing the problem.  It is clear that Perry—and probably Cain and Gingrich, too—realize that you can’t fix Social Security by tinkering around the edges.  Instead, you have to be honest with the American people about the problem at the core of the system, and how it needs to be fixed.

With that said, is Perry’s criticism correct?  And, if it is, what should we be seeking as a fix to the system?

To answer the first question, we need to understand how Social Security has been marketed to the voters over the years.  Since its inception, the creators and supporters of the current Social Security system have referred to it as an old-age insurance system, as a public pension system, as a trust account, as a contractual promise to pay out in retirement an amount based on what was contributed during working years, and as a social safety net to protect the elderly from poverty.  Are any of these descriptions correct?  Upon close scrutiny, the answer is “no”.  It is neither insurance, nor a pension, nor a trust account because it is not based on either actuarial, investment, or fiduciary criteria that provides for a return to the taxpayer of what he or she paid into the system plus investment growth.  It is not even a promise to receive what you paid into the system, because the dollars you paid into the system were received by other beneficiaries as you paid your tax, and you will receive payments from other taxpayers when you retire.  Finally, there is no real correlation between Social Security payments and poverty prevention—Warren Buffet gets the same benefit that your Uncle Fred and Aunt Martha receive, who, in turn, get the same benefit the poorest of our elderly receive.

So, what is this system, really?  You and I are asked to pay into a system and are told periodically that we will receive an amount of money at a certain age based on these payments.  Our future payments are not derived from the amount we paid into the system plus investment growth, but rather from new payments into the system from other people.  The fact and amount of our future payments are based on whether new people continue to pay into the system, and are dictated by the decisions of the person(s) controlling the system—not by the market.  These are characteristics common to illegal Pyramid and Ponzi schemes.  The only differences are that

1. the Social Security system is not only legal, participation is mandatory; and
2. payments can continue, even if new taxpayers don’t materialize, because the federal government can print money to cover the shortfall.

That means, that, unlike a classic Pyramid or Ponzi scheme, payments can continue with freshly printed dollars—though the value of those dollars will plummet as more are printed.  Eventually, though, you’ll arrive at the same result:  if you rely on the printing press at the Mint to save the system, you really won’t get back the money you were promised (just like how a Pyramid or Ponzi scheme ends—though a little less abruptly).

Quite frankly, if you measure the promises surrounding Social Security against its reality, Governor Perry’s descriptions are fairly accurate—it’s like a Ponzi scheme, and the marketing of Social Security has been a “monstrous lie”.

Well, then…what’s the answer to the second question—what should we be seeking as a fix to the system?  As all of the Republican candidates have acknowledged, the promise of this system, and its protection for many elderly Americans, has existed too long with too much public reliance to end it now, if ever.  But I think it would be immoral to continue lying to each other about this system and to not address and fix its faults.  Over the last 30 years there have been a lot of good ideas floated and even practiced—as in the case of Chile (as Herman Cain often notes) and a handful of other nations in Eastern Europe, including Russia—so we don’t have to come up with answers out of thin air.  Whatever fix we adopt should incorporate most, if not all, of the following basic principles:

1. A cut-off age for beneficiaries should be set above which the system will continue as presently structured, and below which fundamental changes will be made;
2. The age at which benefits are to be paid eventually must be re-set to an older age, and then indexed to the life expectancy of the population, so that both the age at which benefits are received and the average projected period for receiving benefits can be affordably subsidized by the working population;
3. Incentives should be created for allowing older Americans to continue to contribute to the economy through paid or volunteer work, after they have reached a point when they physically may not be able to continue working in their original professions but prior to their receipt of benefits;
4. The system should be re-structured so that younger workers are able to split their Social Security tax payments between support for a safety net for means-tested elderly and the younger workers’ own personal retirement accounts; and
5. Eventually, the payment of benefits from a safety net that is fully supported by current tax dollars should be based on means-testing, so that those who have the means to support their own retirements through their private and public accounts do not receive direct transfer payments from the government; such direct transfer payments should be received only by those who are truly in need.

These principles are neither controversial, nor hard to implement, but for the vested interests and expectations surrounding the politics of Social Security.  Those vested interests and expectations will only be broken through candor coupled with new commitments.  To the extent Governor Perry has forced the Republican field of 2012 candidates to face and debate this issue, he has already met an important test for the leadership we will need over the next few years.

What is the Fundamental Purpose of Our Public Universities?

This column originally appeared at Big Jolly Politics.

I want to congratulate our Republican legislators in both Austin and Washington, who have started the long process of addressing our fiscal problems. What they’ve passed so far is not perfect, nor everything that many of us wanted, but it has been a good and needed first step. In fact, the federal budget plan passed by the U.S. House of Representatives yesterday incorporates many good, long-term ideas that begin to address both fiscal discipline, and the need to reduce the role of the federal government in local and individual decisions. The debate Paul Ryan’s plan has started is good for the country.

Closer to home, another debate seems to be unfolding over the role of classroom teaching within our state-supported universities in Texas. It’s that debate that I would like to discuss in this post.

I want to start with definitions of three words taken from The American Heritage Dictionary of the English Language (Fourth Edition):

•Education: “The knowledge or skill obtained or developed by a learning process.” (p. 569).

•College: “An institution of higher learning that grants the bachelor’s degree in liberal arts or science or both.” (p.362).

•University: “An institution of higher learning with teaching and research facilities constituting a graduate school and professional schools that award master’s degrees and doctorates and an undergraduate division that awards bachelor’s degrees.” (p. 1883).

Now, let’s also look at the original provision in the Texas Constitution that authorized the eventual creation of our state-supported university systems: “The legislature shall as soon as practicable establish, organize and provide for the maintenance, support and direction of a University of the first class…” (Art. 7, Sec. 10).

When you read all of this together, it’s pretty clear that the fundamental purpose of our state-supported universities is to provide an education to students—specifically, an education that can lead to the award of an undergraduate, graduate or professional degree through a process that includes learning from both teaching and research. Reading these sources, it’s also clear that teaching and research are neither distinct purposes, in and of themselves, for the existence of a university, nor are they independent functions that are separate from the process of providing an education.

Yet, if you listen to the debate over the hiring of Rick O’Donnell by the University of Texas Board of Regents, and the promotion by Governor Perry of Jeff Sandefer’s “Seven Breakthrough Solutions” for higher education (http://texashighered.com/7-solutions) you could come to the conclusion that providing an education is no longer the central purpose of our state-supported universities. Instead, you could determine that the central purpose of our universities is now to provide a source for economic growth for the communities in which they are situated, and for the state, through attracting top researchers and grants and conducting economically-beneficial research. Consistent with this new purpose, the task of providing an education and a degree now may be merely an incidental source of income to the university rather than its core mission.

Quite frankly, I find this whole debate fails to address the real problems with our educational system. Though some correction may be needed, a wholesale change in the way we hire and retain university faculty is not needed. However, the more professors and administrators attack any change, the more they make the case for the wholesale change they don’t want. In the meantime, no one is really addressing how we improve the education of our children.

On the one hand, it is true that there is evidence showing a significant shift in emphasis on some campuses from teaching and research focused on providing an education to students, to “pure” research designed to obtain independent economic benefits for the school and the community. This shift has created an imbalance in the use of public resources (as well as private grants and donations) to create and maintain facilities and faculties for “pure” research on some campuses. Perversely, on some campuses this shift has led to documented under-utilization of existing facilities, which could be more efficiently used to provide more education-related teaching and research. Implementation of a few of the “Seven Breakthroughs” might effectively address this shift and restore the proper focus of teaching and research to education, while still allowing for the incidental, yet important, “pure” research that enriches the learning process while providing an additional source of income and economic benefit. However, a wholesale change in the way universities hire and retain faculty, and provide and account for teaching and research, is not needed to fix the imbalance on some campuses; indeed, there are a lot more fundamental problems with our educational system, starting with kindergarten, that need to be prioritized and addressed over this issue.

On the other hand, the clueless and condescending reactions from some who have attacked the ideas promoted by Governor Perry, Mr. Sandefer, and Mr. O’Donnell underscore a fundamental question that many taxpayers, parents and students now have about our entire educational system: are schools operating for the benefit of the students, or for the benefit of the teachers and administrators? I think most of us outside of the educational system had thought state-supported schools at all levels operated to benefit students. However, to read some of the op-ed pieces and interviews from current and former faculty and administrators, you would think that students are merely incidental nuisances with whom they have to interact periodically while running their facilities and conducting their research. These reactions, combined with the video of teacher union protests in Wisconsin and the sentimental news stories about teacher lay-offs across this State, give credibility to the movement supporting wholesale change in the way we hire and retain teachers, professors and administrators.

While we may not need all “Seven Breakthroughs” to re-balance the functions of our universities, teachers, professors and administrators at all state-supported schools need to remember that they only have one fundamental obligation: they work for the taxpayers and the parents of this State to provide our children, young adults and adults with an education through the processes of teaching and research—everything else, including the research they conduct as part of their job, is incidental to and dependent upon meeting this fundamental obligation. Once we all get this point straight again, re-balancing the use of public resources within our universities and school systems, as well as fixing the more pressing problems with our whole educational system, should be easier to accomplish.