The Handicapped Republicans

A few years back, one of the most addicting sites for political junkies was Ron Facheaux's Political Oddsmaker. The concept was brilliant: Facheaux picked the percentage odds of any given candidate getting elected (or nominated) for hundreds of offices nationally at any given moment. Alas, it seems the Political Oddsmaker is either no more or is well hidden behind a firewall. Nonetheless, I am taking it upon myself to continue the concept in handicapping the Republican nomination race, now that we're only a few weeks out from the Iowa caucuses and the NH primary.

My goal is a little more ambitious than the old Political Oddsmaker's though. Not only do I want to figure out the odds of a given candidate getting the election, I am also going to try to describe the most likely scenario that would lead to the candidate getting their party's nomination.

So, without further ado, I bring you the Republicans:

1. Rudy Giuliani (Intrade Odds: 41%)(Mark's Odds: 30%): Still holding on to his national lead, but facing a severe downturn at a bad time thanks to some significant recent scandals. He's not likely to do very well in Iowa, and he may be lucky to hold on for second in NH. In the other early primary states, he's either in a tight race or trailing badly depending on the poll you consult. Nationally, he's still the frontrunner, but how much of that is name recognition? If he falters in Nevada and Michigan, he could be in deep crap come Super Tuesday. At this point, much of his support is based solely on reputation and name-recognition, which makes him very vulnerable. Most Likely Scenario for Nomination: Holds on to win Nevada and Michigan and finishes a solid second in New Hampshire. Wins big on Super Tuesday thanks to momentum generated by core states New York, New Jersey, California, and Connecticut (and maybe Illinois). Romney disappoints in Iowa and other early primaries (other than NH), and drops out after Super Tuesday when he fails to catch on in areas where he is still largely unknown. Core Group of Supporters: Bush Loyalists, Wall Street Republicans.

2. Mike Huckabee (Intrade Odds: 19.8%)(Mark's Odds: 30%): Currently energizing the evangelical base of the Republican Party, he still seems to lag in fundraising; however, the support of the grassroots for an authentic evangelical is outweighing his lack of cash. He's currently surging, but he is going to find additional progress increasingly difficult as he tries to expand his base beyond evangelicals. His penchant for Christian Socialism is worrying to many of the remaining Bush die-hards and to libertarians alike. It's hard to see him garnering above 30% of the primary vote nationally. But with a fractured Republican Party, that 30% could be enough to get at least a plurality, if not a majority, of delegates. His support is strongest in the Reddest of Red States, where he could get a majority or significant plurality of votes. Huckabee's supporters are also more passionate than most of the other candidates', which will be important in notoriously low-turnout primaries. Most Likely Scenario for Nomination: Wins big in Iowa and South Carolina, beats either McCain or Giuliani in NH, and mobilizes his Northern Florida base to give Rudy a tough run in Florida; cleans house in the Bible Belt states on Super Tuesday, and largely finishes a respectable second in the Super Tuesday Western States. For Huckabee to get the nomination, Romney's speech must not have made many inroads into Huckabee's evangelical base. Core Group of Supporters: Evangelicals.

3 (tie) Mitt Romney (Intrade Odds: 21%)(Mark's Odds: 15%): Nationally, has remained steady at about 8-12% throughout the year. His speech yesterday was largely successful with the Republican establishment, but his support has been coming almost exclusively from the establishment since day one, so it remains to be seen how he plays with the actual voters. Is competing for the same interest groups as Giuliani and Huckabee. Has lots of money, and has spent lots of money, but has placed all his eggs in the Iowa/NH basket. Comes across as a more articulate version of Dubya. May be a prototype for a life-size, fully robotic, version of Ken Doll. Most Likely Scenario for Nomination: Rudy's slide into scandal continues. Romney's speech is received well by would-be Giuliani supporters and former Romney supporters who joined up temporarily with Huckabee. Makes a comeback in Iowa and maintains his stranglehold on NH. Outstanding early performances in Iowa and NH rapidly bring him to the attention of voters in other states who are largely unfamiliar with him. Within the span of a few days, his national support doubles. Performs reasonably well in the Bible Belt, stealing supporters from Giuliani and Thompson in the process, while limiting Huckabee's inroads. Submits to skin graft to prove he's not made entirely of plastic. Giuliani falters in all the early primaries, and disappoints in Florida, while failing to win any states on Super Tuesday outside of NY, NJ, DE, and CT. This force Giuliani to scale back or withdraw completely, with most of his supporters going to Romney. Core Group of Supporters: Bush Loyalists, with some Evangelicals and Wall Street Republicans.

3 (tie). John McCain (Intrade Odds: 8%)(Mark's Odds: 15%): Faces continued financial difficulties, but retains a tremendous amount of credibility with Republicans disheartened by the Bush Administration. Supporters are more loyal than Romney/Giuliani/Thompson supporters, which will help somewhat in low turnout primaries. Would benefit greatly if Thompson were to withdraw early. Comes across as a real, live human being at debates and speeches. Can afford to largely write off Iowa. May threaten for 2nd place in NH with Giuliani's recent blunders and NH's independent streak. Has good national name recognition, and is currently running ahead of Romney nationally. Most Likely Scenario for Nomination: Romney falters in Iowa, while McCain takes second in NH. Giuliani runs out of gas after a disappointing performance in the early primaries, including Florida and winds up performing poorly outside of NY, NJ, CT, DE on Super Tuesday. Giuliani or Romney withdraws and throws all of his weight behind McCain. Thompson gives up early on and throws his support to McCain. Core Group of Supporters: Republicans Disillusioned by the Bush Administration, fiscal conservatives, Westerners, Independents, Veterans.

5. Fred Thompson (Intrade Odds: 5%)(Mark's Odds: 8%): Has run a very uninspired campaign giving rise to repeated accusations of laziness and a lack of desire for the job. Something of a dullard. Has managed to raise a fairly good-sized war chest thanks largely to his "Draft Fred" strategy of delaying entry. Has managed to really annoy NH voters, and has a very lukewarm base of support. Should do respectably in Iowa and much of the Deep South, possibly winning a couple of states outright. By traditional definitions is probably the most authentically conservative candidate in the race. Most Likely Scenario for Nomination: Huckabee falters, allowing Thompson to make significant inroads into the evangelical vote. Thompson wins in most of the Southeast states, and is able to stay competitive going into the March Texas primary, which he wins. McCain disappoints in the early primary states, and withdraws, throwing his support behind Thompson. Eventually, the weaker of Giuliani/Romney does the same. Core Group of Supporters: Moderate Libertarians, Disillusioned Republicans, Evangelicals.

6. Ron Paul (Intrade Odds: 5%)(Mark's Odds: 2%): Has run a significant insurgent campaign that has confused the Republican establishment. Has shocked the world with his massive fundraising. Support may be underestimated by 1-3 points due to cell phone sampling issues. Outspoken opposition to the Iraq war makes him an immediate "no-deal" to most Republican primary voters. Supporters have a level of passion unmatched by any in recent history, which suggests a high voter turnout in historically low turnout primaries. Likely to do significantly better than his polling numbers in the primaries, but is unlikely to go above 20% in any given primary due to intense opposition from Republican base. Still, no candidate will benefit more from low turnout than Ron Paul. Since he will likely stay in the race for the long haul, no matter what happens, he could wind up second or third in delegate count at the end of the day, after most establishment candidates withdraw. Still very difficult to see him winning since he is so hated by the estabilshment; were he to become a serious threat for the nomination, you could expect the establishment to mobilize dramatically behind one other candidate. Most Likely Scenario for Nomination: Voter disillusionment leads to historically low primary turnout, while Paulites turn out in droves. Support for other candidates remains horribly fractured, and none is willing to withdraw from the race, meaning that 20-30% of the vote remains sufficient to win a plurality in even some later states. Tancredo gives up his single-issue candidacy and endorses Paul. Support for the Bush/Cheney Administration plummets below 20%, and impeachment proceedings begin with unprecedented popular support. Barack Obama shocks Hillary early on in the Dems' race, allowing anti-war potential Obama supporters in independent primary states to switch over and vote for Paul on the Republican side. Core Group of Supporters: Libertarians, anti-war Independents, young voters, conspiracy theorists, militia groups.

7. Duncan Hunter: (No Intrade Odds) (Mark's Odds: Less than 1/1000 of a percent): The closest thing to a real fascist in the race. Has next to no chance of winning the nomination. Most Likely Scenario for Nomination: The United States is struck by multiple nuclear attacks, killing hundreds of thousands in the process. Since fighting terrorism is already most closely associated with Giuliani, Hunter would need some additional factors for him to have a shot at the nomination. Specifically, this nuclear terrorist attack would need to be perpetrated by a group of gay Islamic Mexican illegal immigrants. Core Group of Supporters: Chuck Yeager, Big Brother.

8. Tom Tancredo: (No Intrade Odds)(Mark's Odds: Zero Point Zero): Hates immigrants. Unfortunately for him, most of the other Republican candidates have decided that they hate immigrants too. They just have the ability to talk about other issues without mentioning the phrase "illegal immigrants," so Tancredo is pretty weak even for a one-issue candidate. Core Group of Supporters: Minutemen.

Sheldon Whitehouse's Speech

Much is being made about a speech Sen. Sheldon Whitehouse gave today, in which Whitehouse detailed some elements of his perusal of previously classified DOJ Office of Legal Counsel Memos. There is a belief that Whitehouse's findings are the "smoking gun" that proves the Bush Administration thinks it is above the law.

The key segment of the speech occurs when Whitehouse lays out some of the specific findings of the OLC memos that he looked at:

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to
depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.
3. The Department of Justice is bound by the President's legal determinations.

Now, I've been extremely critical of the Bushies when it comes to their view of Presidential power, to the point where I've explicitly called for impeachment for the primary purpose of restoring the constitutional balance of powers.

However, I am simply not alarmed by the OLC findings described by Whitehouse. This isn't to say that the findings absolve the Bush administration- far from it, in fact. But in and of themselves, these findings are really uncontroversial as a matter of Constitutional law; the problem, as I will point out later, is that the conjunction of these uncontroversial findings with the administrative/separation of powers law beginning roughly in the New Deal-era has resulted in a massive expansion of executive power.

1. As a practical matter, executive orders have little or no constitutional weight. They are, by definition, a President's instructions for the rest of the executive branch. Simply put they are no more and no less than a boss giving orders to his subordinates. As long as the President has constitutional/statutory authority for the action contained within the executive order or the action implied by ignoring a pre-existing executive order, the President can do whatever he wishes with respect to the executive order. While the courts have intervened twice on the issue of Presidential executive orders, the interventions have occured where the court found the President was ordering something that he had no authority to order. Put another way- an executive order is in and of itself Constitutionally insignificant; it is the implementation of the executive order that carries Constitutional significance.

2. Of course the President "can" determine whether an action is a lawful exercise of his Article II power. That is quite literally what the President does whenever the President acts or declines to act in any way, shape, or form. Otherwise, the President would need to go to the courts or Congress to ask for permission to perform any and every Presidential action (in the courts, such a request would likely be "nonjusticiable," in addition to being an absurd burden on the courts). The problem arises when the President makes such a determination in direct contravention of a court ruling or a duly-enacted law. But in principle, there is nothing inherently suspect about the statement that the President can determine whether an action is a lawful exercise of his power.

3. The statement that the DOJ is bound by the President's legal determinations seems a bit more troubling. To the extent Whitehouse is saying that executive agencies must disregard duly enacted statutes and court decisions if the President offers a different legal opinion, he is right to raise issues with this finding. But I don't think that's what Sen. Whitehouse's statement means. Instead, the statement simply seems to mean that, where there is a dispute of interpretation between DOJ and the President, the President's interpretation controls. This is an uncontroversial statement since the DOJ is exercising authority that is theoretically delegated by the President.

So the President is likely on firm Constitutional ground when it comes to these findings. The problem, however, is when the President uses these relatively obvious findings as justification for disregarding the actual rule of law. In other words, the problem isn't that Bush is ignoring previous Executive Orders; the problem is that he is simply deciding the previous Executive Orders served no purpose and that he inherently knows better, a priori, than the effort and research that went in to the original order. Similarly, the problem isn't that the President is asserting a right to determine whether an action is a lawful exercise of constitutional power; the problem occurs when the President completely disregards other elements of the Constitution and the rules laid down by co-equal branches of government. Finally, the problem isn't that DOJ must abide by the President's legal determinations; the problem is that the President's legal determinations ignore the legal determinations of the courts and the plain text of the Constitution.

There is, of course, another problem in all of this, which has nothing to do with Constitutional powers: the hubris underlying the practice of regularly overruling and undermining the findings of DOJ career professionals.

I should also add that the fact that these (IMHO) self-evident propositions were the subject of legal memoranda suggest that the President was seeking to use them as justification for an end run around the Constitution. Indeed, thanks largely to FDR, there is now legally a very fine line between executive and legislative authority, such that it has become relatively easy for the President to argue that he is not acting in contravention of statutory authority. In some ways, I think the New Deal-era changes to separation of powers law have in fact created justification for Bush to make good faith arguments for much of his power-hungry overreaching. In other words: Progressives who wanted a big, active government got exactly what they asked for.

Finally, I must point out that there is a simple solution to all of these problems available under the Constitution. This solution would make a clear statement as to the limits of Executive Power that would not require a change in New Deal-era legal precedent. That solution is, of course, impeachment.

A Rational Look at the Mortgage Crisis

Marginal Revolution has one of the better discussions I've yet seen of the push to "do something" about the mortgage foreclosure crisis. I've thus far intentionally stayed out of this debate because there's been little for me to add, but this piece pretty well sums up where I am on the issue. Money quote:

Contract-breaking is not an especially fair way to help the poor, given that the very poorest probably never borrowed any mortgage money in the first place, and the most responsible of the poor won't get anything either.

Give the whole thing a read- it's not very long and it fleshes the issues out quite clearly and rationally, without the usual demagoguery.

The Ron Paul Blimp and BCRA

I've been plenty critical of Ron Paul supporters of late, but the concept behind the Ron Paul blimp is in my view nothing short of briliant. Now, the idea of the blimp itself is, shall we say, creative and unorthodox- but there's hardly anything offensive about it.

Wonkette can't avoid ridiculing the concept, and let's be honest here- the whole idea sounds like something borne out of someone's 4:20 AM bong hit session (Dude! What if we, like, got a blimp and then we could tell, like, 88 million people about the rEVOLution, man! A blimp? Dude! That's the best idea ever!). But as crazy as it is, it wins points for originality and in an era where politicians need to separate themselves to get attention from the masses, original ideas are the best way to achieve that.

Assuming the project actually gets off the ground, the more fascinating element of the whole effort is to me the campaign finance law implications. To sum up the setup behind the blimp project: the blimp is being run by a for-profit company set up for the sole purpose of flying the blimp. The official business of this company is political advertising. The company's "customers" buy a specified amount of advertising time on the blimp. Since the customers are individuals making independent expenditures (and not pooling their funds) they are, theoretically, exempt from many of the limits of BCRA. The company itself is theoretically acting in no different a way than any other for-profit media company.

It seems likely that this whole thing will wind up getting brought before the FEC. If it does, it will place the FEC in a similar position to the Speechnow.org BCRA "Revenge Fantasy" case pending with the FEC. If the FEC rules that the for-profit set-up behind the blimp is indeed exempt from BCRA, then BCRA's effects will be significantly limited with respect to independent expenditures.

On the other hand, if the FEC finds that the setup is in fact a violation of BCRA's independent expenditure provisions, then the FEC is probably in violation of Buckley v. Valeo's finding that individual indpendent expenditures are constitutionally protected speech. Thus, the free speech implications of contribution and expenditure restrictions will be brought even more into focus.

I should mention that there is one other potential problem the project may face from the FEC: the fact that the for-profit company will, in practice, only exist to assist one candidate. I'm not enough of an expert on election law to know how big a role that will play, but it's probably worth noting that the company would not be making use of the "public" airwaves and that the charged rates are presumably about market rate for advertising on a blimp of this sort (so there's no issue of "in-kind" donations by the company). Maybe the FEC could argue that the company is not accepting advertising in favor of other candidates, and therefore there is some sort of a bizarre "in-kind" donation going on- but I don't know how you could value such a "donation", and that type of ruling would raise other free speech concerns about forced political speech. Of course, there could be some other provision of election law that I'm completely missing that would make this scheme open to constitutional restrictions by the FCC; but I'm currently unaware of such provisions.

No matter how successful or unsuccessful this attempt is on the campaigning front, the blimp campaign setup combined with the Speechnow.org setup should prove to be an interesting test of BCRA's "as applied" rather than "facial" constitutionality.

Romney: Atheists and Agnostics Are Not Freedom-loving Americans

I don't have time to comment much on Romney's speech, but this excerpt is absurd:

"Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone."

So, if you're not religious, Romney is saying, then you are not free. And so the redefinition of freedom into a completely meaningless word continues. This is becoming a habit of Romney's: talking about freedom as if it means the opposite of freedom.

As The Liberty Papers points out, we've gone from JFK's insistence on separation of church and state to Romney's statement that:

"Our greatness would not long endure without judges who respect the foundation of faith upon which our constitution rests."

The Romney Republicans really do scare me more than any other group. While I think JFK is vastly overrated as a President, the fact is that Romney is no JFK, and the Romney-JFK analogy needs to end right here, right now.

Explosions and Deregulation

Libby at the Newshoggers points to a fuel truck explosion in Massachussetts as proof that deregulation of the trucking industry causes safety harms.

A couple of things to point out, though:
1. The Soviets had plenty of "safety regulations." Oddly, these did not prevent Chernobyl or anything resembling a hazard-free environment.
2. Pointing to anecdotal evidence of one instance does nothing to prove or disprove whether deregulation is good as a whole. The difference between government regulation and deregulation proponents is that deregulation proponents realize that government regulation has a very high cost and does relatively little to prevent people from doing what they were going to do in the first place. Focusing on whether one accident was preventable does little in terms of weighing the costs and benefits of deregulation as a whole (including the estimated $300-$500 million in lower annual costs estimated by the World Bank).
3. Also worth pointing out is that this driver apparently didn't comply with existing, basic regulations like vehicle inspections. So what evidence is there to think he would have complied with stricter regulations if they existed?
4. Finally, the news article makes much of the fact that the trucking company has been involved in four accidents over the last two years. But, believe it or not, this actually suggests a pretty good safety record for a company with 83 trucks and 105 drivers. That amounts to an accident rate of about 2% of its fleet per year- pretty good when you consider the amount of time truck drivers spend on the road. Put another way, this is the equivalent of an individual driver getting into only one accident every 50 years, during which the driver is on the road 6-8 hours a day- pretty good, especially remembering that this includes accidents where the trucker is not at fault. To the extent this company is typical of safety records in a less regulated environment, it actually suggests that deregulation has not had a particularly harmful effect on safety.

Snarky Post of the Day

Megan McCardle, who is always one of my faves when it comes to snarky jabs, was particularly at her snarky best today. But this little snippet took the cake:

Favorite headline of the day: "GOP claims Democrats are waging 'war' on the economy."
So many questions about this . . . is it a preemptive, preventative, or defensive war? If the economy loses, can Democrats build military bases in its territory? Will economists greet the Democrats with flowers?

Why she didn't call it a day after that comment is beyond me- you know, showmanship and all.

Powerline's Conniption on Huckabee

Powerline asks the question, based on Huckabee's interview with Imus this morning: is Huckabee more like Reagan or Carter? While in general I don't think there's much doubt that the Huckster, with his big-government evangelicism, is more like Carter, I was surprised to discover that Powerline's question applied entirely to Huck's foreign policy.

More surprisingly, Powerline continued its conniption fit over Huckabee's denunciation of waterboarding and Guantanamo, and his assertion that we "broke" Iraq. In doing so, Powerline implies that Ronald Reagan wouldn't have cared about the damage to America's image done by Iraq, waterboarding and Guantanamo, and indeed would have found no moral dilemmas in instituting such procedures as a defense against terrorism.

Well I for one won't stand by and watch Reagan get slandered like that. Reagan may have been more concerned about realpolitik than Huckabee or Carter, but he also had a pretty good idea that things that make America look like the bad guy are generally not a good idea. But more importantly, this "Reagan standard" needs to stop: while I certainly admire Reagan and think he was one of our better Presidents, the idea that he was somehow infallible unlike every human who has lived before or since is just outright silly.

But at a minimum, can we make a new rule for Republicans? It's simple, really: if you're going to invoke the name of Ronald Reagan as an argument from authority to show how your opponent fails to meet the Reagan standard, you need to have some substantive evidence to prove that Reagan would have agreed with you. Otherwise, you're just making the phrase "Ronald Reagan would have done ....." have the same meaning as the words "liberty," "democracy," and "freedom" when spoken by an autocrat: in other words, no meaning at all other than to make yourself sound like you care about them.

Realignment Watch

The Huckster secures the endorsement of the teachers' union. Not that long ago, an endorsement by the NEA would have been a mark of shame for any Republican candidate. And so we see the logical nexus between evangelicism and big government increasingly rear its ugly head. Meanwhile, it's worth pointing out that the NEA avoided endorsing Obama on the Dems' side, choosing instead to stick with the establishment choice, Clinton. This may have something to do with the fact that Obama has endorsed merit pay, don't you think?

So, to recap: you have the logical future of the Republican Party receiving the endorsement of the teachers' unions and making arguments for "fair trade" over "free trade," while at the same time you have the logical future of the Democratic Party endorsing merit pay. A distinct realignment seems increasingly likely over the next election cycle, no?

As I said earlier this week:

But the prospect of a Huckabee/Hillary or Huckabee/Obama race raises all sorts of interesting possibilities. One such possibility is the effective end of the Republican party as the limited-government party and, ironically, the beginning of the end of the Democratic party as the party of big government economics.

And the Chorus Grows

Will Hinton adds his voice to the chorus of those concerned that Ron Paul's inability to distance himself from conspiracy theorists could be bad for libertarianism in the long run. Welcome to the club, Will!

Money quote:

Until Libertarians/libertarians like Ron Paul can learn to not allow themselves to be lampooned in this manner, the beliefs they promote will make little headway. Until Ron Paul can learn to be a smarter politician, he will continue to harm the libertarian cause.

I'd like to add that Hinton's overall position on Paul is very similar to where I stand at this point. I would point out, however, that ending the war on (some) drugs is pretty close to a libertarian litmus test, as is the concept that government is on the whole "BAD." While outside the "mainstream" of American politics, perhaps, these are also ideas that have a fairly sizable constituency, even if still a distinct minority. Since Paul also appears to hold these positions himself, I think it would be pretty silly for him to distance himself from them. It may be that these are positions Paul shouldn't push overly hard, but they are not positions he should distance himself from, either.

This points to the trouble with running an organized libertarian-ish campaign: on the one hand, you have to appeal to as many voters as possible. On the other hand, you have to try and make sure that you don't dilute libertarianism too much in the process. Paul's adoption of anti-immigrant rhetoric and faith in state governments is an example of how the latter can happen. The problem with the Paul campaign is that it's not likely to do a sufficiently good job of either, meaning an insufficient amount of support to create a lasting political impact while also diluting the libertarian philosophy in the process.

I hope I'm wrong, of course, and like Hinton, I will acknowledge that there's a a good chance I'll still vote for Paul anyways.
(via memeorandum)

Speaking of Conspiracy Theories- Why Free Mumia?

I am of course categorically opposed to the death penalty, and I don't think there's any doubt that there are deep-seated flaws in our justice system. And that says nothing about the problems with the War on (Some) Drugs and the adoption of military-style tactics by the police.

But....the adoption of Mumia Abu-Jamal as the poster-child for what is wrong with the death penalty and the American justice system has always struck me as mind-boggling. Of all the cases to choose as a flagship, the Left has chosen a case where there was ample evidence and plenty of motive. The "Free Mumia" movement is a tremendous waste of resources and has caused a tremendous amount of pain over the years to Officer Faulkner's family. This simply is not the case that opponents of the death penalty should rally behind.

Opponents of the death penalty and critics of the American justice system really need to re-think where they place their resources. There are certainly plenty of other, more worthy defendants who would have benefited from receiving some of the resources diverted to the "Free Mumia" movement.

Ed Morrisey reminds us of the many holes in the "Free Mumia" movement's case.

"Revenge Fantasy"

Jacob Sullum talks about a new self-described "public interest group" dedicated to running issue ads attacking politicians that supported a ban on issue ads. The group is set up in such a way as to make restrictions on their speech truly unreasonable (and thus exempt them from BCRA's limits). They have requested a decision from the FEC as to whether they must nonetheless register as a "political committee." A favorable decision by the FEC will significantly weaken BCRA; an unfavorable decision, however, will demonstrate the extent to which BCRA's limitations on independent groups interfere with free speech and are almost certainly unconstitutional. Read the whole column for a better understanding of the issue.

But all I can say about this group's proposal is: "Brilliant!" Oh, those whacky libertarians!

Response to Kyle's Substantive Points (Last Post of Debate Pt. I)

My last post dealt with my initial proposal for fixing the education system in the US. This post will focus more heavily on responding to Kyle's specific proposals from this afternoon. Importantly, I should note that my previous post discussed at some length what is probably the cornerstone of Kyle's proposal, to wit, the concept of Progressive Diversification. As I said in the previous post, the Progressive Diversification concept is I think an innovative idea that would take a very large step in the right direction. I should add that I would think this to be the case even without additional steps towards school choice since it would at least increase individual decisionmaking about curricula.

Because Kyle's other proposals are many, I will deal with them each relatively briefly:
1. Research and Development: Kyle proposes establishing two committees of experts to study educational techniques domestically and abroad. I would not place as much emphasis on this proposal, as I think an increasingly free market in the education field would be a significant improvement in the way of increasing the spread of successful teaching methods, strategies, and programs. However, the committee approach would still have some noticeable benefit that would be an appropriate function of government, at least in the short-to-medium term. Specifically, the standing committee concept is useful as something of an information-sharing mechanism. I would be hesitant to empower the commissions to make binding recommendations about curricula, though, as binding curricula decisions would restrict innovations (thereby resulting in fewer new techniques for the commissions to study).

2. Central Pool of Funds: Kyle is correct in hypothesizing that schools wind up spending money they don't need to spend in order to maintain their budget from year to year. As a practical matter, it will be difficult to accurately set a minimum level of funding for every school - this will rapidly become an area rife with corruption and appeasement of powerful political interests. This would I think also be the case with the remaining funds, for which individual schools would have to show a specialized need. I suspect that the amount of bureaucracy required to accurately evaluate minimum funding levels and special funding requests would be far above any realized efficiencies and savings.

3. Higher Teacher Salaries/Merit Pay/Incentives/Continuing Education: First, we tend to forget that while teachers may be paid relatively low salaries, they also only work 9 months out of the year. In many areas, this still means that teachers make comparatively little. However, it's worth mentioning that one of the biggest impediments to better teacher pay is the wholly subsidized public education system, which restricts competition from private schools. As a result, private schools (particularly parochial schools) pay even less than public schools- otherwise their tuitions would have to be too high to attract any students (note that this doesn't apply to top prep schools, which have ample funding from wealthy alumni- but this actually accentuates the problem that exists wherein our education system ensures that only the wealthy can afford real school choice). If you had a tax credit system established, you would see private sector teaching jobs pay increasingly large amounts as affordability became less and less of a problem. This would in turn encourage public schools to pay increasingly higher salaries in order to retain good teachers. I'll skip the issue of merit pay since I already dealt with it in my previous posts. As for higher certification standards- this is something I'm largely opposed to; it raises the costs of becoming a teacher in the first place, thus restricting labor supply of potential teachers. Also, I can say categorically that certification requirements are rarely meaningful and are far more often arbitrary and false indicators of qualifications. As I've said before, despite my having passed numerous bar exams, I would far rather have most 10th year paralegals giving me legal advice than many/most 1st, 2nd, or 3rd year associate attorneys with no prior real-world experience.

4. Standardized testing- I discussed this in various contexts earlier, so I'll just skip this issue here.

5. Nutrition in schools- I should say that I think much of the anti-fat and sugar movement is based on bad science. However, the way in which public schools contract out vending services is something that should be held up to higher scrutiny. Also, greater school choice for parents would make schools more accountable to parents when it comes to the selection of vending services provided.

6. Smaller class sizes- while smaller class sizes are generally recognized as beneficial to students, it's important to remember why this is. Specifically, smaller class sizes are useful because they allow for more individualized instruction, ie, less of a one-size-fits-all approach to teaching. In the public school system, smaller class sizes would be a natural consequence of greater school choice (whether in the form of credits or vouchers), as students leaving a school would on average take less money with them than their cost to the district. I should note that if smaller class sizes are the goal, we need to make access to the teaching profession less restrictive, not more restrictive.

7. Positive Reinforcement- this is an issue of individual teacher style and is somewhat hard to enforce on an administrative level. However, Kyle's argument here is essentially one of pointing out the problems with mixing kids of vastly different abilities and interests in the same class. PD would resolve many of these problems.

8. Longer school years- I'm somewhat ambivalent on this one. My recollection is that some school systems played around with this concept in the 90s with limited success. Extending the school year would certainly mean higher teacher base salaries, though. This is one of those things that really would have to start on a small scale and then see how much interest there was in expanding it.

9. Pre-K programs- I would have no opposition to extending any credit-based program to include pre-kindergarten.

10. After School Programs- Certainly, these are relatively popular and, as far as public schools go, they seem to correlate quite closely with kids doing well and staying out of trouble. I just don't want to see them become mandatory. Importantly, we should not be drug-testing kids to determine whether they should be allowed to participate in an after-school program. This makes no sense on a number of levels: it raises civil liberties concerns and amongst other things creates the perverse situation in which you are sending a kid who is already presumably at higher risk than most onto the streets with nothing to do for a couple of hours.

Education Proposal (Debate Part I, ct'd)

This afternoon, I identified what I see as the five most significant flaws in the current educational system. This post will address what I view as the best way to fix them. Of course, as a libertarian, I would ultimately love to see public schools go completely private. But this is not a realistic option in the short or medium term, and in principle I am even alright with the continued permanent existence of the public school system in the long run - provided that private schools can compete on an equal or reasonably equal footing to public schools.

As a general matter, most things that tend to increase competition will, I think, address each of the five problems I discussed this afternoon in some form or another.

Indeed, the comparison that libertarians like to use most does a pretty good job of illustrating how competition makes the entire system better. That comparison is, of course, the American university system, in which public schools must compete directly against private institutions. The public schools are of course heavily subsidized by the state, but not so much that private schools can't compete for even poor students. Generally speaking, the American university system remains the envy of the world even despite the problems in our elementary and secondary school system. Not to say the American university system is perfect; but it is certainly something to be proud of relative to the rest of the world. Indeed, compare the state of the French university system, which is almost entirely public and which guarantees a free education to anyone who can pass the entrance exams, with the state of the American university system, and you get a pretty good idea of the value of private competition in the education field.

So, the introduction of more equal competition is key to any plan to improve the American elementary and, especially, secondary education system. Importantly, private competition will have effects far beyond simply improving the quality of education provided. In some ways, improvements in quality may not even be the biggest benefit. Instead, the biggest benefit may be the ability of private competition to offer more flexible curricula, which is absolutely critical in that it permits students to better pursue their own talents and interests. Moreover, it removes decisions on curricula from the political process, so a parent who wants to make sure that their child's education has a particular focus on reading and math, or that their child is placed in curricula with an appropriate level of difficulty, is able to do so.

Similarly, competition amongst schools goes far towards resolving the problems of merit pay. As much as I find the lack of merit pay amongst teachers appalling, they do have some good points: leaving the decisions on pay levels to the principal is a recipe for arbitrary decision-making that may have little to do with a teacher's talent. Similarly, merit pay based on test results ignores the types of students a teach may have or the fact that test results only show how well the students did on the test, and say relatively little for how much the students learned in general.

Competition, however, largely solves this problem. With competition, a district/superintendent/principal (depending on who gets to make the pay decisions) has an immense incentive to make their wage decisions on the basis of which teachers are actually the best, rather than on the basis of which teachers with whom the principal has a good relationship. Simply put: a good teacher is a teacher that is drawing kids to the school, and who will be sought after by competitive schools. If that teacher leaves, there will be a possibility that some students will follow. Conversely, a decisionmaker has an incentive to get rid of bad teachers whose presence deters parents from sending their kids to a particular school. Sure, you will still have abuses, but by and large you will have a merit pay system that is in fact based on merit. This is certainly preferable to the system that currently exists in which merit is completely irrelevant to salary considerations.

Of course, the most important thing about introducing competition is that it gives parents in particularly bad public school districts an escape route which they currently lack.

Now, the manner in which you introduce competition is absolutely critical. Doing so in an inappropriate manner can actually create more problems than it solves. This is why I am somewhat leery of many (not all) voucher programs, which are often heavily dependent on standardized testing. To the extent voucher programs also require recipient schools to comply with the state's curriculum, they may also severely limit the benefits of a flexible curriculum in the private schools. This is not to say that voucher programs are inherently flawed- I can envision some that would be quite successful all around, and in the long run I think they must play a significant role in improving the US education system. However, in practice and in the short run (which is really the topic of our discussion), vouchers come with a lot of flaws: concerns about the influence of the state on recipient schools' independence, legal hurdles, and perhaps most importantly the tendency of politicians to place conditions on the vouchers that destroy many of their benefits and free market effects.

What then is the solution in the short term? Well, tax credits and rebates need to play a significant role. With credits, we are essentially talking about a system in which parents get money taken off their taxes up to the amount of tuition they pay for their child's education. For the foreseeable future, such a credit program would almost certainly require a means testing formula of some sort. In my opinion, we ought to be able to come up with a system in which parents below a certain level of income can get up to 100% of the local district's per student cost credited/rebated on their taxes for sending their child to the school of their choice (with appropriate documentation of course). The amount of credit/rebate would then go down based on the parents' income level. This means testing is particularly useful in the short-to-medium term because it places poor students on a far more equal footing as compared to wealthy students. The mechanics of this system are somewhat beyond my expertise, but for further reference I would suggest consulting most of the work of Cato's Adam Schaeffer, who has written extensively on tax credits for education.

A second essential element of reform that I've long thought about is the need for students to have greater flexibility within the public school system. On this issue, I was quite pleasantly surprised to see Kyle's Progressive Diversification proposal this afternoon, which is remarkably similar in principle to what I have in mind here. Ideally, within the public school system at least, I was thinking something very similar to the German system of education, which I've long thought understands the necessity for students to learn trades (even if it starts them on divergent paths a bit too young for my tastes). As I said this afternoon, it makes little sense to me that a student with little interest or aptitude in the sciences should be required to take four years of high school science, at the expense of spending more time in a field that they will actually use in their lives.

In many ways, though, Kyle's Progressive Diversification (PD) idea strikes me as superior to the German system: PD is a gradual system that leaves much up to the choice of the individual student. Moreover, it accepts that some/many students will have an interest in pursuing the trades- an interest that we discourage all too often with our current emphasis on college as a panacea for all ills. We tend to forget that the trade of auto mechanic, for instance, requires quite a bit of knowledge and skill in its own right, yet we look down on mechanics as if they are somehow inferior. I've recently taken to pointing out that without tradespeople who actually understand how individual things work, we would be totally screwed as a society within a very short time period. Unfortunately, our emphasis on college results in people with an interest for these trades being turned away from that path. This hurts us a society, and it hurts these students as individuals by pushing them down a path that they don't necessarily want to take.

There is, I should add, one important, though not at all fatal, flaw in the Progressive Diversification proposal. This flaw is the proposal's inherent emphasis on testing benchmarks. The reason this is a flaw is that you again have to rely either on standardized testing with all of its problems - not least of which is its broad, one size fits all manner of evaluating what a student should know- or you have to rely on the subjective judgment of the teacher, which would be fine except for the fact of social promotion. One easy way to fix this problem is of course anonymous test-taking, with several teachers grading each exam, and an average grade awarded.

The other fix to this problem is the introduction of competition discussed at length above. A school forced to compete for students is a school that will want to make sure that its students are properly educated. Yes, there is an incentive to keep the parents of an individual child happy by continuing to promote the child to the next level in his/her interest area. But there is an equal or greater incentive for the school to keep its reputation intact in order to make sure that its degree actually means something to colleges, employers, etc. A school whose degree means nothing is a school that will soon be struggling to keep students.

The Fundamental Flaws of the American School System (Education Debate Part I)

This afternoon, Kyle posted his initial proposal in our education debate series that will take place between now and the end of January. His proposal raises some interesting points that I will hopefully respond to tonight. My opening salvo will occur in three parts tonight. First, in this post, I will identify what I see as the largest flaws in our education system. Second, I will make my initial proposals. And third, I will respond to the various elements in Kyle's proposal.

So, without further ado:

Kyle discusses education as something of a magic bullet for all of society's ills, and to a large extent he is right. A society that provides the greatest possible opportunities for its members to grow as individuals and to learn essential tools for living will largely find its members with the greatest number of career and life choices. Greater career and life opportunities equals maximized socioeconomic mobility. However, to a large extent, various international tests show that our primary and secondary education system has fallen behind despite our nation's vast wealth and advanced industrialization.

Why is this? Importantly, the problem is not simply an issue of lack of funding for education. As this graph shows, there is no correlation (one way or another) between student performance and education spending. Similarly, we all might want to recall that the DC Public Schools have the highest per-pupil spending in the nation, yet I doubt there are many people who would exactly call the DC Public Schools a beacon of educational greatness.

So what are the problems? In my mind, the following strike me as particularly important (in no particular order):

1. Top-down dictation of curriculum. Curricula are increasingly dictated by the federal and state governments. Trouble is that what exactly goes into the curriculum is a political football, as are the standards that students must meet. As a result, we wind up getting an education system that emphasizes a one-size-fits-all standard that has little or no relationship to anything other than what is politically popular at the time. I don't have time to find the link, but I recall that the political correctness demanded by state school boards in Texas and California (in particular) has resulted in nationwide dilution of textbooks. The other problem with inflexible curricula set by state or federal government is that it doesn't accept that students have different interests, dreams, and talents. As a result, we wind up forcing kids with no aptitude or interest in science to take four years of it in high school even though they will never have a need for it after high school. We might say that there is no harm done by learning something like this, except for one thing: there is a massive opportunity cost here. Why not allow those kids to spend more time studying history, or taking shop class, or studying a third foreign language?

2. An over-reliance on standardized testing. The "teaching to the test" meme has been heard before, so I'll spare you the details. But the fact is that "teaching to the test" might make a school appear to be performing well, while at the same time teaching its students nothing other than how to pass the specific test. The problem with an emphasis on standardized testing is that it makes the fundamental mistake of associating correlation with causation. In other words, high performance on a test, in ordinary circumstances, is closely correlated with understanding the subject matter as a whole. The problem is that when you know the test is coming, and you do nothing but "teach to the test," then all you're learning is how to pass the test, while learning very little about the subject matter as a whole.

3. A general lack of competition. Government-run schools effectively have a monopoly in their area, in the sense that no matter what parents decide, they get to collect the same amount of revenue, unless people start moving out of their district (which has high external costs to the individual taxpayer such that a local school system is unlikely to see a dramatic effect on this end from year to year). A family that chooses to send its kids to private school still has to pay the same amount of taxes to the local school system. Indeed, if that family sends its kids to private school, the local school system actually has more money to spend per student (creating a bit of a perverse incentive to do poorly, although I doubt this particular perverse incentive plays much of a role). There is also another problem here, in that there is no accountability to the taxpayers who don't send kids to the school system. So the difficulty that parents (especially poor parents) have in shifting their kids out of the public schools, combined with the lack of consequences to the school system even when kids do go to private school creates a serious accountability problem.

4. A problem of "regression to the mean." By this I mean our school systems' general emphasis on egalitarianism amongst the students. As a result, all students are expected to be the same, to a large extent. I think in general we do a pretty bad job allowing the top students to excel. This is also closely related to the curricular problem, in that students have little opportunity within the public school system to pursue their actual interests and talents to the fullest extent. Instead, the emphasis is increasingly on going to college, regardless of whether the student wants to go to college. (As an aside, I have a theory that the over-emphasis and the resulting pressure to go to college is at the root of most school shootings- but that's another topic altogether).

5. Lack of incentives for teachers to excel. This is the issue of "merit pay" that the teachers' unions so vociferously oppose. I almost threw up when Hillary Clinton, at the last Dem debate, described her opposition to merit pay (as actually defined- not as redefined by her and Dodd to refer to giving higher pay to teachers in "underserved" areas) as being based in the concept that teachers in a school are a "team" and therefore should all be treated the same. Of course, this ignores the fact that on any team, some members are more talented than others and should be paid more than others. If they aren't, then they will likely leave as soon as a higher bidder comes along. Either way, our current system does a really bad job at rewarding the best teachers while doing a really good job at rewarding the worst teachers. Put another way: it's essentially communism under a different name.

There are, I should say, a whole host of other major problems with our current system. But the five problems outlined above are the most critical in my view. Moreover, I think if you found the appropriate solution to those five problems, you would find that the other problems would largely work themselves out on their own.

Factionalization Watch, continued

Doug at the Liberty Papers notices the beginnings of a movement aimed at expanding support for libertarian-oriented candidates beyond Ron Paul. Right now, the movement is focused primarily on electing libertarian/Old Right candidates in the Republican Party primaries. Should Paul run as a third party/independent next year, would this (still-nascent) movement go with him?

Either way, the beginnings of a movement like this fit comfortably within the concept of the Republican party beginning to split up as the fragile alliance between libertarians, Wall Street Republicans, and evangelicals continues to disintegrate.

Recess Appointments and Limiting Executive Aggrandizement

In the department of political bellyaching, this one is pretty weak:

“In a political maneuver designed to block my ability to make recess appointments, congressional leaders arranged for a senator to come in every three days or so, bang a gavel, wait for about 30 seconds, bang a gavel again, and then leave,” Bush said. “Under the Senate rules, this counts as a full day. If 30 seconds is a full day, no wonder Congress has got a lot of work to do.”

So let's recap: Bush is complaining because he wanted to push through some appointments without the Senate's approval. Since his term ends in January 2009, any recess appointments would effectively last until almost the time he leaves office (they last until the end of the next session of the Senate). The Senate was on a recess for just a couple weeks in this case.

Bush's bellyaching amounts to claiming that not only are recess appointments his right as President, but they are also intended under the Constitution as a way of getting around the requirement for the Senate's advice and consent in appointments. Of course, the original purpose of the recess appointment was borne entirely out of practical concerns: Congress was usually in session only a few months a year, yet the government needed to run regardless of whether Congress was in session. Thus, if a vacancy occurred while Congress was away from town, it made sense for the President to appoint someone temporarily until the Senate had an opportunity to confirm the person.

Now, the fact that the Senate is only out of session for a few weeks at a time a couple of times a year is a problem in and of itself- it means the size of the federal government is really quite larger than it could and should be. But to suggest that the Senate is somehow depriving the President of a right through shady political maneuvers is quite silly. After all, the very concept of stalling until Congress is out of session to make an appointment without the Senate's advice and consent is a shady political maneuver to begin with.

Frankly, the importance of the Senate's actions in this case cannot be underestimated. The reason for this is not that Bush's recess appointments were necessarily going to destroy the fabric of American society. Instead, the reason is simply that the Senate's actions set an important precedent that future Presidents should not expect to get away so easily with circumventing the advice and consent clause of the Constitution. If the aggrandizement of Executive Power is to be the Bush/Cheney legacy, then actions like this are an important way of limiting that legacy.

Getting Warmed Up for the Education Debate

Marginal Revolution points out that Kyle and I have been beaten to the punch by two Australian bloggers. Still, the show must go on. The first post strikes a chord fairly similar to my position, though obviously in the context of Aussie government and on a different issue than Kyle and I will be discussing. Specifically, the Aussie debate centers on a question that Kyle and I are, for our purposes, presupposing: that public schools exist and should continue to exist. The second part of the Aussie debate is here. Of course, I will be arguing that at a minimum public schools need competition from the private sector and, as importantly, parents should have a choice as to the curriculum their child learns. The recent (ongoing?) fiasco in Kansas I think should make the reasons for this pretty clear. In other words, if I want my child to learn that the world was created a few billion years ago and that humans evolved from apes, and that this is uncontroverted fact, I shouldn't be forced to pay to send my child to a school where they are taught that this is not uncontroverted fact or that there is scientific evidence that in fact a Flying Spaghetti Monster created the world 6000 years ago.

This isn't to say I'm in favor of the immediate abolition of public schools. Just that I think the state-created monopoly (or effective monopoly) on education is, shall we say, a bit troubling.

The Perfect Political Storm?

A friend of mine writes:

I think an interesting thing is developing where small groups are splintering off towards individual candidates that best represent them, to the detriment of the "Newsweek cover" candidates. For GOP it's Huckabee [religious conservatives] and Paul [libertarian leaners], and for the Dems it's Obama [progressive non-establishment] and Edwards [labor, social activists]. Whether you buy it or not, I heard there's support in Iowa for Richardson as rural farmer candidate. Did you know the NRA endorsed him?! I certainly think Guiliani has some bona fide issues that attract people to him [immigration, tyrrany], but Clinton and Romney are basically running on the establishment+popularity contest ticket. What seems to be more and more likely is that the entertainment that is the primary may last much longer than many fretted given the early primaries, and that who ever the eventual nominees are (save a weird Obama-Huckabee which would result in the absolute destruction of the GOP), the kooky shape-shifting oddity that this cycle has become will persist. Consider Hillary-Huckabee. She would slaughter him, but think of the implications of so many big-business types moving to the D side. Moreover, consider Obama-Romney. How do you run that race? Again, Obama would slaughter him, but can you imagine watching Romney trying to stay far enough right to retain his base? He could essentially obliterate the gains he has to his credit as Mass Governor, which he has not been able to rely on thus far. Hillary-Guiliani obviously would be the most fun, for the reasons we (and everyone else) have been considering. Two New York pro-choice, pro-gay, pro-secrecy and control candidates. Nothing good about either of them, all the partisans voting first and foremost against the
opponent.

...In other words: strap on your seat belts, folks. This one could get bumpy.

In all seriousness, though, I think my friend raises an interesting point- this is the first time in my memory where you really are seeing the factionalization of both parties. For that matter, it's been pretty rare that you've seen even one party sort of factionalize severely in the primaries.

This year, you seem to have a situation where core interest groups of both parties are essentially saying "You know what? We're not going to allow you to take us for granted anymore." And so you have the libertarians lining up behind Paul and to a lesser extent Thompson and McCain (contrary to belief, I don't know of many/any pro-Giuliani libertarians, even self-described). The Wall Street Republicans are lining up behind Giuliani or in some cases Hillary. The Republican establishment has thrown its weight largely behind Romney, and the fundamentalists have found their man in Huckabee. So on the Republican side, the race for once isn't an issue of who can have the best claim on being "conservative"- the word is now devoid of meaning. Instead, it seems to be more of an issue of which candidate's core interest group is most powerful. The Republican primary thus is shaping up to be a pretty bloody, very regional contest. Importantly, though, this factionalization of the Republican party creates a scenario where it's easy to see as many as three independent third party runs (Paul, Bloomberg/Hagel, and some sort of theo-con if Huckabee loses).

On the Dems' side, I think you are slowly starting to see something similar developing, albeit on a smaller scale. If Hillary is the nominee, it's quite conceivable that you would see a major third party run to her left.

But the prospect of a Huckabee/Hillary or Huckabee/Obama race raises all sorts of interesting possibilities. One such possibility is the effective end of the Republican party as the limited-government party and, ironically, the beginning of the end of the Democratic party as the party of big government economics. Meanwhile, Hillary's resulting support from the business community could result in Dems adopting a more market-oriented approach to business issues. This would speed up a transformation suggested by Reason's print edition this month (sorry- no link), in which Dems such as Hillary and Chuck Schumer are now proposing personal bond accounts for children that would be similar in principle and practice to personal social security accounts (aka privatized social security). Republicans, meanwhile are opposing such proposals.

Certainly, a Huckabee nomination by the Republicans would result in libertarians largely severing all ties with the Republican party and, presumably, moving to the Dems' side; meanwhile, you could fairly easily see some liberal groups looking past Huckabee's cultural conservatism to his big-government/anti-corporation populism. Either way, the interesting thing as I see it is this factionalization occuring within the parties right now. In the past, factions certainly had their favorite candidates within their core party. But this time around those factions largely have no willingness to support anyone other than their favorite candidate. For instance, the anti-war left will likely have a difficult time reconciling itself with Hillary's general hawkishness; evangelicals will have an equally difficult time reconciling themselves with the many flaws of a Giuliani or a Romney; libertarians could not possibly get on board with Giuliani, Romney, or Huckabee; and so forth.

In many ways, I should add, this factionalization would be a good thing in the long run. Certainly you could see the development of at least one serious third party with a coherent philosophy for the first time in 150 years (the Reform Party, we should remember, had no coherent philosophy other than being against the status quo). At the very least, though, you would see a noticeable realignment of each party's makeup, injecting some fresh ideas into each party.