On The Cruz Effect and the Capitol Hill Cocktail Party

Former Senator Tom Coburn (R-OK) was recently interviewed on Sirius-XM radio by Pete Dominick in which he disparaged "The Cruz Effect".  Coburn chaffed at lawmakers being put in a position to make desperate stands about legislative items which he believes have no chance of overcoming a veto. This was not the first time in which Coburn raised this reluctance to futilely fight. Coburn said similar things to Joe Scarborough on MSNBC's Morning Joe in 2013.

Senator Coburn was a 20 year veteran of the Senate and had developed a reputation for being "Dr. No" for his conservative intransigence.  Yet before retiring to tend to his Colon Cancer after the 2014 election cycle, Senator Coburn exhibited an animus against Tea Party types, with Huffington Post headlines bragging of a Coburn Smack Down of the Tea Party. Coburn was quick to condem Senator Cruz's shut down tactic on Obamacare. Some Tea Party constituents wondered if he was a Charlatan, Traitor or Patriot for his go along to get along Senatorial approach  gun control.

Although he is no longer in the Senate, Senator Coburn is pushing a Cocktail Party approach to things. In Oklahoma, it is not hard to sound conservative and promise to repeal Obamacare, protect the second amendment or now even to defund Planned Parenthood.  But where the rubber meets the road in legislating in the District of Calamity, intentions and ardor matter.

When speaking to Scarborough about Obamacare in 2013, Senator Coburn rightly points out that Republicans did not have 67 votes to overcome an expected Presidential veto from Barack Obama. Right. So when has either party had vetoproof supermajorities in the Senate? Not in nearly half a century.  In the 89th Congress (1965-67), Democrats held 68 seats in the Senate and 295 House seats. During the New Deal, Democrats had veto proof majorities in the 74th and 75th Congresses (1935-39).  During Reconstruction after the Civil War, there were veto proof majorities for Republicans in the 39th, 40th, 41st and 43rd Congresses.

So having an assured veto proof majority is a rarity in American polity. Nowadays, the benchmark seems to be reaching Cloture (now set at 60 votes in the Senate).  After the election of Barack Obama and the eventual seating of Senator Al Franken (D-MN), Democrats had Cloture proof majority until Senator Scott Brown, the elected replacement for Senator Ted Kennedy (D-MA) was seated (replacing interim Senator Paul Kirk (D-MA)).

So it is fanciful for a Republican to think that their measures will have veto-proof (or Cloture proof) majorities by party votes alone through regular legislative procedures. But does that mean not doing anything because you are unsure if it will be enacted?

The reason why the comments of a former Republican Senator matter is that it epitomizes the conflict on Capitol Hill for the next Speaker and is a reason why outsider Republican Presidential candidates like Donald Trump, Ben Carson, Carly Fiorina and Senator Ted Cruz (R-TX) are leading in the polls.

What has been called the Surrender Caucus is only happy to fight for bills which they are certain will be enacted.  Sure, you can campaign conservatively for the "rubes" back home, but politicians who are comfortably ensconced in the District of Calamity Cocktail Party won't spend any political capital for causes in which victory is uncertain.  Hence they surrender without a real fight.

For example, with the recent effort to defund Planned Parenthood, there were attempts to attach a rider onto a Continuing Resolution to divert funding for womens' health from the embattled abortionists to community health centers. The Byrd Rule for budget bills only required 51 votes for passage (avoiding a Cloture Vote). But President Obama promised to veto the CR and Republican Leadership feared that it might be blamed for a government shut down.  So they surrendered without a fight and Senate Majority "Leader" Mitch McConnell jammed down a clean CR through December 11th. This was not a one-off but was indicative of a pattern, which Tea Party renegades like Cruz have exposed for the shame that it is.

It might have been messy, but having must pass legislation like the Highway Bill, a Continuing Resolution or a real Congressional Budget with liberally unappealing riders might have forced the hand of President Obama to shut the government down.  If the Republicans had a better communication strategy, they might not automatically be blamed for shutting the government down when it was an Executive Branch veto which did the dirty deed.  As the branches sought to craft a resolution, concessions might be extracted.  So in the case of Obamacare (a.k.a. the Affordable Care Act), a nigglesome provision like the employer mandate could be up for grabs, which eventually would kill the clunky and unpopular system.  But that involves some guts to take a political risk and then be ready to fight hard in the media and on Capitol Hill.But it's so much easier to, echoing Mr. Coburn: "Dingity, we tried but we just didn't have the votes to do it. Too bad (but we'll still rail against it for the next election).

The House Republican Caucus is set to nominate another candidate for Speaker.  Despite the entreaties of Speaker John Boehner that he is retiring after the crowing achievement of his Congressional career of having Pope Francis speak before a Joint Session of Congress, the reality is that he was set to resign because he would lose a Vacate the Chair vote.  Boehner could not win the necessary votes in the GOP Caucus because the Freedom Caucus both wants a leader who will fight but will also vote on their legislation rather than dictate what will be voted on (and will will or will pointedly lose and be a campaign issue).

After the talking heads shows this weekend, there is speculation that House Ways and Means Chairman Representative Paul Ryan (R-WI 1st) is reconsidering running for Speaker but he does not want  any strings attached to achieve the big chair.  Ryan's record on immigration issues does not jibe with conservatives and not allowing stands for legislation not certain to pass goes against the grain of the Freedom Caucus.

In the larger Presidential Primary picture, many insiders wonder why political novices like Donald Trump, Ben Carson and Carly Fiorina lead in the polls.  Perhaps they are not seem corrupted by the system and are talking a good game about fighting the power.

Senator Coburn's cautionary comments about legislating are true enough, but they reveal that establishment Republicans don't really want to fight. Some Tea Party elected officials have not sold out to the Establishment. This explains why Leaders are anxious to primary rebellious Tea Party types and bad mouth others.  Since Republicans have not had a Veto Proof majority since 1875, is it their role to be Democrat lite, only proposing what can get passed and signed by a Democrat President?  What about the years when there were Republican Majorities in both Chambers of Congress and Republican President?  It does not seem like things were much different then.

Pundits have noted that Congress has a similar favorability rating to the Hermit Kingdom of North Korea with communist dictator Kim-Il-ung. This might explain why disaffected voters might welcome a congressional Cruz missile in the form of fighting for principles and causes.  This will be put to the test during the Republican primaries.  But political junkies might get early indications how this "fight to fight" will succeed  in the Speaker's Race.

Judging the Judge

In reaction to King v. Burwell (SCOTUScare previously known as Obamacare) and Obergefell v. Hodges (which imposed Same Sex Marriage through out the US) by the US Supreme Court, Senator Ted Cruz offered a modest proposal to remedy judicial activism without recourse--judicial retention elections.

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Richard Kopf, a US District Court Judge for the District of Nebraska and publisher of the blog Hercules and the Umpire: The Role of the Federal Trial Judge, wrote a piece which scathed Senator Cruz and his "modest proposal".

Kopf's piece was provocative and engaging for a policy wonk.  However, an article which Judge Kopft titled:"Senator Ted Cruz is not fit to be President" seems to go beyond responding to a policy proposal and directly into the political field.

One does not have to slog through sometime like Judge Kopf's 474 page opinion in Carhart  et ali. v. Ashcroft (2004) which struck down Partial Birth Abortion bans to read Canon 5(A)(2) of the Code of Conduct for United States Judges which states: "A judge should not . . . make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office."  Even the hoi polloi without law degrees can understand that a article like "Senator Ted Cruz is not fit to be President" falls under Canon 5(A)(2).

This illustrates Senator Cruz's point about checks on the judiciary.  In a Congress which can not muster 60 votes to block an Attorney General like Loretta Lynch who vowed not to follow certain lawbreaking by the Obama Administration (such as on immigration), impeachment is unlikely.  So there are black robed politicians who can participate in the political process and even legislate from the bench without recourse by "We the People". 

It could be argued that  some slack can be cut for  Kopf as the 68 year old Judge  assumed Senior Status in December, 2011.  However, Kopf's public opposition of a candidate for public office seems to be a clear violation of the Code of Conduct for United States Judges.  As a senior status judge, Kopf receives full salary with a reduced case load.  Hence, a senior status is not an honorific emeritus title. So a compromised jurist is still sitting on the bench, unless Judge Kopf does the honorable thing and resigns.

As people become more frustrated with judicial tyranny, reformers may find ways to remedy usurpations of the Constitution.  While it is dubious if judicial retention elections would work on a federal level, Judge Kopf's case epitomizes that the system is broken and the rule of law is unreliable as things stand.

UPDATE 07/09/2015

 Judge Kopf offered a half hearted apology for his "Ted Cruz is unfit to be President" piece.  In a letter to Professor Orin Kerr (also published on Judge Kopf's blog)  Judge Kopf acknowledged the analysis by The The Volokh Conspiracy on the  Code of Judicial Ethics Canon (5)(A)(2). However, Kopf insisted that a Second Circuit ruling in Calabresi was not strictly speaking  precedent in in the District of Nebraska. Still Kopf anticipated that the same standard might be applied in his Eighth Circuit.  So, Kopf wrote:  " Consequently, apologize to you, Senator Cruz and everyone else for my error."

Yet rather than have to good grace to admit an error and be gone, Judge Kopf pressed his point about judicial elections of Supreme Court Justices, insisting that such commentary fell under Code of Judicial Ethics (4)(A)(1).   Some apology. I was wrong for going too far but I'll still stand by my political pontifications.

Violators of civil infractions do not get to just say "My bad" and be done.  While an apology is appreciated, it is insufficient. Judge Kopf demonstrated that he does not (or no longer) exercises judicial temperament to have violated such a basic tenant of the profession.  If there were any justice, Judge Kopf would resign his senior status and no longer preside from the bench.  He seems to enjoy publishing.  May he continue to opine on Hercules and the Umpire and enjoy his retirement since he has trouble operating under judicial ethics.

Cultural Catalysts Clash on Social Media Debating the Disposition of Down's Syndrome Children

Richard Dawkins, the acclaimed atheist ethologist from Oxford University stirred up a cyclone of controversy on social media with a Twitter posting on the morality of aborting a Down's Syndrome child in-utero.  When someone commented that she would not know what she would do if she were pregnant with a child having an extra chromosome, Dawkins doubled down on his "progressive position".  Dawkins answering like "Dear Abby (the atheist edition)" wrote: “Abort it and try again. It would be immoral to bring it into the world if you have the choice.”  So abortion was not only an option for "The God Delusion" author, Dawkins demands that it is immoral for women to deliver a child afflicted with Down's Syndrome.

Reading Dawkins declarations closely, it is quite revealing of his weltanschauung.  As an atheist, Dawkins does not draw  from any moral compass. So it is not surprising that he liberally latches unto "an individual woman's right to choose. Later referring to a fetus as "it", Dawkins detaches personhood from an unborn child. Dawkins pontificating that the only moral choice is to kill a defective child ought to please both Social Darwinists (survival of the fittest) and the ironically named humanists (the banner which binds British atheists activists).

Two things should trouble the intelligentsia from Dawkins Down's Syndrome declarations. Firstly, Dawkins prefaced the right of women for early abortions, not abortion on demand until childbirth. So it seems at some point personhood is bestowed on an unborn fetus.  Or is abortion just less mentally messy when the victim does not look like an unborn child.  The other aspect which can be inferred from "Abort it and try again" aspires for a utopian perfection in offspring.  Such a callous attitude can easily devolve into getting rid of undesirable elements in society, be it physically deformed, mentally challenged or part of an undesirable group.

Sadly, Dawkins Social Darwinism for Down's Syndrome children seems prevalent in the United Kingdom.  Currently, 92% of pregnant women diagnosed with Down's Syndrome children aborted their unborn children. Moreover, half of all such cases go unreported. There are concerns that if the National Health System (NHS) expands the super accurate Ariosa Harmony testing, this figure will become nearly total, especially if NHS threatens to withhold special care for Down's Syndrome children.

It did not take long for former Governor Sarah Palin (R-AK) to respond to Dawkin's dialectic. Palin famously campaigned for Vice President in 2008 with her young son Trig, who has Down's Syndrome. Palin took her seven years of experience being a mother of a Down's Syndrome Child when she reached out to Richard Dawkins via Facebook. 

. Palin's folksy riposte to Dawkins displays a positive sense of humanity that the learned professor lacks.  In addition, Ms. Palin's Facebook posting alludes to her Down's Syndrome child as having a unique kind of absolute beauty.  This echos Governor Palin's peroration when speaking before a Right to Life Conference.

Many will dismiss the message as it came from Sarah Palin, who our "intellectual betters" from academia and the media deemed as dumb "Caribou Barbie". Yet Palin's testimony rings true and advocates valuing the individual  whereas Dawkin's tweets sound abstract and collectivist.

Even though Dawkins may have coined the concept of memes, however Sarah Palin has perfected the social media tactic. Palin dubbed Obamacare IPABs as Death Panels to deftly defending Down's Syndrome children.

So as these cultural catalysts clash on social media, perhaps it can bring us to understand how we approach ourselves and society.  Our we driven by the selfish gene as Dawkins theorized in genetics or can we inculcate altruism? Palin preaches that mothers should be open to Downs Syndrome children, but is that openness a moral imperative?

Did Dr. Dobson Unduly Politicize the National Day of Prayer?

To commemorate the 62nd consecutive year of the National Day of Prayer, there certainly were different approaches.  Unlike his predecessor, President Barack Obama has not hosted an ecumenical service to commemorate the National Day of Prayer, the 44th President does issue proclamations each year.  Mr. Obama's 2014 proclamation paid lip service to the importance of respecting religious liberty, which struck many political observers as ironic considering the manner which the Obama Administration has rolled out the Contraception Mandate portion of Obamacare.

On the other hand, Dr. James Dobson chose to play the prophet who will tell truth to power.  Dr. Dobson was quite clear in labeling Mr. Obama as the "Abortion President".  Dobson detailed how President Obama gave the keynote speech at the 2013 Planned Parenthood convention to brag how an expanded "womens' health services" would be part of Obamacare. Dobson also noted that Planned Parenthood garners $250 million a year for "reproductive health".   

Dobson's group "Family Talk" recently won an injunction to block the Federal government from forcing it to impose the Contraception Mandate (which includes abortifacients).  Dobson tearfully proclaimed: So come and get me if you must, Mr. President.  I will not blow before your wicked regulation."  Dobson urged his audience to fight on as: “We can win. And keep prayer because that’s what really made a difference here.”

Dobson's directness did not settle well with Representative Janice Hahn (D-CA 44th), who wagged her finger at the speaker and said "This is inappropriate" as she walked of the event held in the Canon House Office Building.  Later Rep. Hahn, who co-chairs the weekly Congressional prayer breakfast claimed: "James Dobson hijacked the National Day of Prayer -- this nonpartisan, nonpolitical National Day of Prayer -- to promote his own distorted political agenda.” Hahn revealed that she was attending the Capitol Hill National Day of Prayer event to hear the Reverend Bill Graham's daughter, Anne Graham Lotz, speak but walked out due to Dobson. 

Representative Louie Gohmert (R-TX 1st) sympathsized with his colleague Rep. Hahn but he also recognized that Dr. Dobson considers abortion to be a sin and can not separate his religious belief from politics.  Dobson's pointed speech was not partisan in the sense of party politics or advocating specific legislation but he did detail real world challenges to living in a morally inspired world.  Should the National Day of Prayer be full of pretty pabulum about prayer which amounts to nothing or should it be prayerfully minded people who share their faith, even when it is challenges the conventions of the day?

Recently, House Minority Leader Representative Nancy Pelosi (D-CA 12th) had no compunctions about turning her ecumenical service to an Episcopalian Maudy Thursday foot washing into a rally for immigration reform.  And the Reverend Al Sharpton, who has no (church) pulpit of his own, deigned to compare the resurrection from the Easter Miracle to President Obama's political resurrections.  So blending politics with religion is not taboo. 

Is it the event itself?   There are thousands of National Day of Prayer events throughout the United States, but activities in the Federal City tend to dominate the spotlight.  So having issues that are uncomfortable or contentious can threaten the non-political comity of the National Day of Prayer. 

While that is true, what worth is the National Day of Prayer if it is just holding hands and singing Kumbaya?  Sometimes following the path of prayer is not pleasant or readily placable.  President Obama had the temerity to talk about religious liberty, while his Administration seeks to force the Little Sisters of the Poor to violate their consciences and submit to participation in the Contraception mandate which is abhorrent to their mores. 

It may be that the subject matter of Dobson's defiance is the issue.  Forty one years after Roe v. Wade, Americans are still uncomfortable about abortion. Pro Life and Pro Choice activists cite various polls on the acceptability of abortion.  Legislatively, the trend is towards restricting abortion but the judiciary strikes such laws as threatening the progressive right.  But language matters.  Notice how pro-abortion politicos talk about "womens' reproductive health" or perhaps "a woman's right to choose" rather than killing a human life which has not been granted personhood.  

It is easier for morally conscious people to support "womens' reproductive health" rather than deal with the gruesome realities of abortion.  This may be why the Gosnell Movie troubles Kickstart in its crowd-sourcing funding efforts.  The Gosnell film bills itself as dramatizing the life of Dr. Kermit Gosnell, America's most successful serial killer -- the doctor is sin.  Abortion often incites a clear break among religiously oriented people, dividing social justice spirituality from traditional Bible believers. 

The question is-- Did Dr. Dobson unduly politicize the National Day of Prayer?

Did Dr. Dobson unduly politicize the National Day of Prayer?
	No since speaking prophetically truth to power about important moral issues is honoring prayer
	No as Dobson did not endorse political candidates or particular legislation
	No but attacking the civic sacrament of abortion made elected officials uncomfortable
	Yes as Dobson spoke about a real moral issue not simply spouting pretty platitudes
	Yes as the National Day of Prayer should bring together believers and not divide them
	Yes because politics and prayer should not be mixed together
	Don't Know
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President Obama's Rose Garden Shamwow

Three weeks after the launch of Obamacare open enrollment, President Barack Obama held an event in the Rose Garden regarding the so called Affordable Care Act. 

With all of the reports of problems with the Obamacare launch, there was some expectation in the Lamestream Media that no drama President Obama would get mad about what Time called "His Broken Obamacare Website". Maybe the President would act like a leader and fire those in charge of the bureucratic bungle, such as HHS Secretary Kathleen Sebelius.   

Unfortunately, the press availability in the Rose Garden seemed like an extended  25 minute Shamwow commercial. The only element missing was the pitch line "But wait, there's more."

The big news per Jake Tapper at CNN is that the website malfunctions were not called glitches but were upgraded to kinks.   So after funneling $500 million to Quebec's CGI to set up the fatally flawed web portal Healthcare.gov, President Obama suggested using the call center, or letting health navigators assist them in signing up for the mandatory coverage lest they be taxed. 

Despite the $54 million which HHS Secretary Kathleen Sebelius has earmaked for health care navigators , they had no  background checks and the staffing contracts were awarded to Seedco in Georgia, Maryland, Tennessee and New York.  Seedco  is the same company which settled a civil fraud lawsuit in 2012 for faking at least 1,400 of 6,500 job placements under a $22 million federal contract. 

Signing up for Obamacare involves revealing all sorts of personal information that is rife for identity theft.  There are already reports by Watchdog.org in Tennessee that scam artists are posing as navigators who coax medicare recipients for their information.   But there also shady characters who are designated as ACA Navigators.  Rosilyn Wells, the only Obamacare navigator in Lawrence, Kansas had an outstanding warrant for check kiting and has a $1700 state tax deficit.  This makes USIS's flawed background checks on Wikileaker Edward Snowden and Navy Yard shooter Aaron Alexis look thorough. 

Sadly, Sebelius does not have any time to testify before Congress  about the flawed Obamacare roll-out, but could attend the inaugural Kennedy Center forum the night before.  Perhaps to quell the blow back from this P.R. faux pas, Senate Majority Leader Dick Durban (D-IL) went on Sunday talking head shows to insist that Sebelius will ultimately testify.  Presumably, it will be before the Senate so there is a choreographed kabuki show where Democrats chastise Sebelius more in sorrow than in anger.

Vince Offer (a.k.a. Shlomi)

But such factual side shows take the focus away from the center stage in the Rose Garden rally.  One of the stalwart arguments against Tea Party Conservatives efforts to attach defunding Obamacare to the Continuing Resolution was the mantra that "It's the law".  Listening to the Celebrity-in-Chief's sales pitch, he soft peddled the kinks but felt compelled to sell stories to the American people of why it was a good deal for you.  If Obamacare were a good deal, the White House stenographers pool known as the elite liberal media (a.k.a. the Lamestream Media) would have plenty of positive stories to buttress the ACA.  Instead, Mr. Obama had to try to channel the spirit of Billy Mays or imitate Vince Shlomi,  the Shamwow Guy, to sell his already passed public policy.

If that was not enough, it just so happened that a person prop in back of President Obama fainted and the President caught her.

This was a phenomenon quite prevalent when candidate Obama was running for President in 2008.  It seemed to have mostly disappeared during the first term, but made some reappearances while on the hustings for his Re-Election campaign in 2012.

Considering the content of the Presidential high pressure pitch for "the law" despite its evident early shortcomings, fainting seemed apropos for the Rose Garden feint. 

  

Giving a Flying Flip About Filibusters

Senator Ted Cruz (R-FL) took to the Senate floor at 2:41 PM yesterday to speak against voting for the cloture motion on the House Continuing Resolution legislation (House Res. 59) and did not finish his remarks until 12:00 noon the next day.  But detractors like Senate Majority Leader Harry Reid (D-NV) are quick to insist that it was not a filibuster.  It is said that the Freshman Senator from Florida could not have a filibuster as his effort was not intended to delay or prevent legislative action.    

A broader understanding of filibuster is an effort to prevent action by making a long speech.  The 21 hours and 19 minutes of floor time certainly qualifies as a long speech.  Consider the aim of Senator Cruz’s effort.  He was speaking against a cloture motion.  Cloture is the procedure that a 60 vote majority in the Senate cuts off debate.  

Those who deny that Senator Cruz’s control of the Senate Floor for nearly a full day was not a filibuster are less interested in abiding by proper political parlance.  They know that the public generally considers a filibuster a noble effort of a Senator to abide his conscience and speak what he understands as the truth until he can stand no more.   Filibusters evoke memory’s of the Frank Capra film “Mr. Smith Goes to Washington” (1939).

[L] Frank Capra's Mr. Smith Goes to Washington (1939)  [R] Sen. Ted Cruz (R-TX) during filibuster 

But if Cruz just was giving a very long speech, then he can be framed as just wasting the Senate’s time, even though Majority Leader Reid was appraised and approved of the talkathon. 

All of this between-the-beltways trivialities about filibusters illustrates one of Senator Cruz’s concerns.  Early on in his filibuster, Senator Cruz alleged that most people don’t give a flying flip about a bunch of politicians in Washington, DC with cheap suits and haircuts. A filibuster may empty the Senate chamber, but it can generate considerable attention and audience via CSPAN as well as alternate media and the internet. 










But couching the Senate floor action as a non-filibuster against the cloture vote on the Continuing Resolution (House Res. 59) which it’s technically correct, it is smoke and mirrors to confuse the public of the real work. 

The Continuing Resolution is a budget matter.  The Senate had not passed a budget in four years, and so Continuing Resolutions which used prior spending levels as a metric for stop gap funding have been used.  For Fiscal Year 2014, the Senate had not passed any specific appropriation bills and the October 1st  fiscal new year loomed.  

So the House of Representatives passed a Continuing Resolution for two months of funding of all federal programs, save the yet to be implemented Obamacare.  The White House and Senate Democrats under the direction of Senate Majority Leader Reid want to strip the defund Obamacare provision, which many ayes in the House were premised.

The cloture motion was meant to cut off debate.  If passed, Senate rules for budget bills then only allow for 30 hours of debate.  Senator Cruz and other tea party sympathetic conservatives were concerned that Senator Reid would present a clean bill, which stripped the defund Obamacare provision and not allow for any amendments.  

Cruz’s filibuster sought to educate the public of the Senatorial shenanigans.  Cruz alleged that some Republicans wanted to vote for cloture and then vote against final passage.  This DC two step allows what detractors call RINOs (Republicans In Name Only) to say that they voted against the bill, but their vote was a purely symbolic measure and the Democrat majority gets its way to continue to impose an overarching takeover of the health care system (aside from Congress and Federal workers, who were extra juridically exempted by President Obama over specific legislative provisions). 

Progressive political hacks wrung their hands at Senator Cruz’s speechifying, noting that he was wasting valuable time.  Well, then they should be upset at the Majority Leader who blessed the stunt.  Perhaps these advocates of efficiency should focus like a laser beam on Senator Reid’s leadership, which has proven incapable of producing on time budgets for the last five years. 

Tx. State Sen. Wendy Davis during her filibuster June 2013

The same liberal voices who condemn Senator Cruz's "legislative logorrhea" are the same sources who praised Texas State Senator Wendy Davis (D- 10th Fort Worth) who engaged in a quixotic 11 hour filibuster to block the popular Texas SB 5 which restricted abortions after 20 weeks in Texas.   This filibuster ultimately was inconsequential, as the legislation eventually passed in another legislative session.  But Davis stood for what she believed in, educated the public and burnished her political credentials.  The elite liberal media showed Ms. Davis with praise and powder puff interviews.  Yet Senator Cruz will be scourged by the same media as being obstructionist and self interested.  

To echo Hillary Clinton, these Cruz critics decry the “faux" filibuster by effectively saying “What difference, at this point, does it make.”  Obamacare is the law of the land, there were not 40 votes to stop the measure and Cruz did not have control of support of the entirety of his own caucus.  Those sound like compelling talking points for politicos without principle who care more about being on the winning side than doing the right thing for the American people. 

In between renditions of Dr. Seuss’ Green Eggs and Ham for the Cruz childrens’ storytime, there was probably more substantive debate about Obamacare’s adverse effect on the health care delivery system and retarding economic growth during Cruz’ s filibuster than what occurred when the so called Affordable Care Act was passed by the Senate on Christmas Eve, 2009. 




The filibuster drew more ordinary people outside of the District of Calamity (sic) to pay attention to detailed arguments against than the sweet lies put forth by the  White House and the lapdog Lamestream Media.

While procedurally Senator Cruz's efforts might not amount to much, this is not the only battle to be found in defunding Obamacare.  Even if Senator Reid is successful in passing a Continuing Resolution which strips the defund Obamacare provisions through the Senate, the House must act.  Either the Republican majority in House must acquiesce to Senator Reid's jam down  with a "clean" C.R., the Chambers must  conference or the House can pass another legislative vehicle which the Senate may not approve prior to October 1st.  There are suggestions that revised House legislation might include a one year delay in Obamacare, revoking the Congressional Obamacare exemption,  or approving  XL pipeline, which would be a tough pill for Senate Democrats to swallow. 

Mr. Smith Goes to Washington illustrated how people in the heartland became engaged in a filibuster by dumping an alluvia of telegrams on the Senate floor.  Senator Cruz is hoping that in the internet age, public opinion can be galvanized by social media.  C-SPAN allowed for internet 2.0 peer to peer engagement with Cruz reading Twitter messages on the Senate Floor.  Cruz is counting on alternate media and social media to work around the Lamestream Media and produce a groundswell of support which changes the static between the beltway certainty that an unpopular, flawed law like Obamare can be ramrodded into implementation. 

Senator Cruz's filibuster drew back the curtain on the complacency of the Cocktail Party in both parties between the beltways. The vitriolic reaction that senior Senator John McCain (R-AZ) unleashed against Cruz after stopped speaking reveals his true self. Freshman Senator John Boozman (R-AR) reportedly dressed Cruz down for all the out of state phone calls about Obamacare.   And Senate Minority Leader Senator Mitch McConnell (R-KY) refused to support the renegade rhetoric.  This internecine sniping prompted former Governor Sarah Palin (R-AK) to note:  "We already have three parties: the Liberal Democrats, the RINO Republicans and 'the good guys.' ". 

Cruz's marathon speech in the Senate also showed some unity amongst the Young Turks.  Senator Mike Lee (R-UT) was instrumental in dissecting the deficiencies and questionable jurisprudential propriety of Obamacare implementation. But what was really impressive was to see how prospective rivals for the 2016 Republican Presidential nomination, namely Senator Rand Paul (R-KY) and Senator Marco Rubio (R-FL), worked together to get the message out about Obamacare and do something, rather than sit back and cast empty symbolic votes.

The nearly day long debate also had a couple of remarkable colloquies with "friends" on the other side of the aisle. A late night discourse between Senator Cruz and Senator Tim Kaine (D-VA) showed collegiality and some measure of cooperation on solving Obamacare problems in the future. 

Majority Whip Senator Dick Durbin (D-IL) tried two tactics.  In the evening, Durbin's disparaging dialog that a man educated at that nation's best school should know how to count to sixty (referring to the cloture mark) seemed aimed straight for MSNBC video "drop ins".   In the morning, Durbin returned to argue the same sob story using an airplane analogy. Even though Cruz had been on his feet for 18 hours, Cruz used the airplane analogy as a means to show that Congress gets first class medical care with their exemption while little people get less under Obamacare. 

As the Noon hour approached, Senator Cruz offered Majority Leader Reid several unanimous consent proposals to speed up the deliberation process. Majority Leader Reid tried to take Cruz's remaining time away from him by procedure.  Later Reid wanted to ask a question which was more of lambasting argument, which Cruz withdrew his time.  





Finally, Democrat Majority Leader urged Cruz to give up 15 minutes of time to Senator John McCain.  It's a good thing that Cruz did not accede to the latter demand to someone who called him a wacko-bird, as McCain inveighed on his "friend" Cruz. 

In trying to generate groundswell support in the grassroots, Senator Cruz's filibuster popularized the mantra "Make DC Listen".  This slogan may energize the Tea Party Caucus, possibly be the touchstone of a third party or a Presidential campaign.  Nevertheless, "Make DC Listen" taps into public discontent and shows social media savvy. 

So even though Senator Cruz was not successful in his immediate tactic to prevent cloture on the C.R., we ought to give a flying flip about his filibuster as it may be a harbinger for real change in the District of Calamity (sic). 

Dr. Dean's Delayed Diagnosis of IPABs

Although  former Vermont Governor and 2004 Presidential Candidate Howard Dean (D-VT) has been out of the practice of medicine for a number of years in lieu of politics, the Doctors delayed diagnosis of IPABs is right on the money.

Recently, Howard Dean wrote an opinion piece for the Wall Street Journal in which he prognosticated:  "The IPAB will be able to stop certain treatments its members do not favor by simply setting rates to levels where no doctor or hospital will perform them."  

For those who did not thoroughly study the 2,700 pages of legislation that comprised the ironically titled "Affordable Care Act", otherwise know as Obamacare, IPABs are the 15 member Independent Payment Advisory Board which the HHS Secretary Sebilus appoints that decides the amount that the government will reimburse physicians for medical procedures. 

This was  supposedly intended as a cost control mechanism for Medicare, but in reality will act as a rationing board.  The IPAB name implies that these opinions are advisory, but those opinions become the reality. A medical advisory board made the modest proposal in 2011 that yearly mammograms are unnecessary for women between 40 and 49, and HHS suggesting that self-examinations of breasts.  It did not seem that there were medical breakthroughs which prompted these changes in practice but it certaily would save costs for a single payer system.

At the start of his first term, Dr. Betsy Mc Caughey observed that President Obama's former Health Advisor Dr Ezekiel Emanuel (the brother of then Chief of Staff now Mayor of Chicago Rahm Emanuel .D-Chicago) believed that doctors serve two masters: the patient and society and that medical students should be trained  to provide socially sustainable, cost-effective care."  

While public pressure forced the Obama Administration in January 2011 to drop "Complete Lives System" inspired end-of-life counseling during the elderly's annual check ups, the philosophy of cost cutting during the last 18 months of a person's life remains with IPABS.  Instead of cajoling vulnerable senior citizens to just "take a pill", the patient is cut out of the process by "Advisory Boards" which make certain treatments financially unviable, depending upon one's status. 

When Sarah Palin labled IPABs as "death panels", she was roundly criticized as a scare monger who was stupid, don't cha know?  

A couple of years later,  Dr. Dean  diagnosed IPABs as rationing boards,  it makes  more sense, right?

Howard Dean suggested that: "Getting rid of the IPAB is something Democrats and Republicans ought to agree on."  Obviously, the former DNC chair has not gotten with the program to think that Obamacare is about improving healthcare in America.  It seems that it more about control.

Unless Tea Party House Republicans are successful in defunding Obamacare from the FY2014 budget, all Americans will be mandated to participate in the program or pay a tax.  Nevertheless, the IRS will be in charge of collections and monitoring all of the health information.  Recent reports have indicated that health records will be vulnerable to hackers and scammers.  In addition, the IRS has shown political partisanship in vetting Tea Party tax exempt applications and for surrepticiously sharing this information.  Why couldn't the Obamacare cost cutting extend to denying treatment to political opponents?

Allow me to dispense a rhetorical palliative to Obamacare opponents– as P.J. O’Rourke put it: “If you thought that health care is too expensive now, wait until you see what it costs when it’s free.”  Alas, the Affordable Care Act is doubling many peoples’ rates and may cost some their hides. 

S.O.S. From Legislative Leviathans

Three years ago, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ( Pub. L-11-203).  When it was passed, it was a long  2,319  page piece of legislation.  Although financial legislation can be tricky, Sarbanes-Oxley (2002) was only 66 pages and Gramm-Leach–Bliley (1999) was 145 pages.    This contemporary financial legislation was legislatively loquacious compared to the Federal Reserve Act (1913) that took 31 pages or Glass-Steagall (1933) that was 33 pages.

 But much like Obamacare (the misnamed Affordable Care Act), the bloated Dodd Frank bill delegated bureaucratic the authority to write implementing regulations. Currently, Dodd-Frank is comprised of 13,789 pages of rule-making from ten different regulatory agencies.   

To put this into terms which most people can wrap their minds around, Dodd-Frank is now the equivalent of 28 copies of War and Peace.  And Mel Brooks quipped that no-one makes it through War and Peace.   When Congressman John Conyers was chided for not reading legislation before voting for it, he snarkily noted that it would have taken him two days with two lawyers assistance to understand the original Obamacare legislation 1,000 pages, when in actuality it topped  2,000 pages. 





Winston Churchill rightly reflected that: “When you have 10,000 regulations, you destroy all respect for the law.”  Compliance to the bureaucratic diktats of the Red Tape State increases costs on everyone.  Companies contort themselves to comply but find that the Executive Branch can postpone  crucial aspects of laws like the employer mandate of Obamacare on the President’s whim or for political reasons. 

One of the unique aspects of Dodd-Frank is finally being fulfilled after the Senate compromise to keep the shell of a filibuster.  To prevent Senate Majority Leader Harry Reid (D-NV) from using the “Nuclear Option”, Republicans allowed Advise and Consent votes on several Cabinet nomination as well as formally approving Richard Cordoray, who was unconstitutionally made a recess appointment by President Barack Obama in January 2012, as the head of the Bureau of Consumer Financial Protection.  

The BCFP could not formally come into being until the Director passed Senate confirmation, which was delayed for two and half years.  Republicans had been holding out on confirming the BCFP Director to encourage a decentralized organizational structure.  The implementing legislation gives the Bureau of Consumer Financial Protection its own funding mechanism which is funded through the United States Federal Reserve.  So the Dodd Frank can finally implement  an agency that can write and enforce bank rules, conduct bank examinations, monitor financial markets, as well as collecting and tracking consumer complaints without being beholden to elected officials with power of the purse strings.  This legislative leviathan may prove to become a political Frankenstein which threatens our constitutional Republic. 

What can be done to avoid such governing monstrosities again?  

• Firstly, either abolish or reorganize the Bureau of Consumer Financial Protection to have an Executive Board rather than a Consumer “Czar” and be financially responsible to the legislative branch rather than being an “independent” branch of government.  

• Secondly, while it might seem kind of quaint, but  to follow the Constitution.  Can the legislative branch actually delegate lawmaking authority which is not responsible to any elected official?  Why is it that bills which raise revenue are continually first conjured in the Senate, when the written organic law of our Republic requires them to start in the People’s Chamber  i.e. the House of Representatives. 

Two ways of handling this would be for lawmakers to attribute what clause of the Constitution corresponds to each part of the law.  Or having some Congressional Constitutional Majordomo to scrutinize clauses for constitutional compliance. 

• Thirdly, Congress need to stop rushing legislation.   When he first ran for President in the 2008 cycle, Mr. Obama promised that: “As president, Obama will not sign any nonemergency bill without giving the American public to review and comment on the White House Web site for five days.”  So much for that promise.  Speaker John Boehner repeatedly promised that all bills would be put on line for 72 hours before being voted upon.  This pledge has been repeatedly broken.  These Federal politicians need to live up to their political pledges or be held accountable at the ballot box rather than accepted as the standard practice of the Cocktail Party in the District of Calamity (sic).

• Fourthly, as the Federal Reserve Act and Glass-Steagall show, important financial legislation can be implemented without needing a backhoe to lift the printed bill.  Congress should pass legislation that is no longer than 50 pages long.  This is longer than some Tea Party type legislators advocate, but it is readable by the Member and can accommodate for the complexities of contemporary government.

• Finally, the Congress must Enact legislation to  take control over expensive Executive Branch regulations.  It is understandable that members of Congress are not going to have expertise in complex areas of governmance, like the financial industry and the environement.  But they must not cede authority to smug technocratic bureaucrats who are given wide deference by the judiciary and are not beholden to the ballot box.

In 2011, the House passed REINS, Regulations from the Executive In Need of Scrutiny Act, which required Congressional approval for any regulation that has the aggregate annual cost of compliance of $100 million or more.  Alas, this common sense legislation was left to die in the Senate.  

Compliance costs with the legislative leviathan is strangling growth in the American economy and is chipping away at household budgets.   The REINS legislation could be enhanced by adding a 5 year sunset provisions to any costly regulation which could be reapproved by Congress.  This would rein in an overzealous Executive Branch in issuing regulations as well as tempering the bureaucratic beast.

h/t: Davis Polk
     Eric Allie

Fanfare for the Fortnight For Freedom 2013

NY Archbishop Timothy Dolan

Today is the start of the second Fortnight for Freedom as urged by the United States Council of Catholic Bishops.  It is a period of  prayer, fasting, education and action to preserve the fundamental natural right that is enshrined in the Bill of Rights–the Freedom of Religion.  This effort was started last year by USCCB President New York Archbishop Timothy Cardinal Dolan






Appreciating the First Amendment is particularly poignant as there are so many challenges to religious liberty and the freedom of conscience, such as the HHS Qualified Health Plan Mandate (a.k.a. the Contraception, Sterilization and Abortifacient rider), the exclusion of non-compliant adoption organizations who will not service same-sex couples, states which have approved , states co-ercing traditional marriage believers to conform to same-sex so called marriage, the military labeling Catholics and Evangelicals as extremist groups for upholding their moral beliefs, military chaplains being forced out of service if they did not tow the new Politically Correct line on homosexuality.

When President Obama marked Religious Freedom Day in 2013, he framed religious liberty as the “freedom to worship as we choose.”  That might have been acceptable public policy shorthand, but such a charitable assessment is not borne out by the actions of the Obama Administration.   This is especially exemplified in the HHS contraception mandate.

 After the initial hue and cry when the Obama Administration aborted religious liberty with the Obamacare requiring free contraception, Mr. Obama supposedly backtracked by rescinding this reviled regulation.  But as it turned out, the Obama Administration was just obfuscating authority regarding religious liberty.  The rule for “free” contraception  supposedly would not be applied to objecting churches themselves but would be effectively passed along by the insurance companies who were forced to pick up the tab for the unconscionable inclusions.  However, this so called contraception compromise did not cover religiously affiliated groups, like religious orders, parochial schools etc...  Moreover many of these organizations self-insure, so it still passed along these contraception costs for them.  Furthermore,  the same day that President Obama gave the public remarks about the contraception compromise, the Federal Register published the final rule for the Qualified Health Plan mandate with language that was unchanged from August 11, 2011.  Mr. Obama’s contraception compromise did allow religious organizations to delay implementation for one year, or as Cardinal Dolan joked that: "We were given an extra year to change our morals."

Pope Francis

While some may dismiss the contraception controversy as it seems like a Catholic thing, those who care about religious liberty need to delve deeper.  These regulations are defining what qualifies as a church in a narrow and strangling manner To receive First Amendment protections, the Obama Administration believes that an entity serve only who hold the same creed and serve only those professing the same faith.  Aside from the absurdness of having a government bureaucrat defining what “Church” is, this understanding of freedom of worship misses the point.  As Baltimore Archbishop William Lori points out : "Religious freedom protects more than the freedom to worship on Sunday; it also  protects our ability to live out our faith the other six days of the week."  Pope Francis also extolled: “We are not called to be part-time Christians...[W]e’re called to live our faith at every moment of every day.”

Religiously affiliated adoption agencies in three states and DC- the District of Calamity (sic)  have been forced out of business because their organizations will not work with same-sex couples. Catholic charitable organizations have been criticized for withdrawing from immigrant programs which endorse Gay Marriage.   Religious hospitals who maintain their ethical values will either need to serve their own flock or close down if they do not accede to the abortion requirements of Obamacare.

But it is not just faithful Catholics who are under assault for upholding their faith in America.  The Hosanna-Tabor Evangelical Lutheran Church and School had to go to the United States Supreme Court to receive approbation to fire a called minister.  Despite the 9-0 ruling from the nation’s high court in January 2012, the Obama Administration foisted the contraception clause on America the next week.

The assault on religious liberty is being waged by more than the Obama Administration.  New York City instituted a new policy which prevented the Bronx Household of Faith and other small religious groups from renting space in public schools on weekends even though other non-religious groups could do so. Christian groups on college campuses are being denied recognition (and funding) when they require their leaders to be Christians and strive to live a chaste life as being discriminatory.

Great Maryland Seal

Rhode Island 1st Gov. Seal

The Puritans were Englishmen who were self-exiled to Holland at the beginning of the Seventeenth Century so that they could have religious liberty.  They decided to come to America so that they could raise their children as Englishmen who could have religious liberty in the New World. Roger Williams was a theologian forced out of the Massachusetts Bay Colony who founded what became “Rhode Island and Providence Plantations” in 1636 which separated church authority from religious authority.  Maryland was settled by Cæcilius Calvert, the 2nd Lord Baltimore and others as a refuge for English Catholics.  The Maryland Religious Tolerance Act of 1649 was  first law ever to guarantee the right to worship regardless of denomination.

Secular society has been championing a concept that America was founded on a separation of church and state and that religion was ancillary to education of the times.  While it is true that there is not a state religion, history shows the profound motivation of our founders to pursue religious liberty.   The Fortnight for Freedom should remind us of our proud history of religious liberty and point out how state incursions are strangling this fundamental freedom.  Part of this education about religious liberty should include how sweeping state regulation of secular values will end vital social services in adoption, immigration, adoption, feeding the destitute and health care by religious groups which are serious about their core beliefs.