November 28, 2015

Utah Politico Summer Reading: Senator Mike Lee [video]

Utah Senator Mike Lee

Utah Senator Mike Lee

It’s not too late to start a new book. And if you need a good idea or two, here are a few that Utah’s politicos are reading.

This is the seventh in the series on what Utah’s politicians have on their summer reading lists.

Senator Mike Lee has represented Utah in the U.S. Senate since 2010. When I asked what was on the Senator’s summer reading list, I didn’t expect a full explanation of why it was and what he enjoyed about the book. 

After all, Senator Lee is a busy guy, and even state legislators have sent me little more than a list of the books they expect to open this summer.

So, while it’s possible someone else out there is looking for Senator Lee’s summer reading list, I’m excited to present to you what’s on Senator Lee’s reading list in his own words.

Thank you, Senator. I much appreciate it.

 Mike Lee’s Summer Reading:Coolidge cover copy

Coolidge by Amity Shlaes

Usually, I’d insert Amazon’s description of the book here, but Senator Lee’s description of the book is more interesting.

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Dan Liljenquist is Right

GOV_dan-liljenquist-1There’s been a lot of talk over the past few weeks about Dan Liljenquist’s op-ed in the Deseret News along the lines of “how dare Dan do this, Mike Lee is a patriot!” or “Senators Cruz, Lee, and Paul are right.” What gets lost in all of this talk is one simple little truth:

Dan Liljenquist agrees with you.

How could that be? He said that Senator Lee was wrong. What got lost in the message is that he didn’t say that Senator Lee had the wrong content, just the wrong tone. Instead of working to advance his goals via negotiations, via using his influence to build relationships and then persuading people to come over to his side (to repurpose a metaphor in the article), he doused the middle ground in gasoline and set it on fire. His tone was so strident, so unyielding, and so virulent that no Democrat in his right mind would support him. In other words, because his tone was so combative, he didn’t have any opportunity to actually influence the debate in a positive direction.

Official portrait of United States Senator Mik...

Official portrait of United States Senator Mike Lee. (Photo credit: Wikipedia)

I’ve heard Senator Lee compared to Senator Charles Sumner, the Massachusetts Republican who was beaten with a cane on the Senate floor for his support for abolitionism. What’s more amazing is that this comparison has been made in the vein of “he’s amazing, he’s just like Sen. Sumner, willing to fall on his petard for his convictions.” That’s all well and good, and I appreciate him having those convictions. At the same time, is that how Senator Lee should be remembered – as a footnote in the history books? As the answer to a trivia question in 2140? Wouldn’t it be better if he was remembered not as a footnote, but as someone who actually helped fix our constitutional issues, instead of the guy who stood up there waving his US Constitution on bow of a sinking ship (to mix my metaphors).

What’s lost in the Sumner comparison is that Sumner didn’t help free the slaves. He didn’t do one thing to solve that particular problem. He’s not Lincoln’s forbearer, he’s not someone who made the US stronger. On the contrary. He’s a Senator who went in to the Senate and helped polarize the nation enough that not only was he beaten half to death on the Senate floor, but who also helped contribute to the deaths of 750,000 Americans in the Civil War.

Would the Civil War have happened if Sumner had been more of a uniter instead of a divider, to borrow a Bush-like turn of phrase? Nobody knows, and it’s not necessarily ideal to armchair quarterback the issue from 150 years in the future. What I do know is he certainly drove his own personal wedge in an already divided nation. That’s what Senator Lee has done, is staked his position and driven his wedge.

What he should have done is thrown his wedge away and worked as much as possible with the other side to stop the ACA (Obamacare). Perhaps he could have pulled out a one year delay in its implementation. That’s something that even strident progressives like Jon Stewart support. Perhaps he could have then used that time to work on his fellow Republicans to work with their colleagues and friends on the other side to mitigate, further delay, or stop all or part of the ACA from happening. At the end, we will never know because he chose to do his part in driving the Senate apart.

It’s my opinion that there is no honor in being the lone voice in the wilderness driving people away with an uncompromising, unlistening voice. What there is honor in is being that voice of sanity and of reason and bringing others over to your side, thereby actually causing change instead of just screaming at the top of your lungs that people should change. That is ultimately what I think Dan Liljenquist was saying, and I agree with him.



“Time Changed Hatch” Mailer Factually Correct

Is Freedom Works as dishonest as Freedom Path?

Over the last couple weeks, I’ve looked at a couple of maligning mail pieces sent out by the shadowy Freedom Path PAC whose primary purpose appears to be to malign incumbent Senator Orrin Hatch‘s opponents.  Both mail pieces appear to distort and misrepresent Hatch challengers Chris Herrod and Dan Liljenquist. Read the posts on the “Two Scoops” or “Double dip” mailer here and the “Jobs not Made in the USA” mailer here.

As per my promise, I will also analyze for factual accuracy the mailers sent by the anti-Hatch Freedom Works PAC. This post looks at a mailer I call “Time Changed Hatch.”  As with the last two mailers, I have tried to go to the primary sources and have also reached out to the Hatch reelection campaign for any kind of response they might have. They have directed me to the site but declined to respond directly to the mailer any further. I have utilized their site to augment my research into the primary sources.  Since the site appears to be more focused on the larger Freedom Works mailer (as in, it’s 45 pages long), I expect finding it more useful when I present that analysis.

Analysis: “Time Changed Hatch” Mailer Attempts to Paint Hatch as Changed by Washington

The mailer opens with the following paragraph:

“In 1976, Orrin Hatch went to Washington. And just as time has shaped Utah’s unique landscape, thirty-six years as a Washington insider has changed Orrin Hatch into a big-spending, big-government politician.”

This, then, is the thesis of the entire effort to remove Senator Hatch from office and not really a fact so much as an argument. It’s classic Tea Party rhetoric.   The question: is Senator Orrin Hatch really a big-spending, big-government politician?

I will let you answer that yourself.  It’s really a statement that is relative to your own perception of what “big” is and whether it is good or bad. I will note this: Senator Hatch, with thirty-six years in the US Senate, has a record that has been examined by many organizations, lobbyists, and activists. As the Hatch campaign pointed out to me, the American Conservative Union has given him a lifetime rating of 90%, the National Taxpayer’s Union this year gave him the highest rating in Congress, and the Club for Growth gave him a 97% rating for his pro-growth policies. These are just a few. Find a more thorough list of organizations that have honored him here

Clearly, reasonable minds can disagree. So, I won’t answer the question about whether Senator Hatch is a “big-spending, big-government politician.”

On the other hand, the “Time Changed Hatch” mailer lists five specific bullet points in support of the statement that we can look at for accuracy.

The Statements: Five Votes or Types of Votes

  • Statement 1:Voted 16 times to increase the debt ceiling by a whopping $7.5 trillion–accounting for half of our nation’s debt.”

That Senator Hatch voted 16 times to increase the debt appears to be mostly TRUE, though I could only verify 14 votes, and I’m not going to discuss the total amount. (I suspect that somebody is going to correct me on the missing upon posting).

  1. Senate Vote #298 (Sep 29, 1981).
  2. Senate Vote #23 (Feb 6, 1981).
  3. Senate Vote #851 (Sep 23, 1982).
  4. Senate Vote #115 (May 25, 1983).
  5. Senate Vote #663 (Oct 12, 1984).
  6. Senate Vote #371 (Dec 11, 1985).
  7. Senate Vote #636 (Aug 15, 1986).
  8. Senate Vote #262 (Sep 23, 1987).
  9. HR 3136 (March 28, 1996).
  10. HR 2015 (June 25, 1997).
  11. S.2578 (June 11, 2002).
  12. HR 4 (April 1, 2004) .
  13. H.J. Res. 47 (March 16, 2006).
  14. H.J. Res. 43 (September 27, 2007)

Editorial Comment: Whether raising the debt at any one of these particular points is public policy question that I am not addressing here. It should be noted that a number of these votes (the first eight) occurred and were signed by President Ronald Reagan. With as often as we see politicians of all stripes (even Obama has tried) trying to channel the Gipper, I think it is relevant to note that President Reagan would have had to sign off on each of the debt increases that passed the House and Senate.

  • Statement 2:“Supported the “TARP” $700 billion Wall Street bailout.”

This statement is TRUE.  Senator Hatch did vote for TARP. According to the roll call list, Senator Hatch, along with then Senator Bennett, voted “Yea” on H. R. 1424, better known as “TARP” or “Troubled Assets and Relief Program.”  The bill’s stated purpose was to “provide authority for the Federal Government to purchase and insure certain types of troubled assets for the purposes of providing stability to and preventing disruption in the economy and financial system and protecting taxpayers.”

  • Statement 3: “Voted for numerous bills filled with pork-barrel earmarks–in 2010 Hatch was the 3rd highest earmarker out of all 535 members of Congress.”

This statement appears to be TRUE.  If you surf over to, there is an excellent database on earmarks and what each member of Congress has earmarked.  If you click on the link on the left that says “Member’s with the highest total” you find a list of the top ten highest earmarking members of the Senate and the House. Senator Hatch was #3 on this list in 2010, the year in the Freedom Works “Time Changed Hatch” mailer. However, on that same page you can find that in 2009 Senator Hatch is not even in the top ten list.

Editorial Comment: Whether earmarks are “bad’ per se is an open question. Unlike a lot of other spending methods, earmarks are transparent and open, and, in reality, the way that Congress was designed to work. Federal earmarks account for only .5% of the budget, and in fiscal year 2010, cutting out Senator Hatch’s earmarks  (worth $358,815,000 for Utah) would have left another $10.7 billion in earmarks. If the federal government is going to spend, then earmarks are about the most benign and transparent way it happens.

  • Statement 4: “Co-sponsored the Obama-like Individual Mandate for Health Care, a law that forces individuals to purchase health insurance.”
, member of the United States Senate.

Image via Wikipedia

While it is TRUE that Senator Hatch did co-sponsor S.1770 in 1993per the “Time Changed Hatch” mailer, what is unclear is whether it was “Obama-like.”Looking further at the bill summary, the bill appears to provides for, among other things, “access to health insurance coverage under a qualified health plan for every citizen and lawful permanent resident of the United States” (universal coverage regardless of citizenship status),  “nondiscrimination based on health status” (preventing insurance companies from discriminating based on preexisting conditions), imposes a mandate on states requiring them to comply with certain insurance certification and enrollment requirements, and allows an exemption from a universal coverage mandate for those with religious scruples that prevent participation in “health plan coverage” (that last one I thought was odd, but, there it is…).

Therefore, it does appear that S.1770 required that all individuals be part of the national healthcare plan, or what is better known as an “individual mandate.” While states may legally do as much within their own states (as did Massachusetts), whether such is constitutional on a federal level raises is an open question and will be argued before the Supreme Court this year. (See more about that debate here).

  • Statement 5Partnered with liberal Ted Kennedy as a co-sponsor of SCHIP, described as ‘…a precursor to the new [universal health care] system.”

This statement is TRUE.  Senator Hatch did co-sponsor SCHIP with Senator Ted Kennedy (and 23 other Senators, too) in 1997, as was highly reported in the news media at the time. It was seen as sufficiently significant at the time that Wikipedia even makes a note of  Senator Hatch’s co-sponsorship with the support of then First Lady Hillary Clinton in the second paragraph of the entry on SCHIP.  The New York Times reported at the time that

Senator Orrin G. Hatch, a conservative Republican, today embraced a major Democratic effort to provide health insurance for half of the nation’s 10 million uninsured children, saying he would become the chief sponsor of the legislation.

Senator Hatch explained that he took the step across the aisle to show that “the Republican Party ”does not hate children,” and he added that ”as a nation, as a society, we have a moral responsibility” to provide coverage for the most vulnerable children.”

CONCLUSION: Freedom Works “Time Changed Hatch” Mailer is factually true.

While reasonable minds can, and do, disagree on the wisdom of the above cited votes by Senator Hatch, the statements Freedom Works makes are largely true. In fact, I’m not sure that any of them appear to distort his record in any way. The only statements that seem to be questionable, in my assessment are the following:

  • “…36 years in Washington Changed Orrin Hatch.” This is up for debate. Yes, the man is three and a half decades older, but change can swing both ways.
  • “Obama-like Individual Mandate of Health Care[.]”  I have not addressed how comparable the mandate Senator Hatch voted for and co-sponsored is to the American Healthcare Act because such would need more space and time than I care to give the issue and than you care to read. However, on its face, there are many relevant comparisons. (For more on the American Healthcare Act before the Supreme Court, go here).

The striking contrast between the mailers sent by Freedom Path (pro-Hatch) and those sent by Freedom Works (anti-Hatch) is stark. Where Freedom Path grasps at straws and makes very distorted spins on Liljenquist and Herrod’s records, Freedom Path takes an almost “high road” approach. “Here are the votes,” Freedom Works says, and “we think they lead to a certain result.”

With that in mind, please carefully consider the facts and whether they support your policy preferences. Freedom Path is demonizing Liljenquist and Herrod without any basis; Freedom Works is pointing out policy points with a very real basis in Senator Hatch’s record. Happy hunting!

[U.S. Senate Roll Call on H.R.1424] [S.1770 “Individual Mandate” Bill Summary] [S.674 “SCHIP” Bill Summary] [New York Times] [CQ Earmark Database]

Could you say “President Ryan” in 2013?

WASHINGTON, DC - APRIL 05:  U.S. Rep. Paul Rya...

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Rep. Paul Ryan is thinking about running for the soon to be vacated US Senate seat in his state.

I think he could do better. And so could America. We could draft him for the Presidency.

In truth, a presidential run makes a lot more sense for Ryan than does a Senate race. Ryan is already the de facto leader of the Republican Party on the most critical issues of the day. If he’s concerned about spending time with his family, what better way and better time (when they are little and not distressed teenagers thrown into the national spotlight) to bond with them than a family ad­ven­ture seeing America followed by a job where dad could work from home? While there are many potential candidates for the Wisconsin Senate seat, who among the current presidential contenders is really up to winning and then governing? A new poll shows a plurality of GOP voters don’t think any of them is. (“Some 45 percent now say they’re dissatisfied with the GOP candidates who have declared or are thought to be serious about running, up from 33 percent two months ago, according to an Associated Press-GfK poll. Just 41 percent are satisfied with the likely Republican field, down from 52 percent.”)


One Senate seat is not vital to the republic, but Ryan himself has made the case how critical it is to address our looming debt crisis now. Without the White House and without someone exceptionally capable to advocate for it, it’s hard to see how the “The Path to Prosperity” is ever going to be enacted. I’m at a loss to think of another Republican who can bring together Tea Partyers, wonks, social conservatives, hawks, libertarians, Wall Street and Main Street Republicans and connect with a new generation of Republicans.

In a very practical sense, the question for Ryan is: Why not give his party and the country six months (September 2011 to February 2012)? By then he’ll either have failed to catch fire or he’ll have a clear path to the presidential nomination. Six months. Twenty-four weeks. For a politician constantly at work in Congress, in town halls and in media appearances, that doesn’t sound like that much. (In fact, I would venture that his schedule is more rigorous now than the average presidential contender’s.)

You see, there is no good reason for Ryan to avoid a presidential run. Sometimes, if you don’t see the opening and seize it, a better one never comes along. Bill Clinton understood this in 1992.

via If Paul Ryan can run for Senate, why not for the presidency? – Right Turn – The Washington Post.

Take the opening, Representative. Take it.

For an earlier post where I have looked at Rep. Ryan’s work on the budget, check here.

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Looking at “Signing Unconstitutional Laws” by William Baude (part 1)

Abraham Lincoln, the sixteenth President of th...

Image via Wikipedia

What I’m reading right now, continued: William Baude “Signing Unconstitutional Laws” 86 Ind. L. J. (forthcoming 2011).

Recently, I’ve heard a lot of talk, primarily from the Tea Party wing of the political right, about how law makers should not pass into law legislation that is unconstitutional.  I know of at least one candidate who made this his main campaign promise and the pillar upon which he removed an 18 year incumbent in the race for one of Utah’s U.S. Senate seats.

With this context, I ran into Baude’s article, referenced in a blog.  I won’t say I agree with it, at least not yet, but I do think his thought bear evaluation for public policy‘s sake.

According to Baude, the argument threads a line between those who believe the president should not sign anything that he thinks is remotely unconstitutional, and those who believe that “constitutional principles should give way to pragmatism.”  He dismisses both sides, but allows that there are situations, indeed situations where the constitutional duties of the President requires he sign laws that may have unconstitutional provisions:

In a wide range of cases, there is nothing wrong with signing unconstitutional laws. These cases involve constitutional tradeoffs between the President’s duties to prevent unconstitutional laws from taking effect, and his affirmative duties to make good on certain constitutional protections. At the same time, the President must exercise this power responsibly: so he must both have other constitutional duties that justify signing the remainder of the bill into law, and must be prepared to use his other powers to prevent the unconstitutional provisions from being
executed. But there is no categorical duty to veto.
However, disregarding unconstitutionality is not an issue of pragmatism nor has there been sufficient legal framework articulated for a President to do so.  Baude’s framework for those situations where the President can, or may, sign legislation with unconstitutional provisions, is founded on two prongs:
  1. The Presidential oath requires the President to uphold the constitution, and the President has more tools at his disposal to do so than just his veto.
  2. The President’s obligation to uphold the constitution requires him to help pass laws, “especially in the national security and individual rights context.”  Often, a veto is not likely to produce a better proposal, and the president is under some obligation to sign the proposal.

more later….

Why is Elena Kagan smiling? Hint: no more job interviews.

(Rafael Suanes / MCT / June 29, 2010)

Elena Kagan‘s nomination went to the floor of the senate today.  Her nomination to our country’s highest bench will be debated on the floor, but her confirmation is all but assured.  In fact, with five Republicans already stating that they will vote for Kagan’s nomination, the debates will have less to do with her being on the bench and more to do with the posturing of Senators for C-SPAN and their home town voters.  So, barring a major cataclysm or revelations that Kagan is an illegal alien, Kagan will soon take her seat on the U.S. Supreme Court…and will never need another job interview, again.

Oh, and I suppose I should note the odd Democrat that has decided to vote against Kagan.  Democratic Senator Ben Nelson of Nebraska has decided to side with the majority of Republicans in voting against Kagan. He’s citing “social issues” as the reason.  He said he had:

“heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded.”

Previous Coverage at Law After the Bar:

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