Frank’s Case Book

Partnership With Faith-Based Communities

February 4th, 2001

If one had $1000 to alleviate the suffering of others, would it be wiser to donate the funds to the Salvation Army or to the Department of Health and Human Services? The obvious answer to this question lends itself to the possibility that some government resources may be more effectively deployed to faith-based institutions and other local community groups. While government-provided social services form the necessary “social safety net,” it has become clear that some problems seem amenable to more decentralized efforts.This last week, George W. Bush established a White House Office of Faith-Based and Community Initiatives devoted to reducing regulations and abating barriers that unnecessarily stand in the way of cooperation between the government and communities of faith in alleviating social problems. Though taxpayer funds may be used by religious organizations, Bush’s initiative directs that “delivery of social services must be results oriented and should value the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” Secular non-profit organizations will also be enlisted in a “multi-pronged effort that focuses on community, non-profit, and faith-based” organizations “to deliver social services.”

For some on the Left there is the fear of theocratic, government-funded institutions requiring testaments of faith before social services are rendered and the suspicion that private institutions will replace public obligations to those in need. For those enamored of regulations like the American Civil Liberties Union (ACLU), Bush’s initiative represents “a dangerous loosening of licensing and standards for providers of social services.” These concerns on the Left are matched by worries on the Right that government funds will inevitably bring with it controls that will undermine the mission of religious organizations. Religious institutions might become less effective precisely because they become too entwined with government.

Bush has selected a Democrat, Professor John DiIulio of the University of Pennsylvania, to head his effort. DiIulio is sensitive to these issues and will probably proceed deliberately and carefully in implementing a partnership between the government and various community institutions.

There are some core principles that can serve to avoid compromising both religious neutrality on the part of the state and the integrity of religious institutions.

Openness

Social services offered by any institution directly funded by the government must be available to all eligible people regardless of religious belief. This is actually a rather simple burden to meet in many cases. By far, the most common social outreach efforts provided by churches are soup kitchens. Providing food does not involve any direct religious component. Although such services might be provided in a religious environment, crosses on the walls in the basement of a church, for example, the service itself does not require any religious affirmation by clients. Care should be taken to insure that a diversity of service providers is available so that those uncomfortable in a religious environment can be accommodated.

Avoid Use of Government Funds for Overhead

Religious institutions should scrupulously avoid relying on government funding to pay for overhead costs or other core expenses. The church or temple mortgage payments should not be dependent on continued government support of a program. If government requirements become too onerous or appear to conflict with the mission of a religious group, such organizations should be able to comfortably walk away from previous arrangements.

Empower Individuals to Choose Service Providers

If faith or spirituality is required as part of a program, that service should be provided via a voucher given to the client rather than direct government funding. Clients should be able to choose the program, secular or not, that best serve their needs. By using the intermediary of the client, government can avoid excessive entanglement with religious institutions while supporting successful programs. This approach in this context has not yet been embraced by Bush, but may become a option as Bush’s initiatives grow.

The most problematic situations occur when social services involve a faith component. For example, some faith-based programs for drug and convict rehabilitation have a spectacular record of success and this success is dependent upon the emotional and spiritual support associated with faith-based ministries. Joseph Califano, Secretary of Health, Education, and Welfare for President Jimmy Carter and a Great Society Democrat, explained in an interview with US News and World Report that ex-drug addicts he comes into contact with invariably claim that religion was an important component in their rehabilitation. Seriousness about significantly reducing drug addition requires encouraging the efforts of faith-based and faith-centered programs.

Secular drug rehabilitation programs have recidivism rates of over 50%. By contrast, Charles Colson, reformed Watergate criminal, reports “San Antonio’s Victory Fellowship a Christian program has a recidivism rate of 20%. Prison Fellowship’s Transition of Prisoners Program, which includes a focus on substance abuse, has a recidivism rate of 9%.”

It is shortsighted to deny desperate clients access to programs with proven success records. Government neutrality with respect to religion can be maintained by allowing clients to opt personally between secular or faith-based programs.

Common Sense, Sensitivity, and Tolerance

Government funds have found their way to private faith-based institutions in the past in ways that have benefited the community and avoided un-Constitutional entanglement between the state and church. Many private universities in the country are affiliated with churches, yet students use government grants and loans to attend these very schools. Church-affiliated hospitals manage to accept Medicare payments with little problem.

There will be some on the Left that will seize any case where a faith-based institution improperly uses funds to undermine the entire effort in much the same way that “welfare queens” were used to undermine support for welfare. There will be those on the Right that chafe at legitimate requirements for financial accountability on some private institutions. Wisdom is the key to reconciliation of these problems.

George Bush’s experience in Texas provides a useful example of the application of common sense. In 1995, a Texas agency stopped funding a very effective Christian anti-drug organization because the counselors in the program lacked the state-mandated classroom hours. In the words of Marvin Olasky, the guru of compassionate Conservatives,

“When the organization’s drug-free alumni from diverse ethic origins demonstrated with great Texas resonance at the Alamo, cards and letters poured into the Governor’s office. Governor Bush had the political acumen and human concern to come to that group’s aid, and then propose legislation to pen up the regulatory dogs.”

This experience explains Bush’s emphasis on evaluating programs on the basis of “results” not mere technical rule compliance. Bush’s current efforts are fraught with potential difficulties. Political enemies are sure to seize upon any set back. However, not to pursue this approach is to allow fear and cynicism to prevent the alleviation of suffering.

For their part, faith-based institutions should consider a permutation of the Serenity Prayer:

God, grant us the serenity to accept government funds when appropriate,
Courage to eschew such funds when they threaten our mission, and the wisdom to know the difference.

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Parting Gifts

January 28th, 2001

If you are the kind of person who enjoys waxing indignant about corrupt behavior or shamelessness, Bill Clinton is certainly the gift that keeps on giving. For most, Clinton is like the recalcitrant party guest who is oblivious to hints and insists on staying a little longer than welcome. In the case of the transition of presidential power between Clinton and George W. Bush, Clinton is more like the party guest who not only outstays his welcome, but also feels entitled to depart with a few souvenirs.

Consider the last few weeks:

Clinton entered a deal with Special Prosecutor Robert Ray to avoid prosecution. He admitted to knowingly giving false testimony. Within hours his spin meisters were claiming that Clinton did not really admit to lying.
Federal law prohibits executive branch officials from lobbying their agencies for one year after leaving office. When Clinton came into office in 1992, he extended this period to five years by executive order. This provided two benefits. He kept former Bush officials from lobbying and secured the moral high ground. Now at the end of his term, Clinton rescinded the order, allowing former Clinton officials to engage in the same lobbying he prohibited to ex-Bush officials.
On George W. Bush’s Inauguration Day, Clinton tried to steal reflected limelight and bask in the trappings of office a little longer by giving two televised farewell speeches, one in Washington and one in New York. He also arranged for a Saturday radio address on Inauguration Day. This behavior is the moral equivalent of grasping onto the White House door as Constitutional circumstances pulled him away.
In his last night in office, Clinton issued a blizzard of pardons and clemencies, a third of which had never been formally reviewed by the Justice Department. The pardons included Marc Rich, a multi-millionaire who is accused of conspiracy, tax evasion and racketeering and even trading with Iran while they were holding US citizens as hostages in the late 1970s. Rather than face charges in court, Rich fled and has spent the years in luxury in Switzerland. The pardon has been criticized even by Clinton supporters, especially since it appears the pardon may have been a repayment for $1.1 million in donations to the Democratic Party by Rich’s ex-wife in the United States.
Four Hasidic Jews were convicted of cheating the federal government of $40 million. The usually conservative Hasidic vote in Rockland County, the home of the convicts, voted nearly unanimously for Hillary Clinton in her successful run for Senate, after which the pardons were issued.
In the last week, it has become apparent that the Clintons have ridden into the sunset with nearly $200,000 in house furnishings, china, and flatware donated to the Clintons in the last year. People knew what items to contribute because the Clintons registered what they needed. The booty even includes some furnishings donated by the Richs.

Clinton is not directly responsible for those who serve him, but his example cannot help but be noticed by those who look to him for leadership. The new President Bush dispatched the jet normally used as Air Force One to ferry Clinton and his party to New York. According to yet to be confirmed reports, this graciousness was repaid by members of the Clinton party with the petty theft of items from saltshakers to china marked with the presidential seal. In the offices of the Executive Office Building, ex-staffers engaged in everything from the charming prank of removing W‘s from computer keyboards to apparent vandalism.

The actions of Clinton and his minions over the last week are perhaps unintentionally the best gifts that could have been presented to George W. Bush in his first week as President. In the immediate juxtaposition of the comportment of Clinton and Bush, Bush’s star rises. Clinton’s tawdry behavior made it seem that this last week a mature adult was taking over the presidency from a clever, but narcissistic adolescent. As people remember what it is like to have a President whose character one can respect, they will wonder why they were ever satisfied with less.

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How an Attorney General Enforces the Law

January 21st, 2001

Harry Beck was a telephone linesman and a member of the Communication Workers of America Union. If he wanted to be a linesman he really had little choice about membership. If you want to be a linesman, you are compelled to pay union dues. Beck, however, was displeased that part of his dues were used for union political activities contributions to candidates and lobbying for legislation.

With the support of the National Right to Work Foundation, Beck sued his union and the suit ultimately wound its way to the US Supreme Court. In 1988, that court ruled that Beck’s First Amendment right to free association precluded the Communications Workers of America from, in effect, compelling Beck to support political activities. Workers who are compelled to pay union dues, the court said, are free to withhold that portion of the dues devoted to political activity.

Belatedly in 1992, George H. Bush issued executive order 12800. The order required federal contractors to post in a conspicuous place worker rights under the Beck decision. When Bill Clinton became president, he wasted little time. In February 1993, Clinton paid back union support and withdrew the executive order. The decision in Beck versus Communication Workers of America is the law of the land, but Clinton was in no frame of mind to enthusiastically pursue enforcement. Free association rights for union workers were not a priority for the Clinton administration.

The focus here is not on the wisdom or folly of the Beck decision. Rather, it is to place in context the derisive question conjured up by Democrats as to whether John Ashcroft will enforce the law as US attorney general. Of course, he will enforce the law, but the question is ill-posed and not particularly illuminating. Then again, the purpose of the question was not to shed light but rather to paint a picture of darkness.

Attorneys general, like all prosecutors save independent counsels, have finite time and funding. They must, therefore, set priorities in the application of those resources. This is a good thing. Who would enjoy a society overseen by prosecutors with unlimited resources rigorously enforcing laws without the necessity to exercise judgment.

Reasonable people can disagree as to the best apportionment of resources for pursuing violent or white-collar crime. However, the selection of these priorities is a reflection of the values and standards of an administration. How much effort is devoted to enforcement of environmental regulations, organized crime, or anti-trust laws is a measure of where an administration believes the nation’s problems lie.

It is a safe bet that George W. Bush and his attorney general will devote fewer resources to raiding the compounds of religious cultists, storming Miami homes at gunpoint in search of young illegal Cubans, and seeking out and eradicating instances of possible federal aid to Boy Scouts. Squandering prosecutorial resources dissipates the moral authority of an administration. The sage and thoughtful enforcement of the law, by contrast, can help define an administration and reinforce and support its legislative initiatives.

For example, it is a melancholy fact that a large number of African-Americans are concerned that Bush’s aversion to a racial spoils system and race-based preferences will undermine the ladder to educational and employment success. The Bush position imposes an additional moral burden to aggressively enforce anti-discrimination laws. Vigorous enforcement of equal protection laws can validate the Bush claim to be a uniter.

Bush is also unconvinced of the efficacy and legality of the proliferation of laws restricting the Second Amendment freedom to bear arms. If Bush believes that such laws unreasonably constrain law-abiding citizens, he is under an additional obligation to prosecute and jail those convicted of using a gun in the commission of a crime. Again priorities in enforcement define an administration’s vision.

Some Democratic Senators in the Ashcroft confirmation hearings were so bent on angrily satisfying their core constituencies that they failed to ask the real and important questions. Rather than asking Ashcroft if he will enforce the law, they should have asked about his priorities in enforcement.

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Prying Eyes

January 14th, 2001

One of the problems with the nation’s war on drugs is that it has sometimes degenerated into a war on the Fourth Amendment’s guarantees from unreasonable searches. Since drug use and sometimes drug sales largely involve private activities conducted behind closed doors between consenting parties, there is an incentive for law enforcement activities to push the envelope of permissible searches. Given the legitimate and reasonable public enthusiasm for discouraging drug use, there is also a strong incentive for courts to allow the fabric of the Fourth Amendment to fray a little at the edges. In a case scheduled for oral argument on February 20, 2001, the US Supreme Court will have an opportunity to keep a snag from unraveling.

The formerly married couple Danny and Luanne Kyllo resided in one unit of a triplex in Florence, Oregon. Luanne had been arrested in late 1991 for the “delivery and possession of a controlled substance.” An informant further suggested to law enforcement authorities that Luanne was a source of marijuana. There was, therefore, plenty of reason for the police to be suspicious of the couple.

As part of the investigation, the utility records of the couple were subpoenaed from the power company. These records suggested disproportionately high energy usage by the Kyllo’s unit of the triplex. Excessive energy usage could be indicative of high-energy lamps used in the indoor cultivation of marijuana. While it is possible to conjure up alternative explanations for this energy usage, the clues gathered would certainly be ample enough for competent law enforcement officials to pursue the case.

At 3:20 am in the morning of January 16, 1992, a federal drug task force enlisted the help of the Oregon National Guard and their Agema Thermovision 210. This thermal imaging device produces an image that maps the emission of thermal radiation. In this case, the image indicated an unusually high level of thermal energy emitting from one wall of the Kyllo house. One the basis of this information, a federal magistrate granted a search warrant, a search ensued, and suspicions were confirmed. The indoor marijuana cultivation setup was discovered and the Kyllos were arrested and convicted.

The question before the US Supreme Court is the legality of the warrantless use of the thermal imaging device. If the police had gone to a magistrate with the high energy bills in hand and the information from the informants, they probably could have obtained a warrant to use the imaging device. However, the authorities neglected to do this.

Danny Kyllo argues that the use of the thermal imaging device constitutes an unreasonable search and the evidence from the sensor, evidence that was used to obtained a subsequent warrant for a physical search, should be thrown out. If the use of the thermal imaging device does constitute an illegal search, Kyllo’s conviction would be overturned.

The test in this case, according to the 9th Circuit Court, is whether Kyllo had a reasonable expectation of privacy or whether the use of a thermal imaging device constitutes general police observation. Kyllo argues that since the cultivation was moved indoors, he had a reason to believe the cultivation was done in private.

The Circuit Court ruled that “thermal imaging technology in this case does not constitute a search under Fourth Amendment standards” because the imaging device “did not literally or figuratively penetrate the walls of the Kyllo residence to expose this activity.” Further it ruled that merely transferring marijuana cultivation indoors does not mean that Kyllo had a reasonable expectation of privacy. He had no such expectation in the Circuit Court’s view because “he took no affirmative action to conceal waste heat.”

This decision is troubling. Does it imply that as police surveillance technology increases, the normal expectation of privacy within the home decreases unless one becomes aware of these technologies and takes active measures to devise additional barriers to observation? A person could not read a document in my hand from the street, but a person with a telescope might be able to. Am I protected from a telescope search without a warrant? A person from the street cannot hear a conversation in my house. Sensitive sound amplification equipment might allow law enforcement officers to listen in on conversations assumed to be private. Is a citizen required to play background music to prevent such monitoring before that citizen can expect a conversation to be private? If I encrypt an e-mail message, does that action mean that I have a reasonable expectation of privacy for that message? What happens if decryption technology improves? Does a citizen have to continually improve encryption to maintain the expectation of privacy in a measure versus countermeasure spiral?

Judge Michael Hawkins of the 9th Circuit Court wrote, “Whatever its Start Wars capabilities, the thermal imaging device employed here intruded into nothing Rather it measured the heat emanating from and on the outside of the house.” Such a distinction lacks understanding. If the police used a high powered telescope to look through a window, I am sure we would all believe that our expectation of privacy had been broached even though the “imaging device employed here intruded into nothing.” We would not be consoled by the fact that the sensor only measured multi-spectral radiation emanating from the house.

During the arguments before the Circuit Court, attorneys pointed out that even more sophisticated thermal imaging devices would be able to detect sexual activity within a house. I suppose one could secure a reasonable expectation of privacy by carrying on such activities behind blankets of high thermal absorption, but how many people are concerned about such technological matters at such times?

The Circuit Court dismissed such concerns in this case because the imaging resolution was not sufficient to expose detailed activities behind closed doors. This could be a reasonable distinction, but no guidance is offered as to how detailed such passive observations must be before they constitute a search. Are imaging devices different from non-imaging ones? How are audio surveillance technologies to be treated?

The Fourth Amendment presupposes that in some cases people want to be left alone out of the constant observation of the state or the public. Who wants a society where we are constantly gazing over our shoulders to see who is watching us? Who wants to live in a society where private citizens have to resort to greater and greater precautions to avoid the prying of new technologies?

Let me respectfully suggest that if the Conservatives on the Supreme Court really wish to adhere to the doctrine of “original understanding” they should ask themselves how much intrusion into the activities on their private premises the Founders would have tolerated. Drug use creates enough victims by itself. We do not need to add to this list of victims the Fourth Amendment.

References

Northwestern University, Kyllo, Danny v. US
United States of America versus Danny Lee Kyllo, US 9th Circuit Court of Appeals Opinion.
Rosen, Jeffery, “Here’s Looking At You: Does The Court Understand Privacy?” The New Republic , Issue 4,474, October 16, 2000, 24-28.

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Unsolicited Advice

January 7th, 2001

In the latest presidential election, Republican George Bush managed to persuade less than 10% of African-Americans to vote for him. If you believe some of the silly Democratic rhetoric from partisans in Florida, you might be inclined to conclude the Al Gore would have garnered an even larger percentage from this community if the ballots were not so confusing.

The truth is that African-Americans are as culturally and economically diverse as other groups in America. There are married and single black Americans. Some are elderly and some are young. Some are wealthy, while others struggle economically. Some are religious. Some are secular in outlook. Some reside in urban areas, while others live in the suburbs or in rural parts of the country. Some African-Americans are robustly healthy, while others suffer from chronic illness. Some are well educated having earned professional and graduate degrees. Others are burdened by illiteracy. African-Americans occupy virtually all niches in American society.

How then it is possible that there is such uncanny unanimity in voting patterns that is inconsistent with the wide diversity of circumstances for black Americans? Some how racial identity and solidarity have been made to trump the differences of economic and cultural circumstances. While African-Americans still share the experience of some measure of discrimination, this alone seems insufficient to account for current voting patterns. By any objective consideration, George Bush extended more of a welcoming hand to the African-American community than other Republicans candidates who received a significantly larger fraction of the African-American vote.

The truth is that some leaders in the black community now have a symbiotic political relationship with the Democratic Party. Commercials sponsored by the National Association for the Advancement of Colored People (NAACP) are an example of this relationship. They suggested that George Bush was somehow complicit in the brutal slaying of a black man who was dragged behind a pickup truck in Texas. So long as certain black leaders are the dominant intermediaries for the black community, Republicans will not be able to garner increased support.

It is not healthy for a two-party political system for one racial group to be so closely identified with only one party. In actuality, the strong support by blacks for Democrats reveals an important vulnerability. Excluding the black population, Republicans generally receive a significant majority of the vote. It is hard to imagine Democrats being able to increase their support from the black community. Not even union members vote for Democrats in such overwhelming percentages. On the other hand, if Republicans were able to make in roads in the African-American vote, it could severely undermine the Democratic coalition.

Here is some unsolicited advice to President George W. Bush as he embarks on his administration.

Do not be discouraged by the lack of black support and do not write off this important group. Try to go over the heads of Democratic black political leaders, by visiting directly with blacks in their own communities. Listen to problems and explain your vision of how to deal with these problems.
Empower the African-American community and wean them from a perceived dependence on the generosity of the Democratic Party. One important way to do this is to take advantage of the support in the urban black community for school choice. Bush should make sure that any implementation of school choice should be focused first on underprivileged communities. School choice would not only improve education is such communities, but would have a concomitant advantage of driving a wedge between the Democratic Party and the everyday black community.
Within in the African-American community churches are very important. It is out of these churches and church leaders that much of the civil rights movement began and is nurtured. Moreover, these churches provide important social services within their communities. George Bush should clear the way for government-financed provision of social services by faith-based institutions. Again, there are two advantages. Faith-based institutions have a good record of providing cost-effective and successful social services. In addition, such policy initiatives by Bush would separate black Americans from the largely secular and some cases anti-religious leftists in the Democratic Party.

During the Congressional session when Bush’s election was officially certified, California Democratic Congresswoman and African-American Maxine Waters objected to the submission of electoral votes for Bush from Florida. Al Gore chaired the session and asked Representative Waters whether she had the objection in writing signed by a member of both the House and Senate. Representative Waters responded that the objection was in writing and, she added, “I don’t care that it is not signed by a senator.” The key for George Bush is to show that he cares, unlike Representative Waters, for both the provisions of the Constitution and the economic and cultural success of all Americans.

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Radical Son

December 31st, 2000

Many people are Conservatives by default. Their parents were of a Conservative bent and they followed along the same path without much thought. Others grow to embrace their ideological heritage after thoughtful consideration.

For some not born to Conservatism, a key event fertilizes Liberal ground and a new Conservative blossoms from an unexpected place. Peggy Noonan, Conservative pundit and former speechwriter for Ronald Reagan, grew up in a working-class Democratic family in the Northeast. In the 1960’s, she realized that many fellow students who opposed the War in Vietnam did not do so out of love for America, but out of hate. The war was not only a mistake, but also evidence of the fundamental corruptness of America. This clash with her patriotic upbringing was the beginning of her political transformation.

Perhaps no one has journeyed quite as far from the dark side to the side of goodness and light or has as much to tell us about the Left as David Horowitz. Horowitz was a “red-diaper” baby raised in the forties by two committed Communists, Phillip and Blanche Horowitz. His father was a public school teacher who was suspended by the New York school system for refusing to say whether he was a Communist. Phillip was later given a cash settlement to make up for the suspension. The elder Horowitz even traveled to the Soviet Union as part of a political pilgrimage. Young David’s upbringing included Marxist instruction and even involvement in the protest of the Rosenbergs’ execution for espionage. No one could have better Leftist credentials.

Even as a young man, Horowitz was a proficient polemicist who debated from the Left in college. As an adult, he shored up his socialist credentials with six years of research and writing in London and worked for the Bertrand Russell Peace Foundation. When he returned to the United States, he was a charter member of the so-called New Left and a writer and an editor for a flagship of the Left, Ramparts magazine.

In his book Radical Son: A Generational Odyssey, Horowitz chronicles his transformation from the New Leftist to a Reagan Republican. Actually, the odyssey began with an unlikely event. After the death of Joseph Stalin in the Soviet Union, Nikita Khruschev came to power. The effort to solidify Khruschev’s hold over the Soviet Union required undermining the legacy of his predecessor. The Khruschev Report documented the cruelty and crimes of Stalin.

It is not remarkable that one totalitarian ruler built his reputation on the bones of another. The reaction of the Marxists in the West, however, is remarkable. With few exceptions and without much self-reflection, the Left embraced Khruschev and the Khruschev Report and its repudiation of Stalin with the same fierce loyalty they one lavished on Stalin.

Young Horowitz perceived this hypocrisy and devoted his early adult years to trying to reconcile the contradiction. In his writings, Horowitz tried unsuccessfully to recast socialism in a way that could avoid the excesses of Stalin. Is there an inherent tendency, he wondered, for Marxist regimes to become destructive of individual rights?

What also bothered Horowitz is that few on the Left even felt a need to address the question. Most were satisfied to just criticize corporate America and the West. Nonetheless, Horowitz worried about this large snag in the political cloth of socialism. This snag was the first flaw that unraveled Horowitz’s Leftist views and would later lead to what he labeled as “second thoughts.”

While at Ramparts, Horowitz became a confidant of Huey Newton of the notorious Black Panthers. To the Left, the Panthers represented the front lines of a coming guerilla war to bring about revolution in the United States.

For a while, Hororwitz overlooked his discomfort with the drugs and petty criminality of the Panthers. Part of the revolutionary doctrine at the time held that flaunting conventional laws was in itself an important revolutionary act.

This all changed when Betty Van Patter was killed while working as a bookkeeper for a community organization run by the Panthers. According to Horowitz, Van Patter asked too many questions and was killed by the Panthers. Horowitz was especially devastated since he had recommended Van Patter for the position.

The Left, many of them friends and acquaintances of Horowitz and Van Patter, turned aside and avoided looking at the obvious complicity of the Panthers. If the Panthers were linked to the murder, it would be a set back to the movement. The consequences for any particular individual could not stand in the way of the revolution. The Left just closed its eyes and forgot about Betty Van Patter.

Horowitz could not forget. Van Patter’s death pulled on the earlier snag of his earlier doubts about the practical consequences of the absolute loyalty required of the Left. Suddenly, the inability of the Left to address or even admit the brutality of the North Vietnamese, Communist China, and Cuba now played out in a very immediate and personal way. In the words of Horowitz:

“How could the Left be reformed, if it refused to confront itself? How could it propose to change the world, if it was unwilling to ask whether it ideas were valid? How could it transform the world if it couldn’t transform itself.”

When the Communist Sandanistas threatened to make Nicaragua into another repressive, dictatorial Cuba, Horowitz finally made public the transformation he had been undergoing for a decade and endorsed Ronald Reagan’s anti-Sandanista policies.

Horowitz is now as polemically active on the Right as he was once was on the Left. Not unexpectedly, many of his former allies and friends turned on him with a vengeance, some even suggesting that perhaps he was a CIA agent. In academia and left-leaning cultural circles he was no longer welcome. Horowitz contrasts the viciousness with which he was attacked by the Left for his apostasy with the relative forgiveness granted Gary Wills and Barry Lind whose political journeys were in the exact opposite directions as Horowitz’s.

What Horowitz faced is the inherent flaw in the socialist vision. Socialism views humans as perfectible if only provided with the right political and economic circumstances. Humans, we are told, can look to themselves to solve the problems of greed, envy, pride and the other sins that have burdened mankind. Socialism is always pointing to the vision of a utopian future and thus finds it easier to overlook casualties along the way.

The Conservative intuition is rooted in the past with the notion that the past provides a reliable guide to human nature. Humans have great capacities for both good and evil and governments are instituted to protect us from each other. Indeed, according to James Madison, “Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question.” This is a warning that the Left fails to acknowledge.

Madison added, “If angels were to govern men, neither external nor internal controls on government would be necessary. If men were angels there would be no need for government.”

The Left agrees with the latter statement and argues that the state will ultimately wither away as men become angels. However, in socialist states, people do not become angels and the degree of government management and intrusiveness increases. Madison and the Founders, by contrast, created a government with checks and balances to prevent tyranny. Under the US Constitution, not only was human imperfection conceded it was counted on. “Ambition must be made to counteract ambition” as a means to protect ourselves from each other.

As a consequence of their view of human nature, Conservatives ironically have proven more willing to forgive than those on the activist Left. What impressed Horowitz in his political odyssey was

“… the tolerance of conservatives I knew for human faults and failings, including my own. Some conservatives were like the flinty puritans of liberal caricature, but most of my new acquaintances and political associates were not. Over time, their tolerance became intelligible to me. What made one conservative was the recognition of the human capacity for evil, for just plain screwing up. That was why the rules were important. Not because conservatives expected no one to break them. But because having rules that were respected made it harder for people to do so. This was a more subtle in the long run more trustworthy form of compassion than liberals’ softness of heart.”

Not many people would have the intellectual depth and the emotional courage to make the political journey that David Horowitz did. Conservatives are better off because of it.

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The Case for the Electoral College

December 24th, 2000

Had the protest and contest of the Florida presidential election results not lasted so long and engendered so much bitterness, we would have had more time to focus on the real uniqueness of this election. Vice-President Al Gore won the popular vote, while Governor George Bush won the vote in the Electoral College and hence the presidency. If we were not obsessing over the dangling chad or the dimpled ballot, national attention might have lingered over the wisdom of the Electoral College.

It is ironic that before the election, Gore partisans were open to the possibility of an Electoral College win and a loss in the popular vote. They anticipated that an extraordinarily large margin in Texas for Bush, might overwhelm narrower victories by Gore in electoral vote-rich states like California and New York. The outcome, of course, was reversed. Bush won in the Electoral College.

There is an easy emotional appeal to the argument that the winner of the popular vote should be the next president. It conforms to our general notions of and sympathies with democracy. While the Founders appreciated the ethical imperative that the government should be based on the ascent of the governed, they also realized that the tyranny of the majority could be just as destructive as the tyranny of the few. That is precisely why they fashioned a limited government constrained by internal checks and balances and specific Constitutional limitations.

For example, the state representation in the House of Representatives is proportional to the population. The Senate, where each state is entitled to two representatives, balances the arrangement of the House. In engineering terms, the Senators with six-year terms sequenced so that a third of the seats are contested every two years, act as a low-pass filter keeping the Representatives, with two-year terms, from responding too rapidly and with insufficient deliberation to the passing whims of the populace. In an important sense, the argument for the Electoral College is the same argument for having a Senate and a House rather than a simple unicameral legislature.

In the Electoral College, each state is represented by the number of representatives plus two, the number of Senators. Although populace states are entitled to more electors, rural and low population states are represented in higher proportion than their relative population. This arrangement has several important advantages.

The primary advantage is that the Electoral College insures that a president must have broad support over many regions of the country as opposed to popularity in a relatively few heavily-populated states. If presidents appeared to be solely regional candidates, it would tend to undermine the cohesiveness of the country. Given the current Electoral College, no person could become president without both the support of a substantial portion of the population and broad support over different regions of the country.

The Bush-Gore presidential election was incredibly close. Whoever would have ultimately been the victor, would have had popular appeal over a broad number of states. If the election had been based only on the popular vote, both would have engaged in a different campaign strategy. Bush would have concentrated his efforts in Texas and some populace midwestern states where he might have accumulated even larger majorities. Likewise, Gore would have focused in the Northeast trying to generate enough votes to offset Bush’s advantages elsewhere. Bush would have had to tack further to the right of the political spectrum, while Gore would have fled to the left. Both candidates would have had less incentive to appeal to the middle.

The Electoral College arrangement forced both candidates to contest states where both had a chance for victory. This forced Bush and Gore to hone their messages for more moderate and mainstream voters. In the end, both the candidates and the country would have been more polarized with a direct popular vote. Less polarization may displease strong-minded advocates, however reducing polarization enhances political stability.

Second, the Electoral College insures that the voices of important minorities will be heard. The voice of a minority might be drowned out in a national popular election. Minorities, both ethnic and economic, would likely be very important in some states. The effort to win the electors from these states compels candidates to address the concerns of minorities.

Third, the Electoral College, particularly with the winner-take-all in each state feature, strengthens broad consensus-building parties while diminishing the extreme voices of small radical parties. Essentially small parties do not participate at all in the Electoral College unless they can win a majority in a single state. The winner-take-all aspect of the Electoral College keeps small parties from becoming king-makers in close elections, swinging their votes in the Electoral College in exchange for political concessions. If small political parties could acquire electoral votes in proportion to their popular vote, temporary coalitions of parties could pick a president who could not generate a large plurality of the vote alone. The effect of small parties pulling the larger parties towards the extremes causes political instability in parliamentary democracies around the world.

Some have argued that we could still have an Electoral College, but that electors should be elected on a district-by-district basis with two electors chosen state-wide in each state. We are told that such an arrangement would make it less possible for a person who won fewer votes to win the electoral vote.

Ironically this would likely not have been the case in this last election. Given the closeness of the popular vote, it is likely that Bush and Gore would have won roughly equal numbers of district-by-district electors. However, Bush won a large number of relatively less populace states. With additional statewide electoral votes, I suspect that such a scheme would have given Bush a larger margin in the Electoral College. Gore’s Electoral College total could have been additionally reduced if Green Party candidate Ralph Nader had managed to win the electors from a few districts. It is hard to draw these conclusions strongly since under a different scheme for picking electors, both candidates would have employed different campaign strategies.

Finally, the Electoral College isolates potential problem elections to either a few states or a single state. If the popular vote winner won the presidency, in a close election like the last one, voting irregularities in every state, indeed in every precinct grow in importance. Dangling chads in Illinois, the illegally extended voting hours in Saint Louis, the suspiciously high voter turnouts in some precincts would have all been the subject of the same intensive scrutiny lavished on Florida. Imagine not only the US Supreme Court and the Florida courts issuing sometimes-conflicting opinions, but large numbers of different states’ courts burying the country in a blizzard of rulings.

The United States is the longest currently operating Constitutional republic in the world. Structural changes to a system that demonstrated such resilience and robustness should be undertaken with great care and deliberation. The results of the last presidential election confirm the wisdom of the Electoral College arrangement. Perhaps the only salutary substantive change would be to eliminate the actual electors and replace them with an automatic count. The actions of a handful of “faithless” electors in the last election would have added instability to an already stressful situation.

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Al Gore at the Bat

December 17th, 2000

With Apologies to Ernest Lawrence Thayer

It looked extremely rocky for the Democrats that day.
Al Gore was really loosing and it was Election Day.
So, when the first count failed and the second one did the same,
A pallor wreathed the brows of those in the election game.

A straggling few got up to go, leaving there the rest,
With that hope that springs eternal from within the human breast.
For they thought, if only Boies could get a whack at it.
They’d bet even money if Demos read each ballot.

But there were courts to keep them from each and every dimple,
And certainly Katherine Harris would not make things so simple.
So, on that stricken multitude a death-like silence rested,
For it seemed Albert Gore’s minions would likely soon be bested.

But courts allowed those dimples, to the wonderment of all.
And three Democratic counties could determine it all.
And when the dust had settled and they saw what had occurred,
Democrats could read ballots, no matter how absurd.

Then from that gladdened multitude went up a joyous yell.
It bounded from the mountaintop and rattled in the dell.
It struck upon the hillside and rebounded on the flat —
For Democrats saw dimples on each and every ballot.

There was ease in the lawyers’ manner as they stepped into place.
There was pride in manipulation of the election race.
And then, responding to the cheers, they lightly doffed their hats,
My goodness they even kept out military ballots.

Liberals still worried. Votes came in at too slow a rate.
No need to fret. Just extend the certifying date.
And when the new votes did not the election tip,
Defiance glanced from Gore’s eyes, a sneer curled Gore’s lip.

And now Judge Sauls’ verdict declared what was fair.
There will be no more votes pulled out of thin air.
To the Florida Supreme Court Gore’s lawyers sped.
By seven Democrats this Supreme Court was led.

“Fraud!” cried the maddened Liberals, and the echo answered, “Fraud.”
But in one frightful decision the populace was awed.
The Florida Supreme Court was Al Gore’s best friend.
The Demos knew the court would start the count again.

The sneer was gone from Al Gore’s lip. His teeth were clenched in hate
As the US Supremes decide to judge the court of state.
And now the grand lawyers make the case to the mighty nine.
The air is tense with the question, “What will the judges find?”

Oh, somewhere in this favored land the sun is shining bright.
The band is playing somewhere, and somewhere hearts are light.
And somewhere men are laughing, and somewhere children shout.
But there is no joy for Liberals. Al Gore has lost out.

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The Kangaroo Court Jumps Again

December 9th, 2000

“Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.” Chief Justice C. J. Wells of the Florida Supreme Court, December 8, 2000.

On the fourth of December the US Supreme Court fired unanimous warning shots over the heads of the Florida Supreme Court justices for acting like a kangaroo court. Rather than publicly embarrassing their Florida colleagues, the US Supreme Court simply asked for clarification of the Florida Supreme Court’s decision, while at the same time vacating the Florida court’s decision to order recounts. Apparently four of the seven justices have no shame and decided to hop blindly into yet another ill-advised decision that the Florida chief justice said “has no foundation in the law of Florida as it existed on November 7.”

At times courts are required to make unpopular decisions as they defend the rights of individuals. By definition, unpopular people or causes are the ones that require the most protection from majorities. Since judges sometimes stand against the popular will, deference to judicial authority rests upon a common acceptance of judicial temperance. When judges overreach, when they extend their decisions beyond what is minimally necessary to protect rights or adjudicate between rights, they usurp legislative and executive power. It is not an issue of whether judicial policy is wise or foolish. Rather, by capriciously circumventing the duly elected branches, zealous judges, who yield to the temptation of the law, bring into real question whether there is indeed the rule by the consent of the governed. Do this too often and the due deference to the authority of the courts will wither and we will no longer be afforded the necessary protections of the courts.

Judicial activism invariably leads to additional animosity and acrimony. If the Florida Supreme Court had not prevented the Secretary of State of Florida from certifying the presidential election on November 14, it is likely that Gore would have been under intense political pressure to concede. However, the extension granted by Florida’s Supreme Court for manual recounts gave time for positions to harden making it more and more difficult to ultimately accept either George Bush or Al Gore as the next president. Even if Gore had proceeded with a contest after certification, there would have been more time available for trial and due consideration of various potential remedies.

Because the Florida Supreme Court truncated the contest time period, we now face the prospect of election officials racing willy-nilly trying to interpret unclear ballots with no meaningful guidance from the Florida Supreme Court as the clock rapidly ticks away toward the December 12 deadline. The Florida justices are now required to act quickly because they acted too hastily and precipitously before. The chief justice of the Florida Supreme Court has belatedly realized the political danger inherent in the behavior of four of his fellow justices. He rightly worries that the recent Florida decision “will do substantial damage to our country, our state, and to this Court as an institution.”

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The Kangaroo Court Jumps Again

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