Yesterday, Sen. Tom Harkin (D-IA) held his fifth — and perhaps final – Health, Education, Labor, and Pensions committee show-hearing lambasting for-profit colleges. As usual, it was a decidedly one-sided affair, with no profit-defenders apparently invited to testify, and Republican committee members boycotting. Perhaps the only interesting thing that occurred was Sen. Al Franken (D-MN), who has never given any indication he doesn’t support Harkin’s obsessive whale hunt, saying the proceedings could have benefitted from more than one point of view. According to MarketWatch, Franken lamented that “it would have been nice to have someone here to represent the for-profit schools.” Now, he might have only wanted a for-profit rep there to receive the beating, but even that would have been preferable to no rep at all.

Could this indicate that even Senate Democrats are getting tired of Harkin’s tedious grandstanding against for-profit colleges, especially now that the Education Department has issued its “gainful employment” rules? Maybe, and there are lots of Dems in the House who have opposed the attack on for-profit schools for some time. But don’t expect this to be over quite yet: Harkin still gets a lot of negative media coverage for proprietary schools with each hearing, while the scandals surrounding people he’s had testify; the decrepit GAO “secret shopper” report that turned out to be hugely inaccurate; and potentially dirty dealings behind the gainful employment rules seem only to get real ink from Fox News and The Daily Caller. And Harkin keeps indicating that he will introduce legislation — doomed to failure though it may be — to curb for-profits even further.

Of course, what should be the biggest source of outrage in all of this is that while Harkin fixates on for-profit schools, Washington just keeps on enabling all of higher education to luxuriate in ever-pricier, taxpayer-funded opulence. Indeed, as a new Cato report due out next week will show, putatively nonprofit universities are likely making bigger profits on undergraduate students than are for-profit institutions. Of course, they don’t call them “profits” – nonprofits always spend excess funds, thus increasing their “costs” – but that’s probably just plain smart. Be honest about trying to make a buck, and Sen. Harkin has shown just what’s likely to befall you.

Are Even Dems Getting Tired of Anti-Profit Crusade? is a post from Cato @ Liberty - Cato Institute Blog

• A bombing campaign by either Israel or the United States would rally the Iranian people to support an otherwise unpopular and incompetent regime.
• What else will it take to rally the so-called fiscal hawks to the cause of reducing spending, balancing the budget, and averting national bankruptcy?
• Senator Franken’s Pay for War Resolution is a superficially a step in the right direction; but when it comes to war, the Senate could probably easily rally a 60-vote supermajority to override any offset requirements.
• It should be easy to rally around Paul Ryan’s Medicare choice plan, since seniors will lose benefits in the long run anyway.
• Tax reform proposals are rallying back on both sides of the aisle–will any of them stick?

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

Advocates of limited government often worry about how to maintain republican government and freedom if a substantial portion of the population don’t pay taxes and are net beneficiaries of government largesse.

Lately, it seems like a lot of the advocates of bigger government and higher taxes don’t pay their own taxes — like Tom Daschle, Timothy Geithner, Eleanor Holmes Norton, Charles Rangel, Al Franken, Governor David Paterson’s top aide, Democratic National Convention staffers, Al Sharpton, and so on.

Now the Washington Post has found another one:

Since joining the D.C. Council two years ago, Michael A. Brown has become the chief advocate for raising taxes on the city’s wealthiest residents, arguing that those who earn at least $250,000 a year are not paying their share.

Yet Brown and his wife have failed to pay the property taxes on a Chevy Chase home assessed at $1.4 million, according to public records. Brown, who earns more than $300,000 a year, owes the District $14,263 for property taxes, the records show.

I guess it’s easy to support higher taxes if you don’t intend to pay them. But I suggest that Brown bite the bullet, recruit Daschle, Franken, Norton, and their colleagues, and form a new organization:

Non-Taxpayers for a Tax Hike

Non-Taxpayers for a Tax Hike is a post from Cato @ Liberty - Cato Institute Blog

Senator Al Franken (D-Minn.) sent out an email today suggesting that WiFi is threatened by the Google-Verizon “deal” on ‘net neturality regulation.

The Google-Verizon framework was written so as not to apply to wireless Internet services,” says Franken. “If you use wi-fi or access the Internet on your phone, this is a serious problem.

This doesn’t exhibit a basic understanding of the technologies. WiFi is a wireless technology, but it’s not what they’re talking about when they say “wireless.” They’re talking about the communications services provided by wireless carriers. iPhones switch back and forth between AT&T’s service and WiFi pretty seamlessly, so the error is forgiveable—unless, say, you’re someone who claims authority to regulate these technologies.

But perhaps Senator Franken does not hold himself out as having that authority. What struck me about the missive is Senator Franken’s somewhat inverted take on power arrangements in the federal government:

This evening, I’ll be speaking at an FCC hearing in Minneapolis. I’ll urge the commissioners to reject the Google-Verizon framework, stop the Comcast/NBC merger, and take action to keep the Internet free and open.

Folks, Article I, section 1 of the United States Constitution creates the United States Senate, with section 3 describing the Senate’s makeup and some procedures.

The Federal Communications Commission is not a constitutional body. The best view is that Congress has no authority to establish an FCC like we have today. The better view is that Congress should not maintain the sprawling FCC we have today. And the only correct view is that FCC is a creation of Congress, beneath it in every relevant respect.

Senator Franken is supposed to oversee the FCC, not act as a supplicant, “urging” it to do x, y, and z.

Does it matter a lot? No. Senator Franken is mostly making a symbolic appeal to gin up constituent support. But he’s also symbolizing the abasement of the legislative branch to an independent agency that has no constitutional pedigree.

Cato’s Constitution Day conference is September 16th. Obvious issues like “Senator or Independent Agency: Who is the Boss of Whom?” won’t be on the docket….

And Don’t Trust Politicians With Government Either is a post from Cato @ Liberty - Cato Institute Blog

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall

Will Specter Vote Against Kagan? is a post from Cato @ Liberty - Cato Institute Blog

In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?

For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.

And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.

CP Townhall

Lack of Deep Thinking = Belief in the Living Constitution? is a post from Cato @ Liberty - Cato Institute Blog

President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups.  The Republicans will have to decide what posture to take: combative or deferential, political or analytical.

With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.

What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want.  Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide.  If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.

Republican Strategy on the Supreme Court Vacancy is a post from Cato @ Liberty - Cato Institute Blog