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mid-December, Tom Daschle said that Eugene Scalia, President Bush's
nominee to be solicitor general of the Labor Department, didn't
have the votes to be confirmed. "I don't think he has the 60
votes that would be required for as controversial a nominee as he
is," he said on This Week. Daschle isn't trying to sink
the nomination, you understand; the votes just aren't there. But
Daschle can't wipe off his fingerprints so easily. His claim is
true as far as it goes, but it ignores the fact that 60 votes are
"required" only by Daschle's say-so. Scalia would need
60 votes to break a filibuster, true, but having 40-odd "no"
votes is not the same as having enough senators willing to mount
a successful filibuster. Besides, a filibuster would proceed only
if Daschle wanted it to.
The stipulation
that the 60-vote rule applies only in cases of "controversial"
nominees closes the circle. If you can't get 60 votes you're "controversial,"
so you need 60 votes, so you can't be confirmed. Or — more
to the point — if Daschle opposes you, you're controversial,
you need and won't get 60 votes, and he has no choice but to kill
your nomination.
Evidently emboldened
by the absence of criticism from anyone but Republicans and conservative
journalists, Daschle has now upped the ante. Last weekend, he explained
to Tim Russert that he's not blocking bills and nominees: Alexander
Hamilton made him do it.
On Meet
the Press on December 30, Daschle said, "Oh, absolutely
the majority should rule, but in controversial issues, the Founding
Fathers have said that it ought to take a supermajority to pass.
The Republicans understand that. They were the ones who killed the
economic stimulus package that we tried to offer in early December.
. . ."
He returned
to his theme later: "[A]s I said, the Founding Fathers in their
wisdom chose to assure that there would be ample support for controversial
measures before they pass. And I've said on many occasions we're
prepared to take up these issues, but a 60-vote majority is something
that should be achieved in these cases, and I don't fault that."
Those last
five words are priceless. Who can doubt the sincerity of Daschle's
commitment to compromise? He won't "fault" his own position.
You can't get more reasonable than that.
Daschle is
unequivocally wrong about the Founders. They never said, let alone
enacted into law, that supermajorities would be required for "controversial"
measures. Congress needs a supermajority to propose constitutional
amendments, controversial or otherwise. Removing a president from
office or ratifying a treaty takes a supermajority of the Senate.
The Constitution doesn't mandate or even suggest that ordinary bills
and nominations, however controversial, require supermajorities.
We're not going
to go to the other extreme and claim that Daschle is violating the
Constitution. If he wants to keep in line with the most liberal
elements of his caucus, that's his prerogative. Just quit blaming
the Founders.
In
the Tanks
I: Cato has a new study on the effectiveness of state laws limiting
taxes and spending.
Michael New concludes, unsurprisingly, that laws passed by initiative
tend to be tighter than those passed by legislatures. (This is partly
because legislatures impose limits by statute, whereas initiatives
often make them part of the state constitution.) Another finding:
The most effective laws force immediate refunds when revenues grow
faster than they're supposed to.
II: When a
wave of states passed "three strikes, you're out" laws
in the '90s — mandating that the criminal-justice system throw
away the key on a third felony conviction — just about the
only person arguing that they would increase murder rates was William
Tucker. In The American Spectator, he said that in the absence
of a death penalty these laws would create an incentive for criminals
with two prior convictions to kill potential witnesses to their
next felonies. (See, conservatives are always thinking on the margin.)
Now we've had time to see if he was right. In Intellectual Ammunition,
a publication of the Heartland Institute, Morgan Reynolds notes
that the murder rate hasn't fallen as much in three-strikes states
as elsewhere. And according to the research he reviews, the laws
haven't done much to deter crime.
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