Sunday, November 3, 2013

A Libertarian’s perspective on Ken Cuccinelli

Every election, philosophical libertarians are faced with a conundrum: should we vote for principle/stay home or vote for the lesser of two evils.  Democrats tend to be better on personal liberty issues and Republicans tend to be better on economic liberty issues.  Occasionally you find the odd “moderate” that seems to be bad on both sets of issues.  At least then we have something to vote against.

I am supporting Ken Cuccinelli for Governor in 2013.  I found this decision easy, but my hope is that philosophical libertarians will take a strong look at Cuccinelli.

The source

I worked for Ken Cuccinelli as an attorney for the first four years of my career up until he took office as Attorney General.  During that time I was exposed to many aspects of his life: his law career, political actions, and his family.  I have had uncountable private conversations with Cuccinelli about his beliefs and actions.  

What follows is my take on his beliefs vis-a-vis libertarianism.  Unless I attribute the statement directly to him, it is merely my understanding.  I will point out a few tidbits that he has not hidden, but are not known in a widespread fashion.

Principled stand on the Second Amendment

Most people know that Ken Cuccinelli is a strong supporter of the Second Amendment.  What most people do not know is that support for gun control polled well above 50% in his Senate district, and he knew it was the case.  In three elections there he did not waiver in his support of the Second Amendment despite knowing it was a dangerous position to take politically.  He was repeatedly elected on principle and stuck to those principles.  Libertarians tend to worry that Democrats and Republicans will abandon their libertarian leaning principles upon election.  Cuccinelli does not.

Opponent of the overreach of police powers

Whether it is search and seizure, the rights of the accused, or dare I say, the death penalty, Cuccinelli repeatedly falls on the side civil liberties.  Cuccinelli was constantly seeking to reduce the ability of localities to spy on citizens, whether it be through warrantless searches or traffic cameras.  He supported restoration of voting rights to released felons.  He knows all too well that our criminal justice system, despite its general effectiveness and a great many honorable public servants, sometimes falls short of doing justice.  Cuccinelli personally took up the cause of the 27 year wrongfully imprisoned Thomas Haynesworth.  To the press and to casual observers this appeared to be an aberration.  To those of us who knew Cuccinelli, none of this surprised us.  This is one of the reasons why Cuccinelli has such a dedicated base of followers.

Defender of the First Amendment

Ken Cuccinelli was lead counsel on a major case seeking to invalidate a law passed by the General Assembly that restricted the free association of political parties.  This lawsuit originally entitled Miller v. Brown, successfully invalidated a restriction on how political parties can nominate candidates.

Cuccinelli’s religious beliefs

Cuccinelli takes a lot of flak for his stances on abortion and gay marriage.  Cuccinelli believes that life begins at conception and deserves protection in the womb.  He does not want to prevent access to contraception, but he does not consider abortion, chemical or surgical, to be “contraception.”  This is identical to the position of Ron Paul, a supporter of Cuccinelli.  Ron Paul reached his conclusions, in part, from being a practicing obstetrician.  Cuccinelli does not take this position lightly.
Cuccinelli is opposed to state sponsored gay marriage.  He does not believe in “criminalizing blow jobs.” It would take 500-1000 words, perhaps more, to explain the appeal of the ruling invalidating Virginia’s anti sodomy law.  In short, the Attorney General’s brief submitted to the 4th Circuit en banc, and the Supreme Court both fully acknowledged in writing that the law cannot constitutionally ban sexual activity between consenting adults.  It is my strong belief that the tide of public opinion and the court system will overtake his positions in the next 5-10 years.
If your feelings on one or both of these issues control your vote, please vote your conscience, just please remember not to let the perfect be the enemy of the good.

The final take

Cuccinelli, in the end, believes that the greatest minority is the individual and the protection of individual liberties is the primary purpose of government.  Civil liberties, economic liberties, and constitutional freedom are the baseline for Cuccinelli.  In the end, Cuccinelli is the strongest pro-liberty candidate to run statewide in Virginia with a reasonable chance of winning in modern history.  He is not the lesser of two evils, he is a good that is worthy of your consideration. 
Please get out and vote on Tuesday November 5, and no matter your take on Cuccinelli I look forward to working with all liberty minded individuals in the future.

Saturday, November 2, 2013

Gay marriage lawsuits taking back seat in waning days of the campaign

I predicted that the gay marriage lawsuits in Virginia would have a significant impact on the gubernatorial campaigns in the final days. 

Apparently neither Cuccinelli nor McAuliffe appear interested in raising the fact that the AG's office must address the issue in court right at this moment. 

The media appears disinterested as well.  I acknowledge I was wrong about the effect it would have on the election.

Friday, September 6, 2013

Gay Marriage case on course to affect Virginia's Governor's race

The first Virginia case after the landmark U.S. v. Windsor ruling on gay marriage has undergone some recent changes that will truly push the matter to the forefront immediately before November's elections.

A New Complaint

Bostic & London have filed an Amended Complaint adding two additional plaintiffs, Carol Schall and Mary Townley.  Taking a cue from the ACLU case, they added Janet Rainey, the State Registrar of Vital Records, as a Defendant.

What happened to Cuccinelli?

Gov. McDonnell and AG Cuccinelli have been voluntarily dismissed as Defendants.  In these types of cases, you have to figure out the correct state actors to sue.  It is not always obvious which actors a court expects to be listed as a defendant.  This probably looks like a good thing for Cuccinelli as he is no longer listed as a defendant, it may appear to have less effect on him before the election.  But, the Commonwealth has intervened in the case as an "interested party."  This means that AG Cuccinelli's office will still be submitting briefs and taking stances before the election.  Cuccinelli will have to defend these actions.

The ACLU case does not appear to be moving to the forefront

The ACLU of Virginia finally got around to filing a class action lawsuit challenging Virginia's ban on same-sex marriage.  The opposing parties have filed motions to dismiss, and the ACLU has filed a motion to certify all members as a class.  This lawsuit was filed in the U.S. District Court for the Western District of Virginia which is reasonably fast, but not known for the haste in which the Eastern District proceeds. 

None of the motions have been scheduled for a hearing, and given the tremendous effort it takes to obtain a class action certification, any public fight in this case in the next two months will likely center on this boring procedural step, which will have substantially less political effect on the Governor's race.

With all these delays will this case still have any effect on the election?

This is where the Bostic case gets interesting.  The parties submitted an agreed order setting response schedules for the amended complaint and a briefing schedule for summary judgment motions.  Summary judgment is the means by which this case will be adjudicated in total.  It is the equivalent of a trial in this matter. 

Here is the schedule:

Initial summary judgment motions from all parties are due September 30, 2013.
Response briefs are due October 24, 2013.
Final reply briefs are due October 31, 2013.

The election is November 5, 2013

AG Cuccinelli's office, on behalf of the Commonwealth will have to file major briefs 36 days, 12 days, and 5 days before the gubernatorial election.  October is the most critical time of the election season.  Cuccinelli will be held accountable for every word in these briefs.

This makes it easy to stand by my initial prediction that this will have a substantial negative impact on Cuccinelli.

Tuesday, July 30, 2013

Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season

As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage.  As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait. 

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment.  No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor.  The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989.  London is a navy veteran and a real estate agent.  Bostic is a college professor at Old Dominion University.  They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down.  They apparently have no desire to go and be married under another state's laws.  The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination.  The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions.  As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General.  Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge.  Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought.  Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race. 

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage.  It is also the most likely matter to have any serious affect on the gubernatorial campaign.  Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe.  Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach.  The firm appears to focus on personal injury and criminal representation.

Tuesday, July 9, 2013

Battleground Virginia: Gay Marriage to become primary topic in Virginia's gubernatorial election

The ACLU is about to ensure that gay marriage becomes a major issue in Virginia's 2013 election.

Today, the ACLU of Virginia announced that it would be challenging Virginia's ban on Gay marriage in federal court.  This is part of a three pronged effort in Pennsylvania, North Carolina, and Virginia to challenge restrictions on gay marriage.  Virginia's ban, known as the Marshall-Newman amendment was passed in 2006 by a 57-43% margin. 

The Supreme Court's ruling

On June 26, 2013 the Supreme Court issued two rulings regarding gay marriage.  The California Proposition 8 case was dismissed for lack of standing, and was sent back to California for enforcement of the District Court ruling.  More importantly, the Defense of Marriage Act decision struck down a key component of DOMA in United States v. Windsor. (My curt analysis of U.S. v. Windsor can be found in my previous article).

These two decisions represented big wins for gay marriage proponents.  As of this morning, I expected these victories to have a severe negative affect on liberal turnout in November.  Hence, this would benefit Ken Cuccinelli.

What this means for Ken Cuccinelli

This lawsuit will have a huge negative effect for Ken Cuccinelli.

Ken Cuccinelli was one of the patrons of the Marshall-Newman amendment and one of its strongest proponents.  Ken Cuccinelli is also the sitting Attorney General for the Commonwealth of Virginia as well as the current Republican candidate for Virginia Governor.  In modern history, sitting Attorneys' General in Virginia resign from office during the election year in order to run for Governor.  Ken Cuccinelli decided to forego that trend, which has caused some complications.  Specifically the Attorney General's office has felt the need to withdraw from two different matters involving (at least tangentially) a company called Star Scientific. 

Now, the Attorney General's office will be in the thick of arguing in support of the Marshall-Newman amendment.  Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage.  Many voters pay little attention to political campaigns until the key campaign season between Labor day and election day. The ACLU lawsuit will probably be prepared for summary judgment or a motion to dismiss to be argued in court in late September or early October.  Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage. 

Terry McAuliffe does not need to focus on the issue of gay marriage.  He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment. 

This all comes down to turnout

Virginia has off year statewide elections.  The country focuses on Virginia and New Jersey each year after a presidential election.  New Jersey's race is widely considered to be uninteresting, leaving Virginia at the forefront of national news.

Cuccinelli's base is motivated.  No amount of criticism is going to decrease the turnout of the base. 

McAuliffe's base is unmotivated.  Although many liberals are motivated by *dislike* of Cuccinelli, few actually care for McAuliffe.  This enthusiasm gap is cured if McAuliffe has this social issue to run on.

Independents and right/left leaning voters, in my opinion, either support gay marriage, just do not care, or wish the government would just get out of the business altogether.  All three of these demographics will be turned off by the Cuccinelli's media manufactured focus on gay marriage, even if they opposed gay marriage in 2006.  This is because they would rather the governor focus on the economy, and jobs.

And then there is money.  With no nationwide initiative in the next six months, unlimited campaign contributions in Virginia, and an "anti-gay" crusader on the statewide ballot, gay marriage supporters can voice their concerns with their money.

The bottom line

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue. 

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

U.S. v. Windsor in a nutshell

Below is a curt summary of my thoughts in reading the major decision striking down part of DOMA

1. If you are s/s married in a state that recognizes you as s/s married, the federal government must treat you as married.

2. If you are s/s married, but living in a state that does not recognize s/s marriage, you must sue again to even find out if the federal governmentt will treat you as married.

3. DOMA's prohibition on forcing states to recognize out of state s/s marriage is intact, and left for another day (in my opinion this has always been unconstitutional).

4. The majority opinion hinges on the belief that DOMA was enacted for nefarious reasons. Ed. Note: this is not a valid standard for declaring something unconstitutional. This could have been easily solved a number of ways.

5. The majority opinion is whiny.

6. Scalia's dissent is full of histrionics claiming the majority referred to opponents of s/s marriage as "hateful" and motivated by "malice." These words DO NOT exist in the majority opinion.

7. I predict this will go down as one of the most poorly reasoned and worded opinions in Supreme Court history.

Tuesday, May 21, 2013

Cuccinelli opens a window to his private side with new ad

Ken Cuccinelli has gone public in a new television spot with a side of himself that I thought would forever remain private.

In 2006, just a couple of months after the conclusion of the General Assembly session Ken Cuccinelli's close friend MPO Michael Garbarino was gunned down in a one man assault on the Sully District police station in Western Fairfax County.

For nine days, MPO Garbarino remained in intensive care until he succumbed to his wounds.  During that time, Ken Cuccinelli visited constantly, and upon passing served at the funeral of his friend.  This was time he spent away from politics and his busy law practice.  This was time he spent away from his own family.  I can tell you he was visibly shaken up and subdued during this time.  You can see it in the video.

MPO Garbarino left behind a wife and two daughters as shown in Ken Cuccinelli's new ad.  When I met Suzanne Garbarino a year later I was astounded how she was such a rock for her children.  In order to honor Mrs. Garbarino's wishes Ken Cuccinelli's involvement was to remain private.  He honored those wishes.

This is why this video is important to me.  It has been seven years since MPO Garbarino was gunned down in cold blood.  Ken Cuccinelli's reaction in this matter is the reaction of a private and sincere individual.  That Mrs. Garbarino has allowed these private events to become public is important because it shows the genuine human being Ken Cuccinelli was and continues to be.  I am happy that Mrs. Garbarino has allowed this video to be taken.

He may be an extreme caricature in the media, but this is a moment to reinforce that Ken Cuccinelli, for all his perceived faults, is a genuine, honest, and good man.  For these reasons alone, he deserves your consideration.

As noted in 2011 there is always more than meets the eye.

Thursday, May 2, 2013

Cuccinelli relieved from case, McDonnell still in the crosshairs

In the case of former chef to the Executive mansion Todd Schneider, AG Cuccinelli's office (as predicted) has been let out of the case.

In response to discovery motions implicating Governor Bob McDonnell, AG Cuccinelli's office moved the court to allow the AG's office to be recused from the case.  Schneider's attorneys objected. 

At a hearing this afternoon, Judge Margaret Spencer of the Richmond City Circuit Court allowed AG Cuccinelli's office to withdraw from the case. 

Norfolk Commonwealth's attorney, Greg Underwood (D) will be handling the prosecution from now on.  Commonwealth's Attorney, Paul Ebert was not selected for reasons not apparent from any news source at this time.

The AP reports that the motion to dismiss has been delayed until May 14, 2013.  Given the fact the recusal motion has been granted, I strongly predict the motion to dismiss will be denied.

Governor McDonnell still faces the possibility of substantial disclosure of records regarding his family's use of assets at the Governor's mansion.  With AG Cuccinelli's office out of the picture, he is likely anxious to find out what will happen next.

Tuesday, April 30, 2013

Star Scientific and Cuccinelli, a fleeting excitement

Updated: Motion to recuse AG Cuccinelli's office granted, as predicted.

An Attorney General seeking a governorship, a well-heeled businessman paying a substantial amount toward the Governor's  daughter's wedding, a disgruntled former employee being prosecuted for embezzlement, and an off year election make for some juicy legal stories.

The only thing clear is that there will be more chaos before the waters settle down.

Todd Schneider - Executive Chef and current source of angst for Governor McDonnell

Todd Schneider, the former executive chef at the Governor's mansion in Richmond, is being prosecuted for alleged embezzlement of (it appears) food from the executive mansion.  As part of his defense he is seeking substantial information about the McDonnell's use of goods from the Executive mansion.  The implication is one of outright theft, but nothing beyond bare allegations from the accused has surfaced.  Still, the Washington Post broke the story this morning that the FBI have been investigating McDonnell due to alleged improper ties to Jonnie Williams the CEO of Star Scientific, Inc. 

Star Scientific, Inc. appears to be a former tobacco company that now produces dietary supplements.  It also appears that much of Star Scientific's resources were spent on lawsuits defending patents in the past decade.

What could this possibly have to do with AG Cuccinelli?

Attorney General Cuccinelli has his own ties to Jonnie Williams, having received gifts from Williams.  Cuccinelli also, up until recently, owned some stock in Star Scientific.  But what does this have to do with Schneider?

Schneider claims, that in 2012, Schneider was interviewed by the FBI, Virginia State Police, and the Virginia AG's office regarding information Schneider had regarding improper connections between Jonnie Williams and the McDonnell family.

The Attorney General's office then, one year later, initiated prosecution against Schneider for embezzlement.  It is not clear that there is any direct tie between the conversations in 2012, and the evidence gathered for the embezzlement charges. 

Schneider's counsel, seeing an opportunity to defend their client, are now seeking to force the Commonwealth to turn over substantial documentation that appears embarrassing to the McDonnell family. 

AG Cuccinelli, seeing what a mess this was becoming sought to be recused from the case due to a conflict of interest that likely existed prior to indicting Schneider.

But wait, I thought the Virginia Attorney General does not handle criminal prosecutions

Okay, I have made a big deal in the past over the limited criminal enforcement powers of the AG's office.  The AG in Virginia is essentially a civil attorney's office, although it handles criminal appeals.  So, in searching for the local Commonwealth's attorney who I felt should be prosecuting Schneider, I instead found this:

"Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth . . ."  Va. Code § 2.2-511.  Wow! That looks really bad, did Gov. McDonnell insist on prosecution?!?!?!?!?!  Did AG Cuccinelli prosecute without proper authority?!?!?!?!?!


The statute goes on to state "except in cases involving . . . (v) the theft of state property . . ."  Us lawyers always have exceptions.  Va. Code § 2.2-511.

So the AG has the authority.  But that does not mean he had to utilize it.  Yes, the AG's office, to handle this cleanly, should have handed the prosecution off earlier.  We are where we are, so is the AG seeking to throw the book at Schneider?  Is the AG counseling people to hide evidence?  Is the AG promising to get Schneider if that's the last thing he'll do?  Nope, quite the opposite.  The AG's office has filed it's mea culpa seeking to be relieved from the case and appointing the Democrat Commonwealth's Attorney from Prince William County (more on that later) to handle the prosecution.  This would include any plea deals or decisions to drop the charges.

So the AG's office probably should have handed this off sooner, but what does it matter?

Not content to simply seek to embarrass Governor McDonnell with some interesting discovery, Schneider's counsel are seeking everything.  They have filed an opposition to the motion to recuse, trying to keep the AG's office in the case.  I am not really sure why.

Moreover, yesterday Schneider's counsel filed a motion to dismiss on the grounds that the indictment should never have been filed by the AG's office due to the alleged conflict of interest in the AG's office.  Essentially their claim is that because AG Cuccinelli can not prosecute the matter fairly, simply by filing the case with an alleged conflict, Schneider should be let off for ALL alleged criminal charges. 

I am often asked the following question:  "Mr. Prados, do you have any case authority for that position?"  Either I'm prepared to hit that matter out of the park, or I'm about to lose a substantive point.  The major cases cited by Schneider's counsel do not stand for the proposition that if a prosecutor with a conflict of interest obtains an indictment against a Defendant, that the mere existence of the conflict of interest allows the Defendant to be free from all further prosecution.  It would be an absurd result.

In fact, in my opinion, the main Virginia case they cite makes clear that the remedy available to Schneider is to force the AG's office to recuse itself, something the AG's office is doing voluntarily, and that Schneider's counsel has objected to.

So why the remarks about the Commonwealth's attorney for Prince William County?

Paul Ebert is the decades long Commonwealth's attorney for Prince William County.  Defense counsel felt it was important to point out that Ebert himself was a poor choice for replacement counsel as Schneider's counsel alleges "Mr. Ebert and his office have engaged in a pattern of intentionally withholding exculpatory information from defendants."  If you have some extra time you can read about this history in the Justin Wolfe case here and here.

So what happens next?

The parties are before the Court May 2 for a hearing on the motion to recuse.  No matter what happens, a prominent Republican statewide official is going to be dissatisfied with the decision.  If the recusal motion is granted, McDonnell will likely risk an extensive probe into his families records.  If the recusal motion is denied, the case might be dismissed, but more importantly it puts AG Cuccinelli in an ongoing difficult position.

I believe recusal will be granted and the motion to dismiss will be denied.  Contact me directly to discuss all non-monetary wagers.

The only thing guaranteed is that this will get messier before the truth becomes clear.

And my strongly held (albeit biased) belief is that AG Cuccinelli did not do anything wrong.

Wednesday, January 23, 2013

Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

Monday, January 14, 2013

Debt Ceiling Hypocrisy, and the Right of Congress to Check Government Spending

Today, President Obama threw out his latest volleys on the debt ceiling, stating in part:

"The debt ceiling is not a question of authorizing more spending.  Raising the debt ceiling does not authorize more spending.  It simply allows the country to pay for spending that Congress has already committed to."  Source: Washington Post.

The Treasury Department has issued a policy document echoing similar sentiment:  Debt Limit Myth v. Fact, stating in part:

"The debt limit is the total amount of money that the United States government is authorized to borrow to meet its existing legal obligations . . . Failing to increase the debt limit would have catastrophic economic consequences. It would cause the government to default on its legal obligations – an unprecedented event in American history."

What is this debt limit crisis?

Not being one to accept presumptions of disaster at face value, I have looked into the function of the debt ceiling to determine the legitimacy of the above sweeping claims.  Below are my results:

·                    Having found no indication otherwise I accept that raising the debt ceiling does not directly authorize more spending. 
·                    Paying already incurred debts appears reasonable, the devil is in the details of the definition of "already incurred."
·                    Raising the debt ceiling not only allows the payment of obligations already incurred, but also allows the payment of obligations already approved by Congress and the President, but not yet spent ["ongoing obligations"].  For example, if the debt ceiling is sufficiently raised then the executive branch could effectively pay for obligations in February, March, April, May, June, etc. of 2013.  The Debt Limit: History and Recent Increases p. 4.
·                    Not raising the debt ceiling does not cause an automatic default on the nation's debts.  The Treasury Department has about $42 billion in its bank account from which it continues funding ongoing obligations.  Daily Treasury Statement.
·                    In order to illustrate current spending, the numbers from November 2012 are telling.  The federal government spends approximately $11 billion dollars per day, while bringing in an approximately $5 billion per day, resulting in a daily deficit of about $6 billion.  "How Much does the Government Spend Every Day?"
·                    The current debt subject to the limit is $16.393975 trillion, the current debt limit is $16.394 trillion.

Based on the foregoing:

The crisis time for raising the debt limit is now.

Based on the reports form the treasury the debt limit has been maxed out.  With $42 billion in funds, and a $6 billion dollar per day deficit, we have about one week until ongoing obligations begin to go unpaid.  Nonetheless, there appears to be a jump in the debt subject to limit as of late December as reflected in this chart:

This has the makings of a manufactured crisis.

Not all ongoing obligations will remain unpaid

As the treasury will continue to bring in revenue, and pay some of its obligations, it is not that every recipient of the government will go unpaid.  Instead, the Treasury will have to decide which recipients to pay and which to delay payment until some later deal is reached on the debt limit.

The debt ceiling was created for the express purpose of reigning in government spending

The debt limit also provides Congress with the strings to control the federal purse, allowing Congress to assert its constitutional prerogatives to control spending.  The debt limit also imposes a form of fiscal accountability that compels Congress and the President to take visible action to allow further federal borrowing when the federal government spends more than it collects in revenues.  The Debt Limit: History and Recent Increases p. 6.

The debt ceiling was not created as a formality.  The debt ceiling instead was the result of a compromise during World War I to finance our entry into the war.  Congress retained power over setting the debt limit as part of its assertion over its constitutional powers of the purse, of taxation, and the initiation of war.  The Debt Limit: History and Recent Increases p. 7.  In fact, our current President, while a legislator (in additional to many current Senate Democrats), thought controlling the debt limit was an important tool to curtail executive power.

The ultimate result:

President Obama does not actually believe the fear mongering about default coming from our Treasury Department.

More importantly, President Obama actually meant to say in today's news conference:

"The debt ceiling is not a question of authorizing more spending [on already incurred obligations].  Raising the debt ceiling does not authorize more spending [on already incurred obligations].  It simply allows the country to pay for spending that Congress has already committed to [with the understanding that spending cuts would be forthcoming and the power to rein in spending with the debt limit would remain a tool available to Congress]."

Congress needs to stand their ground and hold out for the cuts promised in August 2011.