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The Policy and Commentary Blog of The Heartland Institute
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McCutcheon Decision: Supreme Court Splits on Individual Free Speech vs. ‘Collective Voice’

April 15, 2014, 10:54 AM

In its recent ruling in McCutcheon v. Federal Election Commission, the Supreme Court struck down yet another provision of federal campaign finance law as a violation of the First Amendment‘s free speech guarantee.

This time it was the Bipartisan Campaign Reform Act’s limitation on the aggregate amount of contributions — presently $123,200 — that a donor may contribute to all candidates or party committees in one election cycle.

Of course, McCutcheon follows the now-famous Citizens United ruling, in which the Court held that the BCRA provision restricting corporations and unions from making expenditures advocating the election or defeat of a candidate violates the free speech rights of those entities.

Like Citizens United, McCutcheon was another 5-4 decision. While the case was narrowly decided, the gulf between the understanding of the majority and the dissenters of the First Amendment’s meaning is wide.

Indeed, two different conceptions of the role of individual rights in our constitutional regime emerge.

In his dissent, Justice Stephen Breyer asserts that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

The emphasis on “matters” is Breyer’s. But I think what matters most in his statement is the reference to “collective speech,” a term with somewhat Orwellian overtones.

Contrast Breyer’s language with this from Chief Justice John Roberts‘ majority opinion:

“The First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.”

Roberts declares the First Amendment is intended to remove governmental restraints from the arena of public discussion, “putting the decision as to what views shall be voiced largely in the hands of each of us.”

The contrast between Breyer’s emphasis on “collective speech” and Roberts’ focus on an “individual’s right” is rather stark.

And to my mind, Breyer’s formulation is disturbing. The Bill of Rights — of which the First Amendment is foremost — were added to the Constitution to protect fundamental individual liberties from abrogation by popular majorities, not to secure some notion of collective rights.

A window into Breyer’s thinking concerning “collective speech” may be gleaned from his citation toJean-Jacques Rousseau, whom the justice rightly calls “an influential 18th century continental philosopher.”

Rousseau was indeed an influential philosopher but, thankfully, not one whose thinking greatly influenced our Founders.

It is widely acknowledged that they looked for guidance foremost to John Locke and Montesquieu.

Rousseau is best known for his theory of the “general will,” elaborated in his major work, The Social Contract.

In a nutshell, Rousseau’s philosophy requires the individual to submerge his own ideas to what he calls the “general will,” which Rousseau explains this way:

“When, therefore, the opinion opposed to my own prevails, that simply shows I was mistaken, and what I considered to be the general will was not so. Had my private opinion prevailed, I should have done something other than I wished; and in that case I should not have been free.”

It is easy to see that Rousseau’s philosophy nurtures collectivist thinking — including notions of the primacy of “collective speech” — rather than an appreciation for the role of individual rights in a democratic society.

Indeed, in philosophical terms, you can draw a reasonably straight line from Rousseau to Georg Wilhelm Friedrich Hegel, then to Karl Marx.

The pronounced collectivist bent of this philosophical line, with its notions of state supremacy over the individual, differs significantly from the line running from Locke to David Hume, to James Madison and on to John Stuart Mill.

Do not get me wrong. I am not suggesting that Breyer, by relying on Rousseau for support, is a devotee of Hegel or Marx.

I am only suggesting that his conception of the First Amendment, focusing as it does on the promotion of collective speech values, necessarily disfavors protecting an individual’s right to free speech and the other individual liberties that the Bill of Rights are intended to secure.

 

[Originally published at Washington Examiner]

Categories: On the Blog

The Methane Hoax Cranks Up

April 15, 2014, 10:42 AM

Having spent decades trying to convince everyone that carbon dioxide (CO2) was a “greenhouse gas” that was going to cause the Earth to heat up, the same environmental charlatans are now embarking on a campaign to do the same with methane. In the U.S. the first move was announced by the White House in late March.

The carbon dioxide hoax fell apart in the wake of a cooling cycle affecting the Earth that began around 1997 and continues to this day. Warming and cooling cycles are natural events and both are tied to the activity or lack of it of the Sun.  Humans have nothing to do with the climate other to enjoy or endure it.

Why methane? It has a lot to do with the development of hydraulic fracturing, commonly called “fracking”, and the way it unlocks natural gas, aka methane, all of which portends an America that is energy independent, along with its huge reserves of coal and oil. If, of course, the government permits this to occur.

As we know, the Obama administration does not want that. It would mean more jobs, greater prosperity, and the ability to pay down the national debt, not to mention drive down the cost of electricity, gasoline, and everything else that depends on energy.

Despite the cooling cycle that is likely to last for many more years, Steve Hamburg, chief scientist for the Environmental Defense Fund, was quoted by the Washington Post saying that “ounce for ounce, methane is 84 times as potent as a greenhouse gas over 20 years” compared to carbon dioxide. “More than a third of the warming that we’ll see as a result of today’s emissions over the next couple of decades comes from, essentially, methane. We need to remain focused on carbon dioxide emissions, but doing so is not enough.”

Excuse me, but the Environmental Defense Fund and countless other Green advocacy groups have been focused on carbon dioxide for decades and the Earth is cooling, not warming. What part of this does Hamburg not understand?

James M. Taylor, the managing editor of Environment & Climate News, a national monthly published by The Heartland Institute, reported in January that “Natural gas fracking is not causing a spike in the U.S. methane emissions”, citing Environmental Protection Agency data. “Methane emissions specific to natural gas are in a long-term decline, down ten percent since 1990 and down seven percent since 2007 when the fracking boom began.”

The Washington Post, however, asserted that emission levels “are set to rise by 2030 as shale oil and shale gas production expands in the United States.” Do you remember all those predictions about the increase of carbon dioxide emissions and how, in ten, twenty, fifty or a hundred years, the Earth would heat up?

This is not about methane, it is about finding a way to shut down fracking and the extraction of natural gas and oil in the same way the Obama administration’s “war on coal” has caused the loss of over 150 coal-fired plants that until it began, were providing electricity. Reducing sources of electricity drives up its cost to everyone. As more natural gas came on line by 2013 it had become the second greatest source of U.S. electricity, but overall the amount of electricity produced was less than in 2007 before the war on coal began.

A natural component of the Earth, it has a number of sources, but one that has also caught the eye of government regulators involves cow flatulence and belching.

The White House has proposed cutting methane emissions from the dairy industry by 25% by 2020. The Environmental Protection Agency has been tracking cow farts since 2012 and now the dairy industry has to worry along with the oil and gas industry. In addition to the EPA, the Bureau of Land Management will be announcing “new standards this fall to reduce venting and flaring from oil and gas production on public lands.”

It’s often best just to let the Greens speak for themselves, revealing their never-ending efforts to attack the energy industry that keeps our lights on, heats and cools our homes, and fuels our cars and trucks. “President Obama’s plan to reduce climate-disrupting methane pollution is an important step in reining in an out of control industry exempt from too many public health protections,” said Deborah Nardone, the director of the Sierra Club’s Keeping Dirty Fuels in the Ground campaign.

“However,” said Ms. Nardone, “even with the most rigorous methane controls in place, we will still fall short of what is needed to fight climate disruption if we do not reduce our reliance on these dirty fossil fuels.”

What the heck is a climate disruption? A blizzard, a hurricane, a flood, tornadoes? None of these phenomena have anything to do with using fossil fuels. This is the kind of utter drivel we have all been hearing for decades.

It has nothing to do with the climate and everything to do with denying access and use of the greatest reserves of coal, oil and natural gas that exist in the greatest nation on Earth, the United States of America.

[Originally published at Warning Signs]
Categories: On the Blog

Checkout Lanes with No Checkers: Another Result of Minimum Wage

April 15, 2014, 9:37 AM

So my wife and I are out running errands, and we stop at a big grocery store. As we go through checkout, I see probably the biggest argument against raising the minimum wage I can think of: no cashier.

I look up and down the checkout lanes. Most are self-checkout and bag-your-own. It gets me thinking. When I was a kid, self-serve gasoline was unheard of. You pulled up at a gas pump, rolled over a hose that would “ding-ding” for an attendant, and out would come someone to pump the gas for you, clean your car’s windows, and offer to check your car’s oil level. Today, gas station attendants are almost extinct. It’s almost all self-serve gas now. Also gone are our local movie theater ushers, and our bowling alley pin setters. I’m not old enough to remember elevator operators, but I’ve seen them in old movies. They’re gone too.

Employers are always looking for ways to cut costs. Elevator operators, pin-setters, movie theater ushers, and gas station attendants have all been priced out of existence. Based on what I saw at the grocery store, checkout lane cashiers are being priced out too.

Force employers to pay people so much that they produce less than it costs to hire them, and before long, in comes automation and out go jobs.

The costs of hiring someone go well beyond wages. There’s also unemployment insurance (required), workers compensation insurance (required), Social Security/Medicare tax (required), liability insurance to cover actions of employees (a virtual necessity), and other benefits an employer might offer such as paid sick days (usually optional).

The February unemployment figures recently came out. The national average rate is up a bit to 6.7 percent. But for young people, who have the least education and work experience and therefore are the least-productive workers, the official rate is a Depression-level 11.4 percent—and it’s 15.8 percent if we include the nearly two million persons ages 18 to 29 who are not counted as unemployed because they’re so frustrated they’ve given up looking for work.

It’s even worse for young people who are minorities. Among young blacks the official unemployment rate is 19.3 percent (23.8 percent if we include those who’ve given up looking). Among young Hispanics it’s 12.5 percent (16.6 percent if we include those who’ve given up looking.)

President Obama is agitating for a $10.10 an hour minimum wage, up from the $7.25 an hour federal minimum. Doing this would make it even more expensive to hire people with poor educations, few skills, and little or no work experience. There’d be a bigger gap between what these people produce for an employer and what they would receive in wages and benefits. They won’t get jobs; it’s as simple as that.

The recent Congressional Budget Office report says a higher minimum wage would likely put hundreds of thousands of entry-level people out of work. Those in minimum-wage jobs who manage to stay employed would receive higher pay, but as the example of the cashier-less checkout lanes shows, their employers would surely start looking for ways to eliminate their jobs.

Two more points:

First, throughout the minimum-wage debate we speak as if persons with minimum-wage jobs will always have these low-paying jobs. In fact, however, these are usually first jobs, second jobs, or jobs to tide people over until they can find higher-paying work. In other words, they’re temporary or transient. There is not a permanent group of minimum-wage workers.

Second, what’s magic about $10.10 an hour? If an employer offers $10 an hour, should the government force people to remain unemployed over one thin dime? The White House is crawling with unpaid interns—unpaid. They work for no pay … but not for nothing. The unpaid interns have decided it’s worth receiving no pay to have the experience, the connections they expect to make, the resumé they’ll be able to flaunt. There are many jobs where experience, connections, and impressive resumes might be worth low pay or even no pay.

It’s our lives. We should be able to work for whomever we want for whatever pay and benefits we agree to take.

Categories: On the Blog

NEJM Fails to Correct Data on Children’s E-Cigarette Use

April 15, 2014, 9:16 AM
The New England Journal of Medicine and authors of a commentary on e-cigarette use have ignored our call for correction of a substantial error regarding e-cigarette use among American schoolchildren in 2011 and 2012.  Authors Amy L. Fairchild, Ronald Bayer and James Colgrove of Columbia University double-counted some users in a figure they used to illustrate data from the National Youth Tobacco Survey (NYTS).

The commentary, published December 18, addressed the legitimate question, What is the appropriate public health goal: eradication of smoking or elimination of all tobacco products?

Clive Bates first raised the critical data error in a group email discussion; I responded because I had used the figure’s source data for blog posts earlier in December.

Clive and I, along with my University of Louisville colleague Nantaporn Plurphanswat, submitted a letter to the NEJM editor on December 22.  We explained, “the [Fairchild] figure inaccurately represents data from the National Youth Tobacco Survey on use of cigarettes and e-cigarettes by U.S. students in 2011 and 2012 in a report from the Centers for Disease Control and Prevention (2). For example, the figure shows that 16.8% of high school students used either product in 2012. However, the correct percentage is 14.6% because of dual use, which was reported in another CDC publication (3). We submit a revised figure that accurately represents the information in both CDC reports.” 

On February 19 Editor Debra Malina informed us that our letter and corrected figure would not be published.

We subsequently sent an email request to Dr. Fairchild.  We advised that her figure was constructed incorrectly, noting, “it does not properly account for e-cigarette users who also smoke, and these are the majority.  Given this misconstruction, the chart should not be reproduced in its current form.  We have taken this up with the NEJM, but they do not wish to publish an alternative from us.  That being the case, the responsibility for amending the chart rests with you as lead author.   We urge you to submit a revised figure along the lines we included in our communication with the editor.  We attach our letter and revised chart and would be happy to discuss the underlying data (also available in the referenced CDC publications) that we used to create it.” Dr. Fairchild ignored that missive, and a March 3 follow-up email.

The NYTS survey has been subject to repeated and egregious abuse by anti-tobacco forces, all to serve the specious claim that e-cigarettes are a gateway to cigarette smoking.

Tom Frieden, director of the Centers for Disease Control and Prevention, Dr. Tim McAfee, director of the CDC Office of Smoking and Health, and FDA Tobacco Center director Mitch Zeller started the gateway fallacy with reports and press releases, a tactic that I labeled “irresponsible theatrics”.  I also detailed how the CDC abused the data (here and here).

The inaccurate information in the NEJM is a dangerous error that can undeservedly gain traction through repetition.  This happened in 1981, when National Cancer Institute epidemiologist Dr. Deborah Winn misstated oral cancer risks related to smokeless tobacco.  Her erroneous data became gospel for anti-tobacco forces, despite her subsequent acknowledgement of the misstatement.

The NEJM is doing public health and science a disservice by refusing to correct the error.

[Originally published at Tobacco Truth]
Categories: On the Blog

Was Stopping Nevada’s Fracking Rush Behind the Bundy Showdown?

April 14, 2014, 3:38 PM

The story of rancher Cliven Bundy has captured an abundance of media attention and attracted supporters from across the West, who relate to the struggle against the federal management of lands. Bundy’s sister, Susan, was asked: “Who’s behind the uproar?” She blamed the Sierra Club, then Senator Harry Reid (D-NV), and then President Obama. She concluded her comments with: “It’s all about control”—a sentiment that is frequently expressed regarding actions taken in response to some endangered-species claim.

An Associated Press report describes Bundy’s battle this way: “The current showdown pits rancher Cliven Bundy’s claims of ancestral rights to graze his cows on open range against federal claims that the cattle are trespassing on arid and fragile habitat of the endangered desert tortoise.”

Bundy’s story has been percolating for decades—leaving people to question why now. The pundits are, perhaps, missing the real motive. To discover it, you have to dig deep under the surface of the story, below the surface of the earth. I posit: it is all about oil and gas.

On April 10, the Natural News Network posted this: “BLM fracking racket exposed! Armed siege and cattle theft from Bundy ranch really about fracking leases.” It states: “a Natural News investigation has found that BLM is actually in the business of raking in millions of dollars by leasing Nevada lands to energy companies that engage in fracking operations.”

This set off alarms in my head; it didn’t add up. I know that oil-and-gas development and ranching can happily coexist. Caren Cowan, executive director of the New Mexico Cattle Growers Association, told me: “The ranching and oil-and-gas communities are the backbone of America. They are the folks who allow the rest of the nation to pursue their hearts’ desire secure in the knowledge that they will have food and energy available in abundant supply. These natural resource users have worked arm-in-arm for nearly a century on the same land. They are constantly developing and employing technologies for ever better outcomes.”

The Bureau of Land Management (BLM) wouldn’t be enduring the humiliating press it has received, as a result of kicking Bundy off of land his family has ranched for generations and taking away his prior usage rights, just to open up the land for oil-and-gas—the two can both be there.

The Natural News “investigation” includes a map from the Nevada Bureau of Mines and Geology that shows “significant exploratory drilling being conducted in precisely the same area where the Bundy family has been running cattle since the 1870s.” It continues: “What’s also clear is that oil has been found in nearby areas.”

Nevada is not a top-of-mind state when one thinks about oil and gas. Alan Coyner, administrator for the Nevada Division of Minerals, describes his state: “We are not a major oil-producing state. We’re not the Saudi Arabia of the U.S. like we are for gold and geothermal production.” The Las Vegas Review Journal reports: “When it comes to oil, Nevada is largely undiscovered country…. fewer than 1,000 wells have been drilled in the state, and only about 70 are now in production, churning out modest amounts of low-grade petroleum generally used for tar or asphalt. Since an all-time high of 4 million barrels in 1990, oil production in Nevada has plummeted to fewer than 400,000 barrels a year. More oil is pumped from the ground in one day in North Dakota—where the fracking boom has added more than 2,000 new wells in recent years—than Nevada produced in 2012.”

But, Nevada could soon join the ranks of the states that are experiencing an economic boom and job creation due to oil-and-gas development. And, that has got to have the environmental groups, which are hell-bent on stopping it, in panic mode. Until now, their efforts in Nevada have been focused on blocking big solar development.

A year ago, the BLM held an oil-and-gas lease sale in Reno. At the sale, 29 federal land leases, totaling about 56 square miles, were auctioned off, bringing in $1.27 million. One of the winning bidders is Houston-based Noble Energy, which plans to drill as many as 20 exploratory wells and could start drilling by the end of the year. Commenting on its acreage, Susan Cunningham, Noble senior vice president, said: “We’re thrilled with the possibilities of this under-explored petroleum system.”

The parcels made available in April 2013 will be developed using hydraulic fracturing, about which Coyner quipped: “If the Silver State’s first big shale play pays off, it could touch off a fracking rush in Nevada.” Despite the fact that fracking has been done safely and successfully for more than 65 years in America, the Center for Biological Diversity’s (CBD) Nevada-based senior scientist, Ron Mrowka, told the Las Vegas Review Journal: “Fracking is not a good thing. We don’t feel there is a safe way to do it.”

The BLM made the leases available after someone, or some company, nominated the parcels, and the process to get them ready for auction can easily take a year or longer. One year before the April 2013, sale, CBD filed a “60-day notice of intent to sue” the BLM for its failure to protect the desert tortoise in the Gold Butte area—where Bundy cattle have grazed for more than a century.

Because agencies like the BLM are often staffed by environmental sympathizers, it is possible that CBD was alerted to the pending potential oil-and-gas boom when the April 2013 parcels were nominated—triggering the notice of intent to sue in an attempt to lock up as much land as possible before the “fracking rush” could begin.

A March 25, 2014 CBD press release—which reportedly served as the impetus for the current showdown—states: “Tortoises suffer while BLM allows trespass cattle to eat for free in Nevada desert.” It points out that the Clark County Multiple Species Habitat Conservation Plan purchased and then retired grazing leases to protect the endangered tortoise.

Once Bundy’s cattle are kicked off the land to protect the tortoise, the precedent will be set to use the tortoise to block any oil-and-gas development in the area—after all environmentalists hate cattle only slightly less than they hate oil and gas. Admittedly, the April 13 leases are not in the same area as Bundy’s cattle, however, Gold Butte does have some oil-and-gas exploration that CBD’s actions could nip in the bud. Intellihub reports: “The BLM claims that they are seizing land to preserve it, for environmental protection. However, it is obvious that environmental protection is not their goal if they are selling large areas of land to fracking companies. Although the land that was sold last year is 300 and some miles away from the Bundy ranch, the aggressive tactics that have been used by federal agents in this situation are raising the suspicion that this is another BLM land grab that is destined for a private auction.”

The Natural News Network also sees that the tortoise is being used as a scapegoat: “Anyone who thinks this siege is about reptiles is kidding themselves.” It adds: “‘Endangered tortoises’ is merely the government cover story for confiscating land to turn it over to fracking companies for millions of dollars in energy leases.” The Network sees that it isn’t really about the critters; after all, hundreds of desert tortoises are being euthanized in Nevada.

Though the Intellihub and Natural News Network point to the “current showdown” as being about allowing oil-and-gas development, I believe that removing the cattle is really a Trojan horse. The tortoise protection will be used to block any more leasing.

On April 5, 2014, CBD sent out a triumphant press release announcing that the “long-awaited” roundup of cattle had begun.

What I am presenting is only a theory; I am just connecting some dots. But over-and-over, an endangered or threated species or habitat is used to block all kinds of economic development. A few weeks ago, I wrote about the lesser prairie chicken and the huge effort ($26 million) a variety of industries cooperatively engaged in to keep its habitat from being listed as threatened. The effort failed and the chicken’s habitat was listed. In my column on the topic, I predicted that these listings were likely to trigger another sage brush rebellion that will challenge federal land ownership. The Bundy showdown has brought the controversy front and center.

For now, southern Nevada’s last rancher has won the week-long standoff that has been likened to Tiananmen Square. Reports state that “the BLM said it did so because it feared for the safety of employees and members of the public,” not because it has changed its position.

While this chapter may be closing, it may have opened the next chapter in the sage brush rebellion. The Bundy standoff has pointed out the overreach of federal agencies and the use of threatened or endangered species to block economic activity.

Categories: On the Blog

The Paycheck Fairness Act is the Wrong Solution

April 14, 2014, 10:56 AM

On April 9, the United States Senate failed to move forward The Paycheck Fairness Act for a third time. The Act would change the language of the Equal Pay Act and disallow employers to use “factors other than sex” to deny women fair pay. The GOP voted as bloc against what Democrats called an obvious choice. The conclusion? The Republican Party STILL hates women.

As a Republican woman who allegedly hates myself, I want to highlight the rash and colorful language (spattered with untrue numbers) that the Democratic Party uses to claim they support us, the American women. On Tuesday, the Democratic Party tried to push forward a measure that works against women while the Republican Party supported the liberties and freedoms of the average American woman to choose what she wants out of her job and her life.

The elementary level math the U.S. Census Bureau managed to put together shows that women earn 77 cents to every dollar earned by a male. In reality, this number is wrong. Although this ‘fact’ was repeated rather publicly during the State of the Union, The United States Department of Labor highlights its falsities. About 60% of the pay gap can be accounted for through choice of occupation, major in college, hours worked per week, and time off. Instead of a 23 cent difference, we are now dealing with a 5 to 10 cent difference, depending on if a conservative or a liberal counting. To be fair, let’s take an average and say that women make 93 cents to every dollar a man makes. Why didn’t President Obama say this number is his SOTU? Because that would not convince women that the Republican Party hates them.

Although this small pay-gap is closing quickly, let’s say the federal government should do something about it right now. This leads me to why the Paycheck Fairness act is horribly restricting to the liberties and freedoms of businesses and women. The amount of red tape and burden this act puts on businesses is frightening. It opens up employers to endless litigation making them prove they did not discriminate, but that they also caught and accounted for any discrimination that may or may not have occurred at past employers. The bill asks for hiring employers to do the impossible, even though there are already laws in place to ensure women are protected at work.

Now let’s say you could care less about the burden placed on businesses. The law impedes on a woman’s most basic right to choose. Republicans are pro-choice?! In this case, yes. Nearly the entire wage gap is accounted for by personal choices made by women. We might not be explicitly choosing to earn less, but we choose our college majors, our careers, and to work part time. This bill takes away that choice. An employer will be so fearful of hiring a woman who accepts a lower salary from a man (likely due to her own choice to work less hours), that many women will be out of work. The cost and threat of litigation would not make it worth hiring a woman who wants a more flexible life style. Women will be unable to negotiate for themselves and will become the true victims of this Act.

I believe there are large cultural and stereotypical trends that push women to different majors, to stay home with children more, and to suffer the brunt of household work. That’s a problem that needs fixing. However, cutting off a woman’s right to choose the lifestyle and work she wants is not the way to fix grander social problems. We need change, but we do not need the Paycheck Fairness Act. If the federal government insisted on involving itself, then show women why the hard sciences might be the better choice, how to negotiate and increase salaries, and encourage men to share the work leave women usually take.

We are buying into a liberal vernacular that convinces us to be a victim. I refuse to be a victim. In my career I might ask for raises, pursue promotions, and fight for a better job or I might make a personal decision to work part time for my family. Either way, I want the option to choose.

 

 

Categories: On the Blog

Kathleen Sebelius’s Resignation Hands Republicans A Golden Opportunity

April 12, 2014, 8:55 PM

Kathleen Sebelius is resigning, and Rachel Maddow is right to not be happy about it, not one little bit. For once, I completely agree with Maddow’s analysis.

This surprise resignation presents Republicans with an unexpected opportunity to refocus the conversation on Obamacare’s negatives, offers a chance to force vulnerable Senate Democrats to take a hard vote on Obamacare six months before the midterms, and serves to disrupt what had been a positive few days of media spin for the health care law into another conversation about its many failings.

About a month ago, in a conversation with a Senate Democratic aide, the topic of Sebelius – “Auntie K” – came up. The assumption was shared that there was no way Sebelius would be leaving HHS prior to the November midterm elections – indeed, the aide claimed that her position was essentially unassailable given the negative attention her resignation or firing would draw. And besides, any nomination fight, no matter who the nominee is, would quickly become an opportunity for Republican Senators to pile on while Democratic Senators were put in an awkward position. No, the conventional wisdom said Sebelius would stay, at least til November 2014.

So much for the conventional wisdom. Reaching out tonight to the aforementioned aide, and to Republican aides as well, I found unanimous surprise at the step – they learned it from the media, not from trial balloons from the administration. Perhaps this move really was a surprise driven by an attempt on the part of the White House to avoid a Donald Rumsfeld situation, where the embattled Defense Secretary was given a presidential vote of confidence just days prior to the 2006 election, and then had his resignation accepted a week later. Interestingly enough, in Erroll Morris’s The Unknown Known, Rumsfeld himself says he wishes George W. Bush had accepted his resignation two years earlier, in the wake of Abu Ghraib. Perhaps President Obama is learning from his predecessors’ second midterm mistake, or attempting to?

In any case, it appears that this resignation presents Republicans with a golden opportunity to reignite their crusade against Obamacare with Sylvia Burwell’s nomination as a proxy for all the problems with the law.Burwell is a political loyalist and a veteran of the shutdown fight with no record on health care, and will likely be coached to avoid answering questions about specific challenges with implementation at HHS. Senate Republicans actually have an advantage here in the wake of the Nuclear Option’s implementation: they can easily come up with a list of facts they claim the administration has hidden, details kicked aside, statutes ignored, and a host of other challenging questions on accountability over the implementation (and non-implementation) of the law. A list of every question Sebelius has dodged over the past several years would suffice. By demanding answers before the HHS nomination moves forward and refusing to rubber stamp the president’s pick, Republicans could force more vulnerable Democrats to take a vote that ties them both to the Nuclear Option and Obamacare six months before a critical election.

And Democrats know this. Here’s Tom Daschle talking to The Daily Beast:

While the invocation of the “nuclear option” by Senate Majority Leader Harry Reid last fall means that Burwell’s confirmation would only require 51 votes and not be subject to a filibuster, it doesn’t mean the process will be easy. Senate Republicans will surely use the process to push their message on Obamacare and to get more information about the implementation of the Affordable Care Act from the administration. Although Burwell was confirmed to head OMB by a vote of 96-0, Daschle cautioned that he thought she wouldn’t have an “easy ride.” As he noted because Obamacare “is such a contentious issue that will be reflected in the hearings.”

Other factions of the left are out there claiming that this resignation is a good thing – a sign of Sebelius’s huge success with Obamacare – not an acceptance of responsibility for Klendathu. But even if that’s what the White House thinks, Maddow’s frustration, in my view, is a wiser assessment of how this will play, and her description will be absolutely accurate if Republicans are smart enough to seize this opportunity. Maddow herself compared it to a sports team that “stops halfway through their victory lap to fire the coach” – no one thinks that’s the way it works. And given that Sebelius was just days ago committing to staying through November to see the next round of implementation through, only the most severe partisan is going to believe this wasn’t a step taken through the lens of 2014. Even the media frame on this from the New York Times, of all places, is “Sebelius Resigns After Troubles Over Health Site”.

A narrative this obvious writes itself. Anyone not interested in believing the lemon tree was haunted knows thinking otherwise is just pretending to enjoy a cool glass of turnip juice.

Follow Ben on Twitter.

[First published at The Federalist.]

Categories: On the Blog