Patterico's Pontifications

5/31/2019

Our Adorably Batty Socialist Niece and Her Uncle Ted Conspire to Curtail Freedoms

Filed under: General — JVW @ 3:10 pm



[guest post by JVW]

Everyone’s favorite dizzy socialist niece is at it again. Since she seems to believe that there is no matter of concern in this great nation of ours that ought not to be addressed by Congressional legislation, Congresswoman Alexandria Ocasio-Cortez took to Twitter yesterday to express her opinion about the predilection of some former members of Congress to immediately become well-paid lobbyists:

This is one of those AOC whims that ought to be allowed to quietly die in the intellectual mausoleum that is Twitter, yet her patently bad idea received a rather surprising endorsement:

Ted Cruz is clearly a very bright man and he generally understands the problems that big government causes through overregulation of just about everything, but it would seem that he jumped into this fray before stopping to think through exactly upon what Constitutional authority Congress could enact this ban. Sure, lobbyists are generally unsympathetic characters and there is something unavoidably sleazy about well-placed ex-members of Congress making big bucks peddling their connections and influence (I see you, Tom Daschle!), but where does a ban of this sort end?

I find the easy transition of political operatives to well-paid media gigs to be equally offensive, as well as the reverse in which career journalists suddenly become spokespeople for politicians. And given that the media isn’t all that much more trusted than Congress, why shouldn’t AOC and Ted also put an end to that cozy relationship? The answer of course is because it is none of their damn business who takes jobs doing what, and it is not an appropriate area for Congressional meddling.

I would support other, Constitutionally-sound methods to lessen the influence of former members turned lobbyists. For instance, ex-members of Congress are allowed on the floor of the legislative body they once served, they can obtain parking passes for Congressional lots, and they can use the House or Senate gym. But you know what? We already deny those privileges to ex-members who are registered lobbyists! In fact, the only thing I could see that might need to be tightened up is that ex-members who are registered as lobbyists should also be banned from the House and Senate dining rooms, even though the navy bean soup is supposed to be delicious.

Both the right and the left are convulsed these days with populism, so much that I am assuming that pitchfork sales are at all-time highs. And it’s not necessarily a bad thing when citizens rise up against the ruling class and demand accountability and an end to the you-scratch-my-back-and-I’ll-scratch-yours mentality that pervades Washington, DC. But we are a country that rightly limits our leaders’ ability to order our lives according to their own whims, and as long as we still respect the Constitution we shouldn’t be allowing Congress to place arbitrary restrictions on what sorts of jobs a private citizen can hold.

– JVW

88 Responses to “Our Adorably Batty Socialist Niece and Her Uncle Ted Conspire to Curtail Freedoms”

  1. Come on, Ted. Don’t let Trump and Bobby O’Rourke throw you off your game. Time to get your mojo back.

    JVW (54fd0b)

  2. On the other hand, if we can prevent the Obamas and Team Clinton from becoming Hollywood content providers, then I say to hell with the Constitution. (Kidding, kidding.)

    JVW (54fd0b)

  3. Mid-life crisis, Ted? Well, there’s no accounting for tastes. Me, I wouldn’t want that barracuda mouth anywhere within lunging distance.

    nk (dbc370)

  4. I have zero doubts about the constitutionality of such legislation. I do not see it as a meaningful infringement upon anyone’s justifiable liberty interests. I believe that by accepting a position of public trust, one should indeed be obliged to forego the chance to trade off that, for one’s personal benefit, as a lobbyist.

    I support Sen. Cruz in this.

    Beldar (fa637a)

  5. I believe that by accepting a position of public trust, one should indeed be obliged to forego the chance to trade off that, for one’s personal benefit, as a lobbyist.

    But what’s to stop anyone else from saying that you can’t trade off that public trust for personal benefit as a film producer, or author, or guest lecturer, or, hell, I don’t know, maybe a restauranteur? Where do we draw the line? And as I wrote above, we might not like lobbying as a profession, but it is perfectly legal and I have a real problem with statutorily proscribing certain careers for a small subset of people just because we find the connection distasteful.

    JVW (54fd0b)

  6. JVW, you might want to add the latest Tweets to your post:

    .@tedcruz if you’re serious about a clean bill, then I’m down.Let’s make a deal.If we can agree on a bill with no partisan snuck-in clauses, no poison pills, etc – just a straight, clean ban on members of Congress becoming paid lobbyists – then I’ll co-lead the bill with you. https://t.co/AZTbmdSexv— Alexandria Ocasio-Cortez (@AOC) May 30, 2019

    You’re on. https://t.co/S3TBfNeO3Q— Ted Cruz (@tedcruz) May 30, 2019

    Beldar (fa637a)

  7. > we shouldn’t be allowing Congress to place arbitrary restrictions on what sorts of jobs a private citizen can hold.

    I don’t think they are. At worst, they’re talking about placing arbitrary restrictions on what sorts of jobs a particular subset of private citizens can hold: those private citizens who have previously served as members of Congress.

    For fairness, I think, it would make sense to implement it prospectively — applying it only those people who have been elected or appointed to Congress or the Senate after January 1, 2020. This would mean that anyone to whom the rules are applied would have opted in, by voluntarily choosing the conduct that brought them under the ambit of the rules.

    aphrael (e0cdc9)

  8. @ JVW: With due respect, those are not serious counterexamples. No one is proposing that ex-congressmen be prohibited from being restauranteurs. We draw the line where Sen. Cruz is proposing — and has long proposed — it be drawn, to cover ex-congressmen in lobbying activities. There is no slope, much less a slippery one.

    Beldar (fa637a)

  9. @ aphrael (#7): Agreed, re prospective nature of the legislation, and I suspect that would be in any such bill Sen. Cruz agreed to.

    Beldar (fa637a)

  10. upon what Constitutional authority Congress could enact this ban

    The authority flows easily from the Commerce Clause as interpreted since the New Deal.

    I guess you mean how to reconcile such restrictions with First Amendment. Based on what I understand, it would come down to a “strict scrutiny” analysis, which such legislation might well pass.

    The government would have to show the government has a compelling interest in preventing members of congress from monetizing their past service. It would also have to show that the legislation is narrowly tailored, and uses the least restrictive means.

    Given the tiny, exclusive class of people affected (former congress-critters), the second two don’t seem like so much of a stretch. Compelling interest is a bit more subjective, but also colorable.

    I’d be interested in the opinions of people who know what they’re talking about, though…

    :)

    Dave (1bb933)

  11. I have a comment in moderation. No idea why.

    [I don’t know why either, but it’s been fished out. – JVW]

    Beldar (fa637a)

  12. If you think the problem is that lobbyists wield too much influence, then the answer is to curtail the power of government to micromanage all aspects of our life, not to try to limit who gets to do the lobbying.

    JVW (54fd0b)

  13. Regulation of former members who are using their status as former members to help them influence current members on behalf of paid sponsors seems to me to fall squarely within the Necessary and Proper Clause.

    aphrael (e0cdc9)

  14. Instapundit always says congressmen who leave and become lobbyists should be taxed at a higher rate for that income. I guess that could apply to all your other examples, too. (I’m thinking of you, John Brennan.) What say you on that idea?

    I agree with aphrael, it should of course be prospective.

    I still can’t figure out why K. Sebelius hasn’t snagged a medical gig. Is she an honest woman or something?

    Patricia (3363ec)

  15. What is the legitimate governmental interest in preventing former members of Congress from peacefully assembling and petitioning for redress of grievances on behalf of people who pay them to do it?

    nk (dbc370)

  16. @1. ‘Space Pirates.’

    ‘Nuff said.

    DCSCA (797bc0)

  17. Should former judges be forbidden from re-entering the practice law as attorneys? Only as trial lawyers? Only in their former courthouse?

    nk (dbc370)

  18. Breaking – 11 dead, 6 hospitalized, mass shooting, Virginia Beach.

    DCSCA (797bc0)

  19. Good questions, nk

    Patricia (3363ec)

  20. I don’t think you can condition serving in your duly elected office on acceptance of any future conditions. If you could, I’ve a few rules I’d impose on Presidents right now.

    But I am absolutely certain that, going forward, you could condition any residual benefits (medical, pension, access rights) on obeying any set of rules. Such as not lobbying.

    The reason that former Congresspeople are sought after is more than just their connections — they have floor access privileges that are otherwise unobtainable. End those.

    Kevin M (21ca15)

  21. I have a comment in moderation. No idea why.

    Too many links. No more than four are allowed without moderation.

    Dave (1bb933)

  22. https://t.co/AZTbmdSexv
    (Emphasis added.)

    BREAKING: AOC is seducing Ted with subliminal messages in Twitter links.

    Dave (1bb933)

  23. Seems like the Government puts a lot of “Arbitrary Restrictions” on all of us. I don’t see any reason why Congress should be exempt. Look, Congress is a voluntary position. No one forces ANYONE to run for Congress. So, lets put the restriction in. Of course, we may have to Grandfather some people in. After all, they ran for Congress based on the understanding they would be become rich lobbyists afterwards.

    rcocean (1a839e)

  24. If you think the problem is that lobbyists wield too much influence, then the answer is to curtail the power of government to micromanage all aspects of our life

    Well, that sounds easy enough.

    Dave (1bb933)

  25. Should former judges be forbidden from re-entering the practice law as attorneys? Only as trial lawyers? Only in their former courthouse?

    In many states, non-lawyers are forbidden from becoming judges, even justices-of-the-peace. There is a clear reason for that, but historically that has not always been true or necessary. In CA only members of the bar may be appointed or elected to the bench (and that changed in my lifetime).

    So, restricting service due to profession or affiliation, with a good reason, is clearly allowed. Is there a reason for what you propose other than superficial similarity.

    Kevin M (21ca15)

  26. Well, that sounds easy enough.

    You and me, next week, Dave?

    Kevin M (21ca15)

  27. @ Dave: The Supreme Court has routinely upheld legislation restricting lobbyists against First Amendment challenges. See, e.g., Regan v. Taxation With Representation (1983)(upholding IRS’ refusal to give § 501(c)(3) tax-exempt status for contributions for lobbying); United States v. Harriss (1954)(upholding Federal Regulation of Lobbying Act, which required comprehensive reporting and disclosure).

    Note that the proposed legislation wouldn’t prevent individuals from lobbying on their own behalves; that probably would be unconstitutional. Nor does it forbid lobbying generally, nor lobbying based on its specific content. It would instead subject a small, non-protected class (ex-congressmen) to economic regulation in for-profit transactions, based on their status as ex-congressmen, to achieve a valid legislative end.

    I am very, very, very confident that Sen. Cruz could draft this legislation in a way that would survive constitutional challenge.

    Beldar (fa637a)

  28. If you think the problem is that lobbyists wield too much influence, then the answer is to curtail the power of government to micromanage all aspects of our life

    Yeah, lets get at the ROOT CAUSE. Gee, where have i heard that before. Lets see. Liberals in 1970’s – stop putting people in jail, lets get at the ROOT CAUSE of crime. Or libertarians on illegal immigration. Lets not enforce the immigration laws, lets get at ROOT CAUSE By getting rid of the Welfare State. Anytime someone says, lets not do little thing X, but fix massive never-solved problem Y, they just aren’t being serious.

    rcocean (1a839e)

  29. The reason that former Congresspeople are sought after is more than just their connections — they have floor access privileges that are otherwise unobtainable. End those.

    Check out the document I linked in the post. Former members who are registered lobbyists already lose their parking, gym, and floor privileges. I think they should add the dining room privileges too, but it seems like the rules are already pretty well in place.

    JVW (54fd0b)

  30. @ nk (#17): Nope. Ex-judges practice before their former colleagues in public, not over a beer in a smoke-filled room.

    Beldar (fa637a)

  31. Anytime someone says, lets not do little thing X, but fix massive never-solved problem Y, they just aren’t being serious.

    Oh, I see. So you’re saying “screw trying to go back to small government principles; just use the power of the coercive state for conservative ends the way the left does for progressive ends.” Yeah, count me out on that crusade. But that does appear to be the Republican party in the age of Trump.

    JVW (54fd0b)

  32. @ nk, who asked (#15):

    What is the legitimate governmental interest in preventing former members of Congress from peacefully assembling and petitioning for redress of grievances on behalf of people who pay them to do it?

    U.S. v. Harriss, linked above, answers that:

    Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.

    I think I could actually craft a more comprehensive statement, but that would be a start, and has the advantage of being from a SCOTUS majority opinion.

    Beldar (fa637a)

  33. Suppose that Tom Udall wants to retire to a life of a volunteer lobbyist for Greenpeace? Since there is no economic transaction, is he immune to such a ban? Or does Raich and/or Wickard defeat him?

    Kevin M (21ca15)

  34. >But that does appear to be the Republican party in the age of Trump

    Not counting the redefinition of ‘conservative’ to mean something that the conservatives of my childhood would mostly blanch at.

    aphrael (e0cdc9)

  35. Ted Cruz and Alexandria Ocasio-Cortez are perfectly free, by the way, to refuse to see any ex-Congressmembers registered as lobbyists if they want to stand on principle, and I am fine with them forbidding their staff members from meeting with them too.

    JVW (54fd0b)

  36. Check out the document I linked in the post. Former members who are registered lobbyists already lose their parking, gym, and floor privileges.

    I did not know that. I guess some restrictions were already passed.

    Kevin M (21ca15)

  37. Nope. Ex-judges practice before their former colleagues in public, not over a beer in a smoke-filled room.

    You’ve never met with a judge in his or her private chambers away from the courtroom crowd?

    JVW (54fd0b)

  38. Right there in the post, too. Ooops.

    Kevin M (21ca15)

  39. If you raised the salaries of members of Congress, or made pensions conditional upon not becoming lobbyists you might do somwthing, but the definition of a lobbyist can be a problem. Maybe too many people are not paid enough to get them to stop.

    Sammy Finkelman (db7fea)

  40. For fairness, I think, it would make sense to implement it prospectively — applying it only those people who have been elected or appointed to Congress or the Senate after January 1, 2020.

    If our concern is that ex-Congressmembers have too much influence, then this ban only leaves those grandfathered-in Congressmembers with even more influence since they would be the only game in town. Imagine every single lobbying firm throwing big money at these guys and gals in order to get them to jump ship.

    JVW (54fd0b)

  41. ah so quickly we forget the head of the justice democrats who was funneling campaign contributions into his own company coffers, was their any consequence to that, that said this sounds like mccains deal with Obama, remember how that worked out,

    narciso (d1f714)

  42. Ted Cruz and Alexandria Ocasio-Cortez are perfectly free, by the way, to refuse to see any ex-Congressmembers registered as lobbyists if they want to stand on principle, and I am fine with them forbidding their staff members from meeting with them too.

    Yup.

    nk (dbc370)

  43. But I think Ted is trolling Alexandria.

    nk (dbc370)

  44. https://news.gallup.com/poll/1654/honesty-ethics-professions.aspx

    According to a Gallup honesty/ethics poll, Congressfolk are rated next to the bottom (8% high/very high) in a virtual tie with car salesmen (8%) and below telemarketers (9%).

    Lawyers are twice as high (19%) and journalists are much higher (33%). They didn’t ask about lobbyists. Nurses were at the top (84%).

    Kevin M (21ca15)

  45. @ nk, further on the topic of ex-judges:

    Some ex-judges are very effective trial and appellate advocates, but some are not. I once co-first chaired a commercial fraud jury trial with a lawyer who’d just stepped down, the previous month, from the Texas Supreme Court. Before that, this lawyer had been a very fine trial judge on the Harris County District Court bench, known for taking no nonsense at all and for being prompt and decisive, and mostly right, but disinclined to suffer fools gladly — a treat to appear before, in other words. As it happened, the transition back to practice was a rough one. For one thing, the ex-judge had ingrained habits that served poorly from the other side of the bench, like blurting out “overruled” when the other side’s lawyer made an objection.

    One of the lawyers on the other side was also an ex-judge, and a very fine one who’d returned to practice without missing a beat. But he, too, had some ingrained habits. That meant that there were three people in the courtroom who were used to being addressed as “Judge,” so when the bailiff would attempt to bring something to the attention of the one behind the bench — “Excuse me, Judge, but …” — all three of them would tend to answer, “Yes, what?”

    The whole trial was a circus, and in fact my colleague’s performance was a debacle. My colleague had been in charge of presenting our star witness (we were plaintiffs and went first), and the opposing ex-judge’s cross was so devastating that during the weekend recess, my clients — who’d been understandably enthused at the prospect of being represented in court by this esteemed former Texas Supreme Court Justice — begged me to take over the whole case, which I of course did. But too much damage had been done by then, and I genuinely hadn’t seen it coming.

    Beldar (fa637a)

  46. But I think Ted is trolling Alexandria.

    I think if it’s a clean bill as he suggests, he’ll sponsor it in the Senate. They may have to put their signatures on separate pages though.

    Kevin M (21ca15)

  47. Here’s an interesting story about Robert Byrd upset over his home state hiring lobbyists to bring home the pork it was his job to bring. https://www.washingtonpost.com/archive/politics/1989/07/31/byrd-drops-home-state-effort-in-anger-over-lobbyists-role/b74592c0-8298-454f-8544-cdb3066f0f26/?noredirect=on&utm_term=.18216c2d38a8

    There was a Washington Post before Trump?

    nk (dbc370)

  48. @ JVW, who asked (#37):

    You’ve never met with a judge in his or her private chambers away from the courtroom crowd?

    In chambers, yes, many times — but only with the other side present, never ex parte. Outside the courthouse, I’ve drunk many a beer with judges; but never as part of my practice of law, never with any discussion of any specific case (or its counsel), and (although this isn’t required and is impractical in small towns) never while I had an active case before that judge.

    Beldar (fa637a)

  49. For fairness, I think, it would make sense to implement it prospectively — applying it only those people who have been elected or appointed to Congress or the Senate after January 1, 2020.

    Riffing on JVW, you could ban current members or their staffs from meeting with ex-members who are registered lobbyists. This would end their usefulness and it would amount to a ban on all ex-member lobbyists.

    Kevin M (21ca15)

  50. @ JVW, who wrote (#40):

    If our concern is that ex-Congressmembers have too much influence, then this ban only leaves those grandfathered-in Congressmembers with even more influence since they would be the only game in town. Imagine every single lobbying firm throwing big money at these guys and gals in order to get them to jump ship.

    That’s true. There aren’t enough of them to go around already, though, which is why they’re already highly prized. By definition you’re talking people old enough to have completed a congressional career; their future career expectancies are generally measured in years, perhaps a decade or two. This legislation would be a normative statement by the U.S. government, which itself can change and clarify perceptions; as there are fewer of these grandfather-claused individuals, each one will increasingly be regarded as toxic instead of well-connected, not exactly the kind of exclusivity a lobbying client wants. It would be future-looking legislation so that people can make future plans accordingly, and we ought never let concern over the dregs of bad past policy & practice prevent us from doing what’s right for the future.

    Sparklingly good discussion in a short time on this post, JVW! Thanks for writing it, and thanks too for fishing my comment (which did indeed have too many links) out of moderation so promptly.

    Beldar (fa637a)

  51. I’m pretty sure the last time I was in chambers with a judge without an opponent present was when I asked a dear friend and former colleague, now the Chief Judge of the Southern District of Texas, to swear my oldest son (who’d been a summer intern for her two years previously) into the Texas Bar. It was a private ceremony, but I definitely posted (and maybe linked here?) photos on Facebook.

    Beldar (fa637a)

  52. By definition you’re talking people old enough to have completed a congressional career; their future career expectancies are generally measured in years, perhaps a decade or two.

    Robert Francis O’Rourke is an ex-Congressman and he turns 47 later this fall. He might have 40 years of lobbying ahead of him, if he goes the Bob Dole or George Mitchell route. I think there are a lot more young “retired” or defeated members than you might realize. And wouldn’t this ban also encourage all of them to suddenly become lobbyists, so like so many other Washington laws the unintended consequences would subvert the legislation’s aims.

    This has indeed been a good debate, and thanks to everyone for chipping in. I learn a lot more when people disagree with me than I do when they agree.

    JVW (54fd0b)

  53. Cruz isn’t trolling AOC.

    He’s trolling Nancy Pelosi and the leadership of the Democratic Caucus in the House by elevating the stature of their silly “It-Girl” of the moment. This is an obvious, but brilliant, strategy.

    Beldar (fa637a)

  54. I’ll bet our niece and Ted don’t go all the way (I’m riffing on nk here) and instead of an outright ban they end up proposing a 5-year moratorium on lobbying by ex-members.

    JVW (54fd0b)

  55. > I’m pretty sure the last time I was in chambers with a judge without an opponent present was when I asked a dear friend and former colleague, now the Chief Judge of the Southern District of Texas, to swear my oldest son (who’d been a summer intern for her two years previously) into the Texas Bar. It was a private ceremony, but I definitely posted (and maybe linked here?) photos on Facebook.

    That seems like a decent reason to meet in chambers without an opponent, and being sworn in by a judge, in a private individual ceremony, must have meant the world to your son.

    aphrael (e0cdc9)

  56. Gosh, at this point I have a hard time imagining anyone who’d be a less effective lobbyist than Beto O’Rourke (who was, of course, an absolutely ineffective congressman too). He does indeed have a long career of ineffectuality ahead of him, but I think his main place in history will be as one of the first ten candidates out of the Dems’ 2020 field (fundraising prowess notwithstanding). He’s already a joke among the very same Dems who wanted to canonize him in 2016.

    Beldar (fa637a)

  57. I forgot to put this in the post but remember Obama’s alleged ban on lobbyists working in his White House and promises to somehow prohibit his staff from becoming lobbyists once they left? That bit of grandstanding sure fell apart quickly.

    JVW (54fd0b)

  58. > He’s already a joke among the very same Dems who wanted to canonize him in 2016.

    He should have run against Cornyn, or for some Texas statewide office, before trying for President.

    aphrael (e0cdc9)

  59. > He’s trolling Nancy Pelosi and the leadership of the Democratic Caucus in the House by elevating the stature of their silly “It-Girl” of the moment. This is an obvious, but brilliant, strategy.

    Perhaps. He’s also encouraging across-the-aisle cooperation, which makes me like it regardless of the partisan context.

    aphrael (e0cdc9)

  60. @43. More like Tedtoo is trolling for attention.

    DCSCA (797bc0)

  61. In Illinois, when a politician feels he is not getting enough attention — and money, primarily money — from the watchamacallems industry, he proposes legislation affecting watchamacallems in some way. Then he gets attention — and money, primarily money — from watchamacallems lobbyists and the proposed legislation fades away quietly. Will this work for Eduardo and Akexandra, too, you think, or will the lobbyists direct their attention — and money, primarily money — to members with a little more weight in the House and Senate to make sure the proposal goes nowhere?

    nk (dbc370)

  62. @ aphrael: You’re right, re across-the-aisle cooperation.

    There used to be a tradition in the Senate — part of its historic comity, part of the lubrication that keep the wheels turning — that regardless of which party was in control, some of its senior senators, when they were principal sponsors of legislation that was certain to pass, would invite junior senators of the opposing party to be last-minute and almost entirely symbolic co-sponsors. This across-the-aisle cooperation thus added to the political capital of incumbents generally, so long as it was observed even-handedly by both parties. It also furnished cover for many a “fact-finding” junket that needed, for perception and funding reasons, to be bipartisan.

    And the junior senator got to campaign for reelection using photos showing him shaking the hand of a senior opposing senator as they stepped off an Air Force jet somewhere halfway around the world, with hometown headlines reading “Our Sen. __ joins with opponents to co-sponsor major new law!” (Obama had two or three such “co-sponsorships” to his name before he ran in 2008; indeed, they constituted nearly the entirety of his claimed legislative successes.)

    I honestly don’t know whether this practice still prevails, but it strikes me as unlikely in today’s Senate.

    Beldar (fa637a)

  63. @61. Well, the hilarious attention he drew over Space Pirates was almost as delicious as his green-eggs-and-ham. Hence on to another how-do-maintain-relevance-and-coverage episode. When you’ve become just a cigarette butt in the ashtray of a smoke-filled room, even a wisp of smoke draws a look.

    DCSCA (797bc0)

  64. It’s Alexandria who needs to appear relevant right now. Her primary is less than a year away. Ted’s is five years away. But aren’t they both Cuban? Blood calls to blood.

    nk (dbc370)

  65. Where in the enumerated powers of the federal government in the US Constitution does it allow them to make this kind of law?

    The authority flows easily from the Commerce Clause as interpreted since the New Deal.

    Dave (1bb933) — 5/31/2019 @ 3:40 pm

    I believe we should go back to the plain reading of the US Constitution. Before FDR the commerce clause was tightly controlled and did not allow the federal government to do anything they felt like doing. Because of the Supreme Court during the FDR administration we have the tragedy of Wickard v. Filburn. I believe David Barton has a good take on the commerce clause.

    What Does The Federal Government Have The Power To Do?

    What about the necessary and proper clause of the Constitution?

    Article 1, section 8:

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Look closer and will see “for carrying into Execution the foregoing powers”. The important part here is “foregoing powers” not any new powers. What is necessary and proper to execute the enumerated federal powers of the government. Necessary and proper is not a standalone clause apart from the enumerated federal powers of the government.

    Some people then state “provide for the common Defence and general Welfare of the United States”.

    “General welfare“! That means anything doesn’t it? No it doesn’t. How about we ask what some people call the father of the constitution James Madison? Letter from James Madison to Andrew Stevenson regarding the general welfare clause.

    In the US Constitution “common defence and general welfare” is to be used to pay down debt incurred by the states for the revolution. Not as some think to create any law under the sun.

    I’m not a big fan of stare decisis. The supreme court has gotten it wrong and if a previous ruling violates the plain reading of the US Constitution I believe it should be overturned.

    Tanny O'Haley (8a06bc)

  66. First amendment

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    How does this law not violate the First Amendment? It doesn’t say right of the people except lobbyists. Based on the plain reading of the US Constitution, not the convoluted decisions by the US Supreme Court I don’t believe that this law would be constitutional.

    Tanny O'Haley (8a06bc)

  67. aphrael was closer with the Necessary and Proper Clause, I think. Congress has oversight power over itself and over all the government offices it creates and funds. It probably could take on to itself the authority to license lawyers in the lower federal courts, if push came to shove.

    However, the Bill of Rights is an exception to. and a limitation on, Article I. For the time being, I’ll stick with my First Amendment argument. With all due deference to Beldar, this is a much more substantial infringement than registration, reporting and disclosure.

    BTW, I would have ruled the same way in the IRS case on First Amendment grounds. It would discriminate against people who exercise their First Amendment without hiring lobbyists to give a tax break to those who do.

    nk (dbc370)

  68. No, AOC is of the people whose loud celebratory month begins manana.

    urbanleftbehind (4d5eac)

  69. Puerto Rican, eh? Yeah, not even close. Cubans look on Puerto Ricans the way Bostonians look on Appalachians.

    nk (dbc370)

  70. nk,

    As with the commerce clause, the necessary and proper clause does not mean what they think it means. That reminds me of the Princess Bride.

    Tanny O'Haley (8a06bc)

  71. nk wrote (#67):

    With all due deference to Beldar, this is a much more substantial infringement than registration, reporting and disclosure.

    Agreed. But the affected class — ex-congressmen who want to be lobbyists — is even narrower than lobbyists generally, much less the public generally. It’s content-free regulation of commercial activity with incidental, arguable effects on speech. I’m confident that Cruz, has already prepared, and could deliver at the drop of a hat, his SCOTUS argument in favor of the legislation’s constitutionality.

    Beldar (fa637a)

  72. “[C]ontent-free” in my #71 ought to have been placed in that sentence before the word “incidental”:

    It’s a regulation of commercial activity with content-free, incidental, arguable effects on speech. Even then it’s a time, place, and manner restriction, viz, the manner may not be through an ex-congressman, but may be through anyone else. And lobbyists by definition are not themselves principals; so long as the principals’ speech is transmitted through some other lobbyist, it is not impeded. It is the principals’ political speech that is protected by the First Amendment, not its method of transmission through a particular sort of intermediary.

    Beldar (fa637a)

  73. Has Leonard Bernstein been purged yet?

    Smoke on your pipe and put that in!

    Beldar (fa637a)

  74. I have the 33 1/3 LP of that whole soundtrack. I know a few of the songs by heart.

    nk (dbc370)

  75. Dammit .. I just knew nk had to have been a Gaylord, C-Note or Simon City Royal.

    urbanleftbehind (4d5eac)

  76. If I were, I wouldn’t admit it. When I was in high school, those guys you mention were spray-painting graffiti on walls, and the Black P. Stone Rangers (later renamed the Al Rukhns) were knocking over the National Guard Armory to arm themselves.

    nk (dbc370)

  77. > It doesn’t say right of the people except lobbyists

    The ex-Congressmen in question would, in theory, be perfectly free to petition on behalf of themselves. What is being limited is their power to sell their services petitioning on behalf of others.

    aphrael (3f0569)

  78. Tammy, the power to limit the behavior of *former* members of Congress is, I think, implicit in the general powers of a legislative body to regulate their members.

    aphrael (3f0569)

  79. I will grant that there’s not a lot of precedent devoted to constitutional analysis of statutes in which Congress has regulated its former members, but that’s because there haven’t been such statutes in the past — not because there couldn’t have been.

    And despite the attention it will get, without support from McConnell and Pelosi, this ain’t going nowhere either, in point of fact. I’m not holding my breath; McConnell might go along for the same reason Cruz is, which is to say, to force Pelosi to table this permanently. She would never (a) agree on the merits or (b) give AOC the political capital, both antithetical to Pelosi’s regime and most of her caucus.

    Still, brilliant political theater by Cruz IMHO.

    Beldar (fa637a)

  80. Tammy, the power to limit the behavior of *former* members of Congress is, I think, implicit in the general powers of a legislative body to regulate their members.

    aphrael (3f0569) — 5/31/2019 @ 11:31 pm

    Who is this Tammy person you’re responding to? My name is Tanny. Like Danny, but starts with a T instead of a D. Or like a sun tanned knee. I was born a guy. My DNA says I’m a guy. I looked in the mirror, and I’m still a fat 220 pound guy. Tammy is the name of a female. Tanny is a male name. Mistakes happen. This time I thought I needed to correct the mistake.

    Tanny O'Haley (8a06bc)

  81. …exactly upon what Constitutional authority Congress could enact this ban.

    That’s a really good question. But while we’re talking about “constitutional authority,” where is the constitutional authority for Congress to do most of what it does? The constitution is as good as a dead letter these days.

    Gryph (08c844)

  82. If Tanny can catch a misspelling of his name, I can catch Alexandria’s “corporate lobbyist”. “Non-corporate lobbyist” would be okay, apparently.

    Mens sana in corpore sano, Alexandria! Let that be our motto.

    nk (dbc370)

  83. “Tanny is a male name”

    Tanny Volkova is a musical artist and definitely a girl. What is your evidence that “Tanny” is exclusively a male name?

    AJ_Liberty (165d19)

  84. With all due respect, Paul Ryan and John Boehner are disgusting and exact examples of why this idea makes sense. Conflating (confusing?) lobbying with “free speech” is a joke. They represent interests of corporations, not citizens. grant you that’s a rough argument(corps being essentially a collection of citizens, etc.), but we have come to a point of disrepute. We also should have further restrictions on Pentagon retirees rolling over right into defense contractors’ offices the next day. The spending and the special interest nonsense is completely out of hand.

    While they’re at it, past time for term limits.

    Should the day come Americans rise up with arms against their government (and let me be clear, not advocating that nor pining for it) , Ryan and Boehner have each earned 2 behind the ear. These are 2 men have have done almost everything possible to call into question whether this form of government makes any sense any longer. Much less by the people and for the people than it is by and for big business and special interests.

    Bugg (abc42d)

  85. “I believe we should go back to the plain reading of the US Constitution. Before FDR the commerce clause was tightly controlled and did not allow the federal government to do anything they felt like doing. Because of the Supreme Court during the FDR administration we have the tragedy of Wickard v. Filburn.”

    I’m sensitive to your view, but you have 80 years of precedent….and by LSU law professor John Baker’s count over 4500 crimes in federal statutes that have some significant link to the commerce clause….how do exactly untangle that legal framework? Most federal regulation of business would likely fail. Hmmm, health and safety laws, environmental laws, civil rights law…all becoming suspect….what could go wrong with that?

    But let’s play devil’s advocate with Wickard. The wheat market created collective action problems in an interstate commodity market. Congress has a plenary power to regulate interstate commerce. Quotas on wheat production are a reasonable means of addressing these problems. The regulation applied to a commercial farm….and Wickard operated a commercial farm (he actually received a price support and was looking for a loophole to avoid the regulation of using his own wheat to feed his livestock!). If you fear that this creates an unlimited federal police power, we see in Lopez that it does not…..there still needs to be a reasonably relationship to a broader regulatory scheme. So, you are really arguing that Congress cannot create a broad regulatory scheme to regulate an interstate market….and I’m not sure if that is right (I have actually never argued for Wickard, this feels really weird!).

    Still, if you are looking for a more extreme case, maybe it’s Raich and the regulation of a non-commercial garden growing a product that has an interstate black market. My sense is you would have more of an attenuation argument here….though Scalia gave it thumbs up as being part of a broader regulatory scheme of feds interdicting interstate marijuana…..so go figure.

    The question is line drawing and whether the Constitution gives plenary powers to Congress to solve collective action problems involving interstate commerce. If it’s plenary, then the limit is usually political….vote them out….

    AJ_Liberty (165d19)

  86. Mens sana in corpore sano, Alexandria!

    The motto of my high school!

    Dave (1bb933)

  87. Can Congress use its Wickard power to keep people from receiving People magazine? All people? Corporations only?

    We know that this whole thing is a joke and it’s not going to go anywhere, but it’s fun playing with it.

    You’ve got the people who will be the most competent and effective in lobbying for your interests, who know their way around Washington and everybody who’s-who there, the major league players, being barred from doing it and you being forced to hire the bush leaguers. Does that sound rational?

    nk (dbc370)

  88. Dave:

    I thought R Kelly would be the ultimate in bad shared alumni (technically, he didnt graduate), but Chris Webber is up there.

    urbanleftbehind (5eecdb)


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