Think tanks wrap-up

WASHINGTON, May 6 (UPI) -- The UPI think tank wrap-up is a daily digest covering opinion pieces, reactions to recent news events and position statements released by various think tanks. This is the first of three wrap-ups for May 6. Contents: unconstitutional filibusters; faults with homeland security; saving Bush's tax plan.

The Cato Institute

WASHINGTON -- Minority rules: Filibustering the Constitution

by James L. Swanson

On Tuesday, Sen. John Cornyn, R-Texas, chairman of the Senate Judiciary Committee's subcommittee on the Constitution, will convene a hearing on the following subject: "Judicial Nominations, Filibusters, and the Constitution: When a Majority is Denied Its Right to Consent." It's about time.

For the past three months Senate Democrats have filibustered the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. Last week they made official their hitherto informal filibuster of the nomination of Texas Supreme Court Justice Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit. And it might not end there. In the future other nominees, including to the U.S. Supreme Court, might become filibuster targets.

Today's hearing is a timely and much needed antidote to the rancorous politicization that has plagued the judicial confirmation process. Expert testimony will explore a number of arcane but important subjects, including the historical origins of filibusters, their purposes, the obscure Senate rules that allow them, the difference between the Senate's executive and legislative calendar, the meaning of advice and consent, and more.

However wide-ranging the testimony, by the end of today four things should be obvious: First, the Constitution requires only a simple majority of 51 senators to confirm a judicial nomination. Second, any Senate rule or procedure -- filibuster included -- that allows the minority of the body to prevent the majority from consenting to a judicial nomination is in conflict with the Constitution. Third, in such a conflict, the Constitution is supreme. Thus, finally, any Senate rule that contradicts the Constitution by denying the majority its right to consent to a judicial appointment cannot stand.

No one disputes that the Senate has a legitimate role in filling judicial vacancies. The Appointments Clause of Article II, section 2 of the Constitution is clear: The president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the United States."

To express consent senators do the obvious -- they vote in favor of a nomination. And no one can dispute that the Appointments Clause requires a simple majority of 51 senators for confirmation. Elsewhere in the Constitution, when the framers intended more than simple majorities, they said so, as they did by requiring a two-thirds majority to convict in an impeachment trial, expel a member, overcome a presidential veto, approve a treaty, or propose a Constitutional amendment.

The filibuster, which under Senate rules requires 60 votes to bring a nomination to a vote, rewrites the Appointments Clause by requiring a supermajority for confirmation. On "Meet the Press" Sen. Tom Daschle, D-N.D., claimed that "in controversial issues (including judicial nominations) the founding fathers have said that it ought to take a supermajority to pass." Constitutional text and more than two centuries of precedent prove Daschle wrong.

This is not to say that all filibusters raise constitutional questions. There is a long history of their use in the legislative context, and they can serve a legitimate purpose by not foreclosing debate on legislation prematurely. But in the executive context, when presidential appointments are at issue, filibustering appellate nominees is an unprecedented, though still not necessarily unconstitutional, step.

If employed merely to guarantee a reasonable and limited period of debate before proceeding to an up or down vote, a brief filibuster might pass constitutional muster. But in the cases of Estrada and Owen, when the filibuster is being used not to debate, but to kill their nominations by denying the majority its right to consent to them, serious constitutional issues arise.

Yes, the Constitution permits the Senate to set its own rules. But that is hardly a blank check entitling the Senate to amend the Appointments Clause by raising the confirmation bar from simple majority to super majority, to aggrandize power by upsetting the balance between the congressional and the executive branches, and to threaten the independence of the third branch, the federal judiciary. The conclusion is inescapable. Whenever Senate Democrats, a minority of the body, filibuster judicial nominations, obstruct an up or down vote, and deny the majority its right to consent to the appointments, they subvert the Constitution.

But what is the remedy? Should the president order the Justice Department to sue Daschle and seek relief in the form of an up-or-down floor vote on the filibustered nominees? Or is Majority Leader Bill Frist, R-Tenn., the proper plaintiff, or the nominees themselves? While such a claim might prevail, federal courts frown on settling political disputes between the other branches, or among feuding members of the same branch.

There is a simpler solution. Change the rules. That's right. The majority could simply change the Senate rules to allow a simple majority of 51 senators to end debate and bring a judicial nomination to the floor for an up or down vote. Although existing Senate rules require a supermajority to change them (how convenient for obstructionists), these rules are not laws, or carved in stone like the Ten Commandments. They are merely internal procedures, and under any proper understanding of the history and theory of legislative bodies, no prior Senate can exercise perpetual, dead hand control over the present one.

It can be done without litigation, within the Senate by its own members, and it can be done immediately. Like Dorothy in the "Wizard of Oz," who always had the power to return home but didn't know it, Senate Republicans have always had the power to end the filibuster subversion and bring the Senate home to the Constitution. Will they do it?

(James L. Swanson, a senior fellow in constitutional studies at the Cato Institute, is editor in chief of the Cato Supreme Court Review.)

WASHINGTON -- Homeland security: Follow the bouncing ball

by Charles V. Peña

Paradoxically, just prior to U.S. military action in Iraq, the homeland security terrorist alert threat level was raised because the U.S. war on Iraq carried with it increased risks of possible terrorist attacks from al-Qaida, Iraqi operatives, and freelance terrorists, even though the war itself was portrayed as a necessary act to reduce the terrorist threat. Now that the war in Iraq is essentially over (despite the United States not yet declaring victory), the Bush administration has lowered the national terror alert level from "orange" -- meaning a high risk of terrorist attack -- to "yellow" or significant risk.

For starters, can someone please explain the difference between "high" and "significant"? And did raising the alert level prevent any terrorism? This falls into the same category as trying to prove a negative.

To be sure, there were no terrorist attacks against the United States during the course of Operation Iraqi Freedom. But there is no way to know with any certainty whether this was due to Operation Liberty Shield (the code name for the alert level increase specifically tied to the war in Iraq) or because there were no attacks planned.

The nature of terrorism is to flow around obstacles and find the path of least resistance. So it makes sense that terrorists would choose not to attack if they knew that enhanced security measures were in place. The easier thing to do is wait until the United States is less alert to the possibility of an attack. Ironically, that is exactly what is communicated by lowering the alert status -- by definition. Indeed, according to U.S. officials, some security measures around the country will be relaxed.

Since its creation a little more than a year ago, the alert level system has been raised three times from yellow to orange: on the anniversary of Sept. 11, 2001; in February 2003 in conjunction with the Muslim holiday the Hajj; and for the Iraqi war. But there have also been countless warnings about possible terrorism that didn't change the alert level. So it's hard to correlate between warnings about possible terrorist attacks and the actual alert level. And given that there haven't been any terrorist attacks regardless of the alert level, it's difficult to know if the alert level makes any difference at all.

Compounding the problem are the "don't worry, be happy" messages that accompany changes in the alert level. How can people be told to go about their normal lives and not cancel any events as if nothing has changed, when, in fact, the threat level has been changed? If the threat has increased, people need to know what they should do -- beyond buying duct tape and plastic sheeting.

One warning cited apartment buildings as a possible terrorist target. Does that mean that people who live in apartment buildings should find another place to live for the duration of the alert? Another warning was about possible attacks against passenger trains. Incredulously, an administration spokesperson urged Americans to "continue to ride our nation's rails."

Equally absurd are the electronic highway signs with a toll free number for people to report terrorist activity. This is akin to being told to report "suspicious activity" (whatever that is) to the proper authorities. One can only imagine how many innocent people have been reported as a result. And exactly how do the FBI and other law enforcement agencies decide which of the myriad reports of suspicious activity to follow up on?

The homeland security advisory system is supposed "to provide a comprehensive and effective means to disseminate information regarding the risk of terrorist acts ... to the American people" and "to inform and facilitate decisions ... to private citizens at home and at work." But it's really just a bouncing ball with little or no practical utility for Joe and Jane Q. Public.

Instead of needlessly raising anxiety levels or providing a false sense of security with the color-coded alert system, the Department of Homeland Security needs to focus its resources on more important tasks, such as preventing terrorists from entering the country. Indeed, all of the 19 hijackers of Sept. 11 entered the country through a legal point of entry, as do millions of other people each year.

(Charles V. Peña is director of defense policy studies at the Cato Institute.)

The National Center for Policy Analysis

(The NCPA is a public policy research institute that seeks innovative private sector solutions to public policy problems.)

DALLAS, Texas -- Saving the Bush tax plan

by Bruce Bartlett

With a $350 billion revenue loss cap imposed in the Senate, there is now a danger that Congress may pass a tax cut bill that is worse than doing nothing.

One of the worst ideas is to phase in the dividend tax cut. On paper, this reduces the revenue cost and still allows the White House to claim victory for its proposal.

But the result could be that businesses will have an incentive to shift dividends into the future. This might lead them to minimize profits in the short-run by incurring costs now while realizing income later.

The effect would be to reduce growth of the gross domestic product going into 2004.

While total dividend income is only about 5 percent of personal income, it is much more volatile than wages and salaries. In any given year, changes in dividend income can account for a significant amount of the variation in personal income growth. Personal income represents 85 percent of gross domestic product, so even small changes in personal income can raise or lower the GDP growth rate.

In 1992, as a result of Bill Clinton's tax increase, people shifted income from 1993 into 1992 so that it would be taxed at lower rates. While the number of people who had the freedom and foresight to do this was small, it was enough to significantly impact the national economy. Personal income rose sharply in the fourth quarter of 1992 and then plunged in the first quarter of 1993. Personal income remained weak for the rest of the year and did not rebound until 1994.

(Bruce Bartlett is a senior fellow with the National Center for Policy Analysis.)