What I find disingenuous is Democrats, on The Senate Judicial Committee, raging about Trump's SCOTUS nomination occurring so close to an election yet Democrat Governors and Legislatures are gleefully changing election dates and rules even closer to the 2020 election and many in contravention of the Constitution's specifically pronounced date. More hypocrisy from radicals.
The Democrats comments regarding the Barrett Hearings, that began today, are purposeful lies meant to panic uninformed voters.
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How to Steal an Election: Mail-In Ballots
Presented by Eric Eggers
What’s the difference between absentee balloting and universal mail-in balloting? The latter might sound like a great idea, but is it really? Eric Eggers of the Government Accountability Institute answers this vitally important question. Watch now.
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Though I wish the Durham Report, or summary, was posted before the election, However, for what ever reason it will not, I demur and totally agree with this op ed.
Trump’s Misguided Swipe at Bill Barr
The AG isn’t helped by public badgering from the Oval Office.
If President Trump loses on Nov. 3, one reason will be his failure to understand when someone who disagrees with him is acting on principle. He views everything in politics as personal—it’s always all about him. The latest example is Mr. Trump’s misguided public criticism of Attorney General William Barr for disclosing that there will be no indictments before the election in the investigation of the FBI’s Russia collusion probe.
“If that’s the case, I’m very disappointed,” Mr. Trump told Rush Limbaugh in an interview on Friday. “I think it’s a terrible thing. And I’ll say it to his face.” He added that “it’s a disgrace. It’s an embarrassment” and “see, this is what I mean with the Republicans. They don’t play the tough game.”
Mr. Trump ought to trust Mr. Barr’s judgment. The AG has been trying to restore public trust in the Justice Department after its politicization during the Obama Administration. He has withdrawn the unjust prosecution of Michael Flynn. He has tried to restore proper supervision over an FBI that became a government unto itself. And he’s appointed U.S. Attorney John Durham to dig into the origins of the FBI’s 2016 Russia-Trump probe, and whether laws were broken.
For doing all of this, Mr. Barr has endured relentless and unfair criticism from the partisan Washington press corps that helped to promote Russian disinformation. The AG arguably has the hardest job in the Trump Administration, yet he has held up well under the pressure. And he has done so because he is making decisions on the evidence and the law as warranted, not according to a political timetable or orders from the White House.
This is especially important regarding prosecutions. Any indictments in the Russia probe will be attacked as political, especially so close to an election. The cases need to be solid so they prevail in court. Mr. Barr chose Mr. Durham for the job precisely because he has a reputation for following the law and not the politics. The last thing Mr. Barr or Mr. Trump needs is for Mr. Durham to resign because he feels pressured to prosecute prematurely or without strong enough cases to prevail. No matter his frustration, Mr. Trump’s public pressure is counterproductive in every respect.
Mr. Trump is right, however, to want accountability for the dirty partisan trick that was behind the abuses by James Comey’s FBI. We now know the Clinton campaign engineered much of it, and that parts of the federal bureaucracy promoted it, though we still don’t know enough about the details. The danger for the country is that if no one answers for these abuses, others will conclude they can also manipulate law enforcement, U.S. intelligence and a complicit media and get away with it.
That’s what Mr. Durham is working on, and his probe is the main reason we are learning more all the time. Mr. Trump says he has declassified all documents related to the 2016 Russia investigation, and Mr. Barr should authorize their release as soon as possible no matter the objections from the CIA and FBI.
As for the election, indictments now aren’t going to turn the campaign tide. Most of the press will ignore or dismiss them, and swing voters aren’t hanging on the results of the Durham probe. They want to know about the next four years, not the last four. Mr. Trump isn’t helping his own cause by changing the subject every five minutes to his grievances about his first-term treatment.
Voters are focused on efforts to counter Covid-19 and promote an economic recovery. This is where Mr. Trump should focus his attention in the final weeks, contrasting his agenda with Joe Biden’s and more than merely with incantations of “socialism” and “radical left.” Vice President Mike Pence showed how to do this in last week’s debate by focusing on specific issues.
This election doesn’t hang on decisions made by Mr. Barr at the Justice Department. It will be won or lost by the incumbent in the Oval Office.
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Biden's contempt for voters, alone, should disqualify him for becoming president. And, then there is his personal and family enrichment and spying on his current opponent.
Joe Biden on What Voters ‘Deserve’
He says he’ll give his view on Supreme Court-packing after he’s elected.
H.L. Mencken’s famous line about democracy is that voters know what they want and deserve to get it—good and hard. Joe Biden’s apparent view is that voters shouldn’t know what they’re getting until after the election.
For a change, the press corps is asking Mr. Biden why he won’t answer a straightforward question on whether he agrees with the demands of his party’s left to add Justices to the nine-member Supreme Court. Mr. Biden and Kamala Harris have been ducking it, and on Thursday Mr. Biden said voters will “know my opinion on Court-packing when the election is over.”
He added: “Now, look, I know it’s a great question, and y’all—and I don’t blame you for asking it. But you know the moment I answer that question, the headline in every one of your papers will be about that.” Yes, it’s called news.
On Friday Mr. Biden compounded this political gaffe when a reporter in Las Vegas asked “Don’t the voters deserve to know where you stand on” court packing? “No, they don’t deserve,” Mr. Biden snapped. “I’m not going to play his [Donald Trump’s] game.”
It’s not a game. The question is central to American self-government. Democrats on the resurgent left believe the Supreme Court is a de facto second legislature to achieve policies they can’t pass in Congress. And now that judicial conservatives may have a majority on the Court for the first time in decades, Democrats want to add Justices and turn the Court into a de jure House of Lords.
Would Mr. Biden sign that legislation or not? If he won’t tell voters now, they can assume he’ll roll over for Nancy Pelosi and Chuck Schumer on that and so much more.
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As noted in previous memos, states have every right to establish rules for in state voting as long as they do not conflict with any Constitutional edict pertaining to ballot deadlines. I believe any state law challenging the date when votes are constitutionally mandated to be counted, must not be allowed to stand.
Our republic is fragile and rests on confidence citizens have in the sanctity of election results. Any state action that undercuts confidence by delaying the constitutional pronounced count date must be overturned. As noted above, changing ballot date procedures is a cynical desire by Democrats, at best, to interfere with confidence in voting and at worst, increasingly leads to election theft potential.
Again, I totally concur with this op ed.
Ballot Deadlines and the Supreme Court
The Justices can reduce the chances of a post-election crisis by advising lower courts now.
The Supreme Court is considering an appeal on ballot deadlines from Pennsylvania, and a decision could come as early as Monday. We hope the Justices intervene with a stay on the changes and guidance to lower courts not to rewrite ballot rules close to an election—for the good of the country and the Court itself.
The need is obvious from the cacophony coming from the states as judges take it upon themselves to rewrite black-letter law. Democrats this year have pursued a lawsuit strategy to expand vote-counting past Nov. 3 for mail-in ballots, as well as to demand, no matter state law, that ballots without postmarks be counted and that bad signatures be fixable. State or federal judges in Michigan, Arizona, Georgia, Wisconsin and Pennsylvania, among others, have used the pandemic to justify changing the rules.
In Pennsylvania, the state Supreme Court ruled 4-3 for Democrats that mail ballots can be counted as late as Nov. 6. Republicans have appealed to the U.S. Supreme Court, and the delay in deciding suggests the Justices are debating the question. Their guidance is important.
“For many years,” the Seventh Circuit panel ruled, “the Supreme Court has insisted that federal courts not change electoral rules close to an election date.” If last-minute problems arise, then last-minute action might be warranted, the court added. “But it is not possible to describe COVID-19 as a last-minute event,” since “the state has conducted two elections (April and August) during the pandemic.”
The precedent here is the Supreme Court’s Purcell doctrine, which Justice Brett Kavanaugh cited in an opinion last week. On Sept. 18, a federal judge in South Carolina suspended that state’s requirement for absentee ballots to be signed by a witness. On Oct. 5 the Supreme Court stayed the order.
In the Wisconsin case, the Seventh Circuit also said that the lower-court judge wrongly “assumed that the design of adjustments during a pandemic is a judicial task,” instead of one for elected leaders. It cited Justice Kavanaugh’s South Carolina opinion.
As Justice Kavanaugh said, quoting precedent: “A State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily ‘should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’”
The Pennsylvania appeal is from state courts, but the language of the U.S. Constitution gives state legislatures and Congress authority over election laws. Partisans can’t simply go to court in a state and then have a friendly state official sign off on a settlement to extend deadlines. If states want to change election laws, legislatures must do it.
The Justices might be wary of intervening in these ballot cases now, but it’s far better to clarify the rules in advance of an election than after Nov. 3 if the results are contested. (See David Rivkin and Lee Casey nearby.) Then the Court’s decisions would be attacked by one side or another as deciding the outcome. This can’t be where Chief Justice John Roberts wants the Court to find itself.
If the election isn’t close, all of this won’t matter. But if it is contested in court, surely the Justices will want to do what they can, before the election, to reduce the chances that the political branches end up in a constitutional crisis over the transfer of power. Clarifying when and how states can change ballot rules is part of the Court’s constitutional duty.
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The Supreme Court and the Election Returns
In resolving legal disputes about vote-counting, the justices should err on the side of speed and clarity.
The U.S. Supreme Court will decide as early as Monday whether to grant a stay in Pennsylvania Democratic Party v. Boockvar, in which the Keystone State’s supreme court, despite state election law to the contrary, ordered officials to count mail-in ballots received up to three days after Election Day. The justices should do so. This may turn out to be a normal election, in which we know the result by Nov. 4 and the Electoral College meets Dec. 14 to make it official. But a lot could go wrong, and the complex legal issues can be resolved only by the high court. Consider these possible scenarios:
• The counting drags on. If the election is close—and even if it isn’t—the process of tallying the vote could end up making the 2000 election dispute look simple. This year’s election procedures are being revised by courts in multiple states. This raises such questions as whether widespread mail-in voting and “ballot harvesting” are permissible and whether ballots received after Election Day can be counted, along with the overarching question of whether state or federal courts can create new election rules to address the Covid-19 pandemic.
In Bush v. Gore, the justices were forced to act by an impending deadline. Based on a specific constitutional grant of authority, Congress established the date on which the Electoral College must vote—a hard deadline (this year Dec. 14). In addition, Congress created a “safe harbor,” Dec. 8 this year, by which the state’s electoral slate is presumed to be valid. The court in 2000 acted to stop the recounts to meet the latter deadline.
Regardless of the statutory safe harbor, Article II of the Constitution requires each state to appoint electors “in such manner as the legislature thereof may direct” in time for the Electoral College vote. Because this is a specific constitutional duty conferred on state legislatures, they are exercising federal authority. Therefore neither state nor federal courts may rewrite election laws applicable to the selection of presidential electors. Justice Brett Kavanaugh emphasized that point concurring in Andino v. Middleton, an Oct. 5 order in which the justices stayed an injunction by the Fourth U.S. Circuit Court of Appeals that would have prevented South Carolina from enforcing its witness requirement for absentee ballots.
The Constitution similarly authorizes Congress to establish a single day—this year Nov. 3—on which presidential electors (and members of Congress) must be chosen. The election must be conducted on that day. This was the Supreme Court’s conclusion in Foster v. Love (1997), which involved congressional elections. The justices ruled that “the combined actions of voters and officials meant to make a final selection of an officeholder” must take place on Election Day, even if some aspects of voting may take place earlier. Thus although ballots can be completed beforehand and returned through the mail, they must be received by Nov. 3.
The justices have discretion over which petitions to hear and when. In cases involving a pending election, they should err on the side of speed and decisiveness. The sooner and more clearly these disputes are adjudicated, the likelier the election will go smoothly—and the less likely the need for an 11th-hour judicial intervention à la Bush v. Gore.
If counting isn’t complete by the time the Electoral College votes on Dec. 14, it’s possible one or more states will fail to appoint electors, violating its constitutional duty and leaving it disfranchised.
In that case, another question may arise: If states are absent from the Electoral College, does a candidate need a majority of the 538 available electoral votes (270) to be elected president or vice president, or is a majority of the votes cast sufficient? The 12th Amendment calls for “a majority of the whole number of electors appointed,” but the Supreme Court has never addressed this issue because it has never arisen. In only three elections—1789, 1864 and 1868—have any states’ electors gone unappointed, and in all three cases the winner had a majority either way.
• State authorities certify competing slates of electors. That’s what happened in the election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden. Competing officials claimed their party had won 21 electoral votes from Florida, Louisiana and South Carolina, plus a single vote from Oregon—together enough to be decisive. Congress enacted legislation establishing a 15-member bipartisan “electoral commission” to resolve the dispute. The result, just in time for Inauguration Day on March 4, 1877, was a political deal that recognized Hayes as president and ended Reconstruction throughout the South.
The law creating the commission rested on no obvious congressional authority and thus was surely unconstitutional. But in an era when the federal judiciary’s role was far more circumscribed than today, the issue didn’t come before the Supreme Court. That would be different today—and rightly so. A dispute over the certification of electors is a legal question, not a political one. It would have to be resolved in the courts, and, given the stakes, ultimately by the Supreme Court.
• Congress attempts a power grab. In the years after the 1876 dispute, lawmakers enacted statutes to address the presidential election process, including barely intelligible language that purports to establish rules for determining which electoral votes Congress will count and authorizing members to lodge disputes. This too is constitutionally dubious although like the 1876 solution, it has never been litigated.
The 12th Amendment provides that once the electoral votes have been cast, the vice president receives and opens the votes before a joint session of Congress. (Under current statutory law, this takes place Jan. 6, after the new Congress has taken office.) But this is a purely ministerial function. If no candidate has an Electoral College majority, the House and Senate, respectively, choose the president and vice president. That is Congress’s only legitimate role in deciding the election.
This is for good reason. The Framers considered having Congress choose the president but concluded it would give too much power to the legislative branch and violate the separation of powers. Their solution was the Electoral College, an ephemeral body with no institutional interests of its own. Judges don’t decide election outcomes either, but the Supreme Court has recognized since Marbury v. Madison (1803) that it is their duty to “say what the law is.”
Whichever candidates receive the majority of electoral votes on Dec. 14 immediately become president and vice president elect, and they will take office on Jan. 20, 2021—even if it takes a Supreme Court ruling to make it so.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.
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The essence of capitalism encompasses, competition, free markets and profits. Corporations and businesses also have an unspoken responsibility to operate ethically. That said, their first obligation is to stockholders and investors. They are not NGO's and, personally, I resent when board's of public companies take it upon themselves to give stockholder money to entities that are politically motivated and these boards appear to be cowed by shakedown efforts .
To Serve the Public, Seek Profits
Producers capture only 4% of the value they create, and all of society enjoys the rest.
“It’s way past time we put an end to the era of shareholder capitalism,” Joe Biden declared in Dunmore, Pa., in July. Companies “have responsibility to their workers, their community, to their country.” This echoes last year’s virtue semaphoring by 181 CEOs, when the Business Roundtable redefined corporate purpose away from shareholders and toward “stakeholder capitalism”: a collectivist creed of workers, customers, communities, climate and country. Why does it feel like we’re about to get our pockets picked? The message is clear: Profits are greedy, so spread the wealth around.
It’s been 50 years since the New York Times published Milton Friedman’s article “The Social Responsibility of Business Is to Increase Its Profits.” Most people only read the title, so they miss Friedman’s statement that businesses are obliged to avoid deception and fraud. A company must “engage in activities designed to increase its profits,” he writes, “so long as it stays within the rules of the game.”
Almost as penance for publishing the original, the Times recently printed an eight-page supplement nitpicking Friedman’s article. It’s as if in 1826 the Times of London had ripped to shreds Adam Smith’s “The Wealth of Nations” and said, “No one has actually seen the invisible hand. Hidden incentives? Balderdash! Let’s go back to stakeholder mercantilism.” The sun would have set on the Industrial Revolution.
Capitalism and competition create wealth; other systems slop existing wealth around. Stakeholder capitalism is a passing fad with a blatantly obvious end result. Ding ding!—there were four redundant phrases in that sentence. “Stakeholder capitalism” is redundant because companies already benefit stakeholders or die quickly. “Customers are always beautifully, wonderfully dissatisfied,” Amazon’s Jeff Bezos told Congress in July. “A constant desire to delight customers drives us to constantly invent on their behalf.” And any company that wants to be around beyond next quarter already takes care of its community within the Friedmanesque rules of the game. Underpaying employees means competitors eventually lure them away.
No, profits aren’t greedy. They are a critical price signal—a measure of how well a company is deploying capital and creating value for society. The stock market sums all expected future profits, funding companies with great profit prospects and starving unworthy ones. But besides owning shares in those companies, what’s in it for us?
A lot. In a 2005 paper, Yale economist William Nordhaus concludes, “Only a minuscule fraction of the social returns from technological advances over the 1948-2001 period was captured by producers, indicating that most of the benefits of technological change are passed on to consumers.” This is what Friedman was saying implicitly when he called for corporations to maximize profits: It would maximize value to society at large.
Mr. Nordhaus quantified that value in a 2006 paper for the National Bureau of Economic Research: “Innovators were able to capture about 4 percent of the total social surplus from innovation.” The social surplus Mr. Nordhaus identifies is the improvements capitalism brings to common living standards. That is societal wealth. Yes, entrepreneurs and innovators generate wealth for themselves, but not as much as they do for society. If that’s not socially responsible, I don’t know what is. Mr. Nordhaus should have won his Nobel for this, but it was his work on “integrating climate change into long-run macroeconomic analysis” that caught the committee’s eye in 2018. Sigh.
The flip side is that for every dollar government removes from profitable uses through taxes or regulation, it theoretically takes 25 times that amount from compounding social wealth. Each lost dollar reduces investment and potential productivity, and instead goes to whoever public policies favor. Same for environmental, social and governance investing, where distortions diminish returns, just as federal car mileage standards and union overpay destroyed Detroit.
In terms of social value, nonprofits by definition announce their ineffectiveness compared with profit-seeking companies. Millennials especially seem to want a “social purpose” from their employer and their jobs. But the Nordhaus effect means they already have it, often in spades.
There’s no point in trying to “reimagine capitalism.” Capitalism works by creating wealth. Equality comes best through the creation of ever-cheaper goods and services, not handouts. The supercomputer in your pocket, same-day delivery, heart stents, even perfect Costa Rican bananas in your ShopRite were all generated by reinvesting profits. Other “isms” typically fail because they eventually fritter away the wealth that capitalism had furiously created.
Here’s my message to a potential Biden administration: If you want to spend my hard-earned money on social programs, be honest about it. Say “we need to help the poor temporarily with tax dollars so they can get better jobs and stand on their own.” Fine, I’m in. But the more you hide behind word salads and social-justice jibber-jabber, the less I’m interested.
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