The Foundry: Conservative Policy News.

Secluding Schools and Restraining States: Congress Prepares to Regulate Private Schools

Sarah Torre — Fri, 12 Mar 2010 21:00:06 +0000

The Keeping Children Safe Act might sound laudable in name, but it represents the most recent intrusion of the federal government on local public and private schools. H.R. 4247, which passed the House last week by a vote of 262 to 153, prescribes federal regulations on seclusion and restraint disciplinary procedures used by teachers to control violent students. While the intentions may have been to protect children, the compliance requirements make the legislation another unnecessary and unfunded federal burden on states and local schools.

The bill contains an unprecedented mandate for increased teacher training, requiring schools – both public and private – to employ at least one teacher trained in federally-defined appropriate disciplinary action. The legislation also requires affected schools to report yearly disaggregated data on every instance of physical restraint or seclusion, as defined in the bill, and any parental follow up that occurs after such instances.

In a rare expansion of federal regulation of private schools, the bill will apply to all Title 1 schools or any academic institution that receives federal funding under the Elementary and Secondary Education Act. According to the Council for American Private Education (CAPE), the bill would apply to 80 percent of private, Catholic schools and many more private and religious institutions across the country. CAPE notes the danger inherent in allowing the federal government’s hand to slip into the administration of private institutions:

The bill represents an unprecedented degree of federal control of private schools that threatens their autonomy and puts them between a rock and a hard place: accept the federal intrusion in policies and practices or give up participation in federal programs that benefit students and their teachers. By using even limited involvement in federal programs as the pathway for regulating schools, the bill establishes a dangerous precedent for federal control of private education in the future.

A recent report by the U.S. Department of Education found that 31 states have some policy on restraint and/or seclusion and 15 of the remaining states are currently working towards legislation regulating the use of seclusion techniques, especially with special needs children. Since the House bill requires regulation of disciplinary actions within two years, some fear the federal government’s intrusion in the matter will hinder current advancements in protecting children. As Rep. John Kline stated in his remarks opposing the House bill:

It would do a disservice to the safety of our children and their teachers for Congress to hastily take action that either undercuts existing efforts at the local level or delays implementation of state-based reforms. While ignoring the warnings reported by the GAO is not an option, taking action before we have all the facts is equally problematic. There are dangers to federal overreach, including this bill’s abandonment of longstanding precedent that prevents federal education mandates from being imposed on private schools.

While student safety should always be considered, policymakers must avoid unnecessary and overbearing federal intrusion into the daily administration and policies of local schools. Empowering those closest to the student is critical for maintaining school discipline and making decisions most appropriate to individual student needs.

Sarah Torre currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm

In the Green Room: Professor Todd Zywicki on Proposed Financial Reforms

Brandon Stewart — Fri, 12 Mar 2010 20:20:08 +0000

Yesterday, Professor Todd Zywicki from the George Mason School of Law joined Heritage’s David John and American Enterprise Institute’s Alex J. Pollock for a panel titled, “Protecting Consumers in the Financial Marketplace: Thinking Outside the Boxes”. The discussion centered around the proposed financial regulations and a possible Consumer Financial Protection Agency (CFPA).

After the panel, Professor Zywicki, a Senior Scholar of the Mercatus Center and contributor to the popular legal blog The Volokh Conspiracy, sat down with us for an “In the Green Room” segment. We talked about the problems we face if Congress enacts the CFPA, the real causes behind our current financial crisis, and what principles should undergird real financial regulatory reform.

The Democrats’ Tangled Web

James Capretta — Fri, 12 Mar 2010 20:00:01 +0000

In 2009, Democrats chose to proceed with a health-care bill under the regular order – that is, they sought to pass the legislation under normal House and Senate rules. They did not put together a budget reconciliation bill with health care in it, something that could have passed the Senate with a simple majority vote. They conceded that such an approach would likely produce a flawed product, as many non-budgetary provisions in a health-care plan would not survive the reconciliation process. And so they decided to try and pass a bill without resorting to reconciliation, even though they knew they would need sixty votes in the Senate to succeed. It worked. They passed a bill in the House in November, and a somewhat different version in the Senate in December.

Then came Scott Brown. His stunning election to the Senate on January 19 upended the Democrats’ end-game. They were going to work out the differences between the House and Senate-passed bills in January and proceed to pass an agreed-upon version in both chambers as expeditiously as possible. But that plan was contingent on getting sixty votes again in the Senate. With Brown’s election, Senate Republicans increased their numbers from forty to forty-one, thus forcing Democrats to find at least one Republican Senator to support their final bill.

For the past two months, the White House and Democrats in Congress have been weaving ever-more complicated legislative webs all with the express intent of avoiding at all costs any need to negotiate with the now slightly enlarged Senate minority. In effect, what Democratic leaders want to do is – at the very end of the legislative process – switch from regular order to a reconciliation process in order to avoid having to deal seriously with any elected Republicans.

But it’s become increasingly clear that the Democratic scheming and maneuvering necessary to pull off such a high-wire act has created a web of entanglements that could very well doom passage of the entire effort.

In particular, there now appear to be two huge hurdles standing directly in the way of a plan to jam a bill through in the coming days.

First, there is the matter of the liberal abortion provisions in the Senate bill. As the Catholic Bishops conference has noted the Senate-passed bill includes several provisions that would allow taxpayer funding of elective abortions. Consequently, the Bishops opposed passage of that bill when it was considered in the Senate, and now oppose its passage by the House. The problem for House Democrats is that every version of the end-game they are now considering is predicated on having the House take up the Senate bill and pass it unchanged for presidential signature.

That is entirely unacceptable to the Catholic Bishops. They oppose House passage of the Senate’s pro-abortion health bill. Period. And their opposition hasn’t come with procedural loopholes that would let members off the hook if they promised to pass a fix separately. That would be fool’s bargain, and the Bishops know it. So pro-life House Democrats, led by Congressman Bart Stupak, really have no choice here. They can’t support the Senate bill unless they want to be known for supporting the most pro-abortion bill ever considered in Congress. Their only real option is to force House leaders to amend the Senate bill before passing it to include strong restrictions on funding of abortion. Yes, that would mean the bill would have to go back through the Senate again before going to the president, but so be it. That’s not the Bishops’ problem. It would mean the president and the Democrats would have to really negotiate to get some Republican support, which is of course the norm for sweeping and important legislation.

This post originally appeared at National Review Online.

A History of Insisting: Abortion and the House of Representatives

Chuck Donovan — Fri, 12 Mar 2010 19:30:20 +0000

Democratic leaders in the House of Representatives appear to have abandoned their efforts to persuade a small band of pro-life members of their party to vote for a Senate bill that contains numerous provisions that subsidize elective abortion. Instead, the Democratic leaders are daring those pro-life members not to vote for the permissive Senate bill and take what they believe will be heat for defeating health reform. In something of a reverse grief cycle, Speaker of the House Pelosi has moved from bargaining to anger. It remains to be seen whether the death of the health care reform she favors lies along that axis or whether a resurrection is at hand.

The stakes could not be clearer for the “Stupak 12,” a group of House members largely from the industrial heartland who either have served in Congress for decades or who occupy seats that, though they may “swing” between the two major parties, don’t swing on the abortion funding issue.

District 1 of Ohio is a case in point. The seat is now held by first-term Democratic Rep. Steve Driehaus, who voted for both the comprehensive Stupak-Pitts pro-life amendment and for the House health care bill. Driehaus is facing a reelection challenge from the candidate he defeated in 2008, Steve Chabot. Chabot also strongly opposes abortion but is a declared foe of the massive health care reform legislation. Cincinnati is one of the most conservative areas in the state and it was long represented by former Cincinnati Mayors Tom Luken and his son Charlie Luken, Democrats who, like Chabot and Driehaus, consistently voted for abortion funding limits like the Hyde amendment.

Strong opposition to federal payments for abortion permeates Ohio 1 and other districts now held by the Stupak 12. These members of Congress are likely aware that throughout the entire history of the abortion funding debates in Congress, it has been axiomatic that the House of Representatives has favored tighter limits than the generally more permissive Senate. Repeatedly since 1976, when the Hyde amendment was first adopted, the House of Representatives has initiated restrictions on abortion funding on the appropriations bills that, constitutionally, must originate in that chamber. In those years when attempts have been made to liberalize the funding law, it was invariably the Senate that pushed for expansion against strong House resistance.

It’s the height of irony therefore that President Obama and the Congressional Democratic leadership have been asking the Stupak dozen to accept that the Senate will rescue them politically by adopting abortion funding limits that will be omitted when the Senate bill is approved on the House floor. It is doubly ironic because, once Stupak and company have presumably abandoned their bedrock principles, the Senate bill would go directly to the President for his signature. Senators who favor both abortion funding and Obamacare will have achieved their goal and will have no incentive whatsoever to adopt a reconciliation bill that contradicts their own policy goals.

Considerations like this have kept the House of Representatives voting time and again over the last 35 years to insist on its position on abortion funding and compel the Senate to give ground in search of a compromise. Speaker Pelosi now seems to have recognized this fact and chosen to move on without as many as a dozen Democratic members she and President Obama desperately need.

College is about to Cost You Even More

Lindsey Burke — Fri, 12 Mar 2010 19:00:29 +0000

The New York Times and Washington Post are reporting that an agreement has been reached to include a federal takeover of student loans as part of the forthcoming reconciliation package. The New York Times reports:

Democratic Congressional leaders struck a tentative agreement on Thursday that breathes new life into President Obama’s proposed overhaul of federal student loan programs. The deal would bundle the bill into an expedited budget package along with the Democratic health care legislation, which would allow for both measures to be passed by the Senate on a simple majority vote.The bill would end government payments to private, commercial student lenders, leaving the government to lend directly to students. It would also redirect billions of dollars to expand the Pell grant program for low-income students, and to pay for other education initiatives.

The Washington Post notes:

Both proposals, stuck in Congress for nearly a year, are gaining new momentum as Democrats contemplate facing voters in November without having delivered on any of Obama’s major policy objectives.
Key Senate Democrats initially balked at combining the health-reform bill with a measure that overhauls the nation’s student-loan program, but on Thursday they had warmed to the idea.

But, as Heritage wrote last year, this federal takeover, originating with the House SAFRA bill, would be a bad deal for students and taxpayers:

[The proposal] would end the FFEL program in 2010, shifting all student aid lending into the federal government’s Direct Loan program and the Federal Direct Perkins Loan program. This proposed change is premised on the belief that ending subsidies to private-sector lenders will reduce government costs and that the federal government will administer student loans more efficiently than private lenders do.
In July, CBO Director Douglas W. Elmendorf acknowledged that the original CBO projection did not adjust for the cost of market risk of increasing defaults that the federal government will assume with the shift to direct lending. In addition, there is a danger that taxpayers’ costs could balloon if the federal government proves less efficient in administering and collecting loans than current private-sector lenders, which have an incentive to administer and collect loans efficiently in order to maximize profits.
There are also concerns that the elimination of FFEL and shift toward direct loans would lead to worse service for borrowers. Right now, college students have the opportunity to originate loans with the federal government through the Direct Loan program; however, most borrowers choose to take loans from the private-sector providers. If the federal government is given responsibility for making and administering all loans, there the quality of service in loan administration could be poor, presenting challenges for borrowers and colleges.

White House Delays Asia Trip: Another Sign Obamacare on Code Blue

Conn Carroll — Fri, 12 Mar 2010 18:00:16 +0000

In the face of declining polling numbers, daily Democratic defections, and unfavorable rulings from the Senate Parliamentarian, the White House has devolved into all out panic mode. Politico reports:

President Barack Obama is delaying his trip to Indonesia and Australia by three days in hopes of finalizing a health care deal — and will scrap plans to bring along First Lady Michelle Obama and his two daughters, according to senior administration officials.
…
By postponing his trip, Obama effectively gives the House some breathing room, preserving the hope that members will be able to depart the Capitol for their Easter break two weeks from today with a deal in their pockets.

Two things to remember about this latest development:

1) This just proves, again, how desperate the White House is for the House of Representatives to pass the Senate health care bill before the Easter recess. The Obama administration knows the American people hate Obamacare and that after a week listening to their constituents back home, there is no way the House will take up the Senate bill again.

2) President Obama has made many other attempts at influencing outcomes with his presence. He went to Copenhagen in November to lobby for the 2016 Olympics to come to Chicago, returning there again a month later to obtain a global climate treaty. The President also campaigned for Creigh Deeds to be governor of Virginia, Jon Corzine in New Jersey and for Martha Coakley’s campaign to become junior senator from Massachusetts. We fail to see why he believes his presence at the health care negotiations might have a different impact.

The Constitution: Another Victim of Obamacare

Brian Darling — Fri, 12 Mar 2010 16:59:03 +0000

Reports yesterday indicated that the Senate Parliamentarian “ruled” that the President must sign the Senate passed version of Obamacare before the Senate can act on a reconciliation measure. This ruling would have blown up plans in the House to use a very complicated procedure to pass both a Senate passed health care reform bill and a reconciliation measure to make change to the bill all at once. This scenario would have allowed the House to avoid a vote on the Senate passed Obamacare bill and they could have avoided the filibuster rule in the Senate (see Health Care Nuclear Option). The liberals are intent on passing Obamacare at any cost.

Reports have come out today that the Parliamentarian has not ruled that the President must sign a law before it is considered a law for reconciliation purposes. First, they came up with a strategy to get Obamacare passed in the House without the House ever voting on the bill, now they have come up with a strategy and a ruling to get the Obamacare bill to qualify as law without the President signing the law. President Obama, Speaker Pelosi, and Majority Leader Reid should not support efforts to violate the clear words of the Constitution to pass Obamacare.

The Constitution says that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

Just to restate a shocking development in the Obamacare debate; Congressional leaders have found a way to ignore the Constitutional requirement that a law be signed by the President before it is considered a law. Outrage is not a strong enough word for the feelings many American’s have toward elites in Washington, D.C. who will do anything to pass Obamacare.

According to Politico:

Senate Republicans caused a major stir Thursday when they told reporters that the parliamentarian had informed them that the Senate bill needed to be signed into law before lawmakers took up a sidecar bill to fix it. And Senate Budget Committee Chairman Kent Conrad (D-N.D.) told his Democratic colleagues during a caucus meeting Thursday that he had heard the same thing.

That was yesterday and today is very different. Now the Parliamentarian is backing away from that ruling according to unnamed sources:

But according to reporting by POLITICO’s David Rogers, the accounts aren’t accurate and misconstrue what the Senate parliamentarians have said. That is that reconciliation must amend law but this could be done without the Senate bill being enacted first. “It is wholly possible to create law and qualify law before the law is on the books,” said one person familiar with situation.

A law is not a law until it is signed by the President according to the United States Constitution. You can’t create “law and qualify law before the law is on the books.” The great irony is that there are no “books” other than the U.S. Code which is a compilation of laws. The moment the President signs a bill, it becomes law. This is true legislative activism to claim that reconciliation can amend a law that is not a law.

To Answer or Not to Answer the Census – That Is the Question

Hans Von Spakovsky — Fri, 12 Mar 2010 16:09:11 +0000

I have been deluged lately with requests asking me whether one has to answer all of the questions on the 2010 Census, particularly those about race and ethnic background. Like Mark Krikorian, I don’t like those questions and don’t think the U.S. government should be collecting that information — its only use is to continue to separate us on racial grounds, for reapportionment purposes and for certain government programs.

Mark has said that he is going to answer “American” on the race question. I have always been tempted to answer “Native American,” since I was born and raised here. However, people need to understand that they may incur a legal liability if they use such answers or don’t answer questions at all.

In Article I, Section 2, the Constitution says that an “Enumeration” must be conducted every ten years “in such Manner as [Congress] shall by Law direct.” Congress has directed through a federal law that anyone who “refuses or willfully neglects…to answer, to the best of his knowledge, any of the questions” on the Census form can be fined $100 (13 U.S.C. § 221). If you deliberately give a false answer, you can be fined up to $500.

Although there are not a lot of reported prosecutions, this statutory requirement has been upheld by the courts as constitutional. There is even a 1970 court decision from Delaware holding that there is a separate violation for each question you don’t answer. So, on this year’s ten-question Census form, you could be fined as much $1,000 — $5,000 if you refuse to answer or deliberately give false answers. If there was a mass refusal by millions of Americans to answer parts of the form — like the race question — the U.S. Justice Department would not have the resources to prosecute everyone who violated the law. But you could be prosecuted and fined, and there is a court decision from New York (which the Supreme Court refused to review) holding that a conviction for violating this law is valid even if there were other persons who also refused to fill out the form but were not prosecuted. (One curious exception to that: The liberal Ninth Circuit reversed a conviction when it was shown that the defendant might have been targeted due to his publicly held “dissident” view that the Census is an unconstitutional invasion of privacy.)

Everyone should realize that if you don’t complete a Census form, you are violating federal law. The chances of actual prosecution may be remote, but it could happen. The only real answer to this problem is for Congress to prohibit the Census Bureau from collecting such information and to make all government programs (and the reapportionment process) explicitly race-neutral.

Cross-posted at The Corner.

Obama Admin on Welfare: “Who’s to Say What is Enough?”

Kiki Bradley — Fri, 12 Mar 2010 15:30:59 +0000

Yesterday, the U.S. House of Representatives Ways and Means Subcommittee on Income Security and Family Support held a hearing on the Temporary Assistance for Needy Families (TANF) program and its role in providing assistance to struggling families.

The Obama Administration’s witness, Assistant Secretary for the Administration for Children and Families, Carmen Nazario, included in her testimony a request to extend for a year the TANF Emergency Fund at a cost of $2.5 billion. This would extend a $5 billion program created in the Stimulus package last year that severely undermines the success of welfare reform. It essentially pays states for every new TANF case added to the caseload creating a perverse incentive to grow the size of the welfare state.

Robert Rector, Senior Research Fellow at The Heritage Foundation, testified at the same hearing that federal and state welfare spending under the Obama Administration is already on a trajectory to spend $953 billion in 2011 on means-tested programs for the poor. This prompted the Ranking Republican on the Committee, Congressman John Linder, to ask Ms. Nazario, “Is it your testimony that $953 billion is not enough?” See her response in the video above.

Rector’s testimony went on further to say:

President Obama’s increase in federal means-tested welfare spending during his first two years in office is two and a half times greater than any previous increase in federal welfare spending in U.S. history, after adjusting for inflation.
According to the long-term spending plans set forth in Obama’s FY 2010 budget, combined federal and state spending will not drop significantly after the recession ends. In fact, by 2014, welfare spending is likely to equal $1 trillion per year…..$10.3 trillion over the next 10 years. This spending will equal over $100,000 for each taxpaying household in the U.S.

It’s clear from the President’s 2011 budget as well as those testifying on behalf of the Administration that continuing to increase welfare spending at historic levels is a priority despite the record level deficit. In these tough economic times, President Obama is intent on keeping his promise to “spread the wealth” while at the same time bankrupting America.

The Real Debt Washington Doesn’t Want You to Know About

Alison Fraser — Fri, 12 Mar 2010 15:02:57 +0000

Remember how public anger over the federal debt reaching new sky-high levels last year drove lawmakers into a flurry of discussions about budget controls? Responding to public and international pressure to do something about permanently spiraling deficits, President Obama established a flawed commission to tackle the spending problem. Congress, doing its part, voted for a massive $1.9 trillion increase in the debt limit to $14.3 trillion. That increase was so large it would allow them to spend freely during this election year without upping the limit on the federal credit card again. What’s more, they could use the Obama’s commission as a figleaf of cover towards fiscal responsibility. Bad enough, right? But the real story behind the nation’s debt is far worse.

The debt limit is comprised of two types of debt: debt held by the public and debt held by other governmental entities like the Social Security Trust fund. This measures money lent to the federal government by others as well as money lent from one part of the government to another. But there is much more the taxpayers are on the hook for and it can be found in the Annual Financial Report of the United States Government. The recently released report for 2009 shows that total liabilities are $14.5 trillion, more or less equal to the debt, but up $2.3 trillion from 2008, driven by spending on TARP and declining revenues and tax cuts for low income Americans. However, the long-term excess costs from burgeoning entitlement costs like Social Security and Medicare are $45.8 trillion, up $2.9 trillion – a far larger increase. Along with other commitments and contingencies, the total obligations of the U.S. Government total $63.3 trillion, or $63,300,000,000,000.

If that makes your eyes glaze over, this represents a debt burden of $200,000 for every man woman and child in America. It is a $16,000 jump over last year. This is the real debt that Washington doesn’t want you to know about. This is the real debt that Congress must immediately get serious about. So when Congress passes new spending bills or a massive new entitlement benefit like the health care bill now being debated, they should tell the taxpayers – present and future- how it will affect this real debt – $63.3 trillion, $200,000 for every American.