Earlier this year, at Supreme Court oral argument in the case of Citizens United v. Federal Election Commission, the government raised eyebrows by arguing that it believed that it can constitutionally ban the publication of books (if, as is always the case, the publisher is a corporation) that contain even one line arguing for the election or defeat of a candidate for federal office.  The government based its belief on the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a blanket ban on corporate political spending in order to prevent “distortion” of campaigns.  Faced with the full constitutional ramifications of Austin – for the government’s position flows naturally from Austin - the Supreme Court asked the parties to reargue the case on September 9, to consider whether Austin should be overruled.

Austin was based on the assumption that the government could limit some speech in order to enhance the voices of others, although the case tried not to frame it that way.  Rather, the Austin Court argued it was dealing with a “different type of corruption, the corrosive and distorting effects of immense aggregations of wealth… .”  To most people, that sounds like an egalitarian argument, not one about “corruption.”  Which would be fine – it is perfectly acceptable to favor things on egalitarian grounds – except that the First Amendment to the Constitution appears to forbid the government from making such determinations.  As the Supreme Court stated in in the landmark case Buckley v. Valeo, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed ‘to secure “the widest possible dissemination of information from diverse and antagonistic sources,”‘ and ‘”to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”‘”

Thus, Austin has long been the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold.  And apparently the government now agrees, for rather than defend Austin, the government has apparently decided that the best defense is a good offense – in it’s brief, filed last week, it now argues that it not only can ban books published by corporations – it could ban books even if published by individuals.

As Richard Hasen notes, the government’s supplemental brief makes no mention of the “distortion” argument that underlay Austin. Instead, the government argues that it can regulate even independent speech because such speech might influence elections and might make officeholders feel some sense of gratitude to those who make such expenditures.  Such a rationale runs directly counter to Buckley and other Supreme Court precedents, including Colorado Republican Federal Campaign Committee v. Federal Election Commission and Federal Election Commission v. National Conservative Political Action Committee. The Buckley Court held that independent expenditures could not be regulated because, by nature being independent, there was less opportunity for an exchange of legislative favors, and because, simply put, allowing regulation of independent spending would carve a swath through the First Amendment too broad for even a Court writing in the immediate aftermath of Watergate to swallow.  Austin, clumsy and disingenuous as it is, nonetheless only alters that rule for corporations, and presumably unions.  Now the government seeks to alter the rule for all, allowing it to regulate all political speech that supports or opposes a candidate’s election.  Under the government’s proposed rule, not even actual gratitude is required before the government can limit speech – it is enough that the government thinks that in some cases legislators might feel gratitude.

If the Court was worried that Austin had no logical stopping place short of banning corporate published and distributed books and movies, we don’t think that the government’s new approach is going to be any comfort.  But hey, when you’re way behind and the clock is finally running out, why not throw the Hail Mary?

Cross Posted at Center for Competitive Politics, www.campaignfreedom.org.

The Supreme Court has long recognized that Campaign finance regulation (“reform”) limits the ability of citizens to speak on political matters, in apparent contravention of the First Amendment rights of speech, press, and assembly.  The only justification that the Supreme Court has recognized for upholding campaign finance regulation despite the limits it imposes on First Amendment rights is to prevent, “corruption or its appearance.”  Moreover, limitations must be “content neutral” — that is, not aimed at particular viewpoints.  “Reform” cannot withstand constitutional scrutiny if it is just an excuse to silence disfavored voices. 

I don’t think much of the anti-corruption rationale for upholding restrictions on political speech, on either theoretical or empirical grounds, but let’s let that pass today. In September, in Citizens United v. FEC, the Supreme Court will hear argument on whether to overrule Austin v. Michigan State Chamber of Commerce, a 1990 decision that allows a complete ban on all corporate political expenditures.

Naturally, the “reform” community is up in arms. Why? Well, here is what Austin supporter Professor Rick Hasen, owner of the influential Election Law Blog, had to say in the immediate aftermath of the Court’s announcement on Austin:

If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.

Here is National Journal‘s Eliza Newlin Carney, an ardent and long-time advocate of “reform:”

The bottom line: Already-influential corporations would win vast new powers — something that arguably couldn’t come at a worse time.

Campaign finance “reform” lobbyist Fred Wertheimer, President of the pro-regulation organization Democracy 21, expresses his concern that:

Overruling the Austin decision — and finding that corporations have a First Amendment right to spend unlimited sums of corporate funds to influence federal campaigns — would fundamentally undermine our democracy and change the character of federal elections. It would allow the immense wealth of corporations to drown out the voice of the American people.

Does this sound like these influential commentators are interested in “content neutral” legislation? Or does it sound like they want to silence a point of view that they associate with corporations, and, at least in Hasen’s case, with Republicans?

E.J. Dionne, The Washington Post‘s syndicated Democratic columnist, adds similar thoughts:

[D]o conservatives on the court see an opportunity to fight the trends against their side by altering the very rules of the electoral game?

Is Dionne admitting that the law is intended to suppress pro-Republican voices?  Dionne goes on to quote Sen. Chuck Schumer (D-N.Y.): the ruling, says Schumer, “would dramatically change America at a time when people are feeling that the special interests have too much influence and the middle class doesn’t have enough. It would exacerbate both of these conditions.”

So it is about forcing disfavored (by Senator Schumer) influences to keep quiet?

Finally, to drive the point home, there is this timely diary titled “Can We Make Campaign Finance Reform a Priority Yet,” at the far left blog site, Daily Kos, posted July 12: When the voices of ordinary citizens compete with those of corporate lobbyists with big donations, we lose every time.

Again, a lot of assumptions there about what constitutes speech, the ability of voters to process information and make decisions, what voters “really” want, and who constitutes ”ordinary citizens” (certainly not the millions who own shares in corporations!), etc., but the bottom line seems to be pretty clear -what Professor Hasen, Carney, Dionne, Senator Schumer, and the Daily Kos’s anonymous diarist all agree on is that campaign finance restrictions are needed to silence the left’s enemies so the left can win political victories.  The fact that they call their opponents “special interests” and accuse them with unsubstantiated charges of “corruption” is merely an effort to camouflage that fact.

Judge Sotomayor has had many favorable things to say about campaign finance reform in the past.  Let’s hope she gets some questions on it this week.

The Connecticut Office of State Ethics (OSE) is poised to investigate and penalize the Diocese of Bridgeport for having the temerity to exercise at least four of the five sections of the First Amendment (religion, speech, assembly, petition).

The story begins earlier this year when Connecticut State Senator Andrew McDonald proposed legislation (S. 1098) that would have forced the Catholic Church, contrary to the church’s doctrine, to relinquish control of parish finances (for those from congregationalist traditions who may not be aware of the organization of Catholic Churches, the Catholic Church, by doctrine, is very hierarchical, with Bishops responsible for all the parishes within the bishopric, and those Bishops reporting on up the line, ultimately to the Vatican.  Unlike most protestant demoninations, local parishes exercise little governing control.  This is not merely an issue of secular control but one of theological doctrine deeply entwined in the Catholic Church’s views on the role of clergy, the papacy and the church in fulfilling God’s mission).  Naturally the church opposed this incursion into its governance and doctrine, with the Bishop urging Catholics to contact their legislators and the Church supporting a mass rally in the state capital.

So the state struck back.  From the American Spectator story by Lisa Fabrizio:

It seems that our Diocese of Bridgeport — which in March was forced to marshal the faithful to defend itself from unconstitutional government interference — was notified by the Connecticut Office of State Ethics that it is under investigation for possible violations of the state’s lobbying laws.

Bishop William Lori sent a letter to the OSE challenging the investigation. He describes the activity that led to the investigation:

Following the surprise introduction of Bill 1098, a proposal that singled out Catholic parishes and would have forced them to reorganize contrary to Church law and the First Amendment, our Diocese responded in the most natural, spontaneous, and frankly, American, of ways: we alerted our membership – in person and through our website; we encouraged them to exercise their free speech by contacting their elected representatives; and, we organized a rally at the State Capitol…

On April 23, 2009, the Diocese received a letter from Thomas K. Jones, Ethics Enforcement Officer for the OSE, stating that it was “the subject of an Office of State Ethics evaluation,” which was “being conducted to ascertain whether the Diocese had violated [Connecticut General Statutes Sections] 1-94, 1-95 and 1-96 by failing to register as a lobbyist in Connecticut, by failing to submit all other appropriate lobbyist filings, and by failing to follow all applicable registration procedures.”

The OSE claims the Diocese acted as a “lobbyist” by: participating in a March 11, 2009, State Capitol rally against Raised Bill 1098 (the unconstitutional attempt to reorganize Catholic parishes contrary to Catholic teaching and tradition); making statements on its website urging its members to contact their elected representatives to oppose Raised Bill 1098; and making statements on its website urging its members to contact their legislators to oppose another bill, Raised Bill 899 (regarding same-sex marriage).

The subtext to all this is that the underlying legislation itself appears to be retaliation for the Church’s opposition to same-sex marriage (Sen. McDonald and lead Connecticut House sponsor Rep. Michael Lawler are both gay). 

It’s hard to imagine that in a country with the First Amendment protections we are supposed to enjoy, it should even be a matter of discussion whether it is legal, without government approval in advance, to hold a rally at the Statehouse and encourage fellow citizens to contact their elected officials. Such is the state of “reform” and “ethics” that we do in fact have to have these discussions.

(This post adopted w/ permission from a post by Sean Parnell at the Center for Competitive Politics.

I stopped briefly by the Columbus Tea Party, which began on the State House lawn at 6:00.  I’d estimate the crowd at about 1500 to 2000 and still growing, albeit slowly, at 6:45.  It was pretty easy to calculate that there were 400 to 500 on the State House steps, and from there estimate the numbers on the ground.  That struck me as a pretty good crowd for a weekday evening, with thoroughly rotten weather.  The temperature was in the low 40s, the sky completely overcast with a very light rain that kept a sort of steady mist in the air.  It was the kind of cold that chills you to the bone.  Has been like that all day in Columbus.

A couple other observations that stood out for me:

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Why has Tom Daschle been paid over $4.5 million in the four years since losing his Senate seat (not to mention his wife’s lucrative career as a lobbyist)? Because it is believed – correctly – that Tom Daschle can get you government contracts; or spare you from government regulation; or get the government to regulate your competitors.

This influence peddling is going to get worse – much worse – under the Obama regime. You can’t double the Federal government’s discretionary spending in one “stimulus” bill, and propose to nationalize health care (as Mr. Daschle wants to do), nationalize the auto industry (as has just about been done), nationalize the banks (already nationalized in all but name, with the President yesterday announcing plans to dictate their lending policies), and think people aren’t going to flock to Washington and pay big bucks to the Tom Daschles of the world to help them get their share of the loot.

These are not unintended consequences of the policies of big government. They are the essence of big government. The cash floating around Washington and being lavished on the Tom Daschles of the world is exactly what Democrats have longed for – money follows power.

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Richard Winger’s <a href=http://www.ballot-access.org/2008/12/09/republican-share-of-us-house-vote-is-lowest-for-either-major-party-since-1976/>Ballot Access News</a> has tallied up the total vote for the U.S. House.  The Democrats received 53.9%, the Republicans just 43.0%.  This is the lowest total for either party since 1976, when the Republicans won just 42.0% of the popular vote.  The last time the Democrats polled this low in the total vote for U.S. House was 1928.

Republican vote totals are also trending downward, from 50.6% in 2002 to 49.9% in 2004 to 44.8% in 2006, then this year’s 43.0%.  (In 1994, Republicans won 52.0% of the Congressional vote.)

In <a href=http://www.ballot-access.org/2008/12/11/us-senate-election-results/>Senate races,</a> Democrats won 52.1% of the vote, to the Republicans 44.6%.  Six years ago, when these same seats were up, the GOP candidates won 50.3%.

For 11 Governor’s races, the Democrats picked up 50.2% of the total vote to the Republicans’ 47.3%.

Obviously, the House statistics are most interesting, since they cover the country.  These numbers, of course, show real erosion and danger for Republicans.  But one can notice one upside: the last time the Democrats polled so low as this year’s GOP was 1928; four years later they elected Franklin Roosevelt in a landslide.  The last time the Republicans polled so low was 1976 – four years later they elected Ronald Reagan and won Senate control for the first time in 28 years.

Still, not a pretty picture.

Voters across the nation were asked to decide 153 state ballot measures on Tuesday. On balance, these results actually indicate an electorate that did not want a lot of “change.”

Lots of info on what passed and what did not below the fold.

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Not surprisingly, the GOP also lost ground in state legislatures on Tuesday. However, given the circumstances, the losses were relatively modest: we lost 76 state senators and representatives, out of a grand total of 7380 nationwide. Speaking simply in terms of our own, we lost a net of 8 of 897 state senate seats held by Republicans, and 68 of 2398 state representatives.

For more, hop below the fold.

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There seems to be broad though not unanimous agreement that Sarah Palin will eventually make a play for the White House. Dan McLaughlin lists her as a darling of the “culturally conservative” wing of the party for a possible run in four years. And certainly during the campaign, the MSM routinely defined her as appealing to the socially conservative wing of the party. Nor is there much doubt about her appeal there.

Now, there are libertarians who disagree with this assessment, such as the talented young Ryan Sager, who saw the Palin pick as cementing the GOP as, “a southern-centered party based on social division and cultural resentment;” or Reason contributing editor Cathy Young, who sees in Governor Palin a “GOP in thrall to troglodytes.” But this is the careless language of the young. There are others, many others – I think a solid majority of libertarians, really – who agree that Palin’s libertarian critics are letting an immature hostility to all things religious, or a cosmopolitan animosity to Palin’s distinctly non-cosmopolitan aura, blind them to the type of Governor Palin has been. If you watch Palin’s debates from her Alaska political career, or her ads in the race for Governor, or look closely at her record at Governor, as Denver Post libertarian columnist David Harsanyi has, it becomes pretty clear that Palin has both campaigned and governed as a small government libertarian; secure on social issues but consciously not allowing them to define her campaign or her administration. Her campaigns, and her governance, focused on taxes, spending, market oriented health care change, market oriented environmental policy, and gun rights. It was a liberty agenda, including support for school choice and home schooling, less emphasis on the drug war, more talk of freedom. Indeed, her Vice Presidential run is interesting because it, too, was not dominated by the so-called “social issues,” but rather more focused on the general need to limit the size and scope of government.

In this, Palin represents, I think, the best tradition of Reagan – a blend of libertarianism and social conservatism that unites the wings of the GOP: the virtue and liberty candidate. Palin is a social conservative, but recognizes the limits of government power to enforce virtue. She is no intellectual, but she is smart and seems to have strong libertarian instincts.

In retrospect, it seems that Palin might have benefited from not being chosen by Senator McCain this year. She might have done better to have finished her term, won a landslide re-election, and introduced herself to the nation at her own pace and with her own message, not Senator McCain’s, which she carried loyally throughout the campaign. But she was certainly the most electrifying thing to hit GOP circles in this campaign. In any event, I hope that Governor Palin returns to Alaska, works hard, and gets that landslide re-elect that would force the scoffers to do something of a reappraisal. She is very young and has a great deal of time – she would be just 52 in eight years. Libertarians who have turned on Palin – mainly, it seems to me, from a visceral cultural reaction rather than a serious appraisal of the woman – should take another look. And conservatives such as Red State editor McLaughlin should also not be too quick to pigeon hole Palin. Palin certainly has the potential to appeal to the whole GOP coalition.

Libertarians and social conservatives need one another: both exist to resist the omnipotent state. As a result, they often don’t realize it, but their political destinies are inextricably linked. They cannot be enemies and hope to achieve their objectives.

Let’s hope Governor Palin plans her future carefully, continues to polish and improve her act, and returns to the national stage at the appropriate time.

Well, before we start all the recriminations and the strategerizing, or even the post-mortems, lets just look at what we’re left with; what do we hold from which to plan a return?

The picture here this morning looks surprisingly like the picture in the aftermath of the 1992 election.

Senator Obama appears to have won the popular vote by about five points – it will probably be closer to six when all the votes are totaled. He has won somewhere between 349 and 376 electoral votes, depending on the outcome in Nebraska’s third congressional district, Missouri, and North Carolina. Using present vote totals, Obama would take North Carolina out of that group, to finish with 364 electoral votes.

In 1992, Clinton beat Bush by 5.3 percentage points in the popular vote, and finished with 370 electoral votes. Yes, there was a big difference – the presence of Ross Perot – but Clinton almost certainly would have won with or without Perot, and probably by very similar margins in both categories. Bottom line is that Democrats won in 1992 presidential just about what they won in the 2008 presidential.

If fact, even the electoral college map looks quite similar; depending on who wins North Carolina and Missouri, between just nine and eleven states will differ from 1992 to 2008. Most of those were extremely close this year, too, notably Montana and Georgia, which went Democratic in 1992 and narrow Republican in 2008, and Florida, Indiana, and Virginia, which went Republican in 1992 and barely Democratic in 2008.

After the 1992 election, the Democrats held a 56-44 edge in senate seats. After 2008, including the two independents (Lieberman and Sanders) who caucus Democrat, and assuming Republican margins in Alaska, Oregon, Georgia and Minnesota hold, the Democrats will hold a 56-44 edge in the Senate.

After the 1992 election, the Democrats held a 259-176 edge in the House. After 2008, it currently looks like the Democrats will hold about 252 seats in the House – there are a few races still hanging that could add a couple more seats to their margin.

After the 1992 election, the Democrats held a 27-21 advantage in governorships, with two liberal independents. After the 2008 elections, the Democrats hold a 29-21 edge in governorships.

In short, the party split in federal offices and governorships as we enter 2009 will be almost exactly what it was entering 1993.

Of course, there are differences – the Republicans actually gained 9 House seats and broke even in the Senate races in 1992, for example. But my simple point is that Republicans, though we took a thumping last night and are clearly in minority status, retain a considerable base from which to mount a comeback – indeed, a base almost identical to that held two years before the smashing election victories of 1994. And last night was not the complete wipe-out some feared. Most people thought the Democrats would win at least 57 or 58 senate seats. Most predictions I saw had the Democrats gaining closer to 30 House seats, not 20. A slightly better showing in Washington and North Carolina and the GOP could have actually gained a governorship last night. I haven’t been able to compare all the state legislative results, but again, it wasn’t a total blow out last night: Republicans took control of legislative chambers in Oklahoma, in Tennessee, maybe North Carolina. I don’t know where all else we had bright spots, but I’m sure their were many – for example, efforts to target two GOP Justices on the Ohio Supreme Court failed miserably, and the Court remains 7-0 Republican.

We’ll save for later discussion of how to best go about recreating a 1994 type win for 2010. Obviously, there are underlying facts that make 2008 different from 2009, some for the better, some for worse. But for now, just use these numbers to take heart. We’ve been here before, and come roaring back.

My good friends at Reason have taken their quadrennial presidential “poll” of contributors and other libertarians. (I passed on an opportunity to participate.) Of those who would reveal their preference, there were 14 for Obama, 4 for McCain, 13 for Libertarian Bob Barr, and 1 for Ralph Nader.

I respect the folks responding to Reason, and many of them I know personally and consider friends. But when I read the infatuation of these libertarians with Barack Obama, I simply have to conclude that they are not thinking seriously.

For example, one common reason for the choice was to “punish” Republicans. Science fiction writer John Scalzi typifies this sentiment: “I think the GOP need [sic] a moment or two in the Time Out corner, don’t you?” Ron Bailey says, “The Republicans must be punished and punished hard.” Author David Brin argues that if the GOP is “utterly … sent into exile,” then, “perhaps sincere men and women may remember Barry Goldwater and resurrect some kind of healthy, libertarian Conservatism.”

Let’s leave aside the question of which party could really stand for some time in time out (Us!? What about them!!) The problem with this theory is that such “punishment” simply doesn’t yield the desired results.

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These are comments, lightly edited, that I posted as a Contributor to The Arena feature over at the Politico yesterday:

I would like to endorse Barack Obama. I really would.

Like many Republicans, I’ve been unhappy with my party on many fronts over the past decade. Moreover, given that John McCain has publicly called me “corrupt” and more, there’s not a lot of personal affinity there to fall back on. I don’t mind the tone of Senator McCain’s campaign – I’ve seen worse, and overall it is no more negative, disingenuous, or unfair than Senator Obama’s campaign has been: Politics is a rough sport. But I’m not much interested in many of the issues that Senator McCain has chosen to campaign on. And I believe that Senator Obama is a very smart man, and personally a decent man, and there are good things that might come from an Obama presidency, most notably in healing some of the remaining racial divisions in our country.

But if Senator Obama’s economic platform were a book, it would be “’101 Tips for a Healthy Economy,’ by Jimmy Carter, with an Introduction by Herbert Hoover.” Staring into an international financial crisis, Senator Obama wants to raise taxes (say Hoover, FDR, Great Depression), spend money to try to maintain purchasing power (the failed strategy of both Hoover and FDR in the Great Depression) and put new trade barriers into place (a junior league Smoot-Hawley). In the face of high oil prices caused by high worldwide demand and a constricting supply, he wants to increase taxes on oil producers and subsidize oil consumers (Carter). His idea of economic stimulous is to pull savings out of the economy and dribble it back out to consumers who are supposed to save the economy by increased demand (can you say “Carter” and “stagflation?”) He seeks massive new entitlement spending on health care, thinly disguised by a somewhat incremental approach aimed at reaching what he has stated is his true belief, a mandatory, single payer system. His support for “card check” to deprive workers of the right to a secret ballot on questions of unionization shows he either doesn’t understand the realities of the American workplace or, where the interests of his political allies are at stake, doesn’t care. Moreover, he has not shown the interest or the kind of determination necessary for one to think he would check the equally or even more liberal impulses of Democratic Congressional leaders, not only Nancy Pelosi and Harry Reid but powerful Committee Chairmen such as John Conyers, Charlie Rangel, and Barney Frank.

I am pro-life but his support for some abortion rights I could live with if there were other compelling reasons to support the man. But his support for government paid abortions and his opposition – very avid opposition – to restrictions on even partial birth abortion, I cannot stomach.

Whether as a student at Harvard Law, as a backbencher in the Illinois legislature, or as a U.S. Senator, Obama has shown no inclination to work “across the aisle” to find solutions. His approach has been to get past the “old debates”, to use a phrase Senator Obama sometimes does, by conquering his opponents, not by the concilation he promises on the campaign trail. An Obama presidency won’t ruin the nation – as I said, there will probably be some good to come of it, he is a decent man, and this is a very sturdy nation. But as a conquerer, not a divider, he leaves little for people like me.

“Barack will never let you go back to your lives as usual,” declared Michelle Obama last spring. That is exactly what I don’t want in a politician – someone who won’t let me get on with my life. That statement was the equivalent of a declaration of war on all Americans who just want to live a good life, make their own choices, and live with the consequences – in other words, on all those who believe that every man and woman has an inalienable right to life, liberty, and the pursuit of happiness.

For all his flaws, John McCain is no Barack Obama. I think that, more or less, he will let me get on with my life as usual. That’s all I ask from a politician.

Let’s be brutally honest. Barack Obama is going to win the presidential election, and probably by a lot. We’ll avoid recriminations and “I told you so”s and second guessing here. Let’s just face the reality. Obama is trading at 84 on in-trade. Overnight quickie polls show the public overwhelmingly thinks Obama won last night’s debate – which probably has less to do with any “objective” scoring and more to do with the fact that folks have simply decided to vote for Obama. Obama has more cash than McCain and independent groups are spending more in his support than they are in favor of McCain. Obama’s national lead is in double digits in many polls, and per Real Clear Politics, Obama leads in every – that’s EVERY, as in all – battleground states. His leads in Michigan, Pennsylvania, New Mexico, Minnesota, Wisconsin, New Hampshire, even Colorado, Virginia, and Florida, are all outside the margin of error.

So Barack Obama is the next president of the United States, and the Democrats will gain seats in the House and the Senate. At this point, it is imperative that the Republicans maintain a filibuster-capable Senate minority. The Democrats now have about a one in three chance of picking up the 60 or more Senate seats they would need to prevent filibusters.

It is not quite right to say that every nickle spent by the Republican National Committee in support of Senator McCain is a waste, because McCain’s performance will still help downticket races. But the RNC – and individual donors – need to concentrate remaining resources not on Senator McCain’s race for president, but on shoring up endangered Senate Republicans. We need to help Norm Coleman in Minnesota, Elizabeth Dole in North Carolina, Roger Wicker in Mississippi. Even Saxby Chambliss in Georgia and Mitch McConnell in potentially in danger, and Chuck Schumer is pouring money into Kentucky to try to take down the Minority Leader. It may be too late to help John Sununu in New Hampshire, Gordon Smith in Oregon, or Bob Schaeffer in Colorado, but they’re all in much better position than the McCain campaign. It’s even worth trying to save Ted Stevens in Alaska – we’re going to need every vote. 41 Senate seats will be the only meaningful check on Pelosi, Reid, and Obama for the next four years.

I know it’s tough for people to give up on the presidential. But there is a point at which you have to seriously look at the evidence, and save what can still be saved. The RNC needs to shift its focus to the Senate, and the McCain campaign should likewise shift its focus to those states where a stronger McCain effort can help some of these endangered Republicans keep their seats.

Here’s Peter Beinart’s column in Time, and it’s damn insulting. Writes Beinart:

“[T]he McCain campaign’s strategy against Obama is actually kind of shocking. For years, the recipe for injecting race into a political campaign has been clear. … In the past, Republicans often used race to make their opponents seem anti-white. In 2008, with their incessant talk about who loves their country and who doesn’t, McCain and Palin are doing something different: they’re using race to make Obama seem anti-American.”

I’ve met Beinart, and he’s a reasonably smart guy. Why is it that dudes like Beinart can only attribute opposition to liberalism as racism? And isn’t it time for us to be a bit more vocal? Shouldn’t John McCain show some disgust? I’ve got no great brief for McCain, and I think Republicans are gradually coming to realize that he is the worst positioned of this year’s major GOP primary candidates to win the general election. But for all his faults, it is absolutely unfair and wrong to state, as Beinart doees, that McCain is racist or intentionally injecting race into the campaign. And it wouldn’t hurt for Senator McCain, typically so touchy about his honor, to call the Democrats out on this.

Republicans get all worked up about some idiotic “lipstick on a pig,” comment, like anyone should give a damn about that, but here a major columnist in our nation’s largest news weekly openly and flat out accuses us of intentionally campaigning on racist themes, and there’s silence. Maybe Republicans just figure it’s part of the landscape – liberals will call us racist… but maybe it’s time to fight back a bit. Beinart knows lots of conservatives – I met him at a party at the home of a prominent conservative. I wonder if Beinart would have walked up to that host and said, “you’re a bunch of racists.”? I think not. But he puts it in Time, and no one bats an eyebrow. Shouldn’t we be a bit more insulted, and a bit more angry?

Many of our most insightful writers here insist on making one inane comment over and over – that the VP nominee “doesn’t change any votes” because “people vote for the top of the ticket.” How absurd.

Of course the VP nominee changes votes! That’s why people watched the debate. That’s why it’s reported and blogged on at length. That’s why there was alarm in Republican circles over Palin’s poor showing in the Couric interviews, and glee over her strong showing last night.

It is true that relatively few voters (though by no means none) go into the booth thinking, “I like Obama over McCain, but I am voting for McCain because I like Palin more.” But for virtually all voters the VP nominee is part of the large backdrop that fills the canvas, and makes the top of the ticket seem better or worse. To say the VP won’t change votes is like saying a movie score won’t change people’s appreciation of the movie – we know that that is simply not true, the movie score is vitally important… even if few viewers walk out going, “Man, if it weren’t for the score, I wouldn’t have liked that movie.”

Does the VP nominee affect votes? Of course she does. How can anyone with a moment’s reflection say with a straight face that Sarah Palin hasn’t made a difference in this race? Or that the race would look the same if Obama had chosen, oh, let’s say Dick Armey as his running mate. (Now that would be a trip – I don’t know how the race would look, but it wouldn’t look the same). This would be a different race if McCain had chosen Romney or Huckabee or Hutchinson. How many people here vowed they wouldn’t back McCain if he chose a pro-choice VP?

Of all the things that go on in a campaign, there are very few, if any, that do more to change votes than the VP nominee.

The conventional wisdom going in and coming out of last night’s debate is that foreign policy would be Senator McCain’s strongest subject, his best chance to shine. I think that is wrong.

There are reasons why a point of view becomes conventional wisdom, and those reasons are obvious here. The polls show the public has more confidence in Senator McCain vis a vis Senator Obama when it comes to foreign policy issues, but prefers Obama on the economy. Senator McCain is himself clearly more animated on foreign policy issues, and seems to have a better grasp of such issues than he does the economy, where, as he infamously admitted early this year, he’s never quite gotten it. Meanwhile, Senator Obama is a foreign policy naif, with less foreign policy experience than McCain’s much maligned running mate, Governor Sarah Palin. In a dangerous world, would Americans trust Senator Obama as Commander in Chief?

This conventional analysis, however, misses several key points that give Senator McCain openings in the second and third debates, where economic policy is likely to be more dominant.

The first is the question of expectations and possibilities. We know the expectations game, and it’s a bit like a point spread in football. In last nights debate, the point spread had McCain favored by two touchdowns. Anything less scarcely counts as a win. I think McCain won the debate, but not by much. Obama seemed presidential enough; collected enough; smart enough; and he scored enough points to beat the spread. The flip side of the expectations game is the possibilities and threats game. A poor performance by Senator McCain last night might have doomed his candidacy. And Senator McCain has relatively little upside on national security. His views, and Obama’s, are relatively well known. What could McCain have gained last night? Short of some complete screw-up by Obama – always unlikely in these debates – the answer is very little.

This takes us to the other problem Senator McCain had last night – issues. Here’s the fact. Iraq and the war on terror are no longer at the top of people’s lists of important issues. Moreover, people simply want to be done with Iraq. The war remains deeply unpopular. Senator McCain can point out, a million times, that he supported the surge, and Senator Obama has set himself up for one of his weakest moments by his stubborn refusan to admit that the surge has worked, BUT… the fact remains that people just want to be done with Iraq. They may know that they can’t quite be done with it yet, but do they have to talk about it all the time? Being hawkish at a time of an unpopular war is not a recipe for electoral success. So the paradox – Senator McCain may appear to have an edge on foreign policy, but if this election is about foreign policy, Senator McCain is probably going to lose. To put it more simply, Senator McCain’s position on Iraq is a political loser. He may be courageous for sticking to it, he may be right. Politically, it’s a loser.

On the economy, all these considerations turn around. It is Obama’s alleged strong point and where he already holds an edge, so he has fewer upside possibilities. The spread is in McCain’s favor on this one – take McCain and the points.

Mostly, on the economy, the issues favor Senator McCain – if he can take advantage of it. Let’s start with an issue where Senator McCain has an exemplary track record – free trade. Senator Obama, in contrast, is the first openly protectionist, anti-trade nominee of a major party since Herbert Hoover. Protectionism has, over the years, proven to be a fool’s gold of politics – it never wins national elections.

Then we can move to spending, another McCain strong point. Senator Obama will try, as he did last night, to hook McCain to spending, noting that Senator McCain voted for all of George W. Bush’s big spending budgets. But here McCain’s record and image are so strong that Obama simply can’t win. Senator McCain needs to get past the constant repetition of “earmarks,” but if does that, he can nail Obama. He can go right down the list of programs – and of course their cost – that Obama is proposing. He can add to that every idiotic thing Speaker Pelosi and House Democratic Committee Chairman have favored. Don’t let Obama unlink himself from what his party’s congressional leaders have called for, but challenge him: are you going to veto the pet projects of your party’s congressional barons? If not, you’re going to spend when they come through congress.

That flows to taxes. McCain has to do better than last night – he can’t let Obama keep saying that he’ll cut taxes on 95% of the population. He needs to stay focused on the big picture – call it what you will, Obama intends to have the federal government tax more than it does now. One can just about count on one hand the number of economists who think raising taxes in tough economic times makes sense. That’s what Herbert Hoover did, and how did that work out?

Challenge Obama on socialized medical care. Make clear that Obama wants to fundamentally alter your relationship with your physician, and wants the government to determine how much health care you get and when you can get it. And beat Obama like a drum over card check, the system that will deprive workers of the vote over whether to unionize.

In summary, the bottom line is that Obama’s economic package only looks attractive when people aren’t paying attention. Americans do not want a socialized economy, and that is, in essence, what Obama is offering. Thus the current polls showing Obama is favored on the economy are misleading. Obama may be favored on the economy now, but his solutions – bigger government with more spending and taxation, socialized medicine, protectionism, and forced unionization – are not. They are political losers all.

In short, in this strange, topsy-turvey presidential election, Senator McCain’s apparent strength puts him on the wrong side of public opinion; his weak area is where, paradoxically, he is on the right side of public opinion. There is no better chance than the debates to demonstrate what an Obama presidency would really mean for the economic life of the nation.

Last night McCain battled to a draw, or perhaps a narrow win, on a subject that the public doesn’t want to discuss, and where McCain has nothing to offer but blood, sweat and toil – without the imminent and real fear of full scale invasion or the eloquence that made that made Winston Churchill’s speech one of the most famous in history.

When the debate shifts to domestic policy, Obama’s unpopular liberalism will stand out, and McCain will have a better chance to change the dynamics of this race.

• Brad Smith
  Capital University Law School web page
  Comments in Politico’s “The Arena”
  Center for Competitive Politics blog.

I’ve seen a lot of stories lately stating that the McCain campaign, now that it is on the public dole, may not raise any more private money. That’s not quite true. The campaign may still raise money for what is called it’s GELAC account – the “General Election Legal and Accounting” Fund. This fund is used to cover accounting and especially legal expenses, and can total as much as $20 million or even more (it’s not cheap complying with “McCain-Feingold”). You can contribute here.

Also, there are also lots of congressional races that need money, and the National Republican Congressional Committee and National Republican Senatorial Committee are starved for cash and being vastly outspent by the their Democratic counterparts.

Even a blind squirrel finds an acorn now and then. In earlier diaries and comments, I argued that Senator Obama would probably take public financing in the general election; when he did not, I argued that his decision would not, as many feared, place Senator McCain at a huge financial disadvantage. Now others are realizing that Obama’s decision to forego the government earmark in favor of private funding may not work out that well.

But it’s a bittersweet “I told ya’ so.” After all, in a better political world, there would be no government financing of campaigns, let alone Republican candidates relying on the taxpayer to pay for the campaign.

It’s McCainomania! No, it’s Palinmania! It’s McCainopalinmania!

Or maybe it’s just SUSA. I mean, McCain’s hot, but up 20 in North Carolina?

Other than a handful of lines by Fred Thompson, Republicans have done virtually nothing to attack the Democratic Congress at this week’s convention. That needs to change.

Democrats have now controlled Congress for nearly two years, during which time pretty much every indicator voters claim to care about – unemployment, inflation, the deficit, the price of gasoline and on and on – has gone in the wrong direction. This should set up the GOP for a comeback, or at least to stem their expected losses, right? Wrong.

The fact is, only 53% of Americans know that the Democrats control the House of Representatives, according to a recent Pew poll. These include only 46% of women and 50% of independents. In short, in an era in which approval of Congress is at a record low, fully half of the voters Republicans need to reach don’t know that the Democrats control the House of Representatives (and presumably the same is true about the Senate).

Even after Governor Palin’s great performance at the convention, and after several strong weeks for the McCain campaign, it is still more likely than not that Barack Obama will be the next president. Thus, it is vital that the GOP hold its ground in Congress. Gaining ground (as the party did in 1992, when Bill Clinton was elected) is probably too much to ask at this point, but the effort must be made. Further, even if McCain is elected, he’s going to need as much support in Congress as possible.

Unfortunately, right now the National Republican Senatorial Committee and National Republican Congressional Committee are trailing their Democratic counterparts. At the end of July, the Democratic Congressional Campaign Committee had $56 million on hand, versus just $14 million for its Republican counterpart. On the Senate side, the Democratic Senatorial Committee had $18 million more cash on hand than the National Republican Senatorial Committee.

It is true that the RNC has vastly outraised the DNC this cycle. But that money is going to be focused almost entirely on the Presidential race, where it will do little more than get McCain to rough parity with the Obama fundraising machine. Furthermore, the RNC, the most visible of the three GOP party committees, will be focusing all its PR efforts on the presidential as well.

The McCain campaign would be smart to put more emphasis on Congress, though they probably won’t. It’s not only that he’ll need support if elected. Many voters, particularly independent voters, want divided government in Washington. They don’t want one party to control both the presidency and the Congress. But if they don’t know who controls congress, their votes are in ignorance. McCain can’t get “divided government” voters if those voters think that Republicans control Congress.

There is more to this year’s elections than the presidential race. Record low congressional approval gives the GOP a chance, but only if voters know, at a minimum, that Democrats control congress.