Commentary Magazine


Topic: Tom Delay

Reid Sets a Trap for GOP on Earmarks

Harry Reid is making trouble again. With Republicans still squabbling over the establishment-Tea Party rift, the Senate’s top Democrat sat down with reporters from the Huffington Post to offer some comments perfectly designed to make Republicans even angrier at each other.

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Harry Reid is making trouble again. With Republicans still squabbling over the establishment-Tea Party rift, the Senate’s top Democrat sat down with reporters from the Huffington Post to offer some comments perfectly designed to make Republicans even angrier at each other.

According to HuffPo:

Senate Majority Leader Harry Reid (D-Nev.) said he expects congressional earmarks will be revived and insisted senior Republican Party members support the return of congressionally directed spending.

In an interview with The Huffington Post, Reid argued that the prohibition on earmarks was a mistake that tipped the balance of power away from the legislative branch and toward the president. He said he wants the ability to approve specific spending projects to be put back under control of Congress.

Reid said top House Republicans have told him they support earmarks and would like to see the practice return. He said those he’s spoken to include “a very senior member of the House Republican caucus.” Reid wouldn’t name names, but said that the lawmaker is “still there” — meaning it’s likely not Rep. Eric Cantor (R-Va.)

Reid’s timing is almost certainly no coincidence. As political targets go, earmarks are the broad side of a barn. Because they explicitly direct taxpayer cash, it’s easy to find ridiculous pork-barrel projects and obvious wastes of money. During the Bush presidency, Majority Leader Tom DeLay used earmarks as a disciplinary tool. The more transparency that developed–that is, the more easily specific earmarks could be traced not only to their destination but back to their congressional source–the more easily they could be used much as campaign-finance regulation is used: as incumbent-protection plans.

Hence they came to be hated by conservatives even before the rise of the Tea Party. When Republicans gained and then lost control of Congress, much of it was blamed by the grassroots on GOPers falling prey to the lure of power and appropriations and forgetting its limited-government roots. Conservatives said Republicans deserved to lose because they began spending money just like Democrats.

The Tea Party’s arrival on the scene was part of this trend, and it’s easy to see why earmarks are a stand-in for precisely what drives budget hawks crazy about Washington. But they also posed a specific threat to the Tea Party: as districts became less competitive, the primary contests were where the real action was. And, in the House at least, winning a primary got you most of the way to punching your ticket to Congress. (The Senate has been a tougher party to crash.)

So Reid’s timing for dropping this hint about the return of earmarks was perfect, at least from his standpoint. Just a few years ago, an incumbent running against a self-described Tea Partier was an underdog. But this year, incumbents and establishment candidates have been able to push back. In part this has been because the Tea Party’s early victories have enabled it to shape the party’s congressional agenda, so primaries these days are often conservatives running against conservatives–Dave Brat against Eric Cantor is a much different matchup than Pat Toomey against Arlen Specter.

But the recent runoff victory by incumbent Thad Cochran over Chris McDaniel is highly relevant to the debate over earmarks. Cochran was expected to lose the runoff. Primary turnout is already lower than general-election turnout, and a runoff lower still. Usually.

Cochran turned the tables by crossing the aisle and making a successful pitch to Mississippi’s black voters, who are overwhelmingly Democratic. He did so by reminding black voters that he brings home the bacon for them, despite the fact that they don’t vote for him in general elections. Pro-Cochran groups hired black leaders to make the same plea. It worked, and Cochran won.

The lesson here is that Cochran’s record was not enough to placate the grassroots, but that he could win by emphasizing his spending on federal programs that help his state. If Republican leaders pine for the days of earmarks, it’s easy to see why. Not only could they help defeat conservative insurgents, but the House caucus has become far more difficult for the leadership to control–witness House Majority Leader Eric Cantor’s stunning loss to Brat, who had been abandoned even by Tea Party groups.

Reid is also handing his Republican counterparts a live grenade in offering a plausible-sounding justification for earmarks: they could help devolve spending power back to the Congress from the White House. It is, of course, a trap. Earmarks may not have been the budget poison they were sometimes made out to be, and they certainly weren’t all bridges to nowhere. But they will not stop this president from taking executive action, and they will not bring Democrats on board for the House GOP’s reform agenda.

Reid is trying to sucker the GOP leadership into a prolonged fight with its base that the establishment will eventually lose. At times earmarks got more attention than they warranted. But the GOP leadership doesn’t stand to gain from being their champion.

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The Havoc of Prosecutorial Misconduct

With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

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With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

But a week after his trial, the 7-term senator lost re-election by 3,724 votes. There can be little doubt that had this case not been brought, which it obviously should not have been, he would have cruised to re-election. What difference, except to Ted Stevens, did that make? A lot: his successful Democratic rival provided the 60th vote in the Senate in 2010 to push ObamaCare through.

It was prosecutorial misconduct that gave us the most unpopular major piece of legislation in American history. 

Why does this happen so often in this country? In a high-profile case, there can be tremendous pressure on both the police and the prosecutors to produce a perp and then a conviction. Cutting corners is one way to do that. But also, prosecuting attorneys in this country, uniquely in the common-law world, are politicians. Winning a major case is a big addition to their résumé.

While there was no misconduct in the prosecution of Martha Stewart, it is highly unlikely that there would have been a criminal case at all had she merely been rich and not both rich and very famous. At worst, she would have been forced to “disgorge the profits.” So, basically, Martha Stewart was tried for the crime of being Martha Stewart. (To be sure, her legal team completely bungled the case, making her conviction much more likely.)

It is impossible to take the politics out of the office of prosecuting attorney. It is too deeply imbedded in the American system. (Tom Dewey, after all, went from Manhattan District Attorney to the very door of the White House in less than a decade.) But severely punishing prosecutorial misconduct—complete with disbarment and serious jail time—would go a long way towards making ambitious prosecutors think twice before withholding exculpatory evidence and other such misconduct.

But such misconduct is hardly ever punished. No one thinks the prosecutor in the Tom Delay case will suffer any penalty. The prosecutors in the Ted Stevens case were fired from the Justice Department, but remain free men. Only Mike Nifong, the prosecutor in the Duke Lacrosse case, was punished by disbarment. Convicted of criminal contempt, he spent one day in jail.

Lawyers, it seems, take care of their own, regardless of how deeply they stain the profession of law.

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