March 26, 2004
In which I agree with Tom Daschle

U.S. Senator Tom Daschle (S.D.) and I have a few things in common.

We are both from states with small populations.

Neither of us will ever be accused of being tall.

We are both registered Democrats.

After that, the list tends to peter out.

You can imagine my surprise, therefore, when I read the following Daschle quote in a WaPo story about the ongoing nomination/confirmation troubles in the U.S. Senate:

"A divisive form of political gamesmanship has been allowed to extend to the nomination process itself," Daschle said. "Talented candidates are being prevented from serving their nation. And the views and communities they represent are not being heard. And the American people are losing out as a result."

I completely agree.

I also wonder what it will take for Senator Daschle and his cohorts to fix the problem he described so well in this statement.

As it is, Senate Democrats have held up several of President Bush’s nominees, especially Circuit Court appointments.

In fact, a portion of the current minority party membership in the Senate has succeeded in seriously escalating the gamesmanship that has marred the confirmation process for presidential administrations of both parties. Daschle has been an active participant in the delay/filibuster/denial conflicts, to a degree that would produce shame in a person capable of experiencing it.

The latest wrinkle is the Democrats’ announcement that they will hold up all judicial nominations until the President gives up his right to make recess appointments.

As part of its response to the blockade, the Administration is also holding up Democratic nominations to Federal boards and commissions that require membership from both major parties.

Naturally, these Democratic victims of the Democrats’ own tactics are the ones about whom Daschle expressed such concern in the above quote.

It would appear that shame is not the only human quality missing from Daschle’s psyche.

He apparently is also bereft of any sense of irony.

Daschle’s upcoming re-election campaign against a competitive Republican will give the voters of South Dakota a chance to impart some new emotional responses in the Senator—deep sadness, perhaps, or even the rueful recognition that he could have chosen a different path.

Unfortunately, it appears that nothing short of a cloture-proof majority will help convince the remaining members of the Senate that there are consequences to such mindless intransigence.

March 25, 2004
Never on Sunday

Congress sometimes enacts environmental legislation that doesn’t rely solely upon state or local governments to do the right thing.

In addition to the usual enforcement options given to these authorities, these laws also permit citizens to bring their own litigation—just in case the local governments don’t pick up the hint that perhaps they should take the lead.

Even so, these special citizen lawsuit provisions usually give state and local officials a deadline to meet, before the self-appointed private protectors of the environment can file their own complaints.

The City of Attalla, Alabama allegedly had repeated problems with its sewage treatment system. Environmental activists affiliated with the American Canoe Association and the Sierra Club gave Attalla the required formal notice under the Clean Water Act of their intent to sue the city over the recurring problems.

Under Section 505(b) of the Act, however, the citizen notice also triggered a 60-day grace period to give the State of Alabama a chance to file its own enforcement action.

In this case, the 60^th day ended on a Sunday, and of course the Federal courts weren’t open that day. Accordingly, the two groups formally filed their lawsuit on the Monday immediately following.

Alabama also filed its enforcement proceedings against Attalla that same day.

The District Court then dismissed the citizen suit brought by the two environmental organizations. This week the Eleventh Circuit upheld the dismissal, citing the basic deadline-shifting provisions in the Federal Rules of Civil Procedure. 

The appellate panel noted the enforcement policy choice set by Congress: 

[T]he Clean Water Act affords governmental entities (and the violators) a full 60 days to consider and to take action. [citation omitted]. Since it was impossible for the government to file suit on Sunday, then if the plaintiffs had been able to sue on Monday, it would have effectively deprived the government of the full 60 days to file suit as the sole plaintiff seeking enforcement against that defendant.

The plaintiffs essentially argued that the 60-day limit should not be read as an absolute jurisdictional limitation on their ability to press their own case. Nonetheless, in a short footnote the Court gave the plaintiffs a gentle reminder of the limits on citizen involvement in these cases:

Accepting Plaintiffs’ argument would create an anomalous result: a Plaintiff could start the notice period running on a date that would reduce the notice period (and the period of statutory delay) to as few as 57 days. We think the legislature intended otherwise; “the citizen suit is meant to supplement rather than to supplant governmental action.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 383, 98 L. Ed. 2d 306 (1987).

Given their keen interest in filing this suit and their attempt to keep it alive in the Circuit Court, I doubt these two groups will simply sit back and wait on the State of Alabama. It’s far more likely that they will find other ways to keep Alabama actively engaged in convincing Attalla to make some significant environmental improvements.

Makes sense to me.

March 24, 2004
Recommended policy wonk reading

A column deadline beckons, so no deep thoughts will be expressed here tonight.

On the other hand, I can recommend yet another intriguing Census Bureau report, issued yesterday.

This one is devoted to the American way of moving about the country.

Delaware is considered a Southern state in the Census groupings. The report's discussion about migration among senior age groups in that region fits well with the recent anecdotal evidence I've seen while working with my primary client.

March 23, 2004
More on putting up or shutting up

Former Delaware Congressional candidate Steven Biener noticed my recent post about his unsuccessful lawsuit challenging the Delaware election law’s filing fee requirement.

In a polite email, Biener disagreed with my take on the merits of his argument: 

First of all, thanks for your vote in 2002.  Not many folks are willing to admit they voted for me.

While a cold reading of the Third Circuit's opinion may make it seem fair and reasonable, when read in the context of the legal papers presented to the court, the decision seems much less so. 

The court did not apply the appropriate Supreme Court-enunciated legal tests to either my Qualifications Clause or Equal Protection claims.  In fact, even opposing counsel did not advocate for the "rational basis test" on the Equal Protection claim.  The court just adopted that low level of scrutiny on its own.

Additionally, Delaware's filing fee statute does not warrant your praise.  It is one of the most onerous in the nation.  The argument that you need high filing fees to keep frivolous candidates from clogging the ballot is a cure in search of a disease.  The problem is not too many candidates, it is too few.  Look back on the many uncontested general elections we see here in Delaware.  Filing fees are one of the reasons for that.

I welcome your additional thoughts and appreciate your interest in [this] matter.

In one respect I can absolutely agree with Biener. If I was on the losing side of this litigation, I wouldn’t be too happy, either.

In addition, from all indications Biener and his counsel acted in all good faith in bringing this lawsuit.

I do not doubt the sincerity of his argument.

I just don’t think he deserved to win.

For example, I draw a fundamental liberties-based distinction between the right to vote and the right to run for office. Therefore, I accept the notion of using a higher level of judicial scrutiny in reviewing legislative distinctions in voting rights cases on equal protection grounds.

The lesser interest in reducing the barriers to running for office, however, fits better with the rational basis test used by the Third Circuit in Biener’s case.

He and I will probably just have to agree to disagree on that point.

As for Biener’s objections to the filing fee law itself, I also think his concerns are misplaced compared to other election issues that continue to plague our little state.

For example, I readily agree with Biener that there are far too many uncontested elections in Delaware. On the other hand, I think there are far more serious reasons for the low number of actual contests than the filing fee.

After all, a Delaware state representative’s base pay for the two year term totals a bit under $70,000. A candidate for one of these 41 seats must therefore pay a filing fee of about $700, which as I noted in the original post can come from the candidate’s personal resources and/or contributions from supporters.

A $700 filing fee is simply not the main or even a major reason why there are so few actual contests.

As I see it, the two biggest reasons are as follows:

• Mutual interparty backscratching in redistricting after the decennial census. Both Democrats and Republicans are more than willing to create as many safe seats as possible for incumbents of both parties, in the House and the Senate. This is a fact of life in this state, and it also discourages new blood from even making the attempt.
• The power of communal familiarity also dampens electoral enthusiasm for new candidates. Delawareans tend to really “know” their elected officials, to a degree not usually seen in large states. If the electorate remains comfortable with the elected, those seats can be safely kept for a very long time. As U.S. Senator Joe Biden said in a recent appearance on the Imus show, the fact that everybody knows everybody is one of the reasons why the attack ads commonly used elsewhere don’t work too well in Delaware.

Compared to these two reasons, a 1% filing fee is just not a big deal.

March 22, 2004
A place to call home

The Associated Press reported tonight on the latest potential refuge for a recently deposed Caribbean leader:

Nigeria has agreed to a request by Caribbean leaders to grant former Haitian President Jean-Bertrand Aristide temporary asylum, the nation's presidency said Monday.

There could be millions of reasons why Monsieur Aristide would agree to this proposal.

Why, with just a few emails, he could easily make plans to meet with certain private investors when M. Aristide reaches Abuja, the capital city.

It could be a beautiful thing.

March 22, 2004
Watching the other side

This weekend’s activities included a series of thinly-attended protest marches in the usual places across the country. As always, most of the folks doing the protesting took issue with the efforts to introduce democratic freedoms in a few places on the globe that have never experienced them.

One blogger with direct experience in liberating Iraq attended a few of the gatherings and wrote an impressive essay.

I also highly recommend James Lileks’ Bleat for today, in which he sums up the true nature of these protesters:

These people want “freedom,” but only for themselves. Freedom to preen. Freedom to flatter themselves that they are somehow committing an act of bravery by Speaking Truth to Power. But they’re speaking Nonsense to Indifference. Pictures of Bush as Hitler sieg-heiling away would get them killed if this was truly the country they insist it is. Nothing will happen to them. They know it. They would be killed for doing this in Saddam’s Iraq, of course; they know that too. Doesn’t matter. Bush is worse than Saddam, in the macro sense. Saddam’s sins are an inconvenient obstacle; hard to defend the fellow, but you have to concentrate on the real villains here, the people who truly threaten progressive transnational peace and solidarity and justice and human rights and –

What? Did we march on the first anniversary of Saddam gassing the Kurds?

I don’t understand the question.

The sad thing is that they really don’t comprehend.

March 22, 2004
Season Opener

I’m still numb.

It’s been an hour since the end of the first high school soccer game of the 2004 season, and my fingers are still having trouble tapping out the keys.

The sky was clear, the wind was blowing at 10-15 mph, and the temperature hovered around 40 degrees when the game started just after 5:30 p.m.

My wife brought us the blankets and seat cushions, so at least we didn’t freeze ourselves to the aluminum stadium benches.

Younger daughter appears to be settling into her new position as the team's stopper, matched up against the center strikers from the other side. She usually spots these players a few inches or more, but she’s never too afraid to show how tough she can be.

Go Vikings!

March 21, 2004
Shameless self-promotion

This afternoon I posted my latest golf book review—Augusta and Aiken in Golf’s Golden Age,
By Stan Byrdy. This picture book should appeal both to golfers and those interested the history of American tourism, especially in the late 19th and early 20th centuries.