Author: John Ryder

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Opinion Viewpoint

Fiscal Notes

Cumulative figures from the Office of Management and Budget (OMB) indicate the problem: While tax receipts have steadily increased from $1.9 trillion in 2001 to an estimated $2.4 trillion in 2012, governmental outlays have, just as steadily, gone from $1.8 trillion to $3.7 trillion. The net has gone from a surplus of $138 billion to a deficit of $1.3 trillion.

In the 1970s, the national debt, as a percent of GDP, remained fairly constant at about 22 percent. Today, the national debt is more than 100 percent GDP. The total debt is more than $16 trillion; the GDP for 2011 was slightly less than $15 trillion.

As a nation, we are overdrawn at the bank and maxed out on our credit cards. Failure to deal with the situation will lead us to the scenes we have seen in Greece, Spain, and Stockton, California.

The first part of the solution is to cut spending. Entitlements take about 62 percent of federal spending. Any meaningful curbs on spending involve entitlement spending. Entitlement reforms are not that difficult to imagine: Means testing of benefits and phasing in an increase in the retirement age are two simple solutions. Senator Bob Corker’s Fiscal Reform Act of 2012 envisions just such reforms.

Cuts in discretionary spending have to be real and have to be meaningful. That means that they cannot be “Washington” cuts — mere decreases in the rate of growth of spending — but have to be real cuts: decreases from the prior year’s expenditures.

The next step deals with taxes, and this is more difficult, because the relationship between tax rates and tax revenues is not as clear as the relationship between spending and deficits.

As is evident from the OMB’s figures, receipts have more to do with the overall economy than with tax rates. Furthermore, an increase in rates further distorts an already too progressive tax system.

The premise of progressive taxation is that those who make more should pay more. But progressive tax rates don’t just require those who make more to pay more but to pay disproportionately more. If there were one rate of 10 percent, the citizen who makes 10 times that would pay 10 times as much. In a progressive rate structure, the taxpayer making 10 times as much pays 12 or 15 times as much. Or, if some had their way, 20 or 30 times as much.

The moral justification for this is little different from that of an armed robber. The armed robber takes your money, because he has a gun and you don’t, and you have money and he doesn’t. Progressive taxers take your money, because they have the votes and you don’t.

In addition, progressive taxation makes it harder for people to move up the economic ladder — it robs families of opportunity. It works like a stress test at the physician’s office. As you run faster, the nurse keeps increasing the incline on the treadmill until you can’t move.

As a practical matter, raising rates doesn’t work. Raising tax rates will increase revenues only if everyone’s economic behavior stays the same after the rates have been raised. Unfortunately for proponents of this theory, Americans are not stupid. If rates are raised on income, those with high incomes will find ways to avoid characterizing their receipts as income — through deductions, through retirement, through forgoing income altogether.

Senator Bob Corker

Consider the two-income family: The second income takes a toll on the family in terms of time, there are expenses associated with that second income, and the second income is taxed at the higher marginal rates applicable to that family. If you increase the tax on the second income, it will, for some, be a rational choice to forgo that income.

A better approach is to cap deductions, again as proposed in Corker’s bill. This has the effect of producing more revenue according to Congressional Budget Office estimates and the virtue of making the system flatter. A flatter tax is a fairer tax.

There is a way to avoid the fiscal cliff, but the cliff has been created by spending. Making a progressive tax system more progressive is neither a practical nor a moral solution.

John Ryder, a Memphis bankruptcy lawyer, is a Republican national committeeman for Tennessee.

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Opinion Viewpoint

Keeping a Balance

Recently, some Tennesseans, including former Senator Fred Thompson, have proposed that our state join the National Popular Vote compact. This is a solution for a problem we don’t have that will lead to problems we don’t want.

The compact would subvert the Constitution by changing the way we elect our president. Instead of forthrightly seeking to amend the Constitution by abolishing the Electoral College, the proposal bypasses the Constitution by creating a compact among some states that would bind all states. Amending the Constitution requires the assent of 38 states; the compact can be adopted by as few as 12 states. But all 50 states would be bound by the result.

Under the plan, the electoral votes of a state would be committed to the candidate who is the “national popular vote winner” regardless of the vote within the state. Thus, in 2008, although John McCain won 57 percent of the vote in Tennessee, its 11 electoral votes would have gone to Barack Obama.

The Electoral College is part of an elaborate mechanism designed by the country’s founders to create interdependent centers of power, each balancing the excesses of the others. The Constitution balances the competing elements of our republic: The membership of the House of Representatives is based on population. The Senate is based on equal representation by state.

This design balances the interests of large and small states.

The Electoral College mirrors this arrangement by giving each state electoral votes equal to its membership in the House plus its two senators. California gets 55 electoral votes because of its large population, but no state, even Delaware, has fewer than three electoral votes. It reflects the founders’ compromise between large and small states and between electing the president by Congress and electing the president directly by the people.

Bypassing the Electoral College through the proposed compact undermines that balance by effectively erasing states’ boundaries and undercutting states’ sovereignty.

On a practical level, the Electoral College requires a successful candidate to assemble a winning coalition across a broad geographic spectrum, embracing both large and small states, rather than a narrow concentration of votes.

A popular vote, in contrast, does not require the candidate to have broad appeal. It would make it possible for a candidate to win without any majority but merely a plurality of the popular vote. The compact would require the states to determine the candidate with the “largest national popular vote” — not a majority. This encourages multiple candidates. In such a multi-candidate race, the largest national popular vote could be obtained by a regional candidate with just 35 percent or less of the popular vote.

Under the compact, presidential candidates would have no incentive to campaign anywhere except in the major media markets in a few states. The country would, in essence, cede its presidential elections to the largest metropolitan areas.

Our system has proved remarkably stable for more than 200 years. Ours is the world’s second-oldest written Constitution after Iceland’s. That is remarkably long for a governmental structure. Only the Civil War mars our record of political stability, but the breakdown in the system in 1861 did not occur because of the Electoral College.

The American Bar Association once called the Electoral College “archaic, undemocratic, complex, ambiguous, and dangerous.” These adjectives describe virtues of our constitutional system, not faults. It is archaic — not obsolete ­— and still serves us well. It is supposed to be undemocratic, to protect smaller states from tyranny by a few large states. We are a republic, not a democracy.

The complexity of the system prevents wild swings in popular sentiment from becoming wild swings in policy. It is ambiguous only in that it is subtle rather than simplistic. If it is dangerous, the alternative of a national public vote, with the voters of a few states binding the voters of the rest of the states, is much more dangerous.

The late New York senator Daniel Patrick Moynihan said of an earlier proposal to do away with the Electoral College: “It is the most radical transformation in our constitutional system that has ever been considered.” Our constitutional method of electing presidents, balancing the state and federal governments, has served our nation well. It would be foolish and disingenuous to bypass the written Constitution, nominally keeping the Electoral College but nullifying its function.

Memphis attorney John Ryder is a Republican National Committee member from Tennessee. A variation of this column appeared in The Washington Times.

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Opinion Viewpoint

Nix to Judicial Elections

The Tennessee Plan, based on the use of a Judicial Selection Commission to recommend appeals-court judges, has expired pursuant to our state’s “sunset” laws. Unless replaced or reinstated, Tennessee will have no statutory method by which to select its judges. Also under review is the process of “yes-no” retention elections for sitting members of the appellate bench. The General Assembly must address both these issues this year.

While good grounds exist to dispense with the Judicial Selection Commission, let’s not throw the baby out with the bath water. Retention elections are markedly superior to the popularly contested partisan elections envisioned by the critics.

Such elections are wrong on both philosophical and practical grounds.

Elections are no panaceas. The Founding Fathers understood this. That is why of all the components of the federal government, only the House of Representatives was created as a body directly elected by the people. The Senate was originally chosen by the state legislatures; the president by the Electoral College; and the judiciary by appointment.

There was a sound reason for this. Under a theory of separation of powers, it is appropriate that each branch of government be selected under a different method. Or to put it the other way, it would be inappropriate for all branches to be elected by the same means. This would erode the very separateness with which they are endowed and which is a bulwark of freedom. It would enable a single wave of popular passion to sweep away all branches of government together.

Judicial elections came into being in the mid-19th century as one of the excesses of Jacksonian democracy. Andrew Jackson had disdain for the judicial process, as evidence by his response to the Supreme Court’s decision in Worcester v. Georgia: “Justice Marshall has made his decision; now let him enforce it.” We should not rely on a methodology which is reflective of Jacksonian contempt for the rule of law.

Furthermore, a branch that is supposed to interpret the law should be selected by a means different from that for the branch that is supposed to make the law. One of the reasons we are having this debate is that a large section of the judiciary has overstepped its bounds and is, in fact, making law. Therefore, it is argued, judges should be selected by the means appropriate to those who make law. But that turns logic and principle on its head. If we believe that judges should not make law, we must select them by a method appropriate to their station — which is something other than election.

Practically, elections are problematic.The campaign world is no place for a judge. Traditionally, judges were restricted to making campaign statements limited to pledging to dispense justice fairly and impartially. Recent Supreme Court decisions now permit judicial candidates to go much further. Do we really want judges to run on promises of rulings on specific issues — such as abortion, gay rights, or a state income tax?

The cost of such elections generates more problems. It takes about $2 million right now to create sufficient name recognition to win a statewide race in Tennessee. There are 24 appellate judges and five Supreme Court justices. That means that we have the potential for 29 judges with 29 opponents all trying to raise $2 million. That’s a total of $116 million. The source of such money will be people who want certain outcomes from the judiciary — they may be left or they may be right, but they want a result. They are not going to be giving because of their high-minded devotion to fair and impartial justice.

This brings us to the Caperton case, recently argued before the U.S. Supreme Court. A $50 million dollar fraud judgment had been rendered against Massey Coal Company in West Virginia. As the case made its way through the appellate process, Massey’s owner contributed some $3 million in the state’s ongoing Supreme Court race. The beneficiary was one Brent Benjamin, who won his race and was seated when Massey’s appeal reached the West Virginia Supreme Court. Justice Benjamin not only did not recuse himself, he provided the deciding vote, overturning the verdict against Massey.

There are a number of proposals before the legislature. Whichever proposal is adopted, a key element should be the continuation of retention elections.

John Ryder is a Memphis lawyer who, as a Republican national committeeman, both studies and practices practical politics.

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Politics Politics Feature

Guest Viewpoint: A Republican Makes the Case for Sarah Palin

Lawyer John Ryder of Memphis, a former chairman of the Shelby County Republican Party and currently his party’s national committeeman from Tennessee, was a delegate to the 2008 Republican National Convention in St. Paul, Minnesota. Here, adapted from remarks made this past week to a Young Republican group, is his take on GOP vice-presidential nominee Sarah Palin:

Let me just say two words:

Sarah Palin!

I returned from the convention and went through my e-mails — nearly every one
was about Sarah Palin — the jokes, the serious commentaries, the forwards —
all of them. Same thing at Church — that’s all anyone wants to talk about. She
is the only topic of conversation. That is the first transformation she has
worked on this campaign.

Beginning with the surprising announcement of her selection, continuing with the
media attack she took for five days, including the soap opera of her daughter’s
pregnancy, and through her incredible speech at the Convention, she is the
story. She took the headlines away from a generally successful Democratic
Convention and Obama’s acceptance speech. In effect, she stepped on his
applause line and eliminated any bounce.

But the transformation is more than just the headlines. For nearly two years
Senator Barack Obama has been a phenomenon. He has transcended politics,
inspiring millions with a vision of change and hope. He seemed to offer up a
new era in American politics. The media built him up as a new leader for a new
age. He defeated Hillary Clinton largely because his candidacy offered greater
change than hers, even though both were precedent -shattering.

Then along came Sarah.

Her candidacy was also precedent-shattering — but the Main Stream Media can’t
abide the idea that a woman could be a conservative. It conflicts with their
rigid world view — all Women must be liberals. The first and natural reaction
of the media was to go on the attack — they pounded her relentlessly for five
days, attacking her background, experience, values, policies, family, and in the
process created a story. As a result, her speech was watched by more than 37
million people — about the same number that watched Obama. And hers was a
better speech.

Now there is a new story line: middle-class Mom/Governor takes on media and
wins. She is the Next New Thing. Barack has lost his novelty status to Sarah
Palin. He cannot regain it. Once you are no longer “new” you are old. She is
new, he is old.

She has so changed the political landscape that she makes everyone look like
last week’s newspaper. Mitt Romney spoke to the RNC the day after the
convention. I like Mitt. I thought he was likely to be vice president — but
after Palin, his speech seemed tired and old-style. With that epiphany, I
understood what a mistake it would have been to pick any of the other
contenders. She is the right one.

As a result, the voters will now evaluate Obama as a normal politician, not as a
phenomenon. As a mere mortal, he doesn’t fare too well: His experience is
thin; his accomplishments are negligible; his life story has nothing to compare
to that of John McCain. The magic, the transcendence that got him the
nomination is gone. He is Samson shorn of his locks. Can he still pull the
temple down?

The Obama-Biden ticket has to retool its campaign.

Democrats started this year with the winds at their back: the war was
unpopular, the economy was slipping. Bush’s approval rating was at an all-time
low, consumer confidence was down, and the number of people who believe the
country is on the wrong track was about 70%. Add to that the natural inclination
of voters to change parties after eight years, and it looked pretty bleak for
our side.

What happened is that John McCain won the nomination. John McCain is the
un-Bush. By nominating him, our party made clear to the voters that they were
not getting four more years of Bush. While the Democrats try to peddle that
notion, it doesn’t seem to be working. In addition, Bush’s numbers are
improving slightly.

Second, McCain was right on the surge. And the Surge is working. As a result,
the Democrats cannot run against the war in the way they set out to do.

But, given the general unhappiness in the land, the Democrats figured that a
message of change would resonate with the voters. It worked for Obama in the
primary. In fact, one reason Hillary could not win is that she represented the
past, not the future. She was not enough change for the primary voters. Hence,
Obama wins wearing the mantle of change.

Then John McCain nominates Sarah Palin — and between the two of them, they
offer the best chance for real change in this country. I think the American
people understand that.

So, if the Democrats cannot run against Bush, cannot run against the war and
cannot run as the party of change, what do they do?

The will run against Republicans, they will revive class warfare; they will play
the race card. They will try to paint McCain as old and out of touch and Palin
as an extremist who is out of touch. They will aggressively register voters and
turn them out.

This campaign will change American politics on many levels — but it will be
fought out in very traditional ways. And it is clearly, an election we can win.