A Threat to Marriage from the EEOC

February 9, 2018

The Equal Employment Opportunity Commission may seem like an unlikely threat to religious liberty and the institution of marriage. After all, the federal agency was created to combat workplace discrimination by the Civil Rights Act of 1964. But sadly, the agency created to fight discrimination now threatens to discriminate itself; one nominee to the commission’s five-member board wants to use the federal agency’s power to undermine our nation’s founding principles.

Chai Feldblum was first nominated to the EEOC by President Barack Obama in 2009, but she was not confirmed by the Senate. In March 2010, President Obama skirted the Senate by seating Feldblum on the commission when Congress was in recess. The Senate ultimately confirmed Feldblum on a 54-41 vote during a lame-duck session in December of that year. Only two Republicans voted for Feldblum’s confirmation.

Last December, President Donald Trump re-nominated Feldblum, along with two Republicans, to the EEOC. If all three nominees are confirmed, Republicans will have a 3-2 majority on the EEOC.

If Feldblum were a typical Democrat, it might make sense to let her nomination proceed through the Senate along with her two Republican colleagues. But Feldblum is no typical Democrat. Her radical views on marriage and the appropriate use of government power place her far outside even the liberal mainstream.

Feldblum has argued that, “I, for one, am not sure marriage is a normatively good institution.” Instead of promoting marriage as the best arrangement for the emotional and economic security of families, Feldblum believes “all of us are harmed… when society fails to acknowledge the wide array of non-marital social structures.”

Feldblum even signed a manifesto proposing government recognition of “diverse kinds” of partnerships that “move beyond the narrow confines of marriage politics” in the United States.

Don’t think for a second that Feldblum’s derogatory views about marriage will stay private. Feldblum wants to turn her opinions into federal policy through the EEOC.

“The EEOC has jurisdiction only over employment,” Feldblum told The Washington Blade in 2015. “But other federal agencies that enforce sex discrimination provisions often look to our interpretation for guidance in interpreting the laws they enforce.”

And don’t think for a second that you, your family, and your neighbors will be left alone if Feldblum gets her way. Feldblum has described modern-day politics as a “zero-sum game,” where rights for LGBT Americans are secured only by curtailing the rights of religious Americans.

Likewise, Feldblum believes her radical agenda “cannot be adequately advanced if pockets of resistance… are permitted to flourish.” She therefore has argued that “no individual exceptions based on religious beliefs” should ever be allowed if they conflict with “the goal of liberty for gay people.”

Feldblum’s desire to use the might of government to stamp out traditional marriage supporters stands in stark contrast to Justice Anthony Kennedy’s majority opinion in Obergefell v Hodges, which redefined marriage in 2015.

“The First Amendment ensures that religious organizations and persons (emphasis added) are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths,” Kennedy wrote. “And to their own deep aspirations to continue the family structure they have long revered.”

As the Supreme Court acknowledges, America’s tradition of religious freedom embraces all. Rather than a “zero-sum game” that pits Americans against each other, we should work to build an America where “all possess alike liberty of conscience and immunities of citizenship,” as George Washington wrote in 1790.

President Trump and Senate Democrats should reject Chai Feldblum’s divisive agenda by finding a more mainstream candidate for the EEOC, one who respects the institution of marriage and religious freedom for all Americans.

Against Nationalizing 5G

February 2, 2018

5G, or 5th Generation, is the next step in wireless spectrum. It will likely be faster, more efficient, and could lead to advancements that allow for self-driving cars, drones, and virtual reality.

And the government is thinking of nationalizing it.

This week, Axios gained access to a government memo and PowerPoint probing the idea that the federal government should look into financing, building, and running a national 5G network in the next 3 years, all in the name of national security. It argues that outside agents will want to hack the network, giving them access to self-driving cars, economic information, and other technologies. Without this network being run and protected by the government, we are told we at the risk of falling prey to China and other countries who have outstripped us technologically and who could take advantage of our subpar cybersecurity.

While this threat is real, a government-run network is not the right answer.

Only markets can provide the competition necessary to build a resilient 5G network with effective security. A company cannot survive without customers, and customers will not use a network where their information is being hacked. For private companies, the imperative for security goes beyond national security, it goes to their bottom line.

On the other hand, the federal government has shown itself to be vulnerable to these kinds of security breaches.

“The main lesson to draw from the wireless sector’s development over the past three decades—including American leadership in 4G—is that the market, not government, is best positioned to drive innovation and investment,” Federal Communications Commission Chairman Ajit Pai said this week. “What government can and should do is to push spectrum into the commercial marketplace and set rules that encourage the private sector to develop and deploy next-generation infrastructure.”

While the administration has walked the memo back by saying it was written by low-level national security employees, its existence still highlights how national security has become a widely-used justification for growing federal power. It isn’t new, and it’s often well-intentioned. But in this instance as well as many before it, national security is best served by leaving the private sector to itself.

One Weird Trick To End Government Shutdowns

January 26, 2018

A week ago, the government shuttered its doors. For roughly 68 hours, the men and women of our armed services did not know when they would receive their next paycheck.

When the government reopened, it was because Congress passed and the President signed a Continuing Resolution (CR) that allowed the government to be funded – but only for three weeks. And the CR passed this Monday was needed because the four-week CR before that ran out. And that CR was preceded by another CR that passed right before Christmas.

This of governing-by-cliff has unfortunately become the status quo in Washington. The fact is, Congress has not completed all twelve regular appropriations bills by the October 1st deadline since 1997, and between 1985 and 1997, this important budget marker has only been met twice.

Instead we’ve been governed by a quilt work of Continuing Resolutions, Omnibuses, and rushed budget agreements, many of which are held until the last minute so lawmakers are unable to read their contents in full. The result is instability and unpredictability not only in our government organizations, but also for the many families and businesses that interact with the federal government.

This is not a responsible way to govern. It’s bad for our military, it’s bad for our citizens, and it’s bad for our form of government.

Who it is good for is a small handful of people who are responsible for making these decisions. Every time one of these CRs pass, they gain a little more power for themselves.

This is why I have yet to vote for a CR during my seven years in Congress. We cannot change the system while constantly voting to support it. And more and more of my colleagues are coming to agree with me.

Sen. Rob Portman (R-PA) re-introduced the End Government Shutdowns Act in April 2017. This bill would automatically keep discretionary programs, like our military, funded at their pre-deadline levels for 120 days, but then as every additional 90 days passes without a new appropriation bill, their funding drops by 1%. All discretionary spending is treated equally; no partisan carve-outs and no exceptions.

This strikes a necessary balance between incentivizing good budgeting habits while discouraging last-minute, haphazard stopgap funding measures. And it provides stability and predictability without allowing Congress to pat ourselves on the back for averting a self-made crisis.

The Enhancing Educational Opportunities for all Students Act

January 19, 2018

A few weeks ago, parents across the country bundled their kids up and sent them back to school after the holiday break. For some this meant loading them onto a bus that would drop their child off at a nearby private school, walking their child down the street to the local public school, driving them a town over to a charter school, or herding them down into the basement to resume home schooling.

While each of these parents had chosen different ways to educate their children, what they all have in common is the desire for their child to succeed and receive the kind of education that will serve as a cornerstone for success in their lives.

But all too often, parents who have the most skin in our country’s education system get stifled in the federal red tape that surrounds their child’s education. Millions of low-income families find themselves trapped in underperforming schools and are helpless to change their circumstances. Parents are torn at what stage to start investing in their child’s education, because they can’t afford to save for private school tuition and college while still giving them school supplies. Many parents feel like their attempts to give their child a better life come up fruitless.

We can do better. But in order to do so, we have to acknowledge some truths about our education system.

First, increased education funding is not a silver bullet. Since 1970, the federal government has nearly tripled the amount of money it spends on elementary and secondary education, with little improvement to show for it.

Second, Not all schools will be a good fit for all students and parents are most often the best suited to make these decisions.

And third, the federal regulations currently in place inhibit parents from choosing and investing in their children’s education.

This is why I introduced the Enhancing Educational Opportunities for all Students Act this week. This bill would allow parents back in to their child’s education by giving them flexibility in how to finance it. This flexibility means schools that parents could otherwise not afford could now be an option.

This bill would allow parents to use federal education Title I dollars as they saw fit. That could mean the public school in the child’s neighborhood, another public school across town, or even a private school of the parent’s choosing.

The bill also removes the tax burden that comes when parents invest more than $2,000 a year in a child’s Education Savings account. That means parents can save and build more resources that can then be spent on tuition, books, other school supplies, or even college.

By empowering parents and giving them this flexibility, we are taking an important step to improve the future of this country. As Thomas Jefferson said, “Above all things, I hope the education of the common people will be attended to, [as] on their good sense we may rely with the most security for the preservation of a due degree of liberty.” We can secure that liberty for tomorrow by giving it to parents today.

A Good Start Towards Draining Washington’s Housing Swamp

January 12, 2018

One of the primary goals of the Obama administration was to use the full force of the federal government to force red state, suburban, and rural areas to adopt policies designed to change them into urban blue state communities.

On the environmental side this policy invasion took the form of punitive regulations against the mining industry and million-acre land grabs that undermined the grazing industry.

In education this meant using the carrot of Department of Education grant funding and the stick of No Child Left Behind testing punishments to force local school boards to adopt the federal government’s preferred curriculum.

And in housing, it meant using Department of Housing and Urban Development (HUD) grant programs to force local communities into building dense low-income housing.

President Trump has begun to free local communities from Washington’s forced conversion. He has rolled back multiple punitive mining regulations. He undid President Obama’s 1.3 million-acre Bears Ears National Monument. And just last week he delayed enforcement of the HUD regulation President Obama was using to dictate zoning policies to communities across the United States.

These are all good first steps, but particularly on the housing front more needs to be done. Specifically, HUD Secretary Ben Carson ought to begin the process of rescinding President Obama’s 2015 Affirmatively Furthering Fair Housing rule entirely.

Promulgated pursuant to the Fair Housing Act of 1968, the AFFH has already proven to be an invasive and burdensome mess. While no one disputes that the Fair Housing Act’s ban on racial, religious, and sexual discrimination fully fits within the federal government’s power, the law’s call for communities to “affirmatively further” other housing goals has proven controversial and divisive.

Should suburban communities be forced to build high-density low-income housing? Should small towns be forced to advertise their low income housing stock to large cities? Should cities be forced to spread subsidized housing options throughout their jurisdiction?

The Obama administration believed the answer to every above question is a strong “yes” and their AFFH rule is designed to use Community Development Block Grant (CDBG) funding to turn HUD into basically a national zoning board.

Defenders of Obama’s housing power grab will tell you that federal law already prohibits HUD from mandating that localities adopt specific changes to their zoning laws. And that is true. But HUD has also figured out a way to circumvent that ban and it works like this.

Instead of saying “you are mandated to adopt these zoning laws and construct low-income housing” which would be illegal, they say “if you want CDBG funding you must first create a zoning plan. And if we approve your ‘voluntarily’ created plan then we will give you grant money. If we don’t approve your ‘voluntary’ plan, then you get nothing.”

This is nothing short of federally funded blackmail.

I’ve made an effort to address this overreach by introducing S. 103, the Local Zoning Decisions Protection Act in the Senate (Rep. Paul Gosar (R-AZ) has introduced a companion bill, HR 482, in the House). Our bills would stop federal funds from being used to implement, administer, or enforce President Obama’s AFFH rule, making it truly voluntary and giving local communities the ability to make their own housing decisions without financial threats from the federal government.

Our legislation is a long-term solution to the threat of a national zoning board, but HUD can take a more immediate step by rescinding the rule entirely.

They See You When You Travel

December 27, 2017

It’s a Christmas motif almost as ubiquitous as Christmas trees or sleigh bells – families and individuals hastily making their way through airports, balancing presents, bags, and children, excited to make their way home to spend Christmas with their loved ones. They’re concerned with their flight status, the weather in their destination, their luggage making it to the destination, or the likelihood they will get selected for a random TSA pat-down and any other number of travel-related factors.

But in 2018, there may be another worry to add to that already long list of travel woes.

At some point next year, the Department Homeland Security (DHS) is hoping to implement mandatory facial scans for all people – American citizens included – who are flying internationally. In fact, they’ve already rolled out this invasive practice in a handful of airports this holiday season.

This new invasion of Americans' privacy caught the attention of Sen. Ed Markey (D-MA), who’s own Logan International Airport was one of the airports selected for the rollout. We wrote a letter together to get more information from DHS about this program.

There are a number of issues with this program, including that DHS hasn’t instituted a way to let travelers know that they will be subjected to this scan before they fly.

But more importantly there is no evidence to show that this facial scan actually works. DHS is hoping to use this technology accurately 96% of the time. But even at that rate 1 of 25 travelers would still be misidentified and improperly flagged by DHS.

Additional evidence shows gender and ethnicity increase the likelihood of being improperly flagged.

But perhaps the biggest concern is how the government will use this accumulated data and whether or not DHS is even allowed to collect it in the first place. As of now, the information is supposedly only shared with the National Institute of Standards and Technology to check for fraud, and then deleted from the DHS database after 14 days. But in our examination of the program, we have not seen satisfactory safeguards that protect this information from being accessed by third party groups or that show these protocols are actually being followed.

The Department of Homeland Security is ushering in this program in an attempt to fulfill a Congressional mandate that says a biometric exit program needs to be in place for international travelers. However, they have gone beyond this directive as the mandate passed by Congress did not allow for facial scans to be used on American citizens. For DHS to do this stands in direct conflict with the Constitution and its 4th Amendment protection of privacy.

Until the Department of Homeland Security is willing to address these problems and provide myself, Senator Markey, and Congress sufficient evidence to prove the program falls within the constraints of its Congressional mandate, DHS should provide American citizens with a timely Christmas present – protecting their rights by not only stopping this programs expansion, but stopping it’s use entirely.

The Rise in Unwed Childbearing

December 15, 2017

Too often, legislators pass bills that seem to be solutions in search of problems. But those problems are rarely as straightforward as they appear to be.

This is why my staff at the Joint Economic Committee (JEC) have worked so tirelessly on the Social Capital Project – a multi-year research initiative that explores the evolving nature and importance of our associational life, specifically why the health of those associational relationships seems so compromised.

And of all the relationships people have in their lives, the most important and formative is the one children have with their parents. This relationship is the foundation of a healthy associational life, which is why the JEC’s most recent study focused on parent/child relationships and how they’ve changed in the last few generations.

As many of you already know, there has been a significant uptick in children born to unwed parents since 1960. And numerous studies show children of stable, married couples outperform children born to single parents, especially when it comes to laying the foundation for engagement in associational life.

This isn’t to say a child born to single mother or father will necessarily face more challenges in life, or that a child born to a married mother and father will automatically succeed. But there is a statistically significant pattern that shows having two stable parents in a committed relationship does give a child a leg up.

Yet, in the past few decades, we’ve shifted from this two-parent model of child-bearing. In 1960, just 5.3% of children were born to single mothers. As of 2008, that number jumped to 40%, and that number is even higher for children born to mothers who are under 30. This means 35% more of the children born today are born into a situation that disadvantages them.

While it would be simple to point to increased sexual activity as the obvious cause, our research found two even larger factors: 1) there are fewer married women, and 2) the cultural norm often referred to as the “shotgun” marriage has all but disappeared.

The causes for these two trends are also very complicated, but they appear to be a result of an increase in affluence and opportunity in society as a whole. Rising affluence and opportunity is absolutely something we should celebrate, but that doesn’t negate the fact that the uptick in non-married births is something that should be addressed.

Problems are rarely as straightforward as they appear to be. I am proud of the work my staff on the JEC is doing to shine a light on the complexities of this issue, and we will continue to pursue this line of inquiry to ensure all children are born with the leg up they deserve.

The Wrong Man for Colombia

December 8, 2017

President Trump recently nominated Joseph MacManus to become the next U.S. Ambassador to Colombia. At a time when the U.S.-Colombian relationship is vital to regional security and stability, both countries deserve better.

The argument against Mr. MacManus has two parts.

First, MacManus does not appear to share the president’s belief in an America First foreign policy. If the president wants his objectives to be accomplished around the world, it is critical that his political appointees to the State Department share his commitment to the task.

What is MacManus committed to? It is hard to say for certain, but his background is cause for concern. MacManus is a career bureaucrat at the State Department who served as executive assistant to then-Secretary Hillary Clinton during the Benghazi disaster. He also worked as a top diplomat for then-Secretary John Kerry in implementing the Iran nuclear deal.

A long career in diplomacy normally would be considered a positive qualification for a job at the State Department—but not when that career is tied to some of America's most egregious foreign-policy blunders.

Second, MacManus does not have the expertise in Latin American affairs that we should demand for this sensitive position.

All but one of the past six ambassadors to Columbia had previous experience as an ambassador. The exception, outgoing Ambassador Kevin Whitaker, spent practically his entire career in Latin American diplomacy, rising to the position of deputy assistant secretary for South America before becoming an ambassador.

By contrast, MacManus’s experience in Latin America is limited to a period of time spent as a public diplomacy officer in Mexico and El Salvador.

Political unrest is increasing across Latin America. From the growing authoritarian power of Maduro in Venezuela, to contested elections in Honduras, to the fragile peace deal between the Colombian government and FARC rebels, the United States is more reliant on Colombia than ever before. The nation is a strong ally—and it is our only NATO partner in the region. We give Columbia nearly a billion dollars in foreign assistance every year.

Given the stakes, we should not roll the dice on a Foggy Bottom bureaucrat with a dubious track record.

The USA Liberty Act

November 17, 2017

The Foreign Intelligence Surveillance Act was signed into law in 1978 to curtail the relatively unbridled surveillance power the executive had possessed since President Franklin Roosevelt. The intent of the act was to limit the government’s ability to spy on Americans abroad and all people at home.

Despite their good intentions, the authors of the bill included one provision that accomplished just the opposite. Section 702 of FISA has allowed the government to collect vast amounts of information from the Internet and other technological platforms, effectively undermining the law’s original intent of protecting civil liberties.

Government agencies have exploited this provision to expand their spying powers. The tech trails and geotracking used by government agencies today would have seemed like the stuff of science fiction in 1978, while PRISM would have seemed like something out of 1984.

We’ve made progress in rolling back some of these abuses—for example, by passing the USA Freedom Act in 2015—but we still have a way to go.

That is why I am pleased that the USA Liberty Act passed out of the House Judiciary Committee last week.

The USA Liberty Act would create a new framework of protections and transparency requirements to ensure that the government uses its surveillance powers without abusing citizens’ constitutional rights to privacy and due process.

This bill would define more strictly what information can and cannot be collected by the government, whether incidentally or intentionally. It would end the collection of information that is bundled incidentally with more important information about a person or topic of interest. It also would implement higher accountability thresholds for heads of government agencies responsible for protecting civil liberties, whistleblower protections for federal employees and contractors, and privacy and due process safeguards for American citizens.

Today, Senator Pat Leahy (D-VT) and I introduced a companion bill to the USA Liberty Act that includes all these protections. Our Senate bill also includes an amendment originally introduced by Senator Dianne Feinstein (D-CA) that would close a “back-door” surveillance loophole by requiring domestic agencies such as the FBI to obtain a warrant before accessing any information about American citizens collected under Section 702.

Fifty years after FISA’s passage, we are still reconciling the need for public safety with constitutionally protected rights to privacy and due process. The USA Liberty Act would send a clear bipartisan message that our government must protect Americans’ safety and constitutional rights—not one or the other.

Protecting Consumers from Trial Lawyers

October 27, 2017

Every year an estimated 130 billion bank transactions worth more than $80 trillion flow through the American economy. Given the sheer volume of transactions, disagreements are bound to arise between banks and consumers.

If a customer disagrees with their bank about a specific transaction, they can either a) fight the bank for the money they believe they are owed, or b) switch banks.

Protracted legal battles can be costly for both banks and consumers, so many banks include clauses in their contracts that require disputes to be settled by arbitration.

Arbitration has long been the preferred method of settling financial disputes in the United States. Since 1925, the Federal Arbitration Act has explicitly protected their validity from legal challenge.

Trial lawyers, however, hate arbitration clauses because they make it much harder for them to win big paydays through class action lawsuits.

When President Obama created his Consumer Financial Protection Board, he staffed it with pro-trial lawyer bureaucrats. Those advocates have systematically attacked the country’s productive arbitration system.

An opening salvo in the battle occurred this July when the CFPB issued a new regulation that would have declared certain arbitration agreements between banks and consumers illegal.

According to the CFPB, this arbitration ban was necessary because without it banks could steal from their clients unchecked. Never mind that sensible consumers can—and will—switch banks the second they suspect their bank is stealing from its customers.

Worse, enabling lawyers to file class action lawsuits imposes real costs on consumers. A study conducted by the CFPB itself found that between 2010-12 trial lawyers took in over $424 million in legal fees.

Those legal fees don’t come out of thin air. They come from consumers’ damages awards and result in increased costs to consumers. According to the U.S. Comptroller of the Currency, the CFPB’s new arbitration ban would have raised the cost of consumer credit by 3.5 percentage points.

Fortunately, Congress used the Congressional Review Act this fall to kill the CFPB’s arbitration ban before it could go into effect.

But the party beholden to trial lawyer campaign cash won’t always be shut out of power in Congress and the White House. That is why it is so important for Congress to repeal the CFPB while it still can.