Scrap Electoral College? Open a Legal Pandora’s Box

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When Texas went to the United States Supreme Court last month complaining about the election processes in four other states, the case was dismissed on the issue of standing.  The Court correctly replied Texas had no right to complain about how the Electoral College votes were determined in other states but could only control selection of its own presidential electors. 

But what if Texas had been part of an interstate compact that required it to choose electors based on which candidate won the highest number of votes in the entire nation?  That is what the National Popular Vote Compact does:  States that join, once enough agree, ignore the will of their own voters.  They will certify electors pledged to the candidate with the most votes overall, even if that person failed to win in that state.  Suddenly they have a larger stake in how those other states run elections. 

Might Texas then have had valid reason to poke into the election process of Pennsylvania or Wisconsin and challenge its rules? Challenge a quirky rule about eligibility?  Review challenged ballots on its own? Virginia might be able to do the same (or be challenged), because the 2021 General Assembly is being asked to join the National Popular Vote Compact.  Legislation failed in 2020 but may pass now. 

Here is another undiscussed implication of the National Popular Vote approach, illustrated by what we just went through.  Suddenly instead of the few recounts we saw after November 3, a nationwide recount is possible.  Could voters in one state challenge the recount process in another state?  There are many variations in how recounts work – could Virginia send observers to a California recount, or vice versa? 

States that do or do not use a universal mail ballot system might file cross claims against each other, arguing which should be the standard.  

The last two months increased public awareness of our complex path to choosing a U.S. President.  They probably added to the confusion over how a candidate can trail in the popular total vote and still win.  Perhaps public disapproval of the Electoral College has grown, as feared.  More Americans may now want a single national election, not the 51 separate smaller contests we have now.   

But the value of our indirect Electoral College process, designed to diminish the dangers of pure democracy and to protect the political importance of individual states, was proven once again.  Last year also demonstrated that if enough Americans still want to change to a straight-up national election, the half-baked approach of the National Popular Vote Compact is the wrong way to get there.

The bills to include Virginia in the compact are back in front of the General Assembly that starts tomorrow.  House Bill 1933 is sponsored by Delegate Mark Levine of Alexandria and Senate Bill 1101 is sponsored by Senator Adam Ebbin from the same city.    

The process they envision is neither a direct national election nor the federalist approach but a weakened hybrid that won’t survive.  It comes without any of the rules, guidelines, and protections in a truly nationalized election.  Which means we are opening the doors to the legal horrors of the 2020 disputes but with no roadmap or precedent on how to get to the resolution. 

Last year, Levine’s House version passed that body on a party-line vote but ran into a wall in the Senate Privileges and Elections Committee.   This year’s Senate bill is loaded with co-sponsors, House and Senate, including Senator Majority Leader Richard Saslaw and Senate Finance Chairwoman Janet Howell.  

The organization behind the coordinated National Popular Vote campaign has now developed a special tracking page for each state, including Virginia.  In 2020 the popular vote and Electoral College result did align, which should reduce the pressure for passage.  But the 2016 misalignment has not been forgotten and the massive Democratic majorities available in New York and California are too attractive for Democrats to ignore.  The rest of America is swamped by them.   

All of the other recent changes to election rules in various states pale in comparison to the impact of this idea, should it be implemented and survive legal challenge.  It is simply an end-around on the traditional Constitutional amendment process, which proponents know would be much harder to sell.  

At this point, there is no official national vote total.  Nobody tallies it and certifies it.  Do we take the media’s word for it?  Would states, instead of sending a list of electors, send their certified vote numbers to Congress for it to conduct a tally?  Would not disputed elections be just as ugly, if not uglier, than through the current Electoral College process?

If there is to be a direct national election of the President, we should make the change by amendment and then address all the new wrinkles it creates.  It will have to be a nationally-managed election process with a uniform set of rules and integrity protections.  The National Popular Vote structure provides none of that and will create even greater voter distrust.  

This is a bad idea whose time has passed, and the 2020 result should lower the heat, not raise it.  Senator Creigh Deeds, chairman of the Senate committee that snuffed this last year, said he was reluctant to change Virginia’s process right before the election.  Now the next election is more than three years away, and a vote this month might be seen as acting both in haste and in retribution.  

This was poorly thought out before.  Now it is clear there are even more hidden implications.  The National Popular Vote Compact needs to be rejected.  

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Carbon Taxes, Gasoline Rationing Remain Unpopular Policies

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The Transportation and Climate Initiative plan to tax and ration motor fuels suffered a major setback just before Christmas, when eight of the eleven states considering it decided not to move forward in 2021. Less than two weeks earlier, advocates had released polling that claimed to show overwhelming popularity for the idea.

The well-funded supporters conducted a massive 60-question survey of 3,800 registered voters, including enough Virginians that a Virginia-only breakout had some credibility. Virginians contacted supported Virginia’s membership in the CO2 reduction scheme by three to one. Yet Virginia’s Governor Ralph Northam was one of those who did not sign on a few days later.

Perhaps he noticed how biased the key question was, including this: “Under TCI, states will cap carbon pollution from the transportation sector and require gasoline companies to pay for the carbon pollution produced by the fuel they sell by purchasing annual allowances.” Respondents were not told that the “gasoline companies” could be expected to pass those costs along to them.

When you tell voters a bit more about the proposal, including that they will have to pay, support rapidly disappears, although not completely.

A year ago, the Thomas Jefferson Institute for Public Policy, surveying a similar number of Virginians, asked two simple questions on the issue. Just as this poll found, the benefits claimed for Virginia’s membership in TCI proved popular with more than 60% of voters, but a second question mentioning the likely TCI gas tax dropped that support substantially to about 34%, with 58% opposed.

With a legislative struggle over TCI membership expected to start in January, the Jefferson Institute repeated the process in December 2020, asking Mason-Dixon Polling & Strategy to query 625 Virginians again. This time 37% of Virginians supported the interstate carbon tax compact with its expected fuel taxes, and 57% opposed it. Even in more liberal Northern Virginia, opponents outnumbered supporters.

This time around, questions were also posed about the rationing element of the plan, which proved even less popular than the carbon taxes.

“QUESTION: Do you support or oppose capping the amount of gasoline and diesel that can be sold, allowing no additional supply at any price?” That is exactly what TCI would do, set hard state and regional caps on the supply of gasoline and diesel for sale. Only 11% of Virginians overall liked that idea, and 78% opposed it. In Northern Virginia 15% supported it, and it drew the same weak endorsement from Democrats in the sample.

Once set, the fuel cap would then decline annually until TCI’s goal of a 25% reduction in carbon emissions from fuel was achieved. “QUESTION: Do you support or oppose shrinking that fuel cap annually, reducing the available supply every year?”

That proved a bit more popular, with 16% in support and 70% in opposition. In Northern Virginia 22% approved, and 23% of Democrats approved. The difference from the other question was probably the absence in the second of the phrase “allowing no additional supply at any price.” That is, however, how the rationing element of this interstate compact would work.

Demand for fuel is “inelastic,” meaning people still want it at a higher price. Only the carbon taxes coupled with the supply caps will reduce the amount of motor fuels burned in Virginia. Neither approach is popular with voters at this time, according to the Mason-Dixon results.

The voters were also split on using the carbon tax revenue “to subsidize electric cars and trucks, and mass transit.” with 47% overall (58% of Northern Virginians, 73% of Democrats) favoring that outcome. Of all the proposed uses for the money, that is the best if you want people to move away from fossil fuel cars and trucks. Building bike lanes won’t do that.

But the prospect of spending TCI tax dollars that way has already triggered a response from environmental justice advocates, one of whom called TCI a tax on the poor to subsidize rich people’s electric cars.

Governor Northam, of course, did not have access to the new Jefferson Institute polling. If he and the legislative supporters of TCI believed the spin on the advocates’ polling and its Virginia results, they had no reason to fear political backlash. Yet they wisely chose not to move forward, not yet anyway.

Any program that cannot be discussed honestly, that is sold by misleading the public, should be immediately suspected by the people of Virginia and their elected General Assembly. People must be honestly told that TCI would raise the price of gasoline by 20, 30 or even more cents per gallon, and that the supply of fuel would be capped in place and then reduced by 25 percent over the next decade.

To imply the fuel companies would eat that cost is an outrageous misrepresentation. The full cost of any imposed carbon tax will merely be passed on to the ultimate consumer at the pump. So would price increases caused by supply and demand pressures. The proponents’ question also referred to a cap on “carbon pollution,” when in reality the TCI regime will cap gasoline and diesel sales. The thumb on the scale in the question is obvious.

Stephen D. Haner is Senior Fellow for State and Local Tax Policy at the Thomas Jefferson Institute for Public Policy. He can be reached at


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An Opportunity Agenda for Virginia

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The greatest ideological division in the United States today separates those who support policies geared to creating equal opportunities for all and those who support policies geared to creating equal outcomes. Each orientation reflects contending views of human nature and prescriptions for making the world a better place.

I believe — and I think most Americans believe — in equal opportunity. I believe that public policy and civic endeavor should be directed to giving all Americans access to the tools that allow them to improve their stations in life. An equal opportunity agenda would articulate pragmatic, achievable goals that lead to incremental but steady gains over time. I do not believe in harnessing the power of the state to achieve equal outcomes. A world of equal outcomes is an unachievable utopia. The path to utopia is strewn with violations to individual liberties. Equality is never achieved. The only thing that changes is the people in power.

An opportunity agenda seeks for win/win solutions to society’s ills. While it sees a role for collective action through civic groups and government, the opportunity worldview recognizes that there is no substitute for individuals acting to optimize their own good and that of their loved ones. The engine of the opportunity agenda is individual initiative and personal responsibility. It is forward-looking and optimistic. It is win-win. One person’s gain does not come at the expense of any other.

The equal outcomes movement, by contrast, is driven by envy, resentment, grievance and victimhood. It is win-lose, an inherently divisive approach. It is predicated on the belief that the only way to make Person A whole is to take something from Person B.

An opportunity agenda could be a winning political formula. Most Americans don’t want to become Jeff Bezos or Bill Gates. They don’t expect unattainable wealth. They don’t even want unattainable wealth. As that great philosopher, Notorious B.I.G. once rapped, “Mo money mo problems.” Most people just want a better life for themselves and their children, and most people are willing to work to achieve those goals. An opportunity agenda would give them the tools to do so.

Neither the Democratic Party nor the Republican Party in Virginia defines itself as the party creating opportunity for all. Politicians of both parties nurse particular sets of resentments and grievances. But of the two parties, I see the GOP as the more natural standard bearer for equal opportunity. The GOP is less wedded to the proposition that every social ill has a government solution while the progressive wing of the Democratic Party is totally committed to equal outcomes.

As the party in power in Virginia, the Dems have little incentive to change. As the party out of power, the Republicans have every reason to change. To build a broader coalition, they need to redefine who they are. They need to identify kitchen-table issues that affect everyone, devise pragmatic, politically achievable solutions, and rebrand themselves as the party of opportunity for all.

That will take a lot of work. One place to start is to begin thinking about how the abstract idea of creating opportunity translates into real world policies. The real world is a very messy place, and abstract ideals often seem disconnected from reality.

Permit me to provide a few examples of what an opportunity agenda might look like in Virginia.

Healthcare. Republicans fought a losing battle against the Affordable Care Act, Medicaid expansion and the subsidized Obamacare marketplaces. Historically speaking, once you give the American people an entitlement, you can’t take it back. As a political matter, repealing Obamacare and rolling back Medicaid expansion is a non-starter. Instead, an opportunity agenda would reframe the healthcare debate from its current emphasis on expanding government programs and transferring wealth to an emphasis on reinventing the system to squeeze out costs and improve outcomes. How can we reform the delivery of healthcare to make it more efficient and more productive? How can we make healthcare pricing more transparent and empower consumers? How can we curtail the monopoly power of Virginia’s health systems and encourage more competition and innovation? What reforms can we identify that help everyone?

Housing. The cost of housing is squeezing more and more Virginians out of the housing marketplace. The problem at its heart is an imbalance of supply and demand. The number of households is growing faster than the supply of housing. We can address housing affordability by managing scarcity (curtailing evictions of poor people, which creates problems for landlords and discourages investment in housing for the poor) or by increasing the housing stock for all (enacting policies that encourage developers and homebuilders to build more housing units).

The goal of increasing the housing supply is fine in the abstract, but this is a classic case of how the real world gets messy. The supply of housing is restricted by zoning, which creates winners and losers. As a voting bloc, homeowners are extremely resistant to change. They want to preserve the character of their neighborhoods and protect their property values. A pragmatic approach would be to channel new housing development in the form of apartments and townhouses in areas zoned for commercial and industrial uses — thus creating more compact, mixed-used development in areas where the development will not impinge upon neighborhoods of single-family homes.

Education. A good education is a fundamental tool for self-improvement. Unfortunately, the Virginia Department of Education and many major school districts in Virginia have been captured by progressives committed to equal outcomes. Critical Race Theory is a win-lose proposition and intrinsically divisive. The animating propositions are that whites are racist and that the system is racist, that merit should be sacrificed as a criteria for admitting children to elite schools, and that poor minorities are deserving of greater funding than middle-class students who pay the taxes.

An opportunity agenda says that we can improve educational outcomes for everyone without the divisive necessity of tarring 60% of the population as racist. Fortunately, there is an obvious model for Virginians to draw upon — the Comprehensive Instructional Program originating in Southwest Virginia and now encompassing many rural counties across the state. The strategy is to focus on core skills, set high standards for all students, measure what works, identify the best teachers, and share their materials and techniques. Advocates of an opportunity agenda says the mission of schools is teaching, not transforming society. If efforts to reform public schools fail, an opportunity agenda supports charter schools and vouchers as alternatives to empower poor families.

Those are just three examples. An opportunity agenda needs to grapple with other issues, perhaps the most pressing of which in the post-George Floyd era is criminal justice reform. Transportation, energy, and the environment are other state-level topics that could benefit from imaginative thinking about win-win solutions.

One distinguishing characteristic of an opportunity agenda is pragmatism — to do what works. Doing what works requires measuring results. It also requires an incrementalist mindset — moving deliberately towards a goal step by step, measuring results, tweaking programs, eliminating what doesn’t work and reallocating resources into things that do. Aim for steady, achievable progress on all fronts. Make Virginia a little better year after year.

Jim Bacon is editor and publisher of the Bacon’s Rebellion blog.  This article originally appeared in the blog on January 3, 2021.

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Annual Highway Report Analyzes State Highway Systems’ Performance: Virginia Drops To 21

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Reason Foundation recently released its 25th Annual Highway Report, a yearly evaluation of the conditions and cost-effectiveness of state highway systems. The report uses data reported by states to the Federal Highway Administration (FHWA) as a condition of receiving their federal highway funding. The FHWA data are supplemented with bridge data from Better Bridges magazine and congestion data from INRIX. The report compares each state’s highway spending against its highway system’s performance to provide policymakers and taxpayers with an assessment of value-for-money spent.

Continuing a national trend over the last 20 years, the overall state highway system performance improved slightly. Most of the trouble spots are concentrated in the lowest-scoring 10 states, which have a disproportionate share of the highway problems and reduce the overall system performance.

This year’s Annual Highway Report examines 13 categories; four categories measure state spending and nine measure performance. Across the country overall, seven of the nine performance categories improved: Rural Interstate Pavement Condition, Rural Arterial Pavement Condition, Urban Arterial Pavement Condition, Structurally Deficient Bridges, Fatality Rate, Rural Fatality Rate, and Urban Fatality Rate. The two performance categories where conditions worsened: Urban Interstate Pavement Condition and Urbanized Area Congestion. Unfortunately, this increase in system performance comes at a substantial cost. Capital and Bridge Disbursements increased by 8 percent, Maintenance Disbursements by 14 percent, Administrative Disbursements by 8 percent, with Total Disbursements up by 9 percent.

For this newsletter’s audience, it’s particularly important to note that the report is a measurement of the roadways that each state owns and operates, not a ranking of the state departments of transportation. We also made one methodological change in this year’s report worth noting. Instead of calculating disbursement rankings using lane-miles, we used an average of centerline-miles, lane-miles, and vehicle-miles traveled per lane-mile. Centerline-miles are the length of the highway system (a five-mile road equals five centerline-miles). Lane-miles are the length of the highway system multiplied by the number of lanes on a highway (a five-mile road with two lanes equals 10 lane-miles while a five-mile road with six lanes equals 30 lane-miles). Vehicle-miles traveled per lane-mile are the total amount of miles traveled on the state highway system divided by the lane-miles in the state (100,000 vehicle-miles traveled per year divided by 200 lane-miles of roadway equals 500 vehicle-miles traveled per lane). We made this change in an ongoing effort to be fairer to all the states. While a centerline-miles ranking may favor rural, less-populated states, a vehicle-miles traveled per lane-mile ranking may favor urban, more-populated states. Therefore, we believe a composite measure can help provide a more accurate, richer dataset.

Generally speaking, this change had a modest effect on the report’s overall rankings. Eleven states saw a movement of 10 positions or more in the rankings. Arkansas, Mississippi, Wisconsin, South Carolina, and Iowa improved dramatically in the overall rankings—by 23, 17, 16, 14, and 11 positions, respectively. In contrast, Wyoming, Maine, Virginia, West Virginia, Oregon, and Vermont saw their rankings worsen by 25, 21, 19, 17, 16, and 11 positions, respectively.

For the past three editions of the Annual Highway Report, North Dakota has been the top-performing state in the study’s overall performance and cost-effectiveness rankings. But the state’s overall ranking is not a function of placing number one in any particular category. Rather, North Dakota ranks first overall because it scores in the top 30 in nearly all—12 of the report’s 13—categories. And it ranks in the bottom 10 states in only one category—Structurally Deficient Bridges. Its next-worst rankings are 28th in Urban Arterial Pavement Condition and in Rural Fatality Rate. Solid performance in nearly every category is what drives North Dakota’s overall ranking.

A far more-populous state, Missouri, ranks second overall in the report. Missouri also benefits from consistency across the board. Missouri does not rank in the bottom 10 in any of the 13 categories. Its worst ranking is 33rd in Structurally Deficient Bridges. Missouri shows that a more highly populated state (18th largest), with a large state highway system (7th largest by mileage), can rank highly in the report’s overall rankings and can serve as a model for other large states looking at lower rankings.

The worst-performing state is once again New Jersey, which ranks well in only two categories. The state ranks 3rd in Overall Fatality Rate and 4th in Rural Fatality Rate. But New Jersey is last in the overall rankings because of its poor performance in a large number of categories. The state has the highest Total Disbursements, Capital/Bridge Disbursements per Mile, and Maintenance Disbursements per Mile. It also ranks in the bottom five in Administrative Disbursements Per Mile and Rural Arterial Pavement Condition. In short, New Jersey spends far more money on its roads than the average state for a small state highway system that performs worse than average.

We frequently hear that it is unrealistic for New Jersey to have the same performance as North Dakota. But states such as New Jersey could focus on improving pavement conditions and reducing traffic congestion. It ranks in the bottom 10 in three different pavement condition categories, for example. Improving pavement conditions would help its rankings. Or, New Jersey could choose to focus on efficiency and reducing its spending somewhat, which would also significantly help its rankings. Reducing the state’s per-mile expenditures to levels that are comparable with states with similar geographic characteristics, such as Maryland, would help.

While it may be unrealistic for the worst-performing states to become top-ranked states quickly, they can make tangible progress on road conditions, deficient bridges, traffic congestion, and improve in ways that take them closer to average performance- and spending-levels for similar states.

States that rank poorly can also learn from other nearby states. Each state has strengths and weaknesses. For example, Georgia has long been an expert at maintaining high-quality urban Interstate pavement at an affordable cost. In contrast, Arkansas struggles at maintaining high-quality pavement. Thus, Arkansas officials might consider looking at the rankings and speaking with Georgia’s transportation officials about how they maintain their pavement quality. Transportation departments can use the report to see which states are succeeding in various categories and take the best practices from a variety of places.

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That $900 Billion Stimulus Package includes Pork – lots of it!

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Congress has passed, and the President has signed, the $900 billion stimulus package. There’s a lot of pork in the bill, and it includes USDA.

What is your tax dollar going to support?

About $10 million will be made available for gender programs in Pakistan. There will also be a study of the Springfield, Ill., race riots of 1908. There is also funding for studying the succession or reincarnation of the Dalai Lama. There is even money for a commission tasked with educating consumers about the dangers associated with using or storing portable fuel containers for flammable liquids near an open flame. 

There’s more: $130 million for Nepal, $453 million for Ukraine, and $700 million to our great allies in Sudan.

What about USDA? 

But let us examine what USDA received. Title I of the Consolidated Appropriations Act, 2021, starts with agriculture and rural development. Under Division A of the bill, there is a Title for the following agricultural programs: farm production and conservation programs; rural development programs; domestic food programs; and foreign assistance and related programs. There is a title for related agency and food and drug administration, and finally there is a Title VII for general provisions. There is even a Title XII for horseracing integrity and safety.

The Office of the Secretary of Agriculture is given approximately $47 million of which he is to spend approximately $5 million. Twenty-one million goes to the Assistant Secretary for Administration.

The language in the bill is enough to make your head spin. For example, the Chief Economist of USDA receives approximately $24 million. Of that, $8 million must go to grants and cooperatives for policy research. The lawyers, of course, are not left out because the USDA Office of Hearings and Appeals receives $15,394,000. The Chief Information Officer of USDA’s office receives approximately $67 million “…of which not less than $56,000,00 is for cyber security requirements of the department.”   

The Civil Rights Office of USDA receives approximately $23 million and to maintain the department’s buildings across the country, $108,124,000. USDA apparently has a number of hazardous waste sites and the legislation provides $6,514,000 to deal with this issue.

To protect all the bureaucrats in federal buildings, Congress sets aside approximately $23 million to the Office of Safety and Security, to make sure farmers and ranchers have identification papers to get into USDA buildings. The Office of Inspector General has approximately $100,000,000 to make sure all our USDA funds are spent appropriately. There is even $125,000 for paying confidential informants. In USDA there is even an Office of Ethics, and it receives $4,185,000.

The National Agricultural Statistical Service receives approximately $184 million. This money is used to send confidential surveys to you.

Research gets big bucks

The Agricultural Research Service (ARS) starts spending real money. Approximately $1.5 billion goes to the ARS and in addition, the ARS receives approximately $36 million to buy land or construct or repair buildings. 

The National Institute of Food in Agriculture also receives for research and other expenses $992,642,000. Another $11,880,000 is spent on Native American Institutions Endowment Fund. Extension activities which include the District of Columbia, Puerto Rico, Guam, the Virgin Islands, Micronesia, the Northern Marianas, and American Samoa are allocated $538,447.

I suspect many of you are not aware of the extension activities involving these areas.

Another program popular with American farmers and ranchers is the Agricultural Marketing Service (AMS). AMS receives the tidy sum of $188,358,000. Of course, AMS may collect fees pursuant to another statute. Of course, Congress claims USDA cannot collect more than $55 million. 

Another favorite agency is the Natural Resources Conservation Service (NRCS). NRCS helps conserve soil and water and acquires some lands and water. It also operates and maintains aircraft for which only $832,727,000 is made available. Out of this $832 million, $175 million must be spent on watershed protection and flood prevention. 

I will not get into the Federal Crop Insurance Fund or the Commodity Credit Corporation Fund in this column. As you can see, Congress has no problem spending money on agriculture – or gender studies in Pakistan.

This commentary originally appeared on December 28, 2020 in the online Farm Futures.

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