Rossum, Dreier, and the 17th Amendment

In 2001, Professor Rossum published a book titled, Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy. The book argued that the current 17th Amendment is against the spirit of safeguarding the rights of states that the founders established when they authored the Constitution. Here's how Bruce Bartlett describes the problems with the 17th Amendment in National Review.

The purpose was to provide the states — as states — an institutional role in the federal government. In effect, senators were to function as ambassadors from the states, which were expected to retain a large degree of sovereignty even after ratification of the Constitution, thereby ensuring that their rights would be protected in a federal system.

The role of senators as representatives of the states was assured by a procedure, now forgotten, whereby states would “instruct” their senators how to vote on particular issues. Such instructions were not conveyed to members of the House of Representatives because they have always been popularly elected and are not expected to speak for their states, but only for their constituents.

It's that provision of states "instructing" their senators that led the progressives to pass the 17th Amendment with predictably awful results for those of us who like limited government.

The reason I mention all of this is that a CMC alum, David Dreier CMC '75 has come around to supporting something else that is dangerous in light of the controversies surrounding the gubernatorial appointment of senatorial replacements that were exposed in the ongoing Roland Burris-Rod Blagojevich scandal. Congressman Dreier wants to "perfect" the 17th Amendment and has thrown his support behind a proposal that would amend the Constitution so that the people elect the replacement senator in a special election.

Is that a good idea? Not so fast, argues Heritage Foundation scholar, Matthew Spalding, CMC '83, who testified against the amendment yesterday. Dr. Spaulding's arguments are well worth reading, but beyond the scope of this blog post.

Apparently, Spalding spoke with Rossum before Spaulding testified. I asked Rossum, who is my advisor, about the proposal. Here is what he wrote to me,

Briefly, the reasons against:

If a senator needs to be replaced without six months of the next general election, there is not time to elect a senator, but there certainly is time for the governor to appoint a senator and ensure full representation of the state during the crucial budget season -- or for any other critical vote.

If there were a terrorist attack on the Capitol killing enough senators to deprive the body of a quorum, the ability of governors to fill quickly the Senate's ranks would be essential.

If any state wants to do what Feingold wants them to do, the current language of the 17th Amendment permits them to adoptly legislatively exactly what he wants to impose on all constitutionally.

FIRE Investigates CMC's Speech Code

Adam Kissel has the blog post, reproduced here.

A Fresh Look at Claremont McKenna’s Speech Code

by Adam Kissel

March 12, 2009

I recently reported on two Claremont McKenna College (CMC) students who were "banned" from Pomona College after they asked questions of a Planned Parenthood representative during a publicly advertised event. They videotaped their questions and the answers, and they turned off the recorder after being asked to do so. But a week later, they were publicly disgraced (though not by name) by two Pomona deans for having been "disruptive" and "attempting to create an antagonistic space." Pomona and CMC are closely related neighbors in the Claremont University Consortium, which offers benefits and privileges to students enrolled at any of the Claremont Colleges. Being banned from one of the campuses is a serious punishment that interrupts a student's educational experience.

Fortunately, after a bit of delay, CMC came to the defense of its own students. CMC President Pamela Gann sent the CMC community a public apology that vindicated the rights of CMC students to freedom of speech and due process at Pomona College. Gann wrote that "I completely share the concerns expressed that this action was inconsistent with Claremont McKenna College's understanding and application of the free speech and due process rights that exist for CMC students and that should be respected for all students at The Claremont Colleges." She also wrote that "in the absence of some showing of a particularized threat to its campus, it would be inappropriate for any member of The Claremont Colleges to ban a student from a sister institution without first providing appropriate due process" and that "the ban [in this case] was inappropriate."

Let's now take a look at CMC's own speech code which, among other things, bans "verbal actions which ... disgrace another person." Even worse, the speech doesn't have to actually succeed in disgracing someone; it only needs to "tend to cause such effects." Did President Gann's public rebuke of two Pomona deans, which both tends to disgrace them and probably in fact disgraces them, violate CMC's own policy against disgracing others with "verbal actions"? It sure seems that way, which demonstrates the absurdity not of President Gann's speech but of the speech code itself.

Another CMC policy that conflicts with basic freedom of speech is its Posting/Publicity Policy, which requires prior review and permission for postings: "Any material to be posted publicly by students must be approved first by the Director of Student Activities in the Dean of Students Office."

Suppose someone wanted to put up a poster that disgraced certain Pomona deans for banning two CMC students from Pomona's campus in violation of the students' rights. I suppose the Director of Student Activities would have to ban it!

At this moment of appreciation for the free speech rights of CMC students, perhaps now is a good time for President Gann to fix up its restrictive speech code.

Live Action, the Group Banned from Pomona, Issues Press Release

CLAREMONT, Calif., Mar. 12 /Christian Newswire/ -- Pomona College banned two pro-life students from campus last week after they videotaped the question-and-answer session during a Planned Parenthood representative's talk and asked the representative tough questions about recent Planned Parenthood scandals. Pomona rescinded its ban this week after facing strong opposition from students, faculty, and alumni. The pro-life students, David Daleiden, 20, and Kyle Kinneberg, 21, are members of the youth-led right-to-life advocacy group Live Action.

Daleiden and Kinneberg both attend Claremont McKenna College, part of the Claremont College Consortium together with Pomona and three other undergraduate institutions. A hand-delivered letter from Pomona's Dean of Women Marcelle Holmes notified the students of the ban, claiming their videotaping had been "against college policy." But Daleiden, President of Live Action's Claremont chapter and Director of Research for the national organization, said Pomona never produced the specific policy they said his group had violated, and that he and Kinneberg were denied their due process rights under the Claremont Colleges' Policy on Demonstrations.

"When alumni found out about this Orwellian situation, they were outraged," explained Daleiden. "Pomona accused us of conspiring to 'disrupt the proceedings, intimidate participants, and chill the free exchange of ideas,'" Daleiden said. "But nothing could be farther from the truth. We were entirely respectful when we asked our questions -- as our video shows."

The videotaping in question took place on February 19, during a presentation by Serena Josel, public affairs manager for Planned Parenthood of Los Angeles. Administrators told Daleiden that after the event, PPLA contacted Pomona College about his conduct. Daleiden notes that PPLA has extensive ties to Pomona, which regularly promotes internships and raises money for the abortion provider.

"It's understandable that Planned Parenthood's Serena Josel was angry at us for our recording -- she made several spurious and even contradictory arguments defending Planned Parenthood's lack of accountability for mandatory child abuse reporting," Daleiden continued. "But campus disciplinary procedures should never be used as a tool for political retribution."

"We are grateful to the Claremont McKenna alumni and administration who reacted quickly to correct this abuse," Kinneberg added. "This is not the first time pro-lifers have been persecuted for questioning Planned Parenthood, but victories like this should inspire us never to be afraid to stand up for the truth."

Part 1 of the video can be seen at: http://www.youtube.com/watch?v=XI85ptlxJTw
Part 2 is here: http://www.youtube.com/watch?v=xzUpUViEyZY
To read the ban letters, view the Facebook Group: http://www.facebook.com/home.php#/group.php?gid=67927919387

Expanding Wait Lists

Claremont McKenna plans to expand wait list for the next class in light of the financial crisis. Anyone want to explain why that is? 

$14m Shortfall? Financial Aid Cuts? Read On…

President Gann offered a talk today in McKenna Auditorium on the financial crisis’ impact on CMC. It didn’t seem that well-publicized; I only received one email about it, and only four students and Dean Huang were in attendance.

The summary: $12-14 million budget deficit in 4 years, immediate budget freezes & cuts, $600,000 cut from financial aid, cheaper food, bigger classes, visiting students, a bit of screwy accounting math, rebidding the Kravis Center project, and the possibility of a summer school and longer pay freezes—all driven by a 32.5% endowment loss so far in fiscal year 2009 and less gift money.

Let’s start with the biggie:
CMC will face a $12m million budget shortfall as early as 2012, and $14m shortfall by 2013. The budget shortfall is estimated to be $10m by fiscal year 2012, and nearly $12m by 2013. However, since the College maintains a $2m budget surplus each year (and inevitably draws down on it, according to Gann,) those numbers grow to $12m and $14m, respectively.

Immediate cuts:
CMC, as you may know, smooths out endowment withdrawals over 12 quarters. This means two things: First, the effect of the recession/depression won’t be fully felt at CMC until the fiscal year of 2013. Second, because of a great FY 2007, in which the endowment rose 27% (as opposed to the now over 32% loss in the past several months,) endowment withdrawals would actually rise over the next year or two. However, President Gann plans to propose at the Board of Trustees today and tomorrow that CMC freeze endowment withdrawals at current levels—and said that the Board may even want “to take more of a gulp now.”

Where money’s (not) coming from:
More cuts would make sense, given that, of the several models she showed of future endowment growth, we’re currently between “Pessimistic” and “Very Pessimistic.” CMC usually provides for 29% of its annual budget from the endowment, and this loss is no small deal. In addition to endowment withdrawals, the other two major sources of funding, net student tuition (49%) and gifts/grants (18%,) are also in question. Gann said that gifts and grants are significantly down, and tuition for the Class of 2013 might go down as well.

Financial aid:
Gann said, “The first thing we did is look at our financial aid,” from which $2.8m has been saved. As the administration has trumpeted, the need-blind and no-loan policies have been ‘secured.’ However, what took a few questions to reveal is that approximately $600,000 in aid will be cut, primarily by determining the “need” in “need-blind” less generously. This is important--CMC, although supposedly need-blind, can alter the formulas it uses to determine how much your family can 'afford to' contribute. The other $2.2m in cuts was avoided through timely capital campaign gifts. Gann said that only four to five kids had asked for financial aid reevaluations for this semester, and claimed, “We had very generous financial aid already.” Also, CMC apparently used to let students keep outside scholarships in addition to the money those students would get from the College. This strikes me as a bit ridiculous, and it’s a good thing that it’s changing.

Job searches, pay freezes:
Gann reminded everybody of the pay freezes in place, and said that if the situation continues to worsen, pay may stay frozen longer. She said that some economists say that pay freezes (or, followed to its logical conclusion, pay cuts) simply reflect the impact of a decreased demand for labor. She acknowledged that wages are sticky, so there probably won’t be pay cuts, but longer freezes are a possibility. Also, only 9-10 of the earlier 15 planned job searches will be completed; Gann said that a further option is to “keep chipping away at the size of the workforce itself.” When asked, she said that this could lead to larger classes in some disciplines, especially in core classes like Gov 20 & Econ 50.

More on cost-cutting :
Each Vice President was asked to trim 2-3% from his budget. Including eight eliminated employee positions, Gann says that CMC has saved $1.5m, mostly by reducing non-employee expenses. She added, “I’d like to see at least another $500,000 come out of lowering costs.” She mentioned “travel, phones, energy, water, grounds, [and] cleaning” specifically, which makes me wonder how strictly necessary a lot of our overhead costs are to begin with. Food was one big non-educational expense. “You might see some things in Collins,” is all Gann said. The Stalinesque ‘Food Committee’ at Pomona has acted to save money by making it harder to get food once you're in a dining hall, and it seems as if we may follow suit in some, way, shape, or form. As a student who regularly exhausts the sixteen meal plan, I’m not too excited about that—but better that than my education, I suppose.

Summer school & visiting students:
Summer school is a possibility, but would require a lot of administrative work to set up, so all plans would be for next summer. What’s more likely to happen sooner is allowing visiting students. Currently, CMC students can study at other colleges, and typically pay full tuition at those colleges to do so. Gann said that inquiries from potential visitors to CMC have been coming in for years, but that CMC used to decline because “we have felt that what was really important was to educate full-time students who become our alumni.” This is changing because admitting visiting students, who will not be eligible for financial aid, is “a pretty easy way to garner some additional revenues.”

Accounting gimmicks:
The changes in accounting could hurt future capital projects. Gann said that CMC usually straight-line depreciates its buildings over 40 years, with a 1.4x replacement cost, but that CMC is looking at depreciating its buildings over 60 years instead of 40, and has already lowered its projected replacement cost to 1.2x. For those who haven’t taken accounting, that means that our buildings (in the accounting world, anyway) are worth 1/40th less each year, until, after 40 years, their supposed value is $0. The 1.2x replacement cost means that CMC expects to pay 120% of the original construction cost to replace a given building, and so we have to put that much money away to replace it. Essentially we’re putting off expenses and diminishing the size of future capital investments. Is this a good idea?

Deflation is a good thing?:
On the bright side, deflation could help the College. CMC attempts to maintain the endowment’s purchasing power, and so recent deflation in some areas means CMC can spend more endowment money and maintain that purchasing power. Parts of the Kravis Center project will be rebid; Gann actually said that the ratio of “supply and demand” of contractors to new building projects had changed.

Well, that's all I have for now. I'm working on getting the PowerPoint used at the presentation, and will post some images if/when I get it.