Fanning the Flames: The Freedom Project Blog


Going Out Like a Lion

By Shawn Healy
Time to place one toe back in the political arena as I've neglected it these past two tumultuous weeks. While I was sleeping Sen. Barack Obama delivered what many consider one of the greatest modern speeches on the issue of race relations to deflect criticism related to venom delivered over the years by his spiritual adviser and minster, Jeremiah Wright. In the interim, Obama was able to run out the proverbial clock on Sen. Hillary Clinton's efforts to have re-votes in Michigan and Florida. Without repeat contests in these two bellwether states, short of a complete collapse by the junior IL senator, Clinton cannot catch Obama in either the popular vote or delegate count by the end of the primary season in early June.

What, then, is the rationale for Clinton remaining in the race? As mentioned before, neither candidate will have enough elected delegates to clinch the nomination outright, meaning superdelegates will provide the decisive margin for the ultimate nominee. Of the 795 superdelegates (1 less because of Spitzer resignation), 327 remain uncommitted. Clinton leads Obama among superdelegates, 251 to 218, but trails Obama among pledged delegates, 1414 to 1248. 2,025 delgates, elected and superdelagates combined, are needed to clinch the nomination.

There has been a push in recent days, led by House Speaker Nancy Pelosi, for superdelegates to follow the will of primary voters. DNC President Howard Dean, while hesitant to make a similar suggestion, hopes to have superdelegates make their commitments in advance of the Democratic National Convention at the end of August in Denver.

Clinton contends that she is the most formidable fall opponent against Sen. John McCain, that she has won all of the largest states critical for a general election victory with the exception of Obama's home state of Illinois. She points to the original purpose of superdelegates: not to affirm the popular vote, but to provide the party establishment with a say in who they think should carry the banner come November.

For a week or so, her argument appeared to gain traction, but Obama has since recovered and taken a sizable lead in national head-to-head polls. More than anything, the venom exchanged by the two Democratic campaigns has bolstered the standing of McCain, as the AZ senator leads both in general election matchups. This means little as of now, but Obama actually fares better than Clinton, seemingly negating her arguments about electability.

I've been saying this a lot lately, but this contest will look much different come Labor Day than it does now. General election polling is meaningless at this juncture. It is surprising that McCain is polling so favorably, however, given the concerns about our economy, an unpopular war that he has unconditionally embraced, the fact that he shares a party affiliation with one of the more unpopular presidents since the dawning of public opinion polls, and the tendency for voters to punish an incumbent party that has held the White House for two straight terms.

My guess is that he faces an uphill battle against either Democratic opponent given these variables, but he is popular among idependents and even some Democrats. His current parity in the polls is partially attributable to Democratic bickering, but don't discount the data that suggests Obama and Clinton supporters will cast ballots for McCain should their choice not secure the nomination. This angst is probably overstated in the heat of the campaign, but a protracted battle has made ideological confidants polarized enemies. Crossover votes, or more probably sitting out an election in protest, will be a legitimate concern for Democrats if the contest that has dominated the 2008 calendar stretches from spring to summer.

Where does this leave the Democratic contest? Pennsylvania voters will flock to the polls in millions in three weeks, and Clinton holds a sizable lead in polls there. Obama is well positioned for a comeback in North Carolina on May 6, with a pivotal battle in Indiana scheduled for the same day. As for now, the Hoosier State looks like a toss-up, but it favors Clinton demographically and she has the establishment support of Sen. Evan Bayh. Obama, on the other hand, hails from the neighboring State of Illinois, and a good portion of the eastern half of the state shares a media market with the Land of Lincoln, meaning they have been exposed to his image through ads and press coverage over the past 4 years.

Also on the docket are Guam on May 3, West Virginia on May 13, Oregon and Kentucky on May 20, Puerto Rico on June 1, and Montana and South Dakota on June 3. I would expect Obama to claim all of these contests with the exception of West Virginia and Kentucky, adding to his popular vote and elected delegate lead, and creaming Clinton in number of state victories. The bigger question is will the next two months provide us with any more clarity than we have at this juncture. My prediction is a definitive NO with Clinton pledging to remain in the race, and committed to finding a resolution to the currently unseated delegations from Michigan and Florida.

Hang on tight. Only seven months remain until the general election.


Who Doesn't Want Oscar in Their Party?

By Shawn Healy
The Supreme Court reversed a Ninth Circuit Court of Appeals decision last week concerning a state law in Washington that enables voters to select candidates from both major parties, the Democratic and Republican Party, along with independents on a blanket ballot. The top-two vote getters in the primary advance to the general election, meaning that a major party may be excluded in its entirety.

The state parties, led by the GOP, contested the law, I-872, The People's Choice Initiative, on First Amendment grounds, contending that it violated parties' right to association. The parties suggest that candidates may claim an affiliation to them and use this to advance to the general election, leaving the party with little or no say who carries their banner before voters.

The Supreme Court, in a 7-2 decision, restored the law, rejecting the facial challenge. By the latter I mean the majority contends that the law is not unconstitutional in its abstract form. It could be struck down upon application, but this has yet to occur because the lower courts struck it down before it took effect.

Justice Clarence Thomas, writing for the majority, reverses the lower court decision on the grounds that I-872 does not on its face impose a severe burden on political parties' associational rights, and because respondents' arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge..."

Thomas claims the Court is disinclined to favor facial challenges on the grounds that they "often rest on speculation," "raise the risk of premature interpretation of statutes on the basis of factually barebones recorrds," and "run contrary to the fundamental principle of judicial restraint," thus "threaten(ing) to short circuit the democratic process."

Having struck down a similar California law, the majority distinguishes the Washington statute in that it does not choose parties' nominees, but instead general election candidates independent of party affiliation. Moreover, the "fatal flaw" of the defendants' argument centers on voter confusion relative to the party-preference designation on the ballot, but the majority considers such a phenomenon "sheer speculation." In sum, "The First Amendment does not require this extraordinary and precipitous nullification of the will of the people."

Chief Justice John Roberts wrote a a concurring opinion, echoing the majority's claim that "Majority perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties' associational rights are adversely implicated." Roberts urges us to wait for the actual ballot design to measure whether or not the statute in practice is unconstitutional. He makes an analogy to Campbell's Soup, suggesting that a candidate declaring an affinity for the product does not make her/him a company spokesperson. The same holds true for party identity. Claiming allegiance to a political party does not make one its standard-bearer.

Justice Antonin Scalia wrote a scathing dissent suggesting that the Washington law is unconstitutional on its face. He writes, "Because Washington has not demonstrated that this severe burden upon parties' associational rights is narrowly tailored to serve a compelling interest--indeed because it seems to me Washington's only plausible interest is precisely to reduce the effectiveness of political parties--I would find the law unconstitutional.

Scalia continues, "Not only is the party's message distorted, but its good-will is hijacked. There can be no dispute that candidate acquisition of party labels on Washington's ballot--even if billed as self-identification--is a means of garnering the support of those who trust and agree with the party."

He parses Roberts' Campbell's Soup analogy further, claiming that Washington's law allows "Sesame Street's famed bad-taste resident of a garbage can," Oscar the Grouch, to state his affinity for the soup, while never allowing the company to disassociate itself from this questionable character.

Scalia concludes, "There is no state interest behind this law except the Washington legislature's dislike for bright colors partisanship, and its desire to blunt the ability of political parties with non-centrist views to endorse and advocate their own candidates."

To Scalia's chagrin, Oscar continues to eat and promote Campbell's Soup to his heart's delight, and may even ride its good will to the state legislature or governor's mansion.


The State of the News Media 2008

By Shawn Healy
The Project for Excellence in Journalism released their annual study of American journalism last week in a report titled "The State of the News Media 2008." Its findings are by most measures sobering for someone who is a self-confessed news junkie who prefers the print media over its radio, television, and electronic counterparts. As a whole, the industry faces a set of obstacles like never before and must adapt its model immediately in order to survive. The challenge is orchestrating a makeover in the midst of downsizing trends in terms of newsroom staff and resources.

What follows are highlights from the report along with some of my own observations regarding the implications of these findings.

At the heart of the conundrum facing the media industry is the decline of its primary revenue source, advertising. It is abandoning newspapers in exponential fashion, and its once-thought inevitable migration to its online counterpart has not occurred. In the end, Craigslist and its counterparts are simply more effective means of facilitating commerce. The report aptly notes that the Internet is not "free," but instead users are not bearing the costs of news consumption in cyberspace. As a means of redress, news organizations should expand their offerings beyond "meat and potatoes," adding citizen journalism and search functions, serving as the proverbial anchor store where news may be the impetus for a site visit, but not the sole reason for page clicks.

The study did content analysis of news coverage in 2007, finding that the Iraq War and presidential campaign dominated the headlines (1/3 of the "newshole"), with the former fading away as the latter assumed its place as primary season neared. Old media, namely newspapers and network television news, covered a broader array of topics beyond Iraq and the '08 election, and were less likely to allow these issues to dominate their coverage in comparison to talk radio and cable news.

There is also a disconnect between what the media covers and what news consumers would like to see emphasized. Rising gas prices and the legislative battle over children's health care were lost in the campaign deluge, and the public wants less of already scant international coverage. The latter did represent 11% of all news stories, qualifying for third place. Of this coverage, Iran, Iraq and Pakistan dominated the headlines, much of it in the context of US interests. Violence in Darfur, by comparison, filled only 0.2% of the overall "news slot." Online news offered the most international coverage, even delving into areas not directly linked to American interests. The authors of the report attributed this to the reach of the Internet with its ability to cross "borders and continents."

The report also address the phenomenon of "drive-by journalism," or the media's propensity to drop everything it is doing for crisis coverage, then to discard it shortly thereafter, where "...this week's bombshell (is) next week's afterthought." The Virginia Tech massacre and the Minneapolis bridge collapse qualify as such, as does the recent shootings at Northern Illinois University. Cable news is the biggest culprit here. I myself was fascinated by the way in which CNN shifted away from Gov. Mitt Romney's Valentine's Day endorsement of Sen. John McCain to on-the-scene coverage via helicopter from NIU. Newspapers, by comparison, despite major staff reductions, were the lone vehicle to conduct follow-up reporting after the 24-hour news cycle subsided and moved back to the campaign trail.

In terms of news consumption, the numbers continue to plummet. Newspapers are attempting to stray from age-old circulation figures. The feeling is that they miss the number of people who read the print edition, the amount of time they do so, and of course readership online. Tied to the latter is how to measure page clicks and site visits, not to mention email alerts, podcasts and alternative means of accessing news (PDA's, for example). By existing measures, online news consumption has apparently plateaued, while daily newspaper circulation dropped 3%. Cable news declined 12% in prime time, while network news maintained a 25-year trend of bleeding 1 million more viewers. Local news declined even more rapidly, while ethnic media, the sole area of growth, may be cresting.

Relative to technology, news organizations embraced blogging on a broad level and made significant investments in the Internet for the first time. This is due to the fact that board rooms see it as a new revenue source, and news rooms have recognized it more as an opportunity than a threat in an environment of downsizing and audience atrophy.

For example, the Washington Post has devoted 200 staff members to the online version of the paper, which now produces 15% of all revenue with a 50% figure on the horizon. It has a distinct identity from its print edition, and represents a foil to many newspapers who use their "...sites as a morgue for old copy."

The media's relationship with the general public is also tenuous. Confidence continues to erode after 20 years of skepticism about journalists, the organizations that employ them, and the industry as a whole. Perceptions on bias are widespread, with 28% of the public claiming a perceived liberal bias in 2006, up from 19% in 1996.

In my mind, the way out of the abyss requires a commitment by media organizations and their readers/viewers/listeners. Consumers must remain vigilant consumers of news from a host of outlets. The Information Age offers infinitesimal options in this respect, and it is our responsibility as citizens to keep abreast of the ways of the world for the sake of participation in democratic government. Subscribe to your local newspaper, mix network and cable television news into your morning and evening routines, and listen to NPR and other radio news outlets throughout the day. We must also demand more hard news by actually consuming from the "current menu of health food" provided by media outlets, namely international coverage, substantive analysis of governmental policies, and of course the great locus of political debate, the op-ed page of prominent newspapers.

News organizations need to dive into the Digital Age without abandon. Capture the creativity of citizen journalists, do something more substantial with reader feedback, and go beyond using home pages as receptacles for print editions. Professional journalists themselves must embrace blogs, handheld video, podcasts and live chats. The decline of the model that guided journalism for a century is widely documented. It is up to the current lineage to forge a new path so that future PEJ reports document a path of progress rather than demise.


Supreme Neglect

By Shawn Healy
Last evening I had the honor of moderating a discussion with University of Chicago law professor Richard Epstein at the Freedom Museum. We discussed the latest tome from Oxford University Press' "Inalienable Rights" series titled Supreme Neglect: How to Revive Constitutional Protection for Private Property. The subject of the 169-page book is the Takings Clause of the Fifth Amendment to the United States Constitution. It reads as follows:

Nor shall private property be taken for public use without just compensation.

Epstein, a wonderful friend of the Freedom Museum who has now participated in four public programs with us, is admittedly outside of the intellectual mainstream when it comes to the Takings Clause. He considers private property a fundamental right and believes it has been undermined by the progressive agenda first implemented during the New Deal era. Despite the recent dominance of conservatives on the U.S. Supreme Court, the issue of private property has not been afforded the strict scrutiny applied to the First Amendment freedoms of religion and speech.

His book recounts the development of private property rights across time, and his training at Oxford in England provided him with a unique perspective of common law that runs counter to the contemporary legal paradigm concerning property rights in the United States. Underlying property rights is the ability of government to confiscate private property for public use through the process of eminent domain. The interpretation of the 12 words of the Takings Clause is the charge of Epstein's work and was the dominant theme of last evening's discussion.

He states the fundamental problem as follows: "The gap between the minimal state of the strong takings clause and the welfare state of the weak takings clause represents to this day our constitutional chasm." He begins with the concept of a physical taking, arguing that it can transcend the classic example of government purchasing private property to expand a public road or build a school.

For instance, rent controls in New York force landlords to rent units below market price. They forgo rent without a subsidy from the government, and create market disruptions in the process. For instance, landlords may lapse with upkeep minus market pressures, and new construction may be forgone due to lack of profit incentives, leading to a housing shortage or side payments undermining the system in its entirety.

He offers a four-part test, that proceeds as follows:
1. Was private property taken, either by occupation or by restrictions on use or deposition?
2. If so, was that taking justified under the police power to protect against wrongs that the property owners committed against others?
3. If not, was that taking for a public use? If not, then the consent of the owner is needed.
4. If so, was just compensation paid by the state to the owner for the full losses encouraged by the taking?

Recent controversy has focused on the meaning of "public use" in wake of the landmark Supreme Court decision Kelo v. New London. In 2005, a 5-4 majority ruled that New London, CT, had the authority under the Takings Clause to purchase Susette Kelo's Victorian home at fair market value for the purpose of private development in her neighborhood. Essentially, private property was transferred to another private interest with the local government as the intermediary. To date, Kelo struck a deal with local authorities, but the said development is still a decade a way from completion, and its specifics remain in question. Epstein contends that this is typical of many chapters of "urban renewal," where "blight" is an incredibly subjective term.

Epstein also takes issue with the interpretation of the "just compensation" element of the Takings Clause, arguing that "fair market value" is often used to "low-ball" private property owners. He suggests a premium of 10% to 20% over this sum to address the inconveniences of relocating and the subjective value an individual or family may attach to their home and/or property.

In the later chapters of his book, Epstein dives into regulatory schemes that undermine private property rights, including environmental regulation, zoning and landmark preservation, even intellectual property rights. He continually returns to his plea for heightened sensitivity to the interests of private property owners, feeling that such attention would curb the actions of an arguably insensitive and obtrusive government.

As a speaker, Epstein was brilliant as always, proving why he is known as one of the great legal minds in the country and perhaps the foremost expert in the area of property rights. The beauty of this book, and the "Inalienable Rights" series as a whole, is its ability to break down complex legal issues and present them in a manageable work to a lay audience. This reader is certainly more enlightened on the issue as a result of tackling Supreme Neglect, and last evening's program attendees were treated to an even greater exposition on the issue. The Freedom Museum and its guests are privileged to count Professor Epstein among our closest friends.


Supreme Court Shooting Gallery

By Shawn Healy
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The United States Supreme Court spent an hour and thirty-seven minutes yesterday considering the original meaning of these 27 words embedded in the Second Amendment (I previewed this case upon acceptance. To read my earlier post click here). Unlike much of the balance of the Bill of Rights, the Second Amendment has not been reviewed in its entirety by the high court since 1939, and has never deemed the right to keep and bear arms an individual one nor incorporated its collective interpretation to the states. The First Amendment, for instance, originally applicable to only national laws, was progressively applied to state and local laws and ordinances over the course of the 20th Century via the Due Process Clause of the 14th Amendment (for a more expansive layman's interpretation of the legal nuances of this case click here).

Moreover, the age-old interpretation of the Second Amendment as a collective right relates to its state militia component, meaning gun ownership and possession is tied to membership in today's equivalent of the national guard.

The plaintiff in this case, a District of Columbia resident who works as a security guard, is challenging a DC law that prohibits handgun ownership and possession (Chicago has a similar ordinance), alleging violation of his individual right to keep and bear arms. The defendant, the District, argues that the Second Amendment is not an individual right, but instead a collective one, thus permitting reasonable gun control measures to combat crime.

The interesting sidebar in this case is that it addresses an issue of federal consequence as the ordinance applies to the District of Columbia and not an individual state. The Court could reasonably recognize an individual right to keep and bear arms, but not incorporate the amendment and apply it to other states and localities. However, by recognizing an individual right, the justices are issuing an invitation for future cases where they could indeed incorporate the Second Amendment.

Chief Justice John Roberts is a stated proponent of minimalism, meaning the Court should decide a given case on the narrowest possible grounds. Based on statements made on the bench yesterday, the Court's conservative majority (Roberts, Scalia, Kennedy, Thomas and Alito) appear poised to recognize an individual right. Another split decision may also be in the works with the liberal wing (Stevens, Souter, Ginsberg and Breyer) standing in opposition. Whether the majority will go so far as to incorporate the amendment remains to be seen. While this would violate Roberts' minimalist objectives, it would arguably be in line with the other "fundamental" freedoms in the Bill of Rights already incorporated.

The Bush Administration, for that matter, through Solicitor General Paul Clement, advocated a middle ground approach. Acknowleding an individual right, Clement cautioned the Court that a sweeping ruling could undermine federal gun control legislation. I predict a ruling in line with this reasoning.

Like the First Amendment right to free speech (imminent danger test, time, place and manner restrictions, etc.), the Second Amendment right to keep and bear arms will likely come with limitations. The question is the extent to which individual gun control laws conflict with this individual right. Short of clearly defined rules embedded in the eventual opinion (expected in June), expect a slew of challenges flooding state and federal courts in the coming months and years. Through such sifting and winnowing, a tighter standard will likely emerge.


Free Tibet!

By Shawn Healy

This cold and raining morning, hundreds of protesters passed before the Freedom Museum on Michigan Ave in downtown Chicago. As you probably know, Tibetan monks have taken to the streets over the past week in protest of religious intolerance, political oppression and environmental destruction in the sacred Himalayas.

As China established a midnight deadline on Monday for the uprising to end, sympathetic gatherings across the globe have transpired. The Dalai Lama went to so as to promise an immediate resignation should the protests turn violent. China has accused him of fomenting trouble with the Beijing Olympics on the horizon this summer.

In Chicago, participants willingly exercised their freedom to peacefully assemble in public as protected by the First Amendment. Please enjoy these pictures of the scene on the ground brought to you by Five Freedoms Intern Winne Monu.


Denver Dates?

By Shawn Healy
As voters take a seven-week hiatus after a slew of Critical Tuesday contests and the undercard matches that followed in Wyoming and Mississippi, the candidates, their campaigns, members of the DNC, and state officials in Michigan and Florida continue to spar over seating delegates that could go a long way in deciding the nominee of the party. The two states were punished by the DNC for moving their primaries forward on the calendar in advance of the Feb. 4 threshold. Looking back, Sen. Hillary Clinton "won" both contests by double-digit margins, although Sens. Barack Obama and John Edwards chose to leave themselves off the ballot in Michigan, and none of the candidates campaigned in either state.

In January, the "disenfranchisement" of Michigan and Florida voters didn't cast the menacing shadow it does today as few predicted a two-horse race where Obama and Clinton divided the popular vote nearly evenly with Obama emerging with a significant, yet insufficient delegate lead over his chief rival. At the time, it appeared that the eventual party nominee would find a way to seat these delegates at the convention while padding a lead (Clinton) and at least not reversing one (Obama). The junior IL senator will likely head to the Democratic National Convention in Denver this August short of the 2,025 votes he needs to secure the nomination, and Clinton sees an opportunity at least partially close the gap by brokering a compromise with the aforementioned players.

As mentioned above, the Clinton camp refused to campaign in either state, but it didn't stop them from claiming victory in either contest. Moreover, surrogates on the junior NY senator are quick to point out that both states are of the "swing" variety and critical to Democratic hopes come fall. "Disenfranchisement" of Democratic primary voters may persuade them to sit out or even switch their allegiances in favor of Sen. John McCain.

The Obama campaign emphasizes that he did not campaign in either state, and when the IL senator has targeted any given contest, he has either prevailed or given Clinton a close run for her money. Moreover, Obama wasn't even included on the Michigan ballot, and a full 40% of voters chose "uncommitted" in the Jan. 15 primary. We can assume that some of these voters supported Edwards, but that the majority likely sided with Obama.

What we are left with is a classic conundrum, with the nomination dangling in the air as a result. Primaries and caucuses are administered by either state governments or the parties themselves. In Michigan and Florida, the early primary dates were a product of the actions of their state legislators and complicit governors. Michigan is controlled by the Democratic Party at both levels, but for Florida, the opposite is true. This means that Sunshine State Democrats are being punished for their actions of their political rivals.

The mess falls once more to elected officials in either state, and recent developments suggest that a compromise is in the works in each respective state.

For Michigan, this may mean a do-over contest in early June orchestrated by the state, but financed by the party. National officials brokered a deal, but it must be passed by both houses of the legislature by a 2/3 vote and signed by Governor Granholm, a Clinton supporter. The lingering issue is of course money, with estimates that another round of voting may cost the economically depressed state as much as $30 million. It could be raised directly from the candidates themselves, from donations to state and/or the national party, or the very remote option of taxpayer dollars.

Other options include holding "firehouse" caucuses or even conducting the re-vote online. The former raises questions of representation as caucus turnout trends significantly lower, and undeniably favors the better organized Obama. This will be a non-starter for the Clinton camp. The latter raises issues of voter integrity, and with the high stakes present here, will also likely be relegated to the dustbin. Short of another primary, it appears as if the status quo will reign in the Wolverine State.

For Florida, a reworked primary is also an option, but another idea has caught fire in recent days and emerged as the most practical alternative. The Democrats would follow their GOP counterparts in penalizing the Sunshine State for their early primary by cutting their delegate haul in half. For Clinton, this would yield a 19-vote gain rather than the 38-vote majority she might had gained had the primary not run against the grain of DNC rules. Obama holds a 160-vote lead among elected delegates, and a 135-vote lead when pledged superdelegates are accounted for, so a narrowing of a mere 19 votes may be worth his while in the long run.

However, should Clinton prevail in Pennsylvania and potentially a Michigan re-vote, the margin may close further, adding to Obama's discomfort. Moreover, the prospect of Clinton emerging in June with more popular votes is strong, and she may claim victories in every one of the most populous states in the country (NY, NJ, PA, OH, TX, CA, MI) expect Obama's home state of Illinois. Should this transpire, Obama's delegate lead may be all that remains (along with 30+ state victories, although most are small in population and trend Republican in general elections) for him to lobby superdelegates for their loyalty.

What this leaves us with is more questions than answers. All players have the next few weeks of downtime to craft a compromise acceptable to both campaigns and states. Here's hoping that the "party of the people" can resolve this pressing controversy in a small-d democratic way fitting of the open access attributed to the Party since the debacle that occurred at the 1968 Convention in Chicago.


M & M Atop the Ticket?

By Shawn Healy
Sen. Barack Obama's anticipated wins in Wyoming on Saturday and in Mississippi yesterday served to restore his 100+ delegate lead over Sen. Hillary Clinton, but did little to change the fact that the campaign will live on for another six weeks, with the Pennsylvania Primary scheduled for Apr. 22. In all likelihood, the endgame lies weeks, if not months beyond this day, a product of a close contest where Clinton could even eclipse Obama in the popular vote column (Obama appears safe in terms of delegates), and the looming controversy over the DNC's refusal to seat delegates from Michigan and Florida.

I expect to have plenty to write about in this historic clash of titans through at least early June, so I'll turn to the buzzworthy topic on the GOP side of the race, the Veepstakes. McCain certainly has many intriguing prospects to consider for his running mate, and trust him to take the time to vet the field thoroughly and pick a candidate who will serve him best in the fall. The presumptive GOP presidential nominee has said that he has no short list to date, nor a process by which he will make the selection. He said he plans to research past decisions, learning from both success and failure.

Historically, vice presidential picks have served to balance the ticket in terms of region (Kennedy-Johnson, Massachusetts, Texas) age (Bush-Quayle), gender (Mondale-Ferraro), or ideology (Reagan-Bush). Balancing can also take the form of relevant expertise, be it economic, foreign policy, etc. They can also be selected with a single swing state in mind, hoping a native son or daughter candidacy will deliver the state on Election Day. Others have turned this notion on its head. Bill Clinton, for example, doubled down by selecting Sen. Al Gore, like his running mate a Southern Baptist Baby Boomer.

Looking at McCain, he hails from Arizona, would be the oldest president to ever enter the White House for his first term, and is known as a maverick in a party with a conservative base. The GOP is without question the party of the South and Mountain West, while Democrats dominate the Northeast and West Coast. The Midwest is often seen as the political bellwether, with Ohio and Missouri as the best-performing barometers. Buckeye State residents have picked the presidential winner correctly since 1964, bested only by the Show Me State (1960). McCain may well look here, with Minnesota Gov. Tim Pawlenty, Missouri Gov. Roy Blunt, and former Ohio congressman John Kasich and ex-White House budget director Rob Portman in the mix.

Pawlenty and Blunt enter any discussion about age as a balancing factor, too, and are joined by South Carolina Gov. Mark Sanford and just inaugurated Louisiana Gov. Bobby Jindal. Sanford has much credibility among fiscal conservatives, some of whom are wary about McCain's past objections to the Bush tax cuts, and Jindal is a young Indian-American seen as a rising star in the party. Sen. John Thune of South Dakota, long a hero of GOP stalwarts for knocking off then Senate Majority Leader Tom Dashcle, also would provide McCain with street cred amongst his conservative detractors. Moreover, one cannot forget the importance of Florida Gov. Charlie Crist's late endorsement of McCain that probably delivered the Sunshine State and the nomination to McCain.

Looking beyond the short list peddled by the national press in recent weeks, a handful of wild cards have emerged. Consistent with the double-down philosophy, former Pennsylvania Gov. Tom Ridge may enter the mix, potentially producing a team of sage political veterans with formidable national security experience (Ridge was the first Sec. of Homeland Security), and perhaps delivering the Keystone State in the process.

What about a woman, potentially offsetting the Democrats' likely advantage if Clinton tops the ticket? Texas Sen. Kay Bailey Hutchinson comes to mind, as does another pick that defies conventional wisdom, Sec. of State Condoleezza Rice. Not only would she neutralize the gender gap, she would also take some of the luster away from an Obama-led team. Her ties to the unpopular Bush administration and Iraq War make the pick unlikely, along with her support of abortion, but McCain has embraced both the President and the War, and candidates of years past have been known to change positions to join a ticket. None other than George H. Bush went from fiscal critic of Ronald Reagan (voodoo economics) and pro-choice to an overnight conversion to a supply-sider and Roe v. Wade detractor.

Is a bi-partisan ticket in the works? Abraham Lincoln pulled it off in 1864 as an attempt to unite the country. Might McCain do the same with strong supporter Sen. Joe Lieberman, the man who held the #2 spot on Al Gore's ticket in 2000? I consider the prospect highly improbable given McCain's problems on his right flank, but Lieberman is Republicans' favorite Democrat given his staunch support of the Iraq War, and McCain is a maverick. The AZ Senator himself entertained Sen. John Kerry's offer of a joint ticket in 2004 before turning him down and campaigning for his opponent.

The recent buzz has steered away from all of these possibilities and returned to McCain's former rivals in the race for the GOP nomination. Gov. Mike Huckabee was long touted as a possible running mate, but he probably overstayed his welcome, not to mention the fact that conservatives have problems with him on both fiscal and national security issues. Former Sen. Fred Thompson proved a lackadaisical campaigner and looks even older than McCain, and former NY Mayor Rudy Giuliani is arguably more moderate than McCain.

That leaves us with former Massachusetts Gov. Mitt Romney, a man that pundit Fred Barnes promoted in an article in the Weekly Standard. Barnes reminds us that Romney is thoroughly vetted, gained the support of the conservative establishment during the course of his campaign, and is known as an economic turnaround agent at a time the national economy is faltering and given that McCain has admitted he has little expertise on this front.

Most have suggested that Romney's Mormonism was a non-factor in his failed campaign, attributing his disappointing finishes to his alleged flip-flopping on a host of issues important to the conservative base of the GOP. Michael Medved goes so far as to suggest that a VP's religion is usually a non-factor (Lieberman was arguably an exception), and that Romney's "flexibility" on key issues would help him conform to McCain's platform (see Bush I).

Maybe the larger question is whether McCain would embrace his former bitter rival as a running mate, and for that matter, whether Mitt would say yes. Romney did provide the AZ Senator with one big Valentine's Day present: an endorsement one week after leaving the race, and all of his delegates. Moreover, Romney is said to be open to serving as #2 on any Republican ticket.

McCain, for that matter, campaigned furiously for Bush's re-election in 2004, allowing the bitterness of 2000 to serve as little more than water under the bridge. Perhaps this giant olive branch was an effort to line himself up to succeed Bush in 2009, and he is on target at this juncture. Such pragmatism may lead him to an M & M ticket if he believes it would give him the best chance of measuring the White House drapes come January.

McCain-Romney? Well, politics does make interesting bedfellows.


Setting the Stage for Smoking

By Shawn Healy
Last month I took in a Friday performance of the Tony award winning musical, Jersey Boys (I highly recommend it) at the LaSalle Bank Theater in Chicago. A one point during the performance, one of the actors lit up a cigarette and produced a plume of smoke, an illegal act in these parts in public venues. I did a double-take as we Chicagoans have begun to grow accustomed to smoke-free bars and restaurants, with nicotine-addicted patrons left to brave this miserable winter weather while the rest of us enjoy the warm comfort of our local watering holes. Must have been one of those props designed for the stage, a phony filter emitting bursts of powder. Or maybe, just maybe, it was a brave actor taking artistic license with our state law.

It turns out that our neighbors to the north, Minnesota, went even further, taking the theater to the bar room, state smoking ban be damned. An exception to the law in the Land of 10,000 Lakes allows smoking for theatrical performances, so some select establishments have decided to make their bartending staff the central cast, with customers making cameos at nightly performances, and smokers playing their former selves in the days when tobacco ruled taverns. The state health department contends that patrons are indeed breaking the law, and threaten to dish out fines of up to $10,000.

Nothing against Minnesotans, but I was a little bothered by the fact that Prairie State residents didn't think of our own creative interpretation of the new state law. Unfortunately, our statute doesn't have a theatrical exception, but it does allow for smoking in most private residences, some nursing home and hotel rooms, and at tobacco shops. One Chicago entrepreneur went to far as to close his taco house last year and convert it into a tobacco lounge, and I anticipate similar enterprises to emerge and meet the demands of smokers. You see, whatever your position on public smoking bans, this is the marketplace at work.

When private behavior is altered by public rules there is what my old tax accounting professor called "excess burden." Smoking bans now circle the country, from the California to the New York Island. Instead of pointing to a few college towns with bans, we now stare in amazement when puffy plumes remain as much of a bar staple as beer. Some in the Badger State, for instance, worry that it will soon become the "Ashtray of the Midwest" with bans in adjacent Minnesota and Illinois. Local ordinances have had similar effects, driving customers across city limits to puff at pubs.

When smoking was banned in pubs in Dublin, we knew it could happen anywhere. Many Midwesterners will celebrate St. Patrick's Day this weekend in local watering holes as purified as their Irish peers. Along with shamrock beads, plastic leprechaun hats and green beer, however, expect winter-weary revelers to search for a four-leaf clover in the law. Rest assured that Chicago tobacco shops with be filled to capacity, and yes, there will be no shortage of off-Broadway talent in the Land of Lakes.


An Answer to Our Prayers

By Shawn Healy
The latest chapter in the saga involving the efforts of Illinois state legislators to insert prayer into public school classrooms took a turn back in time as the House voted to return to the former status quo, allowing school districts to adopt moments of silent reflection that may include prayer, but doing away with the state mandate requiring such practices at the start of the school day. The legislation passed by an overwhelming margin of 72-31, with 33 legislators changing their vote since last fall when both the House and the Senate voted to override Gov. Blagojevich's veto. This group was bi-partisan in nature, 18 Democrats and 15 Republicans, including the House Minority Leader Tom Cross.

The mandate invited criticism across the spectrum, from school boards, to administrators, to teachers, even the students themselves. One lawsuit threatened to topple the law on constitutional grounds, though this effort apparently failed as of Monday. The bill moves now to the Senate, but prospects of success are dimmer here as Sen. Kimberly Lightford, an original sponsor of the law, has assumed a similar position on the reversal bill, a sign she may use parliamentary tactics to ensure its death upon arrival. Her recent defense of the Silent Prayer and Student Reflection Act underlines this Machiavellian tendency: "No one's giving them a Bible, no one's asking them to quote Scripture. No one's coming over the loud system saying, 'Bow your heads in prayer,' as lawmakers do at the beginning of each legislative day."

As Charles Haynes wrote last October, the legislation is probably not in violation of the religious liberties guaranteed by the First Amendment, but this does not make it a sound policy. Blagojevich thought it violated the First Amendment and used it as the rationale for his initial veto, but policymakers are arguably coming to the latter conclusion. Rep. Dan Burke captured these sentiments best in explaining away his flip-flop: "I was never passionate about it. If you could enforce it, that would be one thing... But what's the point of it? How in the world would you ever get compliance?"

So this circular contest continues, and those impacted by the law must be wondering, "Don't these folks in Springfield have something better to do than hold a debate over what to do at the start of the school day?"

For a complete narrative, from beginning to end, on the evolution of this legal battle, please visit the following former posts:

Is Silence a Lemon?

Silence in the Courtroom.

Courting Our Annual Culture War.

Strike One...

Loose Ends.

Finally, moving to an entirely different topic, click here to listen to our latest podcast on the 2008 presidential election as we weigh in on the results of the March 4 "Critical Tuesday" contests.


Critical Tuesday Comeback

By Shawn Healy
By now you've heard the news, Sen. Hillary Clinton pulled off a stunning comeback with a slew of victories in Ohio, Texas, and Rhode Island, with Sen. Barack Obama claiming a lone Critical Tuesday prize in Vermont (the Texas caucus vote is also trending his way, but returns are trickling in slowly). Sen. John McCain had a defining evening of his own, sweeping all four state primaries and accumulating enough delegates to move past the 1,191 necessary to clinch the Republican nomination. What follows is an analysis of these results and the implications moving forward in this mesmerizing nomination process that promises to live on for at least seven more weeks.

Let's begin with the Republicans, for McCain closed the deal and begins with the general election campaign starting today with lunch at the White House, where he is expected to receive President Bush's endorsement. McCain surfaces as the titular head of the party, a post he has pursued for the last decade, and it is fitting that the crown will be transferred from his chief rival. This ends a long and improbable comeback where the pundits declared him dead only four months ago. His last formidable competitor. Gov. Mike Huckabee, ended his own Cinderella run last evening with a pledge to support McCain with all of his might.

McCain faces an uphill battle as the GOP has held the White House for 8 consecutive years (voters tend to punish the incumbent party after consecutive terms), an unpopular president hanging as an albatross around his neck, a staggering economy making voters receptive to Democratic promises of national health care and middle-class tax cuts, and an unpopular war that the candidate has embraced as the defining issue of his campaign. Moreover, he still must win the allegiance of conservatives who comprise the most active segment of the base, many of whom are threatening to sit out this election. To count out McCain, however, is the business of fools, for he always seems to have the last laugh, from a Hanoi prison camp to the GOP nomination.

For the Democrats, the battle rages on, with contests in Wyoming on Saturday, and Mississippi next Tuesday. Both lean toward Obama, as the former is a caucus state where he has dominated and the latter boasts a large African-American population. Obama won the votes of 9 in 10 African-Americans in both Ohio and Texas yesterday. Clinton edged closer to Obama in the delegate column, but still trails by a substantial margin, and it is very improbable that she will overcome his lead amongst committed delegates in the remaining contests. That said, neither candidate will likely clinch the nomination outright prior to the convention at the end of August short of superdelegates.

What this means is the likelihood of a divided convention grows with each passing contest. Clinton will pin her hopes on Pennsylvania, a state that looks much like Ohio demographically, and where she has the support of popular Gov. Ed Rendell. The PA primary is slated for Apr. 22, seven weeks from now. As a point of comparison, the Iowa Caucuses were held 8 weeks ago, so the buildup to the Keystone contest is likely to rival that of the Hawkeye State. Furthermore, it's hard to see Hillary waving the white flag there, meaning a fight through the checkered flag on Jun. 7 in Puerto Rico.

As I've said previously, this may come down to a dispute over seating delegates from Michigan and Florida, both states where Clinton won handily. In sum, to quote the baseball philosopher Yogi Berra, "It's getting late early." If you could pardon me one more sports reference, this prizefight is bound to end in a split decision, with the judges (aka superdelegates, DNC officials, the seated delegates themselves) declaring a victor.

A look inside Clinton's one-two big state punch of Ohio and Texas is informative as we move forward to the remaining contests. She won back the allegiance of the so-called Dunkin' Donuts Democrats, the blue collar white voters she rode to victory in early contests before Obama's 12-state winning streak commenced on Feb. 9. The gender gap appeared once more in both states, but she made even more dramatic gains amongst white men when compared to the Badger State results two weeks ago, for instance.

Clinton also dominated amongst Latino voters, and narrowed Obama's lead amongst younger voters. She continued her success with seniors, and also resonated in rural areas. Obama still polls well with African-American voters, along with Starbucks Democrats, the more affluent college-educated voters who tend to congregate in suburbs of large cities. Obama also bests her among independents and Republicans, but Clinton won big with fellow party members.

Beyond exit polls, a couple of other factors likely played a prominent role in yesterday's outcome. One, late-deciding voters shifted to Clinton in a big way. This may be attributed to the controversial red phone ad (it's actually white) which questions who voters would want to answer the phone at 3am in the case of a national security crisis, implying that Obama lacks the experience to inspire confidence is such precarious situations.

Another factor was the economy. Much of the debate in the closing days centered on the candidates' support for NAFTA, even though both committed to revisiting some of its provisions and scrapping it entirely if such compromises with Canada and Mexico cannot be achieved. I recounted the story in yesterday's post, but Obama's authenticity was called into question when his campaign dismissed a report that the candidate was only posturing on the issue.

The final straw may have been the media scrutiny directed Obama's way, some would argue for the first time. This thorough vetting is likely to continue in the coming weeks, and Obama must perform better than he has in recent days, for as Harry Truman was apt to say, "If you don't like the heat, get out of the kitchen." Count on Clinton and the national press to make it down right tropical for the IL senator as winter yields to spring and this thrilling contest chugs along for at least two more months.

The spin cycle is also likely to enter its next phase. Expect Obama to point to his "insurmountable" delegate lead, his success in "red states," and his competitiveness in a head-to-head match-up with John McCain. Additionally, Obama will likely answer Clinton's criticisms more directly, as he has the financial resources to air response ads within hours of an allegation, and his opponent clearly wounded him over the last week.

Clinton will trump her big state successes (CA, TX, OH, NY, NJ) as indicative of her strength as a general election candidate. She'll continue with her mantra that Obama is not qualified to serve as Commander-in-Chief on Day One. Clinton will also ask Obama to move beyond hollow platitudes and qualify what he means by "change."

In the end, Critical Tuesday left the outcome more muddied than when the day dawned, at least for the Democrats. The most compelling election season in my lifetime lives on for another day. See you in PA, where the Keystone State may well live up to its name a long seven weeks from yesterday.


Turning the Page

By Shawn Healy
Since January 2007, the presidential campaign has been the top news story across various media outlets in the United States, even attracting a disproportionate share of international coverage in recent months. Americans and fellow citizens of the world have tuned in with great interest. Some have even suggested that the 2008 contest is indeed the best bet for reality television, especially until the writers strike concluded. Little changed in the past week that led up to today's "Critical Tuesday" contests in OH, RI, TX and VT.

The week began with Sen. John McCain still whisking away hearsay allegations that appeared in a NY Times article from the previous week, and continued with the tired narrative of McCain's "conservative problem" as he denounced the rhetoric of talk radio Randy Cunningham's repeated jabs at Sen. Barack Obama, calling him a "hack Chicago politician," and multiple references to his middle name, Hussein.

McCain and the rest of the Republican field were a sideshow, however, for the compelling Democratic contest between Obama and Sen. Hillary Clinton that dominated the news cycle for yet another week. It began with a picture of Obama in African tribal clothing posted on the Drudge Report, its release allegedly tied to the Clinton campaign, then pivoted to what may be the last debate of the nominating cycle last Tuesday in Cleveland. Clinton made a point at the outset that the media has leveled her campaign with harsh scrutiny while providing Obama with what is essentially a free pass.

In complaining that she always receives the first question in the debates (5 of the last 6 if you are counting), Clinton referenced a Saturday Night Live skit that insinuated that Obama needed a pillow while his chief rival was pillored by the press. She happily answered the question (I believe it was about NAFTA), and seemingly accomplished her goal, as the national media turned its attention to Obama with a critical eye, some would argue for the first time. The junior IL senator has since drawn the scrutiny of 69% of all news stories devoted to the campaign, which captured 38% of the entire news cycle.

As Obama volleyed from long shot to frontrunner, the shift in tone was all but inevitable. Indeed, in 2007 Obama was the only presidential candidate who attracted overtly positive press coverage, while McCain was the lone target of negative tone, mostly attributed to the near-death state of his campaign. In Chicago, Obama's record was thoroughly combed, the present votes while he served as a state senator, his connections with indicted fundraiser Tony Rezko, his flimsy political resume, but the national press focused instead on his unprecedented fundraising hauls, packed gymnasiums, and meteoric rise in the polls.

This changed last week. The 129 present votes resurfaced as did the shady real estate deal with Rezko. Comments made about NAFTA by a surrogate to a Canadian official also rose to the fore, with promises that Obama was doing little more than pandering denied, but seemingly proven accurate through recent disclosures. Whether these revelations will stick and propel Clinton to victories in today's contests remains to be seen, but the honeymoon is apparently over, and it leads to the larger question I addressed last week as to the role of the press in politics.

The media is without doubt citizens' window to the world. We understand that reporting, particularly within the Beltway, is based on relationships with sources, and journalists cannot bite the hands that feed them. We do, however, demand and expect objectivity, not to mention the watchdog role intended by the free press protections embedded in the First Amendment. This requires a move beyond cash, crowds, and charts to the very essence of the decisions we make on Election Day: Who is most qualified to serve as the leader of the free world? How do candidates stand on various issues of importance, and how to their proposals compare with one another? What would they actually do if elected.

Despite the predominance of campaign coverage, many are left to enter the voting booth with scant information to answer these aforementioned questions. True, the press does answer them in part over the too lengthy cycle, and citizens must do a better job of searching for the information they need to make meaningful decisions, but the press, in their role as gatekeeper, must also rise to the task.

Instead, we are left to a contest of personalities. The remaining Democratic contenders actually share many of the same issue positions, so scrutiny should then shift to personal and professional experiences. Perhaps the press turned the page this past week, maybe in time for citizens to make informed decisions on "Critical Tuesday." Regardless, we as readers, viewers and listeners should demand more going forward as the Democratic contest likely lingers on, with the general election hovering in the shadows.

Check back here tomorrow for an analysis of today's contests, and also for a podcast recorded by Nathan Richie and myself as we digest one more pivotal day of primaries and caucuses. Also, stay tuned for the release of new lesson plans addressing the twin issues of press coverage and polling in the context of the presidential campaign. In this spirit, we will be hosting a teacher seminar on site on April 11 to address these topics. More information on this to follow, but free registration is available by clicking here.


Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at