When gimmicks sound better in a focus group than in practice

WHEN GIMMICKS SOUND BETTER IN A FOCUS GROUP THAN IN PRACTICE… House Republicans probably thought it’d be an easy way to impress the party’s base — promise to cite the exact constitutional authority for every bill they introduced. This seemed so popular with the right, the House GOP made it a rule as soon as they retook the majority.

So, how’s that working out for them? It’s apparently a little tougher than Republicans realized. In fact, the GOP has to start to fudge their own requirements — instead of citing something in the Constitution that gives them the authority to do whatever it is they want to do, Republican lawmakers have simply started making assertions about constitutional law.

Rep. Joe Pitts (R-Pa.), for example, justified a health care bill he liked by saying the Affordable Care Act is unconstitutional. That’s obviously a debatable point, but either way, it’s not in keeping with the promise about citing constitutional provisions. As Rachel Maddow joked a few weeks ago, “When they say they’re going to cite the Constitution, sometimes that just means they’re going to say a variant of the word ‘Constitution’ but no quotes from the actual Constitution will be there.”

Dave Weigel had a good report on this last night, noting that “some Republicans” have decided not to “worry too much” about the party’s commitment, enshrined just two months ago.

Rep. Doug Lamborn, R-Colo., who introduced the NPR bill, filed a “Constitutional Authority Statement” that consisted entirely of six words: “Article I, Section 8, Clause 1.” For those of you scoring at home, that part of the Constitution allows Congress to “lay and collect taxes, duties, imposts and excises.”

“No lawyer takes this seriously,” said an exasperated Sandy Levinson, a professor at the University of Texas’s law school. “As any lawyer would know, it is not hard to come up with a constitutional justification for anything you want to do.”

The Constitutional Authority Statements filed so far in the 112th Congress tend to support that view. They’re a fascinating exercise. More than 1,200 pieces of legislation have been introduced so far in this Congress, slightly more coming from Republicans than from Democrats, and all of them are accompanied by statements. The main lesson is the same that a lot of legal cynics predicted last year: Almost anything can be justified by citing the Commerce Clause, which allows Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” or the Necessary and Proper Clause, which allows Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

I don’t blame GOP members for looking for shortcuts to work out the silly rule. It’s no doubt proving to be quite inconvenient to follow through on this.

I blame them, however, for thinking this gimmick was worthwhile in the first place.