Posts © 2011-2012 by Gerald G. Day







Wednesday, December 26, 2012

December 26, 2012

There was yet another shooting on Christmas Eve; the victims this time were firefighters responding to a fire set by the killer. The Newtown killings ten days earlier had prompted serious debate, and this additional incident — and no doubt more to come — may create the bare possibility of useful action on gun control. I set out my thoughts on that subject on June 14 and December 15; I won’t repeat them here, but will address a different point.
The NRA and its surrogates are in panic mode, as evidenced by a speech by NRA VP Wayne La Pierre at a "press conference" on December 21. Arming everyone, or at least someone in every school, is the only solution, according to him; certainly easy access to guns doesn’t pose a danger. Because guns can’t be a cause of so many deaths by shooting, the NRA must look elsewhere, and has decided that we are corrupted by the depiction of violence in movies and video games. That theory has been mocked on the left; below is an excerpt from an article on Think Progress captioned "The 10 Craziest Statements from the NRA Press Conference." (I’ve presented the statements in the order spoken by a Pierre; the article rearranged them, as shown by the paragraph numbers).
(2) There exists in this country, sadly, a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people (9) through vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse. And here’s one [projected on screens]: it’s called Kindergarten Killers. It’s been online for 10 years. How come my research department could find it and all of yours either couldn’t or didn’t want anyone to know you had found it?
(7) We have blood soaked films out there like ‘American Psycho’ and ‘Natural Born Killers’ that are aired like propaganda loops on Splatterdays, and every single day. A thousand music videos — and you all know this — portray life as a joke, and they portray murder as a way of life.
(10) Isn’t fantasizing about killing people as a way to get your kicks really the filthiest form of pornography?
(8) In a race to the bottom, media conglomerates compete with one another to shock, violate and offend every standard of civilized society by bringing an ever-more-toxic mix of reckless behavior and criminal cruelty right into our homes every minute, every day, every hour of every single year 90
Those are not crazy comments. True, they are part of an attempt to divert attention from the role of guns in murder, but regardless of the source, they raise an issue which needs to be considered. I can’t offer any comments on music videos, having virtually no exposure to them. The same is true as to direct experience of violent movies and games. However, I see ads on television for video games and movies, and trailers for films in theaters, and they do indeed seem to feature gobs of violence, gratuitous violence. Experts seem to differ on the effect, and we are told that there is no direct evidence of increased violence due to these influences. At the risk of sounding anti-intellectual, I recommend using a little common sense: being awash in violent entertainment can’t be a good thing; a violence-is-fun culture is more likely to produce violence than a more peaceful one. One response will be that most people are not driven to violence by entertainment. That misses the point: mass and/or random killings are not the work of the well-adjusted.
Neither gun control nor restriction of violent images would be easy; both raise Constitutional issues, as that document currently is interpreted. The former would be less difficult, both because there is more room left by the Court’s view of the Second Amendment than of the First , and because it would be politically less difficult, especially if limited to such measures as outlawing assault weapons and rapid-fire clips.

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90. The article is at: http://thinkprogress.org/justice/2012/12/21/1372001/the-10-craziest- quotes-from-the-nra-press-conference/ . Here’s a video of the press conference: http://www.nytimes.com/video/2012/12/21/us/ 100000001969743/nra-calls-for-armed-guards-in-schools.html #100000001969743 .

Saturday, December 15, 2012

December 15, 2012

On December 11, a gunman killed two, wounded one and then killed himself in a mall in Clackamas, Oregon. The Seattle Times responded with an editorial captioned "Put the Oregon mall shooting in perspective." Its perspective is that we shouldn’t be upset: shopping malls rarely are the venue for deadly gunfire and only a small fraction of the people at the Clackamas mall were killed; the shooting "is not . . . a reason to be intimidated."
The Times seemed to deplore the media attention to the event: "A shooting is news. It should also be news that the rate of murder in America has fallen wonderfully in the past 20 years. . . . And while random murders in public places get big attention, few murders are random. Retail districts full of holiday shoppers are some of the safest places there are."
One of the perspectives the Times might have noted is that the country is awash in firearms. By one standard, beloved of Fox News, it would have been bad taste to mention that during a period of mourning, but talking about gun control couldn’t have been less sensitive than the Times’ advice to get out and shop. If we were having an ongoing dialogue about gun control, suspension of the discussion for a period after a shooting spree might be appropriate. However, we aren’t having that debate, and the only time anyone focuses on the problem is in the aftermath of killing. Almost as if to mock the Times ’ complacency, on Friday a gunman entered the Sandy Hook elementary school in Newtown, Conn., and killed 26 students and teachers before committing suicide.

The paper addressed the Sandy Hook massacre this morning with a brief editorial comment notable for its evasiveness. "Once past the initial shock and grief that comes with deadly rampages in a single week, the public will demand a sober conversation about violence against innocents." Should that conversation include proposals for gun control? Well, no. The Times mentioned the Clackamas and Sandy Hook shootings, but added a reference to an attack by "a knife-wielding man" in China. "Reality will hopefully trump old rhetoric about violence and weapons," we were told, the message apparently being that taking away guns won’t eliminate violence. Of course it won’t, but it surely will reduce the number of dead. (The editorial neglected to mention that there were no fatalities in the China incident).
The Times managed to find the common element in the incidents to be that "they took place in innocuous settings — shopping malls, schools — with innocent victims," which doesn’t suggest any plan of action. Accordingly, the editorial’s conclusion — "Saying and doing nothing is not an option in the face of so many funerals and grieving families" — is devoid of content, and ludicrous given its refusal to mention guns.

Monday, November 26, 2012

November 26, 2012
Debates can be decided by the choice of the terms in which they are argued, by the label attached to the issue or position. In other words, they are decided by definition, and therefore in advance. Liberals have won a few that way. However, conservatives have had the overall advantage.
They have accomplished this in part by successfully defining "liberal" as a term of derision. When one side allows the other to define not only the labels for the issues but the names of the parties, the argument is nearly over. Liberals, rather than fighting back, have retreated into calling themselves progressives.
Liberals are derided in part because they are an "elite." Somehow, those who stand up for the welfare of the country and its citizens are elitists while those at the top of the socio-economic pyramid, who want still more, are allowed to pose as friends and protectors of ordinary folk. Dan Quayle often is credited with redefining "elitism," and saddling liberals with the epithet, by attacking the "cultural elite." I’m not sure that that phrase makes sense — the debate isn’t usually about the acquisitions budget of an art gallery — but it helped cement the image of liberals as out of touch. One variation has to do with values: ordinary people are religious and morally conservative and don’t care for the alleged loose lifestyles of the left; here’s where Quayle’s Murphy Brown attack registered. A corollary is the notion that liberals, residents of the Northeast or the West Coast, are unsympathetic toward real Americans from the heartland. Another trope has been the "intellectual elite:" people who, confident of their superior knowledge, tell us what to do; this goes back at least to the Roosevelt brain trust.
This year’s election gave us a twist on intellectual elitism courtesy of Rick Santorum: education is elitist.
President Obama once said he wants everybody in America to go to college. What a snob! There are good, decent men and women who work hard every day and put their skills to the test that aren’t taught by some liberal college professor, trying to indoctrinate them. Oh, I understand why he wants you to go to college. He wants to remake you in his image. . . . .
Again:
I was so outraged that the President of the United States would stand up and say that every child in America should go to college. Who are you? Who are you to say that every child in America go — I mean the hubris of this President to think that he knows what’s best for you. . . . This is the kind of, the kind of snobbery that we see from those who think they know how to run our lives. Rise up, America. Defend your own freedoms and overthrow those folks who think they know how to orchestrate every aspect of your life.
Did Mr. Obama say that? Apparently not, but it hardly matters. Here the attack on the intellectual elite — they are liberals (socialists, communists, pick your favorite synonym) who want to impose authoritarian rule — comes wrapped in reverse snobbery about education. This was served up by a man with three college degrees. Not to worry; Rick definitely resisted being remade in the image of an intellectual.
Other words and phrases influence decisions: "right to work," not interference with unionization; protecting "small business," not tax breaks for the wealthy. (Small business has replaced motherhood as the icon to be protected; we could at least define the former). The current magic phrase is "the fiscal cliff;" it implies that some sort of unavoidable crisis awaits rather than a (less dire) situation created unnecessarily and irresponsibly which can be avoided by making intelligent decisions. Here’s statesman Orrin Hatch: "Rather than stop the country from going over the fiscal cliff and preventing the expiration of the 2001 and 2003 tax relief, they [Democrats] are prepared to Thelma and Louise the American economy right over the cliff.” Note the second magic phrase: "tax relief," the Bush gifts to the wealthy.


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87. http://www.youtube.com/watch?v=NkjbJOSwq3A
88. http://politicalticker.blogs.cnn.com/2012/01/07/santorum-obamas-education-stance-is-snobbery/
89. http://www.politico.com/news/stories/1112/84207_Page3.html

Monday, November 12, 2012

November 11, 2012
In Science and the Modern World, Alfred North Whitehead praised the Seventeenth Century as "the one century which consistently, and throughout the whole range of human activities, provided intellectual genius adequate for the greatness of its occasions." His focus was on science, but he mentioned two men of letters, Shakespeare and Cervantes. He might have added another, John Donne who, in 1624, wrote these familiar lines:
No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.
Donne’s insight is a lesson we need to relearn. Conservatives, especially in their libertarian form, are wedded to the notion that everyone should be able to go his own way, keep what he has, take what he can, and ignore everyone else. (The contemporary formula for that is YOYO: you’re on your own). Contrary to Donne, they believe that the loss of a mere clod is unimportant: they will take notice only if a promontory, one of their manors, is lost. We’ve just had a presidential election in which that philosophy came to the fore and was personified in the Republican candidates. They lost, but no transformation should be expected.
One excuse for that philosophy is that we can’t afford the welfare state, that transfer payments lie at the heart of our budgetary problems. Another is that welfare (including Social Security) creates laziness and dependency. Both were offered up today by the reliably reactionary Robert Samuelson of the frequently reactionary Washington Post.86
Our society is increasingly divided, increasingly controlled by great wealth, unwilling or unable to solve or even recognize urgent problems, prone to treat social programs, even disaster relief, as if they were gifts to the unworthy rather than a mark of an advanced and stable culture. We need inspiration but, unlike the Seventeenth Century, the present one is not blessed with thinkers adequate to the occasion. We must resort to those in the past, which ought to appeal to conservatives.

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86. "It’s the Welfare State, Stupid," http://www.washingtonpost.com/opinions/robert-samuelson-its-the-welfare-state-stupid/2012/11/11/e392868a-2ab0-11e2-bab2-eda299503684_story.html?hpid=z2   

Sunday, November 4, 2012

November 4, 2012
In two recent columns, Charles M. Blow described Mitt Romney’s relationship to the truth. In the first, he said: "This election may go down in history as the moment when truth and lies lost their honor and stigma, respectively. Mitt Romney has demonstrated an uncanny, unflinching willingness to say anything and everything to win this election." He referred to Romney as "the unprincipled prince of untruths."83 In the later column, he added: "Evidence continues to emerge that Romney is one of the most dishonest, duplicitous candidates to ever seek the presidency."84 Moreover, Romney has managed to combine a disregard for the truth with a lack of substance; his vagueness would embarrass Reagan and his deviousness would embarrass Nixon. In other words, he is a deceitful empty suit.
This is not to say that Barack Obama is a candidate to inspire confidence or enthusiasm. Whether from conviction, strategy or timidity, he has not staked out a progressive position with any consistency or tenacity, and at times he seems to lack imagination. I wish that we had a strong liberal on the Democratic ticket.
That reaction is common on the left and has led some to rebel. Chris Hedges recently declared that he will vote for the Green Party.85 His basic argument is that "major correctives to American democracy have come through movements . . . that have operated outside the mainstream," and that the right course is to support those efforts by voting for their proponents. That conclusion is familiar, abstractly cogent and foolish. I can offer the last opinion without undue smugness, as one who strayed from the fold under similar circumstances: in 1980, I abandoned Jimmy Carter as insufficiently liberal and voted for the third-party candidate John Anderson. Mr. Hedges sees such a desertion as a statement of principle and a critique of the system. It is, instead, an exercise in pique, a self-centered and unrealistic demand that the world go one’s way.
A vote for a third party or write-in candidate is a vote not merely thrown away, but thrown to the opposition. Is Hedges sufficiently unaware to think that the choice of Romney or Obama makes no difference? Is he complacent about a Romney win? Apparently so: "The November election is not a battle between Republicans and Democrats. It is not a battle between Barack Obama and Mitt Romney. It is a battle between the corporate state and us." Hedges lists some entirely valid criticisms of Mr. Obama, and praises the Green Party leader, but neglects to evaluate Romney, who is the real alternative. He somehow sees the barrage of advertising by Republicans and Democrats, attacking each other, as a single corporate campaign to convince us not to vote for a third party. He is talking nonsense, both in his apocalyptic picture of the corporate menace and in the implied notion that the two candidates are equally committed to "the corporate state."
Leave aside his exaggeration and lack of focus. Third parties or non-party movements have, as Hedges argues, put forth important progressive ideas, but they haven’t implemented them for the simple reason that they never win national elections. The agenda is set by the party which does. Hedges will, in a tiny way, directly help the Republicans; to the extent that his argument has influence, he will have a slightly larger impact; others independently of the same disposition will push the result further in that direction. They need to recall that the most important potential impact of any third party which is at all successful is demonstrated by Florida, Ralph Nader, and the outcome of the 2000 election.

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83. http://campaignstops.blogs.nytimes.com/2012/11/01/liberty-to-lie/
84. http://www.nytimes.com/2012/11/03/opinion/blow-is-romney-unraveling.html
85. http://www.truthdig.com/report/item/why_im_voting_green_20121029/

Wednesday, October 31, 2012

October 31, 2012
From time to time I receive campaign mail which seems to assume that I am a Republican. I’ve sometimes attributed that to my address, which has been in Republican districts. However, it must be more than that; now I am "one of America’s most notable Republicans." I know that because a letter from Mitt Romney tells me so. Now, one of us is confused, and I think I can say without much chance of error that it’s Mitt.
Mitt tells me in this letter that he’s running for President. I suppose there are people unaware of that, despite his years-long campaign, but would a notable Republican not know? Never mind; Mitt also wants to tell me why he’s running. Here it is: "I believe in America." As a reason for wanting to be POTUS, that’s a little vague, but there’s more: "I am sick and tired of BIG GOVERNMENT." Mitt isn’t sick of run-of-the-mill big government; he’s sick of the capitalized form, so maybe ordinary big government would survive: you know, like a massive military. Mitt is running "to bring true and lasting fiscal discipline to Washington." Fiscal discipline would seem to preclude cutting taxes and spending more on the military, but perhaps "true" discipline somehow gets around that.
The bottom line is that Mitt wants me to join "Romney Victory" a group "100% committed to defeating President Obama . . . ." That does seem to be the entire platform.
Mitt advises me that the "first $5,000" of my donation will go directly to Romney for President, and that the maximum contribution is $75,800, which is useful information because, as a notable Republican, I might have been tempted to give more. If I pony up $5,000, I will be offered exclusive updates and will be connected to a dedicated Romney Victory staff member who will stand ready to assist me with up-to-the-minute election information. I wonder if that would include explaining what, after all the flip-flops, Mitt really stands for, if anything.

Tuesday, October 2, 2012

October 2, 2012
The Seattle Times, in its house editorial on Sunday, came out for Barack Obama and summed up the election rather well. It isn’t enthusiastic about Obama and its opinion on some issues would seem to line up with the affluent, so the fact that it supports the President for reelection is a dire prediction for the Romney candidacy.
It led with this: "In 2008, Barack Obama was The Seattle Times’ choice for president. Four years later, we endorse him again, with less enthusiasm. But he is a better choice than Mitt Romney, and could still go down in history as a good president." Faint but apt praise and the only sensible conclusion. Here are the details, using the Times’ categories:
Foreign affairs. The Times thinks that Obama has been too slow in getting out of Afghanistan, certainly a reasonable argument. However, it praises his restraint regarding Iran and the uprisings in Libya and Syria. "On these matters, Republican nominee Mitt Romney is at his worst, parading his eagerness to use force. Romney has no experience in foreign affairs, and it shows." It does indeed, but Romney supporters apparently want him to go after Obama on foreign policy, a ploy which would require some nerve after Romney’s embarrassing trip abroad and the reaction to his grandstanding about the assault on the embassy in Bengazi.
Monday’s Washington Post web page included links to two blogs by Romney fan Jennifer Rubin. (I don’t understand why the Post gives her any space, let alone the multiple links she often enjoys, but that’s another matter). She wants Romney to be more assertive, criticizing his recent Wall Street Journal foreign policy op-ed as too general. According to Ms. Rubin, "we are in an urgent situation in which the president refuses to see the flames lapping around us." She wants to intervene in Syria and join Israel in threatening Iran. As to the latter, "a forceful set of policies" would "make a military threat credible by obtaining authorization from Congress for use of force . . . ." The last time we did that it certainly worked out well.
Trade. The Times worried that Obama would propose dumping NAFTA; he didn’t, so all is well, at least as the editors see it. "Now it is Romney who rashly promises to pick a trade fight with China."
Spending and debt. "What’s needed here is steady, long-term reduction in the nation’s debt. Obama hasn’t done it, and it may be his greatest failure." No, on the economy his error was in proposing too small a stimulus and then letting deficit worries prevent further efforts. "Romney promises to rein in entitlement spending, but to protect military spending." The editors didn’t comment on that; certainly it would be the wrong policy.
The financial system. "Obama should have pushed for a separation of investment banking from commercial banking in a new version of the Glass-Steagall Act, which safeguarded the financial system from 1933 to 1999. He should have broken up the top four or five big banks, ending ‘too big to fail,’ and he should have moved more aggressively to make complex securities transparent . . . . Romney will not do these things, but Obama still could." All true.
The Main Street economy. "Romney knows leveraged buyouts, but he has little understanding of the needs of employers on Main Street America." More to the point, he has even less understanding of the needs of non-employers. "Obama’s proposal to raise taxes on the $250,000 bracket, and to set the death-tax rate at 45 percent, shows that he also is out of touch." Out of touch with the Blethen agenda, they mean: low taxes protect the inheritance of the Blethen family. "He promised an active antitrust policy but mostly has not delivered. Romney would probably not, either." That apparently refers to the next topic, also a Blethen priority.
Media control. "In 2008, Obama promised to use the Federal Communications Commission to block the consolidation of the news media into a handful of giant corporations that threaten the functioning of our democracy. He has not done it. Romney is not going to do it — but Obama still could." The Times has opposed cross-ownership of media for years, partly out of principle but, at least prior to the demise of the P-I, out of concern for survival.
Education. "Obama deserves credit for defending charter schools and other education reforms within the Democratic Party." I’m not convinced that charter schools are a good idea, and the second point sounds like union-bashing.
Health care. "During a year of economic crisis, when that should have been his focus, Obama instead spent his political capital on the Affordable Care Act — “Obamacare” — and did it on a party-line vote. It has little cost control in it. It need not be repealed, but it will have to be fixed." If Obama truly had focused on spurring the economy, the Times would not have liked it, as it would have meant more spending and a larger deficit. The health care act has more cost control than usually acknowledged; Obama has received hypocritical criticism rather than praise for the 716 billion lopped off provider payments.
Romney doesn’t even appear under this topic and the previous one nor, strangely, under the next.

Partisanship. "Obama promised to bring a less partisan style, but he has been aloof, with few friendships across the aisle. If in the past two years, the House Republicans have cooperated little with him, he has also cooperated little with them." That is an absurd, if not unique, conclusion.
"Bottom line: Obama’s presidency has been disappointing, but he still has promise. Romney would be too much of a gamble." The Obama term has been disappointing but, for many of us, in different ways than the editorial states. Evaluating Romney as a gamble is generous.
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Update: a third Rubin link appeared on the Post’s main page around 2:30 PDT, in which she reassured the faithful that the polls don’t really show an Obama lead.

Thursday, September 13, 2012

September 13, 2012

One of the passages in Clinton’s speech to the Democratic convention didn’t sound right to me.
"Of course, we need a lot more new jobs. But there are already more than three million jobs open and unfilled in America, mostly because the people who apply for them don’t yet have the required skills to do them." Are there many jobs begging, whatever the exact number, for lack of adequately educated or trained applicants? Is that the root cause of unemployment? Will retraining bring the unemployment number down? I didn’t know the answer to the first question, but, on checking found his estimate of open jobs to be correct, even an understatement. Why there are that many unfilled positions is a mystery to me; statistics show that the number of people becoming employed and the number leaving jobs are about even.80
However, it seemed that the answer to the other two questions must be negative. The economic slump and the consequent rise in unemployment are the result of insufficient demand; businesses without customers do not need additional employees. Retraining and other educational initiatives are important, but they take too long to have any impact in the short run. A technical study confirms my guess.
Ezra Klein, in The Washington Post,81 pointed out the fallacy in Clinton’s analysis and cited a study recently released, "The United States Labor Market: Status Quo or A New Normal?" by Edward P. Lazear and James R. Spletzer.82 Their paper examines the opposing theories, that unemployment is "structural," i.e., the result of permanent changes in the economy, or is "cyclical," the result of the recession. If the problem is structural, if the economy has changed in such a way that there is a mismatch between skills and open jobs, then retraining would be critical. However, the authors reject the view of Clinton and many on the right that the cause is structural.
An analysis of labor market data suggests that there are no structural changes that can explain movements in unemployment rates over recent years. Neither industrial nor demographic shifts nor a mismatch of skills with job vacancies is behind the increased rates of unemployment. . . . The patterns observed are consistent with unemployment being caused by cyclic phenomena that are more pronounced during the current recession than in prior recessions.
Cyclical unemployment, the sort to be expected in a recession — although worse this time than usual — will respond to stimulus by the administration or the Fed. Conservatives oppose stimulus, and Clinton helped their cause.
Clinton also said "even as we get Americans more jobs, we have to prepare more Americans for the new jobs that are actually going to be created. The old economy is not coming back. We’ve got to build a new one and educate people to do those jobs." I’m not sure about that either. Does it mean that manufacturing is dead? If we don’t produce goods, how can we straighten out the balance of payments? Can that be done with services alone? I don’t know, but simply saying we have to plan for a different economy without specifying what that is, and how we create it, and whether it’s desirable doesn’t help much, and it gives comfort to the business lobby by turning attention away from repatriating jobs.

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80. http://www.bls.gov/news.release/jolts.nr0.htm
81. http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/09/11/the-politicians-are-failing-theory-of-unemployment/ . Michael Lind offered similar comments; http://www.salon.com/2012/09/11/obamas_a_supply_sider_too/
82. http://www.kansascityfed.org/publicat/sympos/2012/el-js.pdf

Saturday, September 8, 2012

September 8, 2012
I decided, in a moment of masochism, to read the Republican platform just adopted. I was interested to see whether any of the candidates’ vague promises regarding economic growth or deficit reduction were given more substance. They weren’t. As to growth, "Republicans will pursue free market policies" and rein in government spending; the latter proposal encapsulates their inability to learn from experience. As to the deficit, "Republicans will make hard choices and set priorities;" the Stockman magic asterisk lives.
One could be forgiven for concluding that the Party has run out of ideas. That impression is reenforced by the fact that the platform is a treasure trove of myths, clichés, euphemisms and buzz-words. Even the title and section headings are clichés: "We Believe in America," "Restoring the American Dream," "We the People," "Renewing American Values," and "American Exceptionalism."
I’ll spare you the Preamble. Its relentless banality could turn the strongest stomach. I’ll limit disclosure to this: "Providence has put us at the fork in the road, and we must answer the question: If not us, who? If not now, when?" Even assuming that it was Providence and not Republican policies which put us where we are, the answers are: anyone else; for you folks, never.
"Restoring the American Dream" (the economy)
Among the myths are that Obama’s policies have "destroyed jobs," "created a culture of dependancy," and led to a bloated government. The stimulus plan was a waste of billions "with no payoff in jobs."
The Republicans somewhat grudgingly acknowledge that the Constitution authorizes the government to take care of those who cannot care for themselves, but denounces the "use of taxation to redistribute income." The distinction escapes me; the quoted phrase is just another verbal knee-jerk.
As to the tax system, the principal delusion is "the beneficial budgetary impact of lower tax rates." Taxes should be "fairer," by which is meant easy on the wealthy. Specifically they should be flatter (as if they were really graduated now), marginal tax rates should be reduced 20% across the board, the Bush tax cuts should be made permanent, and there should be no increase in the tax rate on dividends and interest. The "death tax" should be repealed; fairness to heirs, you know.
We are told that "American businesses now face the world’s highest corporate tax rate." Obviously that is true only of corporations, and it’s true only in theory. The federal income tax on corporations is 35%, but the average effective tax rate is about half that, and many large corporations pay no income tax.
The platform alludes to a national sales tax, in this rather odd language: any such tax "must be tied to the simultaneous repeal of the Sixteenth Amendment." I’m not aware of any serious proposal for a sales tax, but of course these folks would welcome any opportunity to be rid of income taxes. After all, as they remind us, "Taxes, by their very nature, reduce a citizen’s freedom." Think of how much freer Mitt Romney would be if the government hadn’t confiscated 13% of his income.
The platform advocates a balanced budget amendment, ignoring the fact that no Republican administration since Eisenhower has achieved a balanced budget, and it’s been a long time since a Republican president proposed one; even the sainted Reagan never did. The argument for the amendment is that the federal government should follow the lead of states with such laws, ignoring the completely different fiscal role and responsibility of the two levels of government.
Obamacare is, of course, a rich source of myth: it will "empower . . . bureaucrats to cut Medicare in ways that will deny care for the elderly." (Apparently "death panels" have been laughed off the stage). Instead, the Republican plan will "empower . . . seniors to control their personal healthcare decisions," aided, of course, by the charitable instincts of insurance companies.
A discussion of inflation led the platform drafters into a brief, coy discussion of the monetary system. They were not quite bold enough to refer in terms to the gold standard, so resorted to euphemism. "President Reagan . . . established a commission to consider the feasibility of a metallic basis for U.S. currency. The commission advised against such a move." Undaunted, "we propose a similar commission to investigate possible ways to set a fixed value for the dollar."
The Party which aims to turn back the clock by decades or centuries, depending on the subject, has coined a term to attack New Deal programs: "antiquated." It aims that weapon at labor law, although piously describing pro-business policies as "the rule of law." It will bring "freedom" to the workplace by prohibiting card check union elections and by enacting a national right-to-work law, thus slipping in an infamously misleading euphemism. The party of the elite takes a shot at "union elites" in — double horror — Washington offices. This section winds up with a salute to states which have avoided fiscal disaster by "reforming their laws governing public employee unions," otherwise known as union-busting.
"We the people" (a miscellany about alleged Constitutional principles)
Our states, we are told, are laboratories of democracy. In what way? By enacting voter ID laws and other measures to suppress minority votes; democracy for the chosen only. The excuse? "Voter fraud is poison." Perhaps it would be, if it existed; no examples are given because apparently there aren’t any. Continuing the theme of avoiding democratic outcomes, the platform rails against any effort to elect the president by popular vote. It would be "a mortal threat to our federal system" and, for reasons not stated, would be "a guarantee of corruption." It also would have meant that George W. Bush would not have been elected, even with a partisan Supreme Court (dare I say activist judges?) ready and willing to help out. Contemplate the difference in the ensuing eight years.
Republicans are, they remind us, the party of the Constitution, unlike the Democrats. The platform’s commitment to the ideals of the Bill of Rights is firm but selective. As to the First and Second Amendments, it supports the Supreme Court’s creative interpretations: more money in politics and more guns. It loves the Tenth Amendment which, though basically a truism without specific content, has become a peg on which to hang states’ rights conservatism.
"America’s Natural Resources: Energy, Agriculture and the Environment"
As to the natural environment, "Experience has shown that, in caring for the land and water, private ownership has been our best guarantee of conscientious stewardship, while the worst instances of environmental degradation have occurred under government control." At this point we have passed from myth to fantasy, and from that to blather: "Liberty must remain the core energy behind America’s environmental improvement." Oh, wait: that refers to the evil EPA; I understand now. That agency and the cap-and-trade plan are denounced under a subsection on coal. Burn more, pollute more. The government has a "job killing punitive mentality." Ah yes, every federal program or action kills jobs.
Under "The Proper Federal Role in Agriculture," we are told that we must limit the interference by activist judges in environmental management.
"Reforming Government to Serve the People"
"We are the party of government reform." That’s a true statement so long as the definition of reform is flexible. In this case it means "reversing the undermining of federalism" and opposing "the expansion, centralization and bureaucracy in an entitlement society." The last term has become the vehicle for selling an abandonment of Social Security and Medicare. The GOP is against massive indebtedness, blaming that, not on the irresponsibility of the Bush years, but on entitlements. But wait! Two paragraphs later, the platform asserts that the Republican Party is "committed to saving Medicare and Medicaid." If that isn’t enough chutzpah for you, read on. Younger workers, we are told, have lost faith in the Social Security System. Might plans to gut it have contributed to that?
The platform applauds initiatives by Republican governors; you know, like the request for more flexibility regarding the welfare work requirements which Obama was denounced for agreeing to. The GOP also is concerned about our health and wants to combat lifestyle evils, such as obesity. Didn’t conservatives denounce the anti-obesity campaign led by Michelle Obama as one, to quote Sarah Palin, that seeks to take away "God-given rights to make our own decisions"? Never mind.
A subsection is captioned "Regulatory Reform: the Key to Economic Growth." Of course: get government out of the way, and all will be well. Here’s a concession: "Many regulations are necessary." However, not all: "no peril justifies the regulatory impact of Obamacare on the practice of medicine, the Dodd-Frank Act on financial services, or the EPA’s and OSHA’s overreaching regulation agenda." Health care, banks and industries are best left alone, so that we can continue to have worse health care at greater expense than other advanced countries, risk another financial collapse, live with pollution and ignore workplace hazards.
"Renewing American Values to Build Healthy Families, Great Schools and Safe Neighborhoods"
The GOP is the party of "independent individuals and the institutions they create," including families, schools, congregations and neighborhoods, but not government. One of Bill Clinton’s most telling lines at the Democratic convention was his reference to the aim of We the People in the Constitution: to create a more perfect union. Republicans view that union in terms not far removed from those of the Confederacy, and no surprise, as this now is a southern party.
Republicans are worried, as they have been for decades, about the threat to the Constitution from activist judges. That seemed to be a myth, but give them credit: they saw it coming. Just look at Citizens United . Oh, apparently that’s not the reference. Requiring people to purchase health insurance — you know, like Mitt Romney did — is "an attack on our Constitution," upheld because of that activist Roberts. They have a point, of course, because the Affordable Care Act "was never really about healthcare." It was about power, expansion of government, control over the economy. It was "the high-water mark of an outdated liberalism," an attempt to impose "a euro-style bureaucracy to manage all aspects of our lives." It was — oh come on, say it — about socialism.
"American Exceptionalism" (foreign policy)
Republicans are, they tell us, the party of peace through strength, an interesting slogan for a party which recently followed a policy of war through lies. To be fair, that occurred under a former president, what’s-his name.

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On the subject of myths and clichés, and in furtherance of my mission to record the daffiness of right-wing authors, here’s the latest from the shelves of the local bookstore:

David Limbaugh, The Great Destroyer: Barack Obama’s War on the Republic;

Michael Savage, Trickle Down Tyranny: Crushing Obama’s Dream of the Socialist States of America;

Dinesh D’Souza, The Roots of Obama’s Rage; and, ironically,

Jonah Goldberg, The Tyranny of Clichés: How Liberals Cheat in the War of Ideas.

Friday, August 24, 2012

August 24, 2012
A new book, It’s Even Worse than It Looks, by James Mann and Norman Ornstein, describes how polarized American politics has become. It identifies two problems; the first is that the major parties have become "more ideologically coherent, internally unified and adversarial." As to the Democrats, that is true only in an historical sense: years ago, the conservative southerners left and the party became rigid, although not unified, on certain social issues.74 The authors’ reference to both parties sounded like the introduction to an equal condemnation. That, however, is not what they have in mind, as they identify the second problem thusly: "[H]owever awkward it may be for the traditional press and nonpartisan analysts to acknowledge, the Republican Party has become an insurgent outlier — ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition."75 To me, that is the problem, and it plus the dithering weakness of the Democrats describe the present situation.
As to the former, it’s not just that the daily attacks from the right are partisan and it isn’t just a matter of exaggeration or distortion; such tactics would be nothing new and Democrats hardly are above using them. It isn’t just the shameless hypocrisy, or the outright lying, or the disdain for the 99% while trying mislead them into thinking that their interests and those of the 1% coincide. It isn’t just an inability to learn from history, an ignorance of science or an or ideological warping of facts, although by here things are adding up to an extreme position. What is striking to me is that so many of the claims are not merely false; they are absurd: Obama is a communist, a fascist, a Muslim, a foreigner, the anti-Christ; he is planning detention camps; he’s going to hand over sovereignty to the United Nations; the administration staged the Aurora shooting in order to impose gun control.
And its not just the nutty fringe babbling nonsense; pundits, party officials and those elected to high office have joined in.
Michael Gerson decided — in April, 2009, three months after the inauguration — that Obama is the most polarizing President in recent history, not only a premature appraisal, but one reached by ignoring the source of the polarization. Following the election of 2010, conservative writers cheered a return from the brink. Charles Krauthammer claimed that the first two Obama years were an "experiment in hyper-liberalism.” To George Will, the election “was a nationwide recoil against Barack Obama's idea of unlimited government.” To Kathleen Parker, the election was "a fight over capitalism.” Obama the centrist became Obama the Marxist.
The Affordable Care Act generated some of the stranger comments. Sarah Palin claimed that the health care act created death panels. OK, she’s on the fringe, but Sen. Charles Grassley, Republican of Iowa, pushed that myth. While the health care bill was pending in Congress, Sen. Tom Coburn, Republican of Oklahoma, was asked, “will government-run health care . . . end up killing more people than it saves?” and answered, “absolutely.” Rep. Steve King,* Republican of Iowa, and Rep. Louie Gohmert,* Republican of Texas, made inane comments to the effect that people die waiting for treatment under "socialized medicine." According to Virginia Foxx, Republican of North Carolina, we had more to fear from the bill "than we do from any terrorist right now in any country.” John Boehner, Republican of Ohio, declared that the bill would "ruin our country."
Rep. Addison Graves (Joe) Wilson, Sr.,* Republican of South Carolina shouted "you lie" during President Obama’s speech on health care reform in 2009. Rep Paul Broun,* Republican of Georgia, during the 2011 State of the Union address, tweeted "Mr. President, you don't believe in the Constitution. You believe in socialism." (This on an occasion when Republicans and Democrats "sat intermingled . . . in a show of civility intended to honor wounded Rep. Gabrielle Giffords . . . ."76) Sen. James DeMint,* Republican of South Carolina, described Obama as "the world's best salesman of socialism." Former Republican Governor Mike Huckabee, referring to projects like "health care rationing," said "The Union of Soviet Socialist Republics may be dead, but a Union of American Socialist Republics is being born. . . . Lenin and Stalin would love this stuff."77 Rep. Allen West, Republican of Florida, charged that there are at least 78 Democratic members of Congress who are also members of the Communist Party.
Rep. Pete Sessions,* Republican of Texas, thinks that Obama's program is to reduce employment and suppress stock prices in order to damage the free enterprise system, all this being part of a plan to consolidate power. Rep. Bobby Schilling, Republican of Illinois, thinks Democrats are "very anti-capitalist." When asked whether he thought Obama had a strategy to make America fail, he responded that "a lot of people" think that the slow recovery "is being done on purpose." The irony of that is the distinct possibility that Republicans have stymied recovery efforts not only out of ideology but in order to blame Mr. Obama for the continuing pain and to defeat him this year.
Rep. Todd Akin,* Republican of Missouri, now a candidate for the Senate, has become infamous for his remarks on rape. He also believes that “the heart of liberalism really is a hatred for God,” that President Obama is a "flaming socialist," and that "America has got the equivalent of the stage three cancer of socialism because the federal government is tampering in all kinds of stuff it has no business tampering in." Medicare and school lunch programs apparently are part of that overreach.
Senator James Inhofe, Republican of Oklahoma, cited Genesis to prove that global warming is a hoax: "The arrogance of people to think that we, human beings, would be able to change what He is doing in the climate is to me outrageous." That’s the Rush Limbaugh theory. Representative John Shimkus, Republican of Illinois, cited the same passage in opposing cap-and-trade legislation. In an effort to show that they are up to date, each also cited the New Testament. Shimkus declared that there is a "theological debate" as to whether there is too much carbon in the atmosphere. Apparently the medieval quality of proving scientific issues by scripture doesn’t seem odd to them. (Inhofe claimed, several years ago, that he had "insisted all along that the climate change debate should be based on fundamental principles of science, not religion." Perhaps his "science" wasn’t holding up, and he needed help from another source).
Inhofe also relies on Genesis to establish that Israel should occupy the West Bank. In a speech to Congress, he referred to Genesis 13:14-17 in which land is promised to Abraham and added, "That is God talking." This of course simplifies the issue: "This is not a political battle at all. It is a contest over whether or not the word of God is true."
Rep. Michele Bachmann,* Republican of Minnesota, denounced the compensation fund set up after the BP oil spill as "a redistribution-of-wealth fund." Rep. Joe Barton,* Republican of Texas, called it a shakedown by the government. Sen. Inhofe likened the EPA and OSHA to the Gestapo.
A former Republican staffer, referring to King, Bachman, Broun, West and Foxx, summed up the situation this way: "the crackpot outliers of two decades ago have become the vital center today: . . . The Congressional directory now reads like a casebook of lunacy."78
Reince Priebus, GOP Chairman, repeated the false charge, made by the Romney campaign, that the Affordable Care Act stole $700 billion from Medicare, and added this hysterical touch: "If any person in this entire debate has blood on their [sic] hands in regard to Medicare, it’s Barack Obama. He’s the one that’s destroying Medicare." This from the head of the party which wants to destroy Medicare.
John Sununu, Romney campaign chairman and former Republican governor of New Hampshire, blurted: "I wish this president would learn how to be an American." Did he really mean that ? Well, yes: Obama “has no idea how the American system functions, and we shouldn’t be surprised about that, because he spent his early years in Hawaii smoking something, spent the next set of years in Indonesia, . . . and, frankly, when he came to the U.S. he worked as a community organizer, which is a socialized structure . . . .79 Romney added that Obama’s "course is extraordinarily foreign.”
It may seem unfair or unrealistic to keep harping on the sins of one of the parties, which partially explains why the media are so reluctant to do so. However, the criticism not only is fair and realistic, it is necessary if anything is to change. Later in their book, Mann and Ornstein repeated the description of the GOP quoted above, adding that it has "all but declar[ed] war on the government."
This election matters. It can’t be a good idea to put people who think like that in a position to wage war from within.
* Members of the Tea Party Caucus.
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74. Later, they offered a more accurate description of the contemporary Democratic Party: "while no paragon of civic virtue, [it] is more ideologically centered and diverse, protective of the government's role as it developed over the course of the last century, open to incremental changes in policy fashioned through bargaining with the Republicans, and less disposed to or adept at take-no-prisoners conflict between the parties." It’s Even Worse than It Looks , p.103.>
75. Id. at xiv. A similar quote was included in an article by the authors in The Washington Post on April 27, 2012. The article was more direct in placing blame, and was titled, "Let’s just say it: The Republicans are the problem."
76. http://www.cbsnews.com/8301-503544_162-20029697-503544.html
77.  http://www.washingtonmonthly.com/archives/individual/2009_02/017091.php  78. Mike Lofgren, on Truthout in September, 2011. http://www.truth-out.org/goodbye-all-reflections-gop-operative-who-left-cult/1314907779
79. http://thinkprogress.org/politics/2012/07/17/531231/romney-campaign-obama-cant-create-jobs-because-he-spent-his-early-years-in-hawaii-smoking-something/

Tuesday, August 7, 2012

August 7, 2012

Harry Reid’s speculation about Mitt Romney’s taxes has prompted a surprising amount of criticism. Reid cited an unnamed investor in Bain Capital for the proposition that Romney is refusing to release tax returns because he hasn’t paid income taxes for ten years. Reid acted irresponsibly, relying on one source who may not know anything and pushing a claim which is unlikely on its face. However, his attack is no more out of bounds than daily assaults on Obama.
Also, his charge has been more or less translated into a statement of fact, which it wasn’t, quite. The erratic Fact Checker on the Washington Post awarded Reid four Pinocchios while admitting that,"[w]ithout seeing Romney’s taxes, we cannot definitively prove Reid incorrect."
The strangest response is Romney’s: "Harry Reid really has to put up or shut up." From someone whose failure to put up, to release his tax returns, is the underlying subject, that takes nerve, or something. Romney added that we’ll probably find out that Reid’s source was the White House.73 Fact check, anyone?
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73. Interview by Sean Hannity, 8/2/12: http://www.youtube.com/watch?v=2pvMb0qdd1o

Monday, July 30, 2012

July 30, 2012
One of the most obvious features of the Voters’ Pamphlet, and one of the challenges to the voter, is the number of elective offices. Do we really need to vote for Secretary of State, Treasurer and Superintendent of Public Instruction? Is governance better or liberty more secure for having Insurance Commissioner and Commissioner of Public Lands elective? Possibly there is a reason to have an independent Auditor, but the rest of these offices should be appointive. We have a very recent illustration of the daffiness of our present arrangement with respect to another elective office, that of Attorney General.
The AG, Rob McKenna, joined other state officials as plaintiffs in a federal action challenging the constitutionality of the Affordable Care Act, aka Obamacare.70 In doing so, he purported to act for the State of Washington. In their brief in the U.S. Supreme Court on the central issue, the individual mandate, the plaintiffs are identified as "26 States [including] Washington, by and through Attorney General Robert M. McKenna . . . ."
Did Mr. McKenna legitimately represent the state? The Governor didn’t think so. She filed an amicus brief 71 in the U.S. Supreme Court on the same issue, and took the opposite position, arguing that the mandate is constitutional. In her brief she demonstrated the importance of the Act and the mandate to Washington’s health care funding, and pointed out that she had "participated in the political process that led to passage of the Act . . . ." In what sense, then, could McKenna claim that he spoke for the state?
That question was raised, prior to the U.S. Supreme Court’s decision, in a suit by the City of Seattle in state court, demanding that McKenna withdraw from the federal case. In the course of its opinion 72 ruling on the City’s petition, the State Supreme Court acknowledged that Governor Gregoire had challenged McKenna’s claim to represent the State in the federal action.
On May 7, 2010, Governor Christine Gregoire wrote to Attorney General McKenna, indicating her objection to the federal litigation and requesting that he amend the designation of the party to "Robert M. McKenna, Attorney General of The State of Washington" . . . Attorney General McKenna replied, declining to amend the caption and instead suggesting that Governor Gregoire intervene on the opposite side of the case as “State of Washington, by and through Christine O. Gregoire, Governor of the State of Washington.”
That would have had the interesting effect of placing the State on both sides of the controversy.

Governor Gregoire filed an amicus brief in the City’s case, arguing that "where the governor and attorney general disagree, the attorney general may not proceed in the name of the State." The State Supreme Court grudgingly admitted that she had a point:
This argument is not wholly without merit, as article III, section 2 of the Washington Constitution vests in the governor "[t]he supreme executive power of this state." Moreover, we have previously interpreted this language to accommodate the governor’s superior authority where the attorney general and governor disagree on the correct course of action.
However, the Court decided that it could ignore that issue:[T]he governor is not a party to the present action; Governor Gregoire neither initiated this petition for mandamus nor has she intervened. We . . . leave for the appropriate case the issue of what result the Washington Constitution compels where the governor disagrees with the attorney general’s discretionary decision to initiate litigation and seeks to preclude the attorney general’s action. (emphasis added)

Her known disagreement gives way to rules of procedure. The Court proceeded to uphold McKenna’s claim of authority based on a somewhat shaky reading of a statute setting out the Attorney General’s powers.
Whatever the merit of the decision, it describes a dysfunctional system of government.

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70. McKenna joined as a plaintiff in Florida v. Department of Health and Human Services which, in the U.S. Supreme Court, was consolidated with, and decided under the caption of, National Federation of Independent Business et al. v. Sebelius.
71.Entitled "Amicus Brief of the Governor of Washington Christine Gregoire." The AG having gone his own way, the Governor retained private counsel to represent her.
72. City of Seattle v. McKenna , 172 Wn.2d 551, 259 P.3d 1087 (2011)

Sunday, July 29, 2012


July 29, 2012
The Voters’ Pamphlet for the Primary Election is out and, as usual, it provides much in the way of comic relief.
Each candidate’s column follows a set format, and apparently the candidates are given a questionnaire which asks for information under each heading. The first entry is "elected experience." Of course, those who have held offices list them; the fun comes in the ways those without such a background respond.
Many apparently ignored the question; their entries show "no information submitted." Others simply and frankly answered "none" or "never elected to public office."
"Elected experience" probably is bureaucratic shorthand for "experience in elective office," but some who have run unsuccessfully consider that to be elected experience, producing "Democratic Nominee for Congress," or "ran for legislature" or "finished second among Republicans in the [2010] primary."
Some turn inexperience into a virtue, as in "proud to have no political experience - we need servant leaders, not professional politicians," or "the only candidate in the race who is not a professional politician" or "this is a job [Auditor] for a professional, not a politician" or "I have no experience collecting a government paycheck." The most artful is "Like some of the most renowned and respected political leaders upon taking office, none."
Others finesse: "I would appreciate the opportunity to serve the public in first elected office," or referring to oneself in the third person, "This is Karen’s first campaign for office." Some reach: "Church Treasurer and Council Member" or "Elected Treasurer of The Moose Lodge."
The most mysterious response was "Yes."



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One of the premier races is for the U.S. Senate. Maria Cantwell is running for reelection. She has only token Democratic 68 opposition, but there are five Republican candidates.
Michael Baumgartner includes this in his statement (italics in the original):
Now, America is struggling. In the past 12 years, reckless spending and poorly planned wars have helped double the national debt and millions don’t have jobs. Too many politicians care more about special interests than finding solutions. The US Senate hasn't passed a budget in more than three years. DC is broken.
However, for eight of those twelve years, a president of his party occupied the White House, started those wars, and pushed the tax cuts that, with the wars and the recession which began on his watch, ran up most of that debt. It has, indeed, more than doubled in twelve years, but it increased by about 86% under Mr. Bush. DC certainly could be described as broken, but that’s primarily the work of the Republicans.69 The special interest most catered to, again by his party, is the 1%. How does any of this translate into "replace a Democratic Senator with a Republican?"

He does have one position which is positive, and consistent with his reference to "poorly planned wars:" it’s time to bring [our troops] home . . . ."
Chuck Jackson emphasizes the national debt, but is too eager to blame its rise on Senator Cantwell.
The kids and grandkids inheritance $15,700,000,000,000 ($15.7 trillion)DEBT. When the incumbent first went to Washington D.C. the National Debt was $4,188,092,106,183 . . . . (The oddities of the first sentence are in the original)
Actually, the present debt is a bit worse than he states, about 15.8 trillion at the end of June, and it will be still worse, presumably, when inherited by another generation, so he’s right to identify it as a problem. When Senator Cantwell assumed her present office in January, 2001, the debt was about 5.716 trillion. However, she also served one term in the U.S. House of Representatives, from 1993 to 1995, and then was out of office from 1995 until 2001. In order to make her "contribution" to the debt worse, Mr. Jackson uses the amount from January 20, 1993, inauguration day, which is his 4.188 figure. In all of this manipulation, he fails to tell us why the increase is the Senator’s fault.

Art Coday is concerned about "the catastrophic loss of prosperity and American jobs sustained throughout my opponent’s 12-year tenure." He, too, neglects to state what she has done to bring that about. These candidates, like Mr. Romney, hope that bad conditions will lead to throwing out the incumbents regardless of blame and regardless of whether the challengers offer any remedies. On that score, Mr. Coday’s prescription is the usual conservative formula:
Cutting spending, balancing the budget, reducing debt, and ending inflation will repair our national credit and stabilize the economy. As a small business owner, I know that easing regulatory burdens and mandates, enacting favorable trade policies, and lowering energy costs will stimulate the economy.
It’s anyone’s guess where he is finding significant inflation or regulatory burdens. Our national credit is strong enough that the government can borrow at virtually no interest. Cutting spending won’t stimulate the economy. He adds that we "must maintain the world’s finest military," which of course will have no effect on spending or debt. He also wants to preserve traditional family values, such as the right to bear arms.

Glen Stockwell is running on a platform entirely devoted to a project having to do with the Columbia Basin. Perhaps it has merit.
Mike the Mover’s page is blank, except to state that he prefers the Republican Party. Two years ago, when he ran for our other Senate seat, he preferred the Democrats.
There is one minor-party candidate, Will Baker, who is nothing if not consistent. Two years ago he ran for the other Senate seat under the banner of the Reform Party and identified two entirely unrelated matters as "the number one issue in the 2010 Senate election." One of them was a complaint about the "illegal and unethical election practices used by Washington Secretary of State Sam Reed," relating to voters’ pamphlets. This year, again preferring the Reform Party, he presents two widely different matters as "the number one issue in the 2012 U.S. Senate election," and again one of them is the alleged "illegal and unethical election practices used by Washington Secretary of State Sam Reed" relating to voters’ pamphlets. What that has to do with electing him to the Senate remains mysterious.
Two years ago the other number one issue was "the illegal and unethical election practices used by President Barack Obama" (in his 1996 campaign for the Illinois State Legislature). This year it is "impeaching President Barack Obama specifically for Obama’s decision to give America’s state of art military spy drone technology to Iran (and through Iran to China and Russia)." The charge is based on this recital:
Fact : Obama’s administration has been flying stealth spy drones over Iran to monitor Iran’s nuclear program. Fact : One of the drones crashed in Iran. Fact : Obama didn’t send military personnel into Iran to retrieve the drone, and didn’t blow-up the drone by remote before Iran grabbed it. Fact : Now Iran has our stealth spy drone and they are not giving it back.
That apparently adds up to a decision to hand over secrets.

Perhaps his emphasis on stealth technology is appropriate, as the Reform Party remains something of a stealth organization. The state party has no platform at this point, and that of the national party is an exercise in blandness. 
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68. I’ll ignore the legally-mandated form "prefer ______ party" and simply identify people by their party (preference).
69. If Mr. Baumgartner or any voters doubt that, they should consult Mann and Ornstein’s latest book, It’s Even Worst than It Looks.

Sunday, July 15, 2012


July 15, 2012

The most obvious moral to the health care debate is that no good deed — or attempt at compromise — goes unpunished. Instead of proposing universal Medicare, which would have been denounced as socialized medicine, Mr. Obama adopted a conservative plan, already enacted under a Republican governor.58 His reward was to be denounced as a socialist, his plan as slavery. The conservative Supreme Court declared that the heart of the conservative plan, the individual mandate, could not be upheld under the Commerce Clause.


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Chief Justice Roberts wrote the majority opinion in National Federation of Independent Business v. Sebelius , which considered the constitutionality of the Affordable Care Act. It considered, as a preliminary matter, whether the Anti-injunction Act required dismissal of the challenges to the ACA. The former statute bars suits to restrain the assessment or collection of a tax; taxes ordinarily may be challenged only after they are paid, by suing for a refund. A majority (Roberts and the liberals) held that, since Congress did not call the penalty for failing to have insurance a tax, it isn’t a tax for purposes of the Anti-injunction Act. Therefore the Court could reach the merits.
Roberts’ meandering opinion declared that the statute is constitutional, but did so grudgingly and illogically, giving rise to speculation that he voted to uphold the act in order to save the reputation and credibility of the Court, while laying down markers concerning the commerce power and states’ rights. Whether that was his motivation, that was the result. Roberts, joined by the other four conservatives,59 held that the individual mandate is not a valid use of Congress’ authority under the Commerce Clause, even though none of the Justices seemed to doubt that Congress could have reached the same result, near-universal health care, directly through a Medicare-style program. Those five also held that certain penalties attached to the Medicaid expansion 60 amounted to illegitimate coercion of the states, and ruled that the government could not enforce them. Joined by the four liberals, Roberts held that the individual mandate is valid under Congress’ power to tax, even though the penalty for failing to obtain insurance isn’t called a tax, and even though, for purposes of the Anti-injunction Act, those five held it isn’t a tax. Obviously something other than tight reasoning led to the results. The only coherent opinion is that of Justice Ginsburg, who would have upheld the statute in its entirety.
The Commerce power
The Commerce Clause is contained in Article I, Section 8 of the Constitution, which provides that "The Congress shall have Power To regulate Commerce . . . among the several States . . ." In considering whether the mandate could be upheld under that provision, the Chief Justice first worried about the novelty of the claim. "Congress has never attempted to rely on [the commerce] power to compel individuals not engaged in commerce to purchase an unwanted product." He recognized that a new approach is not automatically unconstitutional:
Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes "the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent" for Congress’s action. . . . At the very least, we should "pause to consider the implications of the Government’s arguments" when confronted with such new conceptions of federal power.
One hopes that the Court pauses to consider implications in any case. What he meant was that he worried about the extent of Congress’ reach under the Commerce Clause.

The conservatives presented two interrelated rationales for limiting that reach: in requiring the purchase of insurance, Congress was creating commerce, not regulating it; and the commerce power may regulate only activity, not inactivity.
The Chief Justice put the first rationale this way: "The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated."61 Well, there is: the sale of health care insurance. However, we’re told that won’t do: the person who does not purchase insurance isn’t in that stream of commerce. "The individual mandate . . . does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." As the Joint Dissent put it, "To be sure, purchasing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence."
There is another stream of commerce, the system by which health care is provided. No, they say, that doesn’t help, because the non-purchaser of insurance isn’t part of that either: "those regulated by the individual mandate are not currently engaged in any commercial activity involving health care . . . ." Novelty may not necessarily be fatal, but for the Chief Justice it is a problem here: "The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent."

It isn’t clear why "the conduct of an individual" is the test. Commerce in health care exists; the statute aims to affect, i.e., regulate it. Where did we get the notion that the Commerce Clause only reaches persons as opposed to commercial streams?
In any case, as to some people, no prophesy is required: uninsureds are at the moment receiving health care. That point is not addressed; those (presumably) few don’t carry enough weight, and even though every non-purchaser of insurance will, at some point, almost certainly be a consumer of health care, that does not matter either: "for most of those targeted by the mandate, significant health care needs will be years, or even decades, away." Apparently the majority situation at any given moment —non-use of health care by the uninsured — controls.
The government attempted to merge the two streams of commerce, but that was no more successful:
The Government says that health insurance and health care financing are "inherently integrated." . . . But that does not mean the compelled purchase of the first is properly regarded as a regulation of the second. No matter how “inherently integrated” health insurance and health care consumption may be, they are not the same thing: They involve different transactions, entered into at different times, with different providers.
In the second rationale, the Chief Justice asserted that Congress may regulate only activity, not inactivity; in other words, it may prohibit, but not command, action. "As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity’.” The government argued that the individual mandate fell within the commerce power because the failure to purchase insurance "has a substantial and deleterious effect on interstate commerce" by shifting the cost of the uninsureds’ health care to the hospital, insurers, insurance premium payers and taxpayers. In other words, there is a present and persisting phenomenon in commerce, the shifting of costs, which requires regulation.

Chief Justice Roberts acknowledged the general, but not constitutional, merit of the argument:
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. . . . As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” . . . The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.
Musing about the practical bent of the Founders doesn’t establish that the Commerce Clause cannot reach "inactivity." One might think that the distinction drawn by the Chief Justice is a bit metaphysical. In any case, it isn’t found in the text of the Constitution.
As to prior decisions, Wickard v. Filburn 62 held that Congress could tell a farmer not to raise wheat for his own consumption because he then would not purchase wheat, which impacted commerce. Gonzales v. Raich 63 held that Congress could prohibit the cultivation and possession of marijuana, legal under state law for medicinal purposes, on similar reasoning. The Chief Justice and the Joint Dissenters analyzed those decisions as reaching only activity: growing something. However, as Justice Ginsburg pointed out regarding Wickard, " ‘[F]orcing some farmers into the market to buy what they could provide for themselves’ was, the Court held, a valid means of regulating commerce." The same analysis applies to Raich, decided only seven years ago. In addition, in that case, the statute upheld by the Court prohibited not only growing and using marijuana, but also possessing it. Under the Roberts-Joint Dissent analysis, mere possession must be activity.
The Chief Justice more or less conceded that Wickard upheld forcing the farmer to purchase wheat: "The aggregated decisions of some consumers not to purchase wheat have a substantial effect on the price of wheat, just as decisions not to purchase health insurance have on the price of insurance. Congress can therefore command that those not buying wheat do so, just as it argues here that it may command that those not buying health insurance do so." However, he drew a distinction: "The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do." That hardly follows; there would have to be "a substantial economic effect on interstate commerce.”64
The Joint Dissent quoted a statement in Gibbons v. Ogden as defining the commerce power: "the power to regulate commerce is the power ‘to prescribe the rule by which commerce is to be governed’ " The Chief Justice did the same: Gibbons "defin[ed] the commerce power as the power ‘to prescribe the rule by which commerce is to be governed.’ ” Each seemed to think that the quote supported the notion that only persons actively in commerce may be regulated. However, it merely says that rules may be prescribed for the conduct of commerce, exactly what the ACA does.65
There was much talk of markets, and the government attempted to bring those affected by the mandate within a market in order to avoid the "inactivity" problem, but without success: "The Government repeats the phrase ‘active in the market for health care’ throughout its brief [describing the uninsured], . . . but that concept has no constitutional significance." Yes, but that’s also true of "the market" and the of notion that only present activity of persons may be the subject of regulation under the Commerce Clause. The Chief Justice continued, confusing matters still further:
The phrase “active in the market” cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.”. . . Our precedents recognize Congress’s power to regulate “class[es] of activities,” . . . not classes of individuals, apart from any activity in which they are engaged . . . .
However, as noted, the Court insists on regulating individuals rather than regulating commerce as such.

The conservatives’ rationale, in Roberts’ opinion and in the Joint Dissent, centered on the notion that the commerce power is exclusively prohibitory — cannot be mandatory — a possible but not compelling interpretation of the Commerce Clause. To bolster it, they presented a parade of horribles. According to the Joint Dissent, “if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate” The Chief Justice agreed: "Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem." Then came the broccoli:
To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. . . . The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. . . . Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. . . . Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.
 Justice Ginsburg noted that someone buying an automobile or broccoli "will be obliged to pay at the counter before receiving the vehicle or nourishment." There will be "no free ride or food, at the expense of another consumer forced to pay an inflated price." Health care and the payment therefor are in a different class. "Upholding the minimum coverage provision on the ground that all are participants or will be participants in the health-care market would therefore carry no implication that Congress may justify under the Commerce Clause a mandate to buy other products and services."
In the paragraph following his discussion of vegetables, the Chief Justice said this: "People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures — joined with the similar failures of others — can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act." He acknowledges that failure to act can have an impact on commerce, but denies Congress’ power to address it. Why is that ? Because such regulation would not be part of "the country the Framers of our Constitution envisioned."
The key to the commerce discussion is the small-government fantasy of the conservatives, one aspect of which is a protective attitude toward the states. The Chief Justice worried that the government’s position would carry us far from "the notion of a government of limited powers." Tyranny, or socialism, awaits: "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States." According to the Joint Dissent, "if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end." The individual mandate "threatens our constitutional order. . . . because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers." This is adjudication by hysteria.
As Justice Ginsburg observed of the Roberts opinion, "This rigid reading of the Clause makes scant sense and is stunningly retrogressive. . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy. . . ."
The taxing (and spending) power
Article I, Section 8 also provides that Congress has power "To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States. . . ." The individual mandate was rescued by treating the penalty for failure to obtain insurance as a tax. The theory is that the penalty is a tax for constitutional purposes — even though it wasn’t for Anti-injunction purposes — is plausible, but no more than that. The objections raised in the Joint Dissent aren’t entirely convincing, but neither are Roberts’ responses to them. The issue comes down to a dispute over whether there is any precedent for treating as a tax something Congress has called a penalty. The Dissent contended that the Court has "never — never — treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty’. ” Apparently novelty is not always a hurdle for the Chief Justice.
However, all of this is more or less beside the point, because the heart of the his opinion on the tax issue is this:
[T]the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.
In other words, the extensive discussion of reasons for treating the penalty as a tax is not to be taken too seriously; declaring it to be a tax is merely a way to do what Chief Justice Roberts belatedly decided to do, and certainly not the best way.

The Medicaid extension
The controversy under this heading rests on an interpretation of the ACA and the underlying Medicaid statute which I find more than a little baffling. However, everyone seems to agree on that interpretation, which is more or less as follows: The health care act contains a significant expansion of Medicaid coverage. As Medicaid is a joint federal-state program, and Congress wanted to ensure that all of the states joined the new program, it imposed, in effect, a penalty for non-participation. That was accomplished by leaving in place a provision under the pre-ACA Medicaid statute which allowed the government to withhold all of a state’s Medicaid grants if the state failed to follow federal guidelines. Following adoption of the ACA, that was interpreted to permit, in the event of failure to join the Medicaid expansion, the withholding of all Medicaid funds, not just those attached to the expansion. I think that’s it. Here’s how the Chief Justice summarized the issue: "The States . . . claim that Congress is coercing the States to adopt the changes it wants by threatening to withhold all of a State’s Medicaid grants, unless the State accepts the new expanded funding and complies with the conditions that come with it."
The Chief Justice, joined by Justices Breyer and Kagan and by the Joint Dissenters, held that such a threatened action is unconstitutional. Here the oddity of the textual analysis enters in. There isn’t a section of the ACA which directly provides for the threatened penalty. As we will see, the Court therefore didn’t strike down any part of the Act, but merely prohibited the government from doing what the states complained of.
The rationale for invalidating the threatened penalty is that Congress may not "coerce" states into following federal dictates. Here they would be coerced into accepting the extension by the threat of losing pre-ACA grants. Decisions were cited for the principle that states are "sovereign" or "autonomous." The Roberts opinion not only endorsed that principle, but underscored it: "The States are separate and independent sovereigns. Sometimes they have to act like it." Pity the poor states, which usually cower before the federal power, intent on crushing liberty and imposing socialism.
What is coercion and what is gentle persuasion? Well, we don’t know. We know only that the penalty here is in the former category: referring to a 1937 decision, the Chief Justice disposed of the matter thusly: "The Court in Steward Machine did not attempt to ‘fix the outermost line’ where persuasion gives way to coercion. . . . The Court found it ‘[e]nough for present purposes that wherever the line may be, this statute is within it.’ . . . We have no need to fix a line either. It is enough for today that wherever that line may be, this statute is surely beyond it." As with pornography, the Court knows coercion when it sees it; the rest of us can only guess what it will see.
One theory was that the amount of financial loss to the states under the Medicaid expansion penalty is extraordinary: "The threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." However, in a footnote to that passage, Roberts declared that "the size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. ‘Your money or your life’ is a coercive proposition, whether you have a single dollar in your pocket or $500." The test may be the amount or it may be the nature of the threat.
However, it may be neither. On the next page, the Chief Justice asserted that the Medicaid expansion "accomplishes a shift in kind, not merely degree." If that is the test, how does one measure such a shift? Who knows? We are not told, apart from a statement that the expansion covers far more people than the original program.
Justice Ginsburg, joined by Justice Sotomayor, would have upheld the penalty. She summarized the Chief Justice’s theory as follows: 1) The Medicaid expansion is a new program, not an addition to the Medicaid program existing before the ACA’s enactment; Congress has threatened States with the loss of funds from the "old" program in an effort to force them to adopt the "new" one. 2) The expansion was unforeseeable by the States when they first signed on to Medicaid. 3) The threatened loss of funding is so large that the States have no real choice but to participate in the Medicaid expansion.
Justice Ginsburg met the first two points effectively. The extension is not a new program, but part of the original plan to aid people in need, and it has been revised numerous times, in some cases, as here, making significant changes. Congress always has reserved the right to modify Medicaid, so there can be no legitimate claim of surprise. She didn’t directly deal with the magnitude of the financial coercion, possibly because the Roberts opinion waffled on that point, but in effect declared that the states have no right to the pre-ACA Medicaid funds. The Chief Justice referred to the cutoff of "existing Medicaid funding" and the Joint Dissent to "pre-existing Medicaid funds." Justice Ginsburg replied, "in fact, there are no such funds. There is only money States anticipate receiving from future Congresses," and Congress may do as it wishes with those.
At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs. This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each successive Congress is empowered to appropriate funds as it sees fit.
This may be so, but there is the further question whether Congress in effect tied its hands. The states have created programs, at Congress’ urging, based on the pre-ACA grants, so there is an issue of reasonable reliance which can’t be ignored. Despite the reservation by Congress of the right to make changes, and the history of changes, imposing penalties which are in some sense retroactive seems unfair. Whether that raises a constitutional issue is another matter.

The Chief Justice’s opinion relies on decisions which have considered whether penalties or inducements in federal programs "coerce" the states into compliance. The decision most relied on, New York v. U. S., 66 based its finding of coercion in part on the Tenth Amendment, a favorite of states-righters, but which really doesn’t say anything. Whatever the merits, there is a line of decisions which have tested federal provisions against the presence of coercion, and the health care case falls within their scope. By their standards, the extension penalty could be considered coercive. None of the cases cited by Roberts which invalidated federal legislation due to coercion arose under the taxing-and-spending clause. Accordingly, Justice Ginsburg had a final shot: "The Chief Justice . . . — for the first time ever — finds an exercise of Congress’ spending power unconstitutionally coercive." Again, novelty isn’t fatal.
The odd result of all of this is that ACA survived intact; no part was stricken down, despite the long and perhaps irrelevant 67 disquisition on the commerce power, and despite the conclusion that the "retroactive" penalty is unconstitutional. As to the latter, because there was no part of the ACA or of the Medicaid statute which directly provided for such a penalty, the Court merely held that the government cannot the apply the penalty clause in that fashion. I would be interested to know whether the Court previously has let a statutory provision stand, but directed how or how not it may be employed.



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On Wednesday the House voted, again, to repeal the ACA, this time without the pretense of having a substitute: two days wasted on a repetitious political gesture. They really must have better things to do.

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58. For a brief history of support for the individual mandate, see http://www.nytimes.com/2012/02/15/health/policy/health-care-mandate-was-first-backed-by- conservatives.html
59. The Joint Dissent was issued by Justices Scalia, Kennedy, Thomas and Alito. Although not so labeled, it is a partial concurrence, joining the Chief Justice on the Commerce Clause and Medicaid penalty issues.
60. The opinions used "expansion" and "extension" interchangeably, and so have I.
61. Quotes, unless otherwise noted, are from Chief Justice Roberts’ opinion.
62. 317 U. S. 111 (1942)
63. 545 U. S. 1, 17 (2005)
64. Justice Ginsberg, quoting NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)
65. Here is the quote in context:
We are now arrived at the inquiry -- What is this [commerce] power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms . . . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. . . .
66. 505 U. S. 144 (1992)
67. Justice Ginsburg pointed out that, as the Chief Justice’s opinion held the individual mandate valid as a tax, the discussion of its validity under the Commerce Clause was unnecessary because it was "not outcome determinative." Roberts probably included it in order to establish a precedent. However, it could be considered dictum as it was not necessary to the result, and therefore not technically a precedent.