Monday, February 28, 2011

Demands and Concessions

If you are making a decent salary in a non-union company, you owe that to the unions. One thing that corporations do not do is give out money out of the goodness of their hearts.

-- Molly Ivins

Power concedes nothing without a demand. It never has and it never will.

-- Frederick Douglass (1857)

In this week's Sift:

  • What Unions Mean to the Rest of Us. If you think that because you don't belong to a union, they don't affect you -- think again. Maybe you don't really understand how our democracy works.
  • Who Wins the Wisconsin Stalemate? At first the Democrats' walkout in the state senate only seemed to delay the inevitable Republican victory. But as the national politics of the issue play out, you have to wonder how long Republicans can let this situation continue.
  • Section 3 of DOMA is Indefensible. President Obama did something both reasonable for the country and courteous to his opposition. In response, they yelled "Dictator!"
  • Short Notes. Impeachment? What teaching is really like now. Why government shouldn't resemble business. Huckabee sounds like a candidate. Spain investigates Guantanamo. Now Planned Parenthood is in the crosshairs. Sunday TV is for Republicans only. The last doughboy dies. And Anonymous starts hacking the Kochs.
  • This Week's Challenge. Can any other kind of organization replace unions as the institutional center for progressive economic policy?

What Unions Mean to the Rest of Us

Back in the 1950s, about a third of all American workers were unionized, and just about everybody had friends or relatives in a union. Workers in non-union factories (like my Dad) knew that they were treated better because management feared the threat of unionization. Just like today, some people thought unions were wonderful while others thought they came from the Devil. But everyone knew why they should care.

That's not true today. Unions represented only 11.9% of workers in 2010 and only 6.9% of private-sector workers. Both numbers are still dropping, for two reasons: The types of jobs most likely to be unionized are being shipped overseas, and the rules for organizing unions have gotten so badly out of whack that it's almost impossible to organize a company if the management decides to resist.

So unions appear to be dinosaurs, and most Americans don't know why they should care.

Coincidentally -- or maybe not so coincidentally -- the American middle class is also shrinking, and our country's wealth is getting increasingly concentrated. We still have economic growth, but only for the wealthy.

It's easy to play tricks with numbers, but this statistic seems both fair and important to me: Over the entire Bush economic cycle, from the beginning of the recession of 2000-2001 to the beginning of the recession of 2008-2009, inflation-adjusted median household income dropped. So the household at the 50th percentile (the actual middle of America), had less real income at the end of the economic cycle than at the beginning.

In all the economic cycles since World War II, that had never happened. If median household income dropped during a recession, it would grow even more during the expansion that followed. But not this time.

Now, I'd be over-stating things quite a bit if I attributed that all to the lack of collective bargaining power. But as books like Robert Reich's Aftershock and Hacker-and-Pierson's Winner-Take-All Politics make clear, changes in government policy have played a central role in ability of the rich to capture all of the economic growth. (That was clearly evident in the crisis of late 2008: A Republican administration and a Democratic Congress ponied up vast sums to keep the bankers afloat, while ordinary homeowners have been allowed to sink.)

Kevin Drum has written an important article in the current Mother Jones, explaining the significance of unions in American democracy. It's a primer on democracy as it actually works, which is not precisely what we were taught in civics class.

The gist of Drum's case is that public opinion changes nothing by itself. (Otherwise the health-care law would have included a public option.) Public opinion only has power when it is channeled by organizations that have the wherewithal to affect elections: the ability to put money and manpower into political campaigns. On the Right, billionaires and corporations provide the money and fundamentalist churches provide the manpower. On the Left, unions used to do both, but they are increasingly unable.

During their heyday, the unions pushed politically for workers in general, not just for their members. So, for example, unions supported minimum wage laws, even though their members already earned more than minimum wage. They supported worker-safety laws that covered all workers, not just their own. They supported Social Security and Medicare, not just their own pension and health-care plans.

With the decline of unions, there has been no organizational voice for progressive economic policy. A few meaningful (if less powerful) groups lobby for the environment and for the rights of various minorities and occasionally for peace, but no powerful organization defends the middle class in general or the rights of workers. And so we have seen decades of corporate deregulation and upper-class tax cuts.

Think about the effort to re-regulate the financial industry and prevent another 2008-style debacle. The vague idea of putting more restrictions on Wall Street is very popular, but who speaks for it? Who is going to draw a line in the sand about some particular provision and get people knocking on doors if it's not passed? Nobody. And so, in spite of all the proven abuses that led to the crash, and in spite of having a Democratic president and (for two years) large Democratic majorities in both houses of Congress, nothing much has changed.

The same is true of the Bush tax cuts for the wealthy. Taxing the rich is popular, but who speaks for it? Organizationally, who is going to stand their ground and not crumble when billionaire front-groups like Americans for Prosperity or corporate lobbies like the Chamber of Commerce launch attack ads?

Decades ago, the unions would have. Union presidents like George Meany and Walter Reuther would have been all over the TV talk shows, putting politicians on the spot and saying the things that today go unsaid.

That's why billionaires and corporations want the unions gone completely. And why you should hope they bounce back instead.

The standard Republican talking point is that states are in trouble because they're being bled dry by unions. Mike Konczai looks at the numbers and finds no correlation between the percentage of a state's employees that are unionized and its budget deficit.

What does correlate? Mortgages with negative equity. In other words, if your state got hit hard by the housing bubble, it's probably in fiscal trouble.

So if you wanted to change the rules in such a way as to make states more fiscally sound in the long run, stricter regulation of the financial industry makes a whole lot more sense than ending collective bargaining for the unions.

Matt Yglesias thinks getting rid of teachers' unions won't even save the taxpayers money in the long run:

When conservatopia arrives and kids all go to for-profit schools where they’re taught by non-unionized teachers, the school operators’ trade association will have all the same sometimes problematic incentives that the National Education Association has today. Heck, it’ll probably even be called the National Education Association. But instead of being a “union” that promotes high levels of education spending in sometimes inefficient ways plus egalitarian social policies, it’ll be a “business association” that promotes high levels of education spending in sometimes inefficient ways plus regressive social policies.

One of Daily Kos' most popular posters is Kenneth Bernstein, better known among Kossacks as teacherken. Well, this week the teacher graduated to the major media with a piece CNN titled No Unions: Government by the Rich, For the Rich. His actual phrase is better: "Government of the corporations, by the already powerful, for the wealthy."

Kiefer Sutherland's grandfather (Canadian politician Tommy Douglas) warned about such a government back in the 1940s in his Mouseland speech, recently animated.

Who Wins the Wisconsin Stalemate?

At this writing, neither Governor Walker nor the Democrats in the state senate are backing down. Walker is refusing to make any changes in his "budget repair" bill, and the Democratic senators are staying out of state to deny the state senate the quorum it needs to hold a vote on the bill.

Obviously this can't go on forever, but how does it end? Initially, speculation was that the Democrats would fold, because only one of the 14 senators needs to give in to create a quorum. Eventually, some combination of bribery, intimidation, family emergency, or simple boredom would bring one senator back home.

As the stalemate has dragged on, though, it becomes clear that the status quo works in favor of the Democrats. Walker's hardline, no-compromise position is polling badly, and Democrats have done a good job of framing the issue in terms of workers' rights rather than greedy bureaucrats. Usually, politicians have to decide between exciting their base and appealing to the center. For Democrats, this issue does both. It also unites economic progressives with social-issue Democrats; the lunch-pail brigade has not been so shoulder-to-shoulder with students and other DFHs since their falling-out at the Chicago Democratic Convention of 1968.

Other Republican governors have been tepid in their support of Walker, a clear sign that their political instincts say this issue is a loser around the country. Democratic fund-raising is strong. The solidarity demonstrations across the country look enough like Cairo and Tripoli to associate Walker with Mubarak or Qadaffi. The rallies are the political equivalent of evangelical revivals,  and many liberals are feeling born again.

That all creates a second possibility. At some point the people who run the GOP, the Kochs and their fellow billionaires, are going to say "We need to get this off the front page." Their first instinct will be to create a bigger distraction somewhere else. But if that doesn't work, Walker may have to fold.

Yesterday the first Republican state senator defected from Governor Walker.

The "budget repair" bill in Wisconsin was originally supposed to be about making up a budget shortfall. But then people started blowing away the fog of propaganda and seeing that it was really about union busting. The budget was a pretext, and after the unions gave in on the financial issues,  it was a lame pretext. Even some people on Fox News see through it.

Well, it turns out that even that insight does not get you all the way to the bottom of this abysmal legislation. The bill also allows the governor to sell state-owned power plants (there are some, like the one that supplies the University of Wisconsin campus) without soliciting bids or going through the legislature. Why would Governor Walker want a provision like that? Well, it would be very handy if he were planning to sell state assets for pennies on the dollar to the companies that financed his campaign. Naked Capitalism and Paul Krugman explain how the scam works.

In the Third World and the former Soviet Union countries, this was called "asset stripping". (For details, see Naomi Wolf's The Shock Doctrine.) Under the pretext of some emergency, valuable assets bought or developed by the people wound up in private hands, with great profit to cronies of the ruling power. Now it seems that asset stripping is coming the the states. If we elect a Republican president in 2012, we may see it on the federal level.

The first people who noticed this gem in the Wisconsin bill figured that the Koch brothers, owners of Koch Energy and major financial backers of Governor Walker, would be the beneficiaries of the scheme. But then another Walker contributor, Alliant Energy, started posting jobs for power plant managers in Wisconsin.

So far, no specific sales have been publicly proposed. (In a serious asset-stripping scheme, you wouldn't expect specifics until the law is safely in force and the public is looking in another direction.) So at the moment this is all speculation. But if the speculation were false, Walker could quickly end it by explaining where the sale-of-assets provision comes from and what it's for. So far he hasn't.

Section 3 of DOMA is Indefensible

To hear people like Newt Gingrich and Glenn Beck tell the story, you'd think President Obama had unilaterally decided to reverse one of the laws of the land, just because he doesn't like it. What a dictator! Who does he think he is, George W. Bush?

Would it surprise you to find out that none of that is true? That it's totally egregiously pants-on-fire not true?

Here's what's really going on: Section 3 of the Defense of Marriage Act (DOMA) says that for federal purposes, same-sex couples are not married even if a state says they are. So some couples legally married in, say, Massachusetts can't file joint tax returns. Or if one of them works for the federal government, he/she can't extend his/her health insurance to his/her spouse.

Last summer, a federal judge said that was unconstitutional, and more suits are on the way. Up until now, at considerable political cost, Obama's Justice Department has defended DOMA in court, in line with what Attorney General Eric Holder calls "a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense."

But now Obama/Holder have determined that they can't find "reasonable arguments" that work in the federal districts where the new cases are being filed. So they're not going to defend Section 3 any more, and AG Holder wrote a letter to Speaker of the House John Boehner to explain why -- giving House Republicans the chance to raise their own defense if they so choose.

The legal issue is interesting, if you're into that kind of thing. Each federal court district has its own precedents, established by its own appellate court, and sometimes legal interpretations can differ from one district to the next unless and until the Supreme Court steps in to make a precedent that is binding across the country. Currently, one such issue is whether gays and lesbians are a protected class like blacks and women. If they are not such a class, then laws discriminating against them are subject to the fairly loose rational-basis test. But if they are, then the court has to apply a higher standard, and consider the possibility that apparently reasonable arguments made for the law are actually rationalizations for bigotry. In particular, judges have to consider the arguments actually put forward by the law's supporters in Congress rather than more legally defensible after-the-fact justifications.

Up until now, cases have only appeared in districts where precedent said that gays/lesbians are not a protected class, so the Justice Department was able to make arguments that it thought met the rational-basis test. (The judge disagreed, holding that Section 3 couldn't even meet this low standard.) But the new cases are arising in districts where the protected-class question is still open. So to defend DOMA there, the administration would have to argue that gays and lesbians shouldn't be considered a protected class.

Holder's letter recalls the Supreme Court's established standards for protecting a class: (1) a history of discrimination, (2) immutable characteristics that define the group, (3) minority status that prevents the group protecting itself through the political process, and (4) the group's defining characteristics are unrelated to any legitimate government purpose.

Looking at those criteria, Holder says … well, duh. We can't make the case that gays don't qualify. And then he looks at what it would take to defend Section 3 under the heightened standards and says … we can't do that either. If you look at the actual Congressional debate on DOMA, it was full of bigotry. So the administration is going to have to punt and let somebody else make the crazy-ass arguments that are necessary to defend Section 3's constitutionality.

In the meantime, the Justice Department will continue to enforce whatever the courts' interpretation of DOMA turns out to be, and it will continue to defend the parts of DOMA it can find reasonable arguments for.

That's "dictatorship" for you.

BTW: Somebody needs to pin the Tea Partiers down on why this isn't a states-rights issue. Massachusetts says these people are married. Where in the Constitution does the federal government get the power to overrule a state's judgment on such matters?

Short Notes

There's a Democrat in the White House and a Republican majority in the House. Must be impeachment time.

The demonization of teachers during the Wisconsin stand-off has produced a lot of responses explaining what it's really like to be a teacher these days. Here's the best one I've found, from an Oregon elementary school teacher with 34 years of experience.

Matt Yglesias explains why it's a bad idea to run the government like a business:

A state is fundamentally an ethical enterprise aimed at promoting human welfare. A business isn’t like that. If you’re trying to look at America from a balance-sheet perspective the problem is very clear. … The optimal economic growth policy isn’t to slash Social Security or Medicare benefits, it’s to euthanize 70 year-olds and harvest their organs for auction. With that in place, you could cut taxes and massively ramp-up investments in physical infrastructure, early childhood education, and be on easy street. The problem with this isn’t that it wouldn’t work, it’s that it would be wrong, morally speaking.

If you worry about corporately irrelevant things like morality, that is.

Mike Huckabee is sounding a lot like a presidential candidate. His new book trashes RomneyCare in Massachusetts.

Huckabee is the most likeable of the Republican candidates and I think he would be the toughest for President Obama to beat. But in the Republican Party there are three major interest groups: neocons like Dick Cheney, corporatists like Mitt Romney, and theocrats like Rick Santorum. Huckabee is popular among the theocrats and gets neocon street cred for being more pro-Israel than most Israelis. But the corporatists are still suspicious of him. The Club for Growth declared him a "liberal" in 2006. That's where the anti-Huckabee attack ads will come from.

Every country that has signed the Convention Against Torture has an obligation to investigate credible accusations of torture, particularly those that are being ignored by the country where the torture happened. That's why Spain is going to start investigating Guantanamo.

ACORN ... public employee unions ... clearly the next thing to destroy is Planned Parenthood.

Liberal media. A funny thing happens when you watch Candy Crowley's "Sound of Sunday" summary of yesterday's Sunday talk shows -- you only see Republicans: Scott Walker, Mitch Daniels, Halley Barbour, Mike Huckabee, and Chris Christie.

That's only a slight misrepresentation of the shows themselves. Fox News Sunday, CBS' Face the Nation, and NBC's Meet the Press had only Republican guests: the ones listed above, plus John McCain. ABC's This Week had a balanced line-up, but that seems to be the best you can hope for. When do we get an all-Democrat week?

In a week where labor issues were front and center, union leaders were nowhere to be found, at least on network TV on Sunday morning. After protest from liberals online, AFL-CIO President Richard Trumka was added to a five-person panel discussion on Meet the Press. But MtP allowed union-busting Governor Scott Walker to make his case without being part of any "balanced" panel. And so more falsehoods about unions got propagated without rebuttal.

Meanwhile, pro-union demonstrations were held all over the country Saturday, including a giant 70,000-person rally in Madison. It went virtually uncovered on TV. Recall how much coverage much smaller Tea Party rallies got during the health-care debate.

The last American World War I vet just died. He was 110.

The WikiLeaks-related hacker group Anonymous declared war on the Koch brothers and their astroturf organizing groups. Yesterday, the Americans For Prosperity web site went down. That's amusing, but what I really want to see are internal emails where the Kochs laugh at the suckers who think they're part of a grass-roots movement. Find and leak those, hackers, and you'll have done something.

This Week's Challenge

This week's challenge comes from Kevin Drum's article, discussed in more detail above:

If the left ever wants to regain the vigor that powered earlier eras of liberal reform, it needs to rebuild the infrastructure of economic populism that we’ve ignored for too long. Figuring out how to do that is the central task of the new decade.

Are there any 21st-century alternatives to re-envigorating the union movement? What would they be?


The Weekly Sift appears every Monday afternoon. If you would like to receive it by email, write to WeeklySift at Or keep track of the Sift by following the Sift's Facebook page.

Monday, February 21, 2011


Step by step the longest march can be won.

Many stones can make an arch, singly none.

And by union what we will can be accomplished still.

Drops of water turn a mill, singly none.

-- Ruthie Gorton

In this week's Sift:

  • Union Busting in Wisconsin. The confrontation between Wisconsin's Tea Party governor and public employee unions is about power, not money.
  • How to Speak Conservative: American Exceptionalism. Another in my ongoing series about conservative jargon that usually leaves liberals scratching their heads.
  • Short Notes. Follow-up on last week's "Private Sector Covert Ops". Curveball confesses. The weak field of Obama-challengers. Dr. Cuddy supports abortion rights. Anti-abortion terrorism is working. Envisioning high-speed rail. And the Web lets you generate your own Beck-style conspiracy theory.
  • This Week's Challenge. A new feature of the Sift: something to think about each week. This week: In the future, how will work-that-needs-doing turn into jobs?

Union Busting in Wisconsin

The confrontation in Wisconsin has gotten a lot more national attention since I wrote about it last week. Some of the reporting is quite good, and I won't repeat it all here. A few points are worth underlining.

This is about power, not money. Usually when somebody says "It's not about the money", it's about the money. Here, though, money is a pretext.

Leaders of the public-employee unions say they're willing to accept the financial concessions in Gov. Walker's bill, just not the slashing of the workers' rights to organize and bargain. No dice, the Governor says.

Rachel Maddow does a good job of painting the larger picture. The Citizens United decision makes corporate and union spending key to financing campaigns. And that makes it key for Republicans to take down the unions, so that all Citizens-United funding will flow to them. "In terms of large-scale money spent in elections, unions are the only competition that Republicans have."

That's why Walker exempted police and firefighters -- unions that supported him -- from the new rules. But the cops and firemen are too smart to trust him not to take their rights away later on. Firefighters symbolically marched into the Capitol to join the protestors. And the head of one police union posted (and then later pulled down, for complex reasons explained herethis statement:

I specifically regret the endorsement of the Wisconsin Trooper's Association for Gov. Scott Walker. I regret the governor's decision to 'endorse' the troopers and inspectors of the Wisconsin State Patrol. I regret being the recipient of any of the perceived benefits provided by the governor's anointing.

The crisis was manufactured. There are two budget situations in Wisconsin. The current two-year budget, which runs through June, has a $137 million shortfall. It's not unusual to have a budget repair bill to make up the difference. But Governor Walker's "repair bill" also contains sweeping policy changes that in a fairly short time could destroy Wisconsin's public employee unions. (It also gives Walker the ability to change state medical assistance programs without going back to the legislature.)

That's not a side effect, that's the point. Walker manufactured this shortfall with corporate tax give-aways precisely so that he could submit this "repair" bill and take away workers' rights.

The second situation, the $3 billion gap you sometimes hear about, is in the early projections of the next two-year budget. Governor Walker has not even submitted an official budget yet, so an estimates of the shortfall Wisconsin faces in the next cycle are just speculation. The Wisconsin budget process has produced worse projections than this before, and the legislature has worked them out without taking away anyone's rights.

It's not just Wisconsin. Similar union-busting is in the works in Ohio, Tennessee, and several other states. Basically, any state with a Republican governor is using the current fiscal problem as an excuse to bust its public-employee unions.

Numbers. In spite of Fox News' effort to hype it, the Tea Party counter-protest was a big disappointment. The pro-Walker group was out-numbered about 35-to-1.

Bug-freedom. Conservatives don't see the contradiction in an allegedly freedom-loving Tea Party governor taking away people's rights, because they don't see collective bargaining as a right at all. Freedom, to them, is only about individuals.

Whenever folks start using the rhetoric of liberty, it's important to pinpoint which kind of freedom they're talking about. In the fall, in my review of Merchants of Doubt, I described the distinction between lamb-freedom and wolf-freedom: Wolf-freedom means tearing down the barriers that make lamb-freedom possible. Your children's freedom to drink from the tap ends when a corporation is free to pollute the water supply.

Well, there's also bug-freedom: the right to stay small and get squished. Bug-freedom is more than just the right not to belong to a union, it also includes the right to go without health insurance, the right to finance your own retirement without Social Security, and other similar rights.

Daily Kos' AlecMN debunks a bunch of myths about teachers unions and education.

The pro-Walker TV ads (which the Club for Growth had ready to go immediately -- they knew the plan) are appalling:

All across Wisconsin, people are making sacrifices to keep their jobs. Frozen wages. Pay cuts. And paying more for health care. But state workers haven't had to sacrifice. … It's not fair. … It's time state employees paid their fair share.

The longer radio ad has the same basic structure, but goes on to list the Wisconsin businesses where workers have sacrificed "to keep their jobs" and says, "Everywhere you look, people are sharing the load. But state workers have been exempt in these tough times."

The response to this is so obvious: It isn't people who are sacrificing, it's working people. Billionaires didn't have to give up the Bush tax cuts. Corporate profits are up. Wall Street is soaring and big bonuses are back. But we're supposed to ignore all that and be jealous of teachers and nurses. Private-sector workers are getting screwed by their employers, so they should want public-sector workers to get screwed too.

"frozen wages, pay cuts, and paying more for health care" -- private-sector workers are supposed to want that trend to continue?

How to Speak Conservative: American Exceptionalism

Conservatives from Sarah Palin to Mitt Romney to Newt Gingrich to CNN's Kathleen Parker know what's really wrong with Barack Obama: He doesn't believe in "American exceptionalism". What are they talking about?

Like class warfareAmerican exceptionalism used to mean one thing and now it's being used to mean something else, something you have to pick up from usage, because it's hardly ever defined. It's like the beatnik or hippie slang of the 50s and 60s -- if you have to ask for a definition, you obviously don't get it.

Origins. Let's start with the original meaning. As far back as De Tocqueville's 1831 classic Democracy in America, political scientists have observed that America was created by a unique set of circumstances:

The position of the Americans is therefore quite exceptional, and it may be believed that no democratic people will ever be placed in a similar one.

It's like in the comic books: The formula for creating super-soldiers died with its inventor, so the prototype -- Captain America -- is the only one you're ever going to see.

What are those unique circumstances? These two pop to mind: (1) The American colonies were founded on a democratic model from the beginning, so there was no prior aristocracy to overthrow. That's how we avoided the horrors of the French or Russian Revolutions. (2) The richly-endowed continent at our backs meant that during our formative decades we could have a pro-business climate without developing a correspondingly large underclass. Ambitious people who couldn't find opportunity could push farther west.

The upshot of the original meaning of American exceptionalism is that another country can't just adopt the American constitution and expect to become America. It's a notion that would cast doubt on ambitious nation-building exercises like we're seeing in Iraq and Afghanistan.

But that's not how conservatives use the term today.

The city on a hill. More recently, the phrase American exceptionalism has picked up a second meaning that is even older, but runs almost exactly opposite. In this version, America has a unique mission to provide an example to the world.

Historically, the image that has stood for this idea is the city on a hill. It goes back to Jesus' Sermon on the Mount:

You are the light of the world. A city that is set on a hill cannot be hid. Neither do men light a candle, and put it under a bushel, but on a candlestick; and it gives light unto all that are in the house. Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven.

The image has been associated with America since Jonathan Winthrop in 1630. Speaking to the pilgrims about to disembark and found the city of Boston, Winthrop urged them to bring their best, most Christian behavior to the new colony:

for we must consider that we shall be as a City upon a Hill, the eyes of all people are upon us

In 1783 in Philadelphia, on that day that Congress ratified the peace treaty with Great Britain, Thomas Paine envisioned a grand mission for the new country:

To see it in our power to make a world happy -- to teach mankind the art of being so -- to exhibit on the theatre of the universe, a character hitherto unknown -- and to have, as it were, a new creation entrusted to our hands, are honors that command reflection.

Just before leaving Boston for his inauguration in 1961, John F. Kennedy quoted Winthrop to the Massachusetts legislature, and then said:

For what Pericles said to the Athenians has long been true of this commonwealth: "We do not imitate -- for we are a model to others." … Today the eyes of all people are truly upon us -- and our governments, in every branch, at every level, national, state and local, must be as a city upon a hill

Triumphalism. In 1974, once-and-future presidential candidate Ronald Reagan added another image to the mix. His speech was called "The Shining City Upon a Hill", a phrase he used often in his career, including his farewell address in 1989. He attributes it to Winthrop, but in fact shining is nowhere in Winthrop's quote, and Jesus talks about the candle shining, not the city. But the Bible does have a shining city: the New Jerusalem from Revelation 21.

So in the Spirit he carried me to the top of a vast, lofty mountain, and showed me the holy city, Jerusalem, coming down out of Heaven from God, and bringing with it the glory of God. It shone with a radiance like that of a very precious stone.

The city on a hill has to be on its best behavior because it "cannot be hid". But the New Jerusalem is God's gift at the end of time, not a human city that needs to work to build its future. Where Kennedy and Winthrop emphasized the city on the hill's responsibility, Reagan's hybrid image emphasized its glory. We are not so much challenged by Reagan's God as favored by Him. And we deserve this favor, Reagan implied, because of our virtues:

I have always believed that there was some divine plan that placed this great continent between two oceans to be sought out by those who were possessed of an abiding love of freedom and a special kind of courage.

Reagan's speech is triumphalist, trumpeting the glories of America:

One-half of all the economic activity in the entire history of man has taken place in this republic. We have distributed our wealth more widely among our people than any society known to man. Americans work less hours for a higher standard of living than any other people ...

… and so on at considerable length, concluding that:

We cannot escape our destiny, nor should we try to do so. The leadership of the free world was thrust upon us two centuries ago in that little hall of Philadelphia … we are today, the last best hope of man on earth.

[As an aside, you can see a similar triumphalist shift in the way "America the Beautiful" is often sung today. Originally, "God shed His grace on thee" was a prayer, not a statement of accomplished fact. The unspoken helping verb is may, not has: "may God shed" not "God has shed". That intention is apparent in the next verb: "crown thy good" not "crowned thy good"; it goes with may, not has.]

Rogue nation. George W. Bush pushed Reagan's triumphalism a little further: America is exceptional in the sense that rules do not apply to us. We can invade other nations. We can grab the citizens of other countries and torture them. Such things would be wrong if other nations did them, but America is the exception.

Similarly, the conservative hostility to international law is rooted in this rogue-nation version of exceptionalism. If the US were to submit to international rules, if we had to "seek a permission slip" from the UN "to defend the security of our people" -- that would be admitting that we were just another country, and not exceptional.

At the extreme, America is exempted from all requirements of reality, and can make any claim it wants regardless of facts. For example: We have "the best healthcare system in the world."

These are the "exceptions" that foreigners think of when they hear us talk about American exceptionalism. To them, it is a claim that we define reality, so we can do anything we want. And that is why President Obama is reluctant to use the phrase.

What it should mean to liberals. De Tocqueville's version of "American exceptionalism" is worth tossing around the next time conservatives start talking about another democracy-by-force crusade. It should confuse them.

And liberals should not shy away from the Winthrop/Kennedy version of city-on-a-hill. It's a myth, but myths of this sort can be good when they call on people to rise above the average. They only become destructive when they justify privilege rather than responsibility. That's what's wrong with the Reagan/Bush additions to the myth. To believe that America should be the country that leads the world in all good things -- that's all positive. To believe that we are and always will be the greatest, no matter how we behave or what the facts of the matter are -- that's pernicious.

Short Notes

I promised a follow-up on last week's "Private Sector Covert Ops" about the recently leaked proposal for the Chamber of Commerce to attack its liberal enemies, including the threat to make Glenn Greenwald "choose career preservation" rather than continue supporting WikiLeaks.

The best account I've found of this from a not-directly-involved source is on Wired's Threat Level blog. The picture they paint reminds me of the layers of deniability built into organizations like the Mafia: Big corporations contribute to the Chamber of Commerce so that it can do their dirty work. The Chamber has a relationship with a big law firm, Hunton & Williams, which hears the proposal from the private-sector spooks, HBGary.

What did Tony Soprano know? You'll never prove anything.

It's official: The Iraq War was based on lies. The informant codenamed "Curveball" now admits that he made up his reports about Saddam's mobile biological weapons labs. This is who Colin Powell was talking about when he made the Bush administration's case to the UN:

We have firsthand descriptions of biological weapons factories on wheels and on rails. The trucks and train cars are easily moved and are designed to evade detection by inspectors. In a matter of months, they can produce a quantity of biological poison equal to the entire amount that Iraq claimed to have produced in the years prior to the Gulf War. … The source was an eyewitness, an Iraqi chemical engineer who supervised one of these facilities. He actually was present during biological agent production runs.

Now that chemical engineer admits it was all bogus: "I had the chance to fabricate something to topple the regime. I and my sons are proud of that."

Colin Powell's people are less pleased.

Nate Silver puts numbers around something we all feel instinctively: The Republicans have a weak field of challengers to President Obama.

Nate verifies this by looking at net favorability: the percentage of the population who views the candidate favorably minus the percentage with an unfavorable view. Normally, a viable presidential candidate has a high net favorability rating at this point in the process. Maybe not everybody has heard of him or her, but those who have are impressed.

George W. Bush was at +47 in early 1999, closely followed by Elizabeth Dole at +41. In 2007, Barack Obama was at +27, Rudy Giuliani at +30, and even Hillary Clinton -- whose high negatives worried Democrats -- was +2.

This year, Huckabee (who might not run) is +8, Romney +4, and everybody else at zero or below.

Meanwhile, the Republicans have two candidates in Ms. Palin and Mr. Gingirch whose net favorability ratings are actually in the double-digit negatives, something which since 2000 had only been true of Pat Buchanan and Al Sharpton.

LIsa Edelstein, who runs the hospital on the TV show House, stars in an abortion-rights ad asking "Why is the GOP trying to send women back to the back alley?" The visuals are simple and effective: Edelstein takes a slow walk down a dream-like hallway, then opens a closet door and stares meaningfully at a wire hanger.

Rachel Maddow points out that at least one kind of terrorism is working in America: Ever since the murder of Dr. George Tiller by an anti-abortion terrorist in 2009, there have been no abortion doctors in Wichita. A service that is legal in Wichita is nonetheless unavailable because providers have been successfully terrorized.

Rachel takes the right tack on this: No matter what you think about abortion, do you want America to be the kind of country where murder is an effective political tactic?

Gonzeaux does a thought experiment: If you were in downtown Dallas and wanted to get to downtown Houston, would you do better to drive, fly, or take the kind of high-speed rail President Obama wants to build? When you think it through in detail, it's pretty obvious you'd want the train.

There's no need to watch Glenn Beck when the Web can generate conspiracy theories on its own.

This Week's Challenge

This is a new feature of the Weekly Sift. Every week I'm going to end with an issue to think about -- something where I don't have the answer, I'm just raising the question. Feel free to email me answers or post them as comments on the Weekly Sift blog.

This week's challenge occurred to me while I was reading about post-Katrina New Orleans. People were slow to move back New Orleans, the article claimed, because there were no jobs. Let that paradox rattle around in your brain for a while: In this ruined city, a place where there was more work to be done than anywhere in America, there were no jobs.

To me, that's not just an indictment of our economic system, it's a microcosm of the biggest economic problem we face going forward: There is no end to the work will need to be done. But how will that work turn into jobs?

The Weekly Sift appears every Monday afternoon. If you would like to receive it by email, write to WeeklySift at Or keep track of the Sift by following the Sift's Facebook page.

Monday, February 14, 2011

Extremism in Defense of Fantasy

Barry Goldwater famously said, “extremism in the defense of liberty is no vice.”  Maybe so, but extremism in the defense of fantasy is a tougher sell.

-- Dave Hawkins, NRDC Director of Climate Programs

In this week's Sift:

  • Hate Addiction and the Republican Future. Anti-Hispanic and anti-gay rhetoric is like crystal meth: It raises a lot of short-term energy, but there's no future in it. Some Republicans understand this, while others just want to keep cranking.
  • Private Sector Covert Ops. It's not just bad fiction any more: Once you privatize CIA-type spooks, their specialized services become available to Bank of America and the Chamber of Commerce, in case they want to target Think Progress or Glenn Greenwald.
  • Then They Came for the Trade Unionists. New Wisconsin Governor Scott Walker doesn't just want to cut state workers' benefits, he wants to take away their rights.
  • Lies and Opinions. Non-journalists have trouble understanding why Anderson Cooper took so much criticism for accurately identifying the Mubarak regime's false statements as "lies". A model from Jay Rosen and Daniel Hallin explains the unwritten code he violated.
  • Short Notes. A career devoted to helping the uptrodden. Mitt rewrites his autobiography. A crime-ridden city lays off half its police. Cairo makes Bob Herbert wonder about democracy in America. And more.

Hate Addiction and the Republican Future

Simple demographics tells you that in the long run an American political movement doesn't want to be anti-Hispanic or anti-gay.

The Hispanic segment of the population is 15.8% and growing, and is already a major force in Southwestern and Southern states that a Republican presidential candidate needs to carry. Bush in 2004 won and McCain in 2008 lost the 46 electoral votes of Colorado, Nevada, New Mexico, and Florida, largely due to the Hispanic vote, which simultaneously grew and shifted Democratic. In 2012, those states will have 49 votes. Texas (38 more electoral votes and growing) is securely Republican for now, but is projected to have a Hispanic majority by 2040.

Opposition to gay rights is concentrated among the elderly and getting moreso every year. If only people under 30 could vote, same-sex marriage would pass in 38 states, including places like Nebraska and West Virginia. On the other hand, even in liberal Massachusetts and Vermont, no more than 1/3 of those over 65 support it. Year-in, year-out, a lot of elderly Americans die and a lot of teen-agers register to vote. If anti-gay is not already a losing position, it soon will be.

For the Republican Party, nativism and homophobia are like crystal meth: They produce fabulous short-term boosts to the Party's metabolism, but wiser heads -- it's scary when George W. Bush and Dick Cheney are your wiser heads -- look down the road and say, "We've got to get off of this stuff."

But kicking the habit is easier said than done.

Nativism. Enlarged GOP majorities in 15 legislatures are pushing Arizona-style immigration laws -- sometimes to the dismay of their demographically aware Republican governors. California Republican strategist Adam Mendelsohn points out the ominous implication of one of the few Republican failures of 2010:

I really think that California serves as a very important case study in what happens when Republicans alienate Latinos with aggressive rhetoric. We lost every statewide election because we lost Latino voters.

According to the same article from the San Diego Immigrant Rights Consortium:

Conservative Hispanic Christian leaders said talking about illegal-immigrant children as if they’re criminals turns off their conservative congregations, driving them away from what should be a natural alliance with the GOP on other social issues such as opposition to abortion and same-sex marriage.

Homophobia. This week's Conservative Political Action Committee (CPAC) conference was an early salvo in what I expect to be a long-term struggle.

GOProud is a conservative pro-gay-rights organization that participated in CPAC. A boycott led by folks like Tony Perkins of the Family Research Council failed to get them thrown out, probably because GOProud's board includes conservative heavyweights like Andrew Breitbart and Grover Norquist.

So far the results are a draw: The new chair of the American Conservative Union, which organizes CPAC, says "it's going to be difficult to continue the relationship" with GOProud. But in a straw poll of CPAC attendees, 62% supported the decision to include them. (An asterisk there: To the extent that the boycott had any effect, which is questionable given that attendance was up, it would have skewed the straw poll.)

Rather than tip-toe in and thank everyone for their tolerance, GOProud co-founder Christopher Barron whacked the hornets' nest like this:

What we're doing is separating the people who don't agree with the left-wing agenda from the real bigots. You can be against ENDA and hate crimes and federal safe schools legislation and not be a bigot. [But] if you're Tony Perkins, you're a bigot. You're against all of that stuff not because of any federalist reasons, but actually because you're just a nasty, anti-gay bigot.

Barron's "attack against long time solid conservatives" set off founder (and CNN commentator) Erick Erickson, who roundly denounced GOProud. The 200+ comments on his post mostly agree with him, but there are some interesting threads that demonstrate how this discussion plays out on the Right. Ender asks, "how does being for gay marriage preclude someone from being a firm free-market capitalist, supporting limited government, lower taxes and strong national defense?" And jpmulhern replies:

As a society’s morality is less and less capable of holding it together, political power will fill the void. Any efforts to maintain a limited government will be futile once the moral foundation that makes such government possible disappears. … You have joined the side that wants to see the West fall, which is not where any conservative should find himself.

It will be interesting to see how similar discussions progress over time, because jpmulhern's just-so-story logic, devoid of any examples or data -- Massachusetts and Canada have had same-sex marriage for years without any apparent effect on social order -- is widespread on the Right. People who have to fight against it may come to question the whole right-wing agenda.

In another conflict, Bill Kristol's criticism of Glenn Beck's grand Egyptian conspiracy theory has sparked an old-fashioned bar fight among conservatives. Media Matters provides a scorecard, with links to the major bottle-smashers and chair-swingers. Even Beck's Fox News colleague Bill O'Reilly isn't buying it. Find a safe place with a good view and pass the popcorn.

Private Sector Covert Ops

I still haven't wrapped my mind about this, so I'll probably come back to it next week. But I'm pretty sure it's the most important story sailing under the radar: Private security firms that have extensive government contacts and contracts have been pitching proposals to Bank of America, the Chamber of Commerce, and God knows who else to run "information operations" against their enemies. Not rival corporations: unions and liberal blogs.

It gets complicated because there are conflicts of interest in the reporting path: We know all this by way of WikiLeaks and a related group of hackers called Anonymous. But WikiLeaks is itself one of the targeted enemies. And here, ThinkProgress covers a Chamber of Commerce plan to attack (among others) ThinkProgress:

ThinkProgress has learned that a law firm representing the U.S. Chamber of Commerce, the big business trade association representing ExxonMobil, AIG, and other major international corporations, is working with set of “private security” companies and lobbying firms to undermine their political opponents, including ThinkProgress, with a surreptitious sabotage campaign.

Assuming this is accurate, we're not talking about normal public-relations stuff. The plans call for discrediting liberal organizations by doing things like creating fake documents that can be leaked to them and then exposed as fakes after the organization runs the story. (Doesn't that sound like what happened to Dan Rather?)

Plans also target journalists who support WikiLeaks (most notably Glenn Greenwald of Salon), saying "these are established professionals that have a liberal bent, but ultimately most of them if pushed will choose professional preservation over cause." The Tech Herald interviewed Glenn, who called the report "creepy and disturbing". In his own column, Greenwald wrote:

My initial reaction to all of this was to scoff at its absurdity. … But after learning a lot more over the last couple of days, I now take this more seriously -- not in terms of my involvement but the broader implications this story highlights.  For one thing, it turns out that the firms involved here are large, legitimate and serious, and do substantial amounts of work for both the U.S. Government and the nation's largest private corporations

I'm still fuzzy on lots of this, like how they planned to make Glenn "choose career preservation". Also:  Is this is a case of private-sector spooks trying to scare up business, or corporate bigwigs soliciting proposals for covert ops? Maybe by next week I'll have a clearer picture.

I'd also like to know who thought up the smear campaign against Planned Parenthood.

Then They Came For the Trade Unionists

Governor Scott Walker's plan to balance Wisconsin's budget is to get rid of public-employee unions. He doesn't propose outlawing the unions altogether, but under his plan they lose their right to negotiate over anything but base pay, or to demand base-pay increases higher than inflation. So basically the unions can exist, but it's illegal for them to do anything meaningful.

If workers get tired of belonging to do-nothing unions, they can just stop paying their dues, and Walker's proposal mandates annual elections to dis-establish the union.

And by the way, state workers will have to pay more for their pensions and healthcare.

The newly-elected Walker has not negotiated with the unions about any of this, and is prepared to call out the National Guard if they strike. reports:

"If you're going to negotiate and you're going to do it in good faith, you're going to have to have something to offer,” Walker said. “The state's broke. Local governments are broke. They don't have anything to offer."

It's one thing to drive a hard bargain. A lot of states have seen revenue drop and expenses increase in the recession, so you would expect them to take a hard line in contract negotiations. But this is something else. This isn't just money, it's taking workers' rights away. And not just until the economy gets better. Permanently.

Who voted for that? What candidate said, "Vote for me. I'll take your collective-bargaining rights away."?

And speaking of revenue drops, Walker has already signed tax cuts that increase the Wisconsin deficit by $117 million over the next two years. Budget-balancing spending cuts in education and Medicaid are expected when Walker's complete budget comes out -- because it makes so much sense to take money from kids and sick people so that you can give it back to corporations.

The title of this section comes from the famous reflection of German Pastor Martin Niemöller on his experience under the Nazis. Glenn Beck has been misquoting this, and popular culture is in danger of losing the original version. Beck says, "First they came for the Jews, …"

But that's not it at all. It really goes: "First they came for the communists … then they came for the trade unionists". Then they come for the Jews and eventually Niemöller himself.

But Beck can't quote it the way it's written, because he's right at the end of an attack on -- you guessed it! -- union leader Andy Stern, "communist" Van Jones, and "Marxist" Jim Wallis. Naturally, it wasn't long before he started going after Jews like George Soros.

Here's a somewhat larger exposition of the pattern Niemöller was pointing to: First they demonize somebody, then they take those people's rights away, and then they demonize somebody else. Over the last few years a lot of effort has gone into demonizing government workers and their unions, to the extent that even private-sector union members may not identify with the "bureaucrats" and "paper-pushers" any more. But once government workers' rights are gone, the demonization machine can move on to focus on somebody else.

(But not you, of course. You could never be demonized.)

There's a lesson here, and it's a very old lesson: People who work for a living need to stick together. When the corporate media tries to raise your envy at some other group of workers who "make too much money", stop and think it through. It's really the corporations and financiers who make too much money. They love it when working people forget about them and squabble with each other instead.

So when you hear that such-and-such workers get some amazing pension, the right question isn't "Who do they think they are?" it's "Why can't I have a pension like that?" There's probably no reason, other than fat cats maneuvering to keep the money for themselves.

Lies and Opinions

The LA Times' Big Picture blog seemed taken aback that CNN's Anderson Cooper repeatedly used the words "lie" and "lying" to describe what the Mubarak regime was doing in its final days. Big Picture noted "Cooper's pronounced shift toward more opinion-making" and theorized that Cooper "may be trying to adopt the more commentary-heavy approach of [his] higher-rated competitors, Fox and MSNBC."

Here's what's strange about the LA Times' view, which seems widespread in the mainstream media village: If a newsmaker says something provably and obviously false, then "lie" is an accurate and objective report, not "commentary" or "opinion". And indeed, Big Picture seems to realize this at some level, admitting uneasily that "It's hard to find fault with what Cooper had to say" even though it had just spent an entire column finding fault.

Salon's Glenn Greenwald quotes CNN media critic Howard Kurtz similarly asking "should an anchor and correspondent be taking sides on this kind of story?" And then Glenn points out what ought to be obvious:

"Objectivity" is breached not when a journalist calls a lie a "lie," but when they refuse to do so, when they treat lies told by powerful political officials as though they're viable, reasonable interpretations of subjective questions. The very idea that a journalist is engaged in "opinion-making" or is "taking sides" by calling a lie a "lie" is ludicrous; the only "side" such a journalist is taking is with facts, with the truth.

So what's going on here? This isn't a glitch, it's how the media works. But how is that exactly?

Jay Rosen is one of the sharpest observers of journalism around. A couple years ago, he brought back Daniel Hallin's Vietnam War model of media coverage. There are, Hallin/Rosen say, three spheres of coverage. At the core is the Sphere of Consensus, the stuff you can either assume without mentioning it or present without any opposing view. Next is the Sphere of Legitimate Controversy, "of issues recognized as such by the major established actors of the American political process". Finally, there is the Sphere of Deviance, in which the press “plays the role of exposing, condemning, or excluding from the public agenda” the deviant views.

What issues belong where is not something that can be determined objectively. Things move from one sphere to the other through some unconscious cultural process among journalists that the journalists themselves don't really understand.

It's an intrinsic part of what [journalists] do, but not a natural part of how they think or talk about their job. Which means they often do it badly. Their “sphere placement” decisions can be arbitrary, automatic, inflected with fear, or excessively narrow-minded. Worse than that, these decisions are often invisible to the people making them, and so we cannot argue with those people. It’s like trying to complain to your kid’s teacher about the values the child is learning in school when the teacher insists that the school does not teach values.
Deciding what does and does not legitimately belong within the national debate is—no way around it—a political act. And yet a pervasive belief within the press is that journalists do not engage in such action, for to do so would be against their principles. As Len Downie, former editor of the Washington Post once said about why things make the front page, “We think it’s important informationally. We are not allowing ourselves to think politically.” I think he’s right. The press does not permit itself to think politically. But it does engage in political acts. Ergo, it is an unthinking actor, which is not good. When it is criticized for this it will reject the criticism out of hand, which is also not good.

So what Anderson Cooper did "wrong", then, was to decide that what he saw with own eyes was not debatable. He reported the Mubarak lies as if their falsehood was in the Sphere of Consensus. Other journalists were placing them in the Sphere of Legitimate Controversy. But since the sphere-placement decisions are unconscious, the other journalists couldn't put their finger on Cooper's misdeed. So they said he was expressing his opinion.

Their criticism didn't make any sense, but it was all they could think of. People do stuff like that when their unconscious processes get interrupted.

Another Rosen observation: "Powerful and visible people can start questioning a consensus belief and move it form the 'everyone agrees' category." Grist's David Roberts points out how this makes the press manipulable by propagandists.

The right has been masterful in manipulating these spheres over the last few decades, dragging things that were once in consensus out into legitimate debate (torture is unacceptable), dragging things that were once legitimate debate into consensus (raising taxes is bad), and -- perhaps most importantly -- preventing things from entering consensus (cigarettes are harmful; climate change is happening). What conservatives have realized is that you shift things between spheres not with clever arguments but with social pressure. They repeat simple messages, loudly and through multiple media, and lean hard on those who question them ("working the refs"). If they need to get a lie pushed into the sphere of legitimate debate, they relentlessly repeat the lie and accuse anyone who identifies it as such as "biased."

Short Notes

The Onion reports that Senator John Cornyn of Texas "was honored for his 20 years of work with the overprivileged Sunday." The article quotes billionaire T. Boone Pickens: "John has dedicated his life and career to helping the uptrodden."

The past doesn't change, but Mitt Romney's autobiography does. It's called No Apology, and the new paperback version demonstrates that there's no need to apologize if you can keep re-spinning.

The slogans always talk about cutting government "waste", but somehow it always comes down to stuff like this: Camden, New Jersey -- which the FBI ranks second to St. Louis in crime -- just laid off half its police force.

Florida Governor Rick Scott's budget cuts per-pupil state education spending by 10% and cuts $3 billion from Medicaid. He also calls for $1 billion in corporate tax cuts and $1.4 billion in property tax cuts. It can't get any clearer: more for corporations and owners of big estates, less for kids and sick people.

The NYT's Bob Herbert responds to the celebrating in Cairo:

John Kerry said that the Egyptian people “have made clear they will settle for nothing less than greater democracy and more economic opportunities.” Americans are being asked to swallow exactly the opposite. In the mad rush to privatization over the past few decades, democracy itself was put up for sale, and the rich were the only ones who could afford it.

And that's pretty much what George Carlin said a few years ago.

Sometimes you have to take a step back to realize just how far things have gone. Paul Krugman points out that Milton Friedman "was a leftist by the standards of today's GOP". Cenk Uygur goes even further, outlining all the ways that Ronald Reagan was more liberal than today's mainstream Democrats.

The Weekly Sift appears every Monday afternoon. If you would like to receive it by email, write to WeeklySift at Or keep track of the Sift by following the Sift's Facebook page.

Monday, February 7, 2011

Subsidized Air

Don't you know that if people could bottle the air they would? Don't you know that there would be an American Air-bottling Association? And don't you know that they would allow thousands and millions to die for want of breath, if they could not pay for air? -- Robert Ingersoll, "A Lay Sermon" (1886)

In this week's Sift:

  • Is Health Care Reform in Trouble? When the court cases against the new law were filed, legal commentators thought they were a stunt. Now they're saying it comes down to Justice Kennedy, and who knows what he'll do?
  • Sacrificing Your Life to Their Conscience. "Conscience" laws in a number of states allow medical professionals not to treat you if they disapprove of what you're doing. Now the House is considering H.R. 358, nicknamed the Let Women Die bill.
  • 2012 Republicans Run Late. I know we just had an election and it seems way too early to talk about the next one. But actually it's getting late. By recent standards, Republicans who want to challenge President Obama should be running by now.
  • Socialism Wins the Super Bowl. Ever wonder why you don't hear anything bad about the owner of the Green Bay Packers? There isn't one. Owners, it turns out, are not strictly necessary.
  • Short Notes. President Bush can't travel freely. Glenn Beck jumps the shark. Obama faces off with O'Reilly -- when will Palin face Maddow? Connecting the dots from Cairo to global warming. Arizona has run out of stuff to sell. Plus, Lazy Teenage Superheroes and the Supernatural Registration Authority.

Is Health Care Reform in Trouble?

Slate's Dahlia Lithwick has such a good lead paragraph I'll just steal it:

Articles of faith, as a rule, don't change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama's health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?

Let me back up and set the stage. The part of the Affordable Care Act (otherwise known as Healthcare Reform or Obamacare) that is being challenged in court is the insurance mandate: People who don't have adequate health insurance will have to pay extra on their income tax form starting in 2014. If that's interpreted as a new tax, it's clearly constitutional, because the Constitution grants Congress a fairly broad power to tax. But if it's interpreted as a penalty, that's dicier; the constitutionality of the mandate depends on the Commerce Clause: "Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."

The Commerce Clause is the stretchiest part of the Constitution, mostly because the Founders had no idea what a big deal interstate commerce would become. In 1787, just about everything you used was made locally. Or if it wasn't, it could be. Luxuries like tobacco and fine manufactured goods came from other states or overseas, but if you had to do without all that stuff, you could. People grew their own vegetables and had their shoes made by the local cobbler, who got his leather from the local tanner, who bought hides from the local butcher.

Today, living on local products is a major challenge. Just about everything you buy crosses state lines before it comes to you. So the power to regulate interstate commerce is more-or-less the power to regulate everything. And over the years the Supreme Court -- for both liberal and conservative reasons -- has chosen to interpret the Commerce Clause broadly: In Gonzales v. Raich (2005), the Court held that even use of homegrown marijuana could be criminalized under the Commerce Clause:

the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

Justice Scalia concurred with that opinion. So everyone assumed it would be impossible for him to squirm out of that position and deny the same argument for the insurance mandate. Specifically: A person's decision not to purchase health insurance has a substantial effect on the national market for health care.

The Atlantic's Andrew Cohen argues that Scalia will squirm out, and that the signal of this squirming is a dissent that Justices Thomas and Scalia issued January 10th to the Court's refusal to hear another Commerce-Clause case. It's fairly rare to publish dissents to such refusals; typically the Court turns down a case if it sees nothing in the lower court rulings it needs to weigh in on, and that's that. That two of the Court's conservative justices chose to do so, Cohen says, signals that they are ready to overturn the ACA.

Simon Lazarus of the Public Policy Counsel finds similar decisions containing words that Justices Roberts and Kennedy will have to eat before they can overturn the ACA. But at the same time he raises the specter of Bush v Gore. Law may not matter if the conservative judges decide that the outcome is important enough.

I'll let Lithwick wrap up:

If the odds of success for the health care challenges have tilted in recent months, it's not because the suits themselves have somehow gained more merit. It's because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come.

There is no one unified ACA court case. So far four federal judges have ruled in four different districts: Two found the individual mandate constitutional, and two didn't. (Several other judges have found procedural reasons for their districts' cases not to go forward.) If you are only aware of the negative rulings, there's a reason: They're the only ones getting media coverage.

DeanDemocrat points out that the mandate is a result of an attempt to compromise with the Republicans and the insurance companies. If we'd gone for a single-payer system, we wouldn't be having this debate.

Building on the Ingersoll quote at the top: A private market for health care is like a private market for air. Rather than making air a public good, we've created a system where the air stays private, but we have a government subsidy to help people pay for it.

The case against the individual mandate is that if it is constitutional, then the powers of the federal government are virtually unlimited. For some reason critics have fixated on broccoli: If the government can make you buy health insurance, why then, it could make you eat broccoli. Matt Yglesias comments:

I really think these efforts to scare people with the specter of unlimited government founder on the fact that any government empowered to levy excise taxes is conceptually pretty much unlimited. The government is allowed to tax everyone, and use the revenue to subsidize broccoli consumption. Now maybe you think that’s legally distinct from the idea of fining people for failure to consume broccoli. But the practical impact is identical.

In any reading of the Constitution, with or without an expansive interpretation of the Commerce Clause, Congress has the power to do things that sound absurd. The constitutional remedy for this possibility is for the people to elect sensible representatives.

Sacrificing Your Life to Their Conscience

House Republicans seem to have abandoned their attempt to redefine rape, but not their overall culture-war agenda. According to TPM, a new bill in the House would "allow hospitals to let a pregnant woman die rather than perform the abortion that would save her life."

H.R. 358, the Emergency Medical Treatment and Labor Act (which Daily Kos' Joan McCarter calls "the Let Women Die bill") is the logical extension of those "conscience" provisions 46 states have put into their laws, allowing right-wing Christians not to participate in medical procedures they find immoral. (I have yet to hear of a liberal or non-Christian or even nonstandard-Christian application of these laws. Imagine the outcry if some televangelist died after a car wreck because a Jehovah's Witness EMT refused to give a blood transfusion.)

In Idaho, a pharmacist refused to fill a prescription to stop the bleeding in a woman's uterus, because the nurse couldn't give assurance that the patient hadn't just had an abortion. (If she had, apparently the pharmacist was content for her to bleed to death. God's will, I guess.) When asked to recommend someone who would fill the prescription, the pharmacist hung up. The Idaho Board of Pharmacy has found that the pharmacist did nothing wrong. In Idaho, where the next drug store might be some distance away, you have no right to get a prescription filled if the pharmacist doesn't want to fill it.

I have a compromise proposal for those states where some kind of conscience law is unavoidable: Medical professionals shouldn't be able to make these life-and-death decisions on a whim. If a doctor, nurse, or pharmacist wants to claim such a right-of-conscience, s/he should have to file ahead of time and go through a process similar to claiming conscientious objector status in war. That would allow hospitals, drug stores, and patients to maneuver around these people's limitations, and the more arduous process should weed out the folks who are just being jerks.

The Daily Show's Kristen Schaal says the redefinition of rape was necessary "to protect us from the worst kind of rape: money rape." She defines "money rape" as "forcible taking of taxpayers' money to pay for abortions." (That's parody, folks.)

2012 Republicans Run Late

Everybody who is not a political junky will be amazed to hear this, but the race for the 2012 Republican nomination is off to a late start, at least compared to recent presidential cycles.

Last time around, Barack Obama announced his candidacy right about now: February 10, 2007. Hillary Clinton, John Edwards, Joe Biden, Chris Dodd and various others were already in. On the Republican side, John McCain held off until the end of February, but he had already formed an exploratory committee the previous November. Mitt Romney announced on February 13. Rudy Giuliani, Mike Huckabee, Sam Brownback, and various others were already in by now.

In the 2004 cycle (which is more comparable to 2012 because there was an incumbent president), Howard Dean announced his candidacy in August of 2002, and Dick GephardtJohn Edwards, and John Kerry had exploratory committees out there raising money by the first week of January, 2003.

By contrast, Daily Kos' GOP Cattle Call 2012 says "the only Republican to even file exploratory papers thus far is Herman Cain, a millionaire best known as the former CEO of Godfather's Pizza." And it's not just that people are saying maybe in a wink-and-nod way. Yeah, we are 99% sure Mitt Romney and Tim Pawlenty and Rick Santorum are running, and Newt Gingrich and Michelle Bachmann clearly want to, but there's genuine doubt about whether Sarah Palin and Mike Huckabee will be in or out.

This is just a guess, but I think the Palin uncertainty is making everybody wait. Minor candidates usually go first (because they need the publicity). And the first impression a minor candidate wants to make this year is different depending on whether Palin is running.

The Daily Kos Cattle Call and National Journal Presidential Power Rankings differ wildly on who they take seriously. National Journal takes more of a political-insider view and so gives points to people for organizing and fund-raising, while DKCC is more focused on polling. So DKCC's top three are Huckabee, Romney, and Palin, while NJ's are Romney, Pawlenty, and Huckabee.

In the 2008 cycle, I was awful at predicting Democratic trends and uncanny when I analyzed the Republican race, maybe because I was more objective. This time, the only Republican who scares me (in terms of beating Obama and becoming president) is Huckabee. For this reason: When I ignore the content of his words and just look at his body language and listen to his tone, Huckabee does by far the best job of sounding like a reasonable guy. If you had all the potential Republican candidates read the phone book out loud, and then asked a random group of low-information voters who they'd trust to do the right thing about an issue they know nothing about, they'd pick Huckabee.

On that look-and-sound test, Romney seems calculated, Bachmann crazy, Palin flighty, and who the hell are these other people anyway?

Fortunately, Huckabee doesn't seem to be raising money yet or maneuvering to sign up organizational talent in key states. I don't know why. Maybe he's happy being a Fox News host.

Another thing to bear in mind about this race: No sitting governor has any chance, because the problems of the states are just too big. Daniels, Jindal, Barbour, Christie, Perry -- forget about them. They're going to have to throw people out on the streets, raise taxes, and/or sign off on huge deficits right in the middle of the campaign. It won't fly.

The main reason I think Palin will lose in an embarrassing way (even in the primaries) if she enters the race: She doesn't have the organizational ability.

Organization is why the Democratic race came down to Obama and Clinton last time, and why Obama won. His golden rhetoric, personal charisma, and yes-we-can slogan got all the credit, but Obama's people were consistently a step ahead. They knew all the rules, and understood that you run a caucus campaign differently than a primary campaign. They consistently out-delegated Clinton in caucus states, and that was the difference.

Contrast Palin: Last week we found out she had taken the unusual step of applying to trademark her name, and the application was rejected because she forgot to sign it. Is she really going to out-organize Mitt Romney?

BTW, trademarking is a commercial rather than a political move, and so fits my belief that Palin is more interested in being a celebrity and making money than in governing. Funny, being a celebrity was bad when Obama did it.

Socialism Wins the Super Bowl

The New Yorker points out one of the little-publicized stories of this year's Super Bowl: The Packers are owned by their fans. There is a limit on how much stock any individual can own, and the by-laws don't allow the team to pay stockholders dividends, give them tickets, or provide anything of value other than a football team worth watching. The only reason to own stock is to have a say in how the team runs.

That explains why the Packers haven't moved to a bigger, richer city (Green Bay has about 100,000 people and is not a suburb of anything larger) and still play in historic Lambeau Field (which has been consistently upgraded over the years). ESPN adds that beer prices are reasonable, and the concession profits go to local charities.

Think about that: Los Angeles can't keep an NFL franchise. (It lost both the Rams and the Raiders in 1995 and hasn't had a team since.) But Green Bay can.

Remember the Packers the next time somebody claims that profit is the only way to motivate excellence. The franchise has won 13 NFL championships (nine before the Super Bowl was established in 1966), more than any other team. Ask your free-market-fundamentalist friends how Green Bay or the Packers would benefit from having an owner to siphon $20-30 million of profit out of the team every year.

The Green Bay model motivates community involvement. When a big snow needs to be swept out of the stands before a game, volunteers show up to do it. That would be incredibly stupid if their free labor was benefitting some billionaire owner. But it's not; it benefits a community institution.

How did this come about? The Packers' ownership model was established in 1923, before anybody knew pro football would be a gold mine. No other major sports franchise works this way, and the owners of the other franchises would rather you didn't find out about the possibility. NFL rules ban any other teams going the way of the Packers, but the Packers are grandfathered in.

A radio ad is using the community-owned Packers as a way to tweak Wisconsin Rep. Paul Ryan.

Short Notes

For a long time now, I've been telling you that Bush administration officials with torture records shouldn't travel too freely. Well, this week President Bush himself canceled a trip to Geneva, apparently to avoid a criminal complaint filed against him in Swiss court. Protests were also planned, and the official explanation of the cancelation was security.

The torture case against Bush is fairly easy to make, given that he himself has admitted approving waterboarding, which international law has long recognized as torture.

If only you had $300, a video camera, some talent, and a few friends with nothing better to do -- then you too could have made Lazy Teenage Superheroes.

And while we're talking about the more-than-human among us, have you filed your papers yet with the Supernatural Registration Authority? Descended from the UN's post-World-War-II Supernatural Refugee Board, "the Supernatural Registration Authority is responsible for tracking the birth/creation, movement, employment and death/transubstantiation of the world's supernatural entities." Registration is free.

I haven't watched Bill O'Reilly's interview of President Obama yet. But it does raise a question: Can you imagine Sarah Palin or any of the other Tea-Party champions having a one-on-one sit-down with Rachel Maddow? Sarah and her ilk don't have Obama's confidence or courage.

I'm getting the feeling that Glenn Beck has jumped the shark. He has a truly wacky interpretation of the Egyptian protests that winds up with the whole eastern hemisphere divided among China, Russia, and a Muslim Caliphate. (Spain, Italy, and maybe even Britain and France wind up in the Caliphate. Russia gets the Netherlands and China grabs Australia.)

Naturally, lefty voices like the Guardian and Rachel Maddow noticed the craziness. But even conservatives like US News' Scott Galupo (a former John Boehner aide and Washington Times writer) have lost their fear of criticizing Beck: "Beck is a college sophomore with a big budget. He knows just enough history to be dangerous rather than simply ignorant."

And Bill Kristol calls Beck's presentation a "rant", saying that "he brings to mind no one so much as Robert Welch and the John Birch Society. He’s marginalizing himself, just as his predecessors did back in the early 1960s."

Paul Krugman connects some dots: Protests in the Middle East connect to high food prices, which connect to extreme weather events like last summer's Russian heat wave, which connect to global warming. 

the evidence does, in fact, suggest that what we’re getting now is a first taste of the disruption, economic and political, that we’ll face in a warming world. And given our failure to act on greenhouse gases, there will be much more, and much worse, to come.

Explore the sorry mess that is the state of Arizona: Already ranked near the bottom in education and children's health, the state faces a $3.2 billion deficit and a legislature determined not to reverse recent tax cuts. They can't sell the state capitol again this year, so … more education-and-health cuts ahead. And more flashy distractions like trying to take away the citizenship of "anchor babies", making sure all future presidential candidates have a valid birth certificate, nullifying the national health care law, and offering new "In God We Trust" license plates.

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