Archives: 12/2009

Obama to Find Budgetary Sobriety?

The White House is hinting that its fiscal year 2011 budget due out in February will be “austere.” White House Press Secretary Robert Gibbs didn’t provide any specifics but recently said that “it will not look as it has in the past.” Well that’s a relief because the FY2010 appropriations process finally wrapped up and spending continues to be anything but austere.

The “minibus” appropriations bill signed by the President last week jacked up funding by a combined 8 percent for programs ranging from education to housing to transportation. And that’s at a time when inflation is low. Further, funding hasn’t been passed yet for the president’s recently announced troop surge in Afghanistan, which will cost around $40 billion per year.

President Obama will be probably be announcing in his new budget a FY2010 deficit that’s even larger than FY2009’s massive $1.4 trillion deficit. He’s blowing the bank on his stimulus bill, giant health care bill, and large increase in FY2010 appropriations. He’s also looking at the polls, which show his plunging popularity and rising concerns over federal spending and debt.

He’s got to pretend to introduce an “austere” budget for his political survival and the political survival of Democrats up for election next year. That’s why I’m wondering whether the Democrats are purposely jacking up FY2010 spending so high so that they can show a freeze or even “cuts” for FY2011.

Taxpayers need to consider any such austerity budget in the context of the massive increase in discretionary spending over the past decade. In FY2000, total discretionary spending was $615 billion. So if FY2011 discretionary spending is just half of the decade’s average annual increase of 8.7%, total discretionary spending will be $1.474 trillion. If Obama imposes a hard freeze for FY2011, discretionary spending will still be about $1.412 trillion, still far more than double the level a decade ago.

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Filibuster Flip-Flops — Again

Today’s question at “Politico Arena”:

“Is the filibuster good or bad for America?”

My response:

The United States is a republic, not a majoritarian democracy. The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution – enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights – is designed to protect liberty by restraining majorities. Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, “We put legislation in the senatorial saucer to cool it.” The Founders didn’t invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn’t be too easy to pass laws, and there’s a good case for requiring more than 51 percent in any vote.

During the Bush years, when Republicans controlled the Senate, Democrats used the filibuster especially to block judicial nominations. Many conservatives and Republicans denounced the use of the filibuster. They complained about “tyranny by the minority” and said “all we are asking for is an up or down vote.” I warned conservatives in 2005, “But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren’t simple majoritarians. They don’t think a ‘democratic vote’ should trump every other consideration….Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won’t walk through it again when a much-wanted policy change is being blocked by a filibuster.”

In another column that year, I noted, “Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ ‘obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.’ Democrats who now wax eloquent about a ‘rubber stamp of dictatorship’ replacing ‘the rights to dissent, to unlimited debate and to freedom of speech’ in the Senate not too long ago sought to eliminate the filibuster altogether.”

I noted various liberal politicos and journalists who appeared to have flip-flopped on the legitimacy of the filibuster, from Sen. Hillary Clinton to the New York Times editorial page. And my old friend E. J. Dionne, who “groused about the ‘anti-majoritarian filibuster rules’ that were preventing needed action in 1998 but warned in 2005 that ending the filibuster would be ‘a radical departure’ that ‘would be disastrous for minority rights.’” Now, I regret to note, the Democrats are back where they belong, in control of the Senate, the Republicans are once again the obstructionist minority, and E. J. is again denouncing the filibuster: “In a normal democracy, such majorities would work their will, a law would pass, and champagne corks would pop.”

In a democracy, maybe. But not in a constitutional republic. As I wrote back in 2005, “American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive.” And of course, there’s a question about what ought to happen if we were indeed a “normal democracy.” A majority of the Senate wants to pass this bill. But a majority of the public opposes it. Is it “democratic” for representatives to defy the majority of their constituents?

If the filibuster allows the public to find out more about a proposed bill and to make its views known, then it is serving a useful purpose. If it sometimes blocks a bill, then it is also serving a useful purpose. But there aren’t many people in Washington who stick to the same position no matter which party is in power. That’s a good reason to have constitutional and procedural rules that last longer than temporary majorities.

Boom Time on K Street

Advocates of health care reform and other big government programs, this is the business you have chosen:

Main Street has had a tough year, losing jobs and seeing little evidence of the economic revival that experts say has already begun.

But K Street is raking it in.

Washington’s influence industry is on track to shatter last year’s record $3.3 billion spent to lobby Congress and the rest of the federal government — and that’s with a down economy and about 1,500 fewer registered lobbyists in town, according to data collected by the Center for Responsive Politics….

Plenty of sectors have scaled back their K Street spending, including traditional big spenders like real estate and telecommunications. But Obama’s push for legislation on health reform, financial reform and climate change has compensated for the grim economic times.

And that’s after Obama kicked off the year with a massive economic stimulus package — and every major business sector tried to get a piece of the action. …

“If lobbying the federal government did not work, people wouldn’t spend money doing it,” [Dave Levinthal, a spokesman for CRP] said.

Lay out a picnic, you get ants. Hand out more wealth through government, you get lobbyists. As Craig Holman of the Ralph Nader-founded Public Citizen says: “the amount spent on lobbying … is related entirely to how much the federal government intervenes in the private economy.”

More on the lobbying bonanza in President Obama’s Washington here. Back in 2001 David Laband and George McClintock tried to estimate the total costs to society of efforts to effect forced transfers of wealth in their book The Transfer Society.

Death Panels? Sarah Palin Was Right

PolitiFact.com gave Sarah Palin their “Lie of the Year” award for warning on August 7 that the Democrat’s idea of “cost containment” implied rationing by “death panels.”

The self-described fact-checking web site of the St. Petersburg Times claimed Palin was criticizing a provision in the House bill under which “Medicare would pay for doctors’ appointments for patients to discuss living wills, health care directives and other end-of-life issues.”

The claim that Governor Palin confused one-on-one counseling between doctors and patients with any sort of “panel” was always ridiculous on its face.  Indeed, that claim should itself have been a leading candidate for “Lie of the Year.” Yet Palin’s critics kept on equating death panels with counseling throughout the year, as though they could not even begin to understand plain English.

In a column called “Reporting the Lies,” Washington Post blogger Ezra Klein wrote, “Before Sarah Palin talked about death panels, no one knew about Sen. Johnny Isakson’s quiet crusade to persuade Medicare beneficiaries to adopt living wills.”

Adopting a living will requires a lawyer, not a doctor, so there must have been more to the crusade than just that. There is some reason to wonder if the crusaders intended to promote penny-pinching advice like President Obama’s famous suggestion that perhaps grandma should skip the expensive operation and take a cheap pain pill instead (generic, of course).

In any case, no single physician’s advice involves any panel, deathly or otherwise. Palin was clearly worried about rationing by some government-appointed group, panel or board of experts – such the (currently) powerless panel that recently suggested fewer and later breast exams, or the Senate bill’s potentially more lethal Independent Payment Advisory Board

The shameless hoax that Palin had confused individual consulting with rationing by a panel was repeated endlessly.  By November, the Washington Post was treating this obvious canard as a established fact:  “Proposed health-care reform legislation includes a provision that allows Medicare to pay for “end-of-life” counseling for seniors and their families who request it. The provision – which Sarah Palin erroneously described as “death panels” for seniors – nearly derailed President Obama’s health-care initiative.”

What Palin wrote about death panels clearly had nothing to do with counseling or with any other specifics in seminal House bill. What she wrote was: “Government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course.”

How could anyone believe Palin’s sensible comment about rationing was, in reality, a senseless fear of counseling? To say so was no mistake; it was an oft-repeated big lie.

Rather than even mentioning the House bill, Palin linked to an interesting speech by “Rep. Michele Bachmann [which] highlighted the Orwellian thinking of the president’s health care advisor, Dr. Ezekiel Emanuel, the brother of the White House chief of staff.”

Dr. Emmanuel’s varied and murky remarks about using panels of experts (like himself) to ration health care are less clear or less candid than those of another bioethicist, Peter Singer of Princeton. Singer’s article, “Why We Must Ration Health Care,” was a cover feature in The New York Times Magazine on July 15 – shortly before Palin took the opposing side of this issue.

Singer’s argument (about an expensive anti-cancer drug) is that, “If there is any point at which you say, ‘No, an extra six months [of life] isn’t worth that much,’ then you think that health care should be rationed.” But the question itself is rhetorical trickery, sophistry. Even if there was certain knowledge about life expectancy with or without some treatment (which is never true), Singer has no right to any opinion about how much an extra six months of my life is worth (and vice-versa) unless he’s paying the bills.

But that, of course, is what makes the proposed expansion of  insurance subsidies and Medicaid so ominous.  Just as federal politicians imagine that a small minority stake in some bank entitles them to override all other stockholders when it comes to executive pay, federal politicians would surely claim that even small subsidies for anyone’s health insurance entitle them to, as Singer put it, set “limits on which treatments should be paid for.” And those politicians would surely appoint panels of experts as cover when some life-saving procedure, device or drug was ruled-out for those with insufficient quality-adjusted years left to live.

Singer wrote, quite correctly, that in “Medicare, Medicaid and hospital emergency rooms, health care is rationed by long waits… [and] low payments to doctors that discourage some from serving public patients.” [emphasis added]

Pending health care bills would make such government-mandated scarcity of health care much worse.  There would be massive shifting of money away from Medicare toward Medicaid.  But the extra Medicaid money would be spread around more thinly.  States would cut benefits to the poor in order to accommodate millions of new, less-poor people lured into Medicaid, at least half of whom (7 or 8  million by my estimate) currently have employer-provided health insurance.

The Senate health bill supposedly intends to slash Medicare payment rates for physicians by 21% next year and more in future years, with permanent reductions in payments to other medical services too.  It would also establish an Independent Payment Advisory Board which would be empowered to make deeper cuts which Congress could reject only with considerable difficulty.   If that’s not quite a “death panel” it would surely not be pro-life in its impact.

The Congressional Budget Office says, “It is unclear whether such a reduction in the growth rate could be achieved, and if so, whether it would …  reduce access to care or diminish the quality of care.”

Actually, it’s clear enough that the proposed Medicare cuts won’t be achieved, but that efforts in that direction will nonetheless reduce access to care and diminish its quality.  The government can’t boost demand and cut prices without creating excess demand.  And that, in turn, means rationing by longer waiting lines and by panels (rationing boards) making life-or death decisions for other people.

As Sarah Palin predicted, “Government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course.”

The Politicization of the Law

Are law and politics separate realms? That’s the ideal. But Adam Liptak, Supreme Court reporter for The New York Times, raises questions today about whether it’s any longer the case. Drawing on a study published last month in The Vanderbilt Law Review and summarized in the autumn issue of The Green Bag, which collected data from 1882 through 2006, he notes that, beginning around 1990, Supreme Court clerks “started to take jobs that reflect the ideologies of the justices for whom they worked.” That’s “cause for concern,” says one of the study’s authors, NYU law professor William E. Nelson, “because it’s a further piece of evidence of the polarization of the court.”

In particular:

Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones….

The Clinton administration hired 96 former clerks, but only 16 percent of them came from the chambers of the four most conservative justices…. Of the 89 former clerks hired by the administration of George W. Bush, on the other hand, 68 percent came from those four chambers.

More striking still is what the study shows about the legal academy. From about 1940 to 1990, “about a third of all clerks became law professors,” with little correlation to the justices ideological leanings. (N.B.: “conservative” justices were few and far between until late in that stretch.) But more recently “only 19 percent of clerks from the four most conservative justices … joined the legal academy and only 7 percent went to one of the top 10 law schools” as ranked by U.S. News & World Report. And “a significant minority joined the faculties of religious or conservative law schools.” (“Conservative law schools,” I should note, may be close to an oxymoron.) By contrast, “clerks for the other five justices followed the historical pattern, with 34 percent joining the legal academy, about half of them at the elite schools.”

All of which, the study says, reinforces the idea that the court is “a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.” And that, Liptak concludes, “is not easy to reconcile with the view that that law and politics are, or at least ought to be, different realms.”

It’s good to have all of this drawn together, but it’s hardly surprising to anyone who’s been watching the law schools, the courts, and the law over the years. Liptak points to an important source of this change: “The rise of the organized conservative legal movement, including notably the Federalist Society,” which resulted in turn from “the sense among conservatives that law school faculties are overwhelmingly liberal.”

It’s no accident, therefore, that the change became noticeable around 1990. The Federalist Society came into being only in 1982. Over the next several years it would slowly influence the legal debate – in the law schools, and later among lawyer practice groups – and influence future clerks along the way. And it was only during the Reagan administration that Republicans began to approach nominations to the Court more seriously and systematically, from an ideological perspective.

But those efforts were not the root cause of today’s politicization of the courts and the law. They came about because the law schools, the courts, and the law were already long politicized – albeit in only one direction, which gave a deceptive picture. When all three institutions were marching only one way, toward the modern administrative state, it seemed that there was little dissension, and hence little politicization. But in truth, the politicization of the law – politics replacing law – had begun much earlier, with the Progressives; it was institutionalized by the New Deal Court; and it continued until the late 1960s and into the 1970s, when conservative and libertarian legal scholars began to call for separating politics and law. See here for a more detailed treatment of those developments, and here for the roots of our politicized law in the Progressive Era.

University of Michigan Study Confirms Link between Financial Bailout and Corruption

Since Senators engaged in open extortion and bribery to enact Reid’s government-run health care plan, it is hardly newsworthy that Washington is riddled with corruption. But the magnitude of sleaze is probably far greater than most people realize. There is a new study from a couple of academics at the University of Michigan, who found significant relationships between lobbying and bailout money, as well as a greater chance of getting bailouts depending on a bank’s ties with either the Federal Reserve or key members of Congress. Hopefully, people across America will draw the obvious conclusion and realize that big government is inherently corrupting, as discussed in this video. Reuters has the details on this latest example of big government and malfeasance:

U.S. banks that spent more money on lobbying were more likely to get government bailout money, according to a study released on Monday. Banks whose executives served on Federal Reserve boards were more likely to receive government bailout funds from the Troubled Asset Relief Program, according to the study from Ran Duchin and Denis Sosyura, professors at the University of Michigan’s Ross School of Business. Banks with headquarters in the district of a U.S. House of Representatives member who serves on a committee or subcommittee relating to TARP also received more funds. Political influence was most helpful for poorly performing banks, the study found. “Political connections play an important role in a firm’s access to capital,” Sosyura, a University of Michigan assistant professor of finance, said in a statement. Banks with an executive who sat on the board of a Federal Reserve Bank were 31 percent more likely to get bailouts through TARP’s Capital Purchase Program, the study showed. Banks with ties to a finance committee member were 26 percent more likely to get capital purchase program funds.

Do Bring a Phonecam to a Snowball Fight

By now, you’ve probably heard the story—and seen the video.  During the weekend’s Snowpocalypse™ in DC, a gaggle of young urbanites, using Twitter and other social media, announced a big group snowball fight at the corner of 14th and U Streets.  For a while, it was all good fun, with the participants periodically stopping the skirmish to help dislodge a motorist for a snowdrift, amid collective cheers. But an off-duty plainclothes cop whose Hummer had been hit by a few snowballs lost his cool—and advanced on the crowd to berate them with his gun drawn. You’d think an angry, out-of-uniform guy brandishing a gun might set off a dangerous stampede in the snow, but true to form, the DC crowd responded with chanting: “You don’t bring a gun to a snowball fight!”

Initially, the Metropolitan Police Department “reviewed the evidence” and concluded that the officer had only been holding a cell phone after all—folks who’d said it was a gun must have just imagined it, what with all that snow. But it turns out there were a whole lot of video cameras and phonecams there, and still shots and recordings began to circulate on the Internet, making it impossible to deny what had happened.  By Monday, the chief of police had issued a statement calling the officer’s behavior “totally inappropriate” and announcing that he’d be relegated to desk duty pending further inquiry.

As anyone who follows the excellent work of my colleague Radley Balko will be well aware, things often play out quite differently—with departments circling the wagons, and no serious accountability for far more egregious abuses of authority. But video—increasingly ubiquitous and portable—can make a difference. And it strikes me that, in one sense, it helps remedy other kinds of social inequality.  Reviewing that video of the snowball scene, you might point out that the crowd is full of white 20-somethings, many of whom (given the city’s demographics) are almost certainly college-educated professionals, while police misconduct toward less privileged groups is far more likely to be ignored.

What is privilege, though? In cases like these, it consists largely in the ability to be seen and heard—to attract media attention, to articulate your story in a clear and compelling way, to be considered credible by press and the community. All of these, unfortunately, depend enormously on class, status, race, and education. Unless there’s video. And video is democratic these days. You’d have to poke around a bit to find even a bottom-of-the-line cheapo cell phone that didn’t come with at least a still camera, and likely video capture to boot. So while there’s been some attention paid to the potential of this kind of “Little Brother” surveillance to increase accountability—the to lessen disparity in power between citizen and cop—it’s also worth stressing the way it can lessen certain kinds of disparities between citizens.

That said, and just going by memory, it seems like most of the stories I encounter in this vein still involve white, middle-class, college-educated young people. One possibility is that this shows I’m wrong, and that other aspects of privilege still play into their videos circulating while others languish. Another, though, is just that they’re both accustomed to this kind of routine use of technology and sharing of data, and that they take their social power for granted. That is, it occurs more naturally to them that the right response to this kind of misbehavior is to record and circulate it. If it’s mostly the latter, we’re on an interesting precipice, where the main remaining precondition for the leveling effect to kick in is just awareness that the other preconditions are in place.  If that’s right, the next few years should be interesting.