The Democrats’ Mod Squad

The Democratic candidates remind me of the Nixon-era TV series “The Mod Squad”: One white, one black, one blonde.

And really, that’s all I know about the show and about all I know about the candidates. What are the differences among them? Obama is eloquent and elegant. Hillary is earnest. Edwards is TV-actor cute and shouts more than the others–not that that ended up counting for much.

And like the TV show, the Democrats’ Mod Squad is based on a lot of ideas that seemed cool in the early ’70s –  energy independence, groovy kinds of alternative energy, national health insurance, fine-tuning the economy, higher taxes, cheap money, interest rate freezes, corporation-bashing, and ending the war but not any time soon.

So instead of a bridge to the 21st century, the Democrats this year are offering us a bridge to the post-Woodstock era.

But the good news is that while the early ’70s were marked by plenty of policy disasters—Nixon’s wage and price controls, Ford’s “Whip Inflation Now” buttons, Carter’s “turn down your thermostats”—those things did make more people aware that the old regulatory policies had dramatically slowed down economic growth. As the ’70s went on and turned into the early ’80s, good things actually started to happen. Transportation, energy, finance, and telecommunications were deregulated. Capital gains and then income tax rates were reduced. Both large corporations and large unions were on the decline. CNN, Microsoft, and Apple were founded. Blacks, women, and gay people moved into the mainstream of society. After Watergate and Vietnam, Congress curbed some of the powers of the presidency.

Maybe the Mod Squad will once again be a precursor of better times to come.

Is FISA about Trial Lawyers?

One of the biggest canards of the FISA debate is the notion that congressional Democrats who oppose telecom immunity do so because, as Dick Cheney put it recently, they want to “leave open the possibility that the trial lawyers can go after a big company that may have helped” with the administration’s illegal wiretapping program.

Glen Greewald points to an interview with Cindy Cohn of the Electronic Frontier Foundation, the organization spearheading one of the biggest lawsuits against AT&T:

GG: John Boehner, the House Minority Leader, was on Fox News on Sunday arguing for telecom immunity, and this is one of the things he said in explaining why he believed in amnesty: “I believe that [telecoms] deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies.”

Is that an accurate description of your lawsuit and your organization?

CC: No, we are not plaintiff’s attorneys… . He’s welcome to come and visit our offices and if he still thinks that we’re rich plaintiffs’ attorneys after he’s visited our little tiny Mission Street offices, then I have a bridge to sell him. We’re a small, struggling nonprofit with a very tiny budget — and we’re doing this because we’re committed to protecting people’s privacy in the digital age.

GG: I don’t know the salaries of EFF lawyers and I’m not asking that, but I assume it’s true that there are all kinds of private sector opportunities and large corporate law firms in San Francisco where lawyers working in those places are making a lot more money, and if EFF lawyers were motivated by the desire for profit — as Mr. Bohener dishonestly suggested — there are a lot of other jobs that you could get that would pay a lot more money.

CC: Oh yeah, absolutely. And in fact, our lawyers are just the opposite. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big paycuts to join us, because they wanted to do personally fulfilling work and feel like they were making the world a better place.

What I tell young lawyers who come to me and say: “I really want to work for EFF — you have such great lawyers,” I say: “Take your current paycheck, rip it in three pieces, take any third, and that’s about what you’ll get working for EFF.” The lawyers who work for EFF are making some of the biggest contributions to this organization, because they are making far less than they could on the open market in exchange for being able to work on things they believe in every day.

Having visited EFF’s offices myself, I can confirm Cohn’s description — they’re anything but a swanky law firm. And EFF’s work has been vital to defending and expanding online freedom. The idea that the FISA debate is about trial lawyers, rather than privacy and the Constitution, is an insult both to the hard-working lawyers at organizations like EFF and the ACLU, and to everyone else’s intelligence.

Bush: The $3 Trillion Dollar Man

Here are some bullet points regarding the new federal budget to be released on Monday:

  • The Bush administration will introduce yet another irresponsible federal budget, which this year features a huge $400 billion deficit and spending that tops $3 trillion. Amazingly, President Bush was also in office when federal spending topped $2 trillion (back in 2002).
  • President Bush promises once again that the budget will be balanced sometime down the road, but he again uses phony accounting to make that claim. For one thing, he hasn’t accounted for future relief from the alternative minimum tax (AMT), which Congress will surely provide. Also, Bush has not included all the likely future Iraq war costs in his budget.
  • To his credit, President Bush proposes some savings to Medicare and Medicaid, two of the largest and fastest growing federal programs.
  • But to his discredit, the president asks for yet another large and unaffordable defense spending increase for 2009.
  • All in all, the new budget tops off eight years of remarkably spendthrift policies by President Bush. Over eight years, Bush has presided over a huge 67 percent increase in total federal outlays. The comparable figure for President Clinton’s eight years was just 32 percent.

McCain Undone?

John McCain has a campaign finance problem. When his campaign was down and out, he agreed to take public funding for the primaries. Public funding comes with spending limits overall and by state. Also, a candidate who accepts funding cannot raise money from private sources. Now that it is possible he will be the nominee, McCain will want to be free of those fundraising and spending limits, but he cannot withdraw from the public system. Or perhaps he could but only with the approval of the FEC, which is not operating because of a struggle over its nominees. The FEC does not now have a quorum to meet and regulate. (The lack of a quorum was caused by Barack Obama’s hold on a nominee to the FEC, but never mind).

McCain will want out of the public system because he is probably close to hitting the limit, and he could not get more money for his campaign until he received public funding after the GOP convention during the summer.  His “dark period” would thus be a period without campaign funding that would run from spring until after the GOP convention. During that “dark period” Obama or Hillary, both of whom have not accepted public funding for the primaries, would be able to continue spending money; some of that spending would be directed against McCain after Obama or Hillary has secured the party’s nomination.

So McCain needs to get out of the public system and fast. One way would be to refuse public funding for the fall campaign; he could then start raising money privately now; however, he pledged to accept public funding for the general election if his opponent did so. Obama has taken a similar pledge.   Also, McCain would get around some of this by using “outside groups” (527 groups and others ) to fund his effort, but he has been a fierce critic of such groups and tactics.

I have often noticed that people whom you would expect to support campaign finance regulation (e.g. liberal Democrats) often are strident critics of the system if they have had some personal contact with the web of regulation.  McCain is in a mess fostered in part by his own self-righteousness. Somehow I do not expect his personal contact with the system will make him a critic of it in 2009.

See also Mark Schmitt’s concise and informative report.

Garrison Keillor Gets Angry

Joanne Jacobs highlights a piece in Salon by Garrison Keillor in which he criticizes Democrats for opposing systematic phonics instruction just because it is associated with political and social conservatives.

But Jacobs is right when she says that “phonics instruction is not inherently the property of the GOP or George W. Bush.” Keillor isn’t familiar with the history of the U.S. reading wars if he thinks that ”progressive” opposition to structured phonics is a recent or merely political phenomenon.

After attacking phonics in his annual report of 1843, Horace Mann (godfather of U.S. public schooling) got into an email flame war a tense exchange of pamphlets with 31 Boston schoolmasters. Mann was advocating the “word” or “look-say” method of early reading instruction, which has since morphed into “whole language.” He thought children shouldn’t be taught to systematically sound out and combine letters and syllables, but rather to simply look at words as wholes and know how to say them out loud, as if by magic. The schoolmasters told him he was nuts. (The original sources are cited here, for the curious.)

Education was still too decentralized and market driven in this country in the early 1840s for nutty pedagogical methods to displace ones that had proven themselves effective. It was not until the 1920s, when modern state school systems and teachers’ colleges had become well established, that progressive educators were able to impose their philosophical and pedagogical predilections on teachers-in-training and the public schools as a whole.

The issue here has never fundamentally been a political one. It has always been philosophical. Progressive education philosophers and practitioners generally object to highly structured systematic teaching methods, in any subject, because those methods do not comport with how they believe learning should take place.

The fact that structured methods work, and for many children work far better than the magical osmosis processes of “whole language,” confers no competitive advantage within a monopoly school system that has no real competition. Do public school districts go out of business if they adopt lousy methods or materials? No. That’s why lousy methods have survived for so long in the public school monopoly, and that is why those same lousy methods (and Horace Mann) were laughed at by schoolmasters at a time when educators actually had to show results in order to make a living.

Stealth Taxation at the Border

For decades, some of America’s most regressive taxes have lurked in the shadows of
U.S. trade policy.  Now the Bureau of Customs and Border Patrol is proposing to make those taxes an even greater burden on lower-income Americans and workers and farmers in poorer countries.

For over 15 years, CBP has maintained a “first sale” valuation policy that allows imports to be valued on the basis of the price of the first sale between the foreign producer and a middleman in cases where there are multiple, arm’s length transactions in the distribution chain.  The price of the first sale is presumably closer to the value of the cost of goods sold, since at most it would differ by the expenses and markup of only one more entity.  But CBP wants to change its valuation method to a “last sale” basis, which would reflect the price of the last transaction before the merchandise was imported into the United States.  Obviously, the last sale price reflecting the expenses and profits of more entities will, in most cases, be higher than the first sale price.  Thus, valuations, import assessments, and ultimately consumer prices, will likely increase.

CBP claims it wants to align its valuation policy with the policies of most U.S. trade partners, and according to a recent interpretation of the WTO Valuation Agreement, it is a perfectly acceptable—and in fact proper—method of valuation.  But its simply bad policy..  Tariffs are regressive; they are most regressive on necessities, like clothing and food; most clothing on Americans’ backs is imported; first sale valuation methodology is common among importers of clothing, and; consumer prices have already increased significantly over the past year.  Do we need consumers devoting big chunks of their “stimulus rebates” to higher import taxes?

On average, the U.S. tariff system is quite open.  Based on an analysis of U.S. imports in 2005, nearly 70 percent of all merchandise imports entered the United States duty-free and the average rate of duty (calculated as total duties collected over total import value) was around 1.4 percent.  (I cite 2005 because I did a comprehensive analysis of those data for a paper in 2006 that I have not yet repeated for subsequent years. The numbers I cite for 2005 are unlikely to be much different from 2007.)  That rate is pretty modest.  But it’s also misleading.

As is often the case, averages obscure important facts.  In this case the important facts are that most of the $23.2 billion in duties collected by Customs were assessed on imported clothing, shoes, and food products.  In fact, while clothing and footwear comprised 5.1 percent of the total value of imports, duties collected on clothing and footwear accounted for 42.3 percent of all duties collected.  Though the average duty overall was 1.4 percent, it was 7 percent on milk, cheese, eggs and other dairy products.  Have you noticed the huge jump in prices of these products at the grocery store in recent months (Sallie James has)?

Lower-income Americans spend a higher portion of their incomes on these necessities (food and clothing and shelter – don’t forget longstanding restrictions on steel, lumber and cement trade), and many of the products imported are produced in developing countries.  The 1.4 percent average tariff didn’t mean much to exporters in Macau, Cambodia, Bangladesh, Sri Lanka, Pakistan, Uruguay and the other six developing countries with average ad valorem duties in the double digits.  Imports from Cambodia accounted for 0.1 percent of total U.S. import value, but duties on Cambodian imports accounted for 1.2 percent of all duties collected.

U.S. tariff policy is already skewed heavily against lower-income Americans and poor workers around the world.  CBP’s proposal would make matters worse, which hardly seems consistent with the broader objectives of the Department of Homeland Security. 

The Work Goes On, the Cause Endures, the Hope Still Lives, Etc., Etc.

I’ve taken issue with plenty of things Ted Kennedy has done in the past, most recently his suggested reforms to the judicial confirmation system.  My response [$] to his proposals was essentially that he ought to go back to Civics 101 and learn the difference between law and politics, and between the respective powers of the judicial and legislative branches.

Apparently, someone on Kennedy’s staff has done just that because this week the good senator introduced two bills designed essentially to remedy what he sees as Supreme Court error in the field of employment discrimination.  This action naturally caught the attention of the New York Times editorial page:

One of the most troubling rulings was in the case of Lilly Ledbetter, a supervisor at a Goodyear Tire and Rubber Company plant who was paid less than her male colleagues after she was given smaller raises over several years. The court’s conservative majority ruled that Ms. Ledbetter had not met the 180-day deadline to file her complaint. It insisted that the 180 days ran from the day the company had made the original decision to give her a smaller raise than the men.

….

The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo the injustice of the Ledbetter decision by establishing that the 180-day deadline runs from when a worker receives the unequal pay, not when the employer decided to discriminate. It would make clear that each discriminatory paycheck restarts the clock.

Kennedy’s other bill, the Civil Rights Act of 2008, would reverse more bad decisions. One of these is a 2001 ruling that says that people who are discriminated against in programs using federal funds can sue only for intentional discrimination, not for actions that have a discriminatory effect.

Kennedy, wittingly or not, has just demonstrated how our constitutional system of checks and balances and separation of powers should work — as well as illustrating the difference between law and politics.

The Fair Pay Restoration Act is Congress’s proper (legislative) response to the Supreme Court’s proper (judicial) decision in the Ledbetter case.  The Court had no choice but to rule the way it did under the relevant (and constitutionally valid) law, even if the result was arguably unjust.  The correct response is, as has happened here, to propose a bill changing that law, not to urge judges to ignore it and rule as they see fit.

Similarly, the Civil Rights Act of 2008 is a legislative attempt to correct a perceived failing in employment discrimination law as correctly interpreted by the judiciary.  The wisdom of allowing people to sue for actions that have “discriminatory effect” without an intent to discriminate — whatever that means and however it can be established for legal purposes — is debatable, but it is only through congressional action (with the president’s assent or properly overridden veto) that the law can change.

The bottom line is that judges — including the highest court in the land — have the power only to interpret the law (constitutional and otherwise), not rewrite it or otherwise legislate from the bench.  I’m glad that Kennedy has thus decided, for this week at least, to use his lawful authority to legislate from the legislature — instead of merely railing against a judiciary that does nothing more nor less than its job.