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The 2016 Stump Speeches: Bernie Sanders

Bernie Sanders challenges not just Hillary Clinton, but the country’s long-term rightward drift.

[This is part of a series of articles on the speeches of 2016 presidential candidates. The overall vision of the series and links to the other articles can be found here.]

Senator Bernie Sanders of Vermont began his presidential campaign on April 30 with a five-minute statement in front of the Capitol, and then took five more minutes of questions from reporters. [video, transcript]

The standard I try to maintain at The Weekly Sift is that I’m honest, but not necessarily objective. So I’ll tell you the bias I start with: As I listened to Sanders’ talk, I had the reaction conservatives must have had in 1964 when they listened to Barry Goldwater. In my heart, I know he’s right.

Sanders says the things I’ve been thinking, but that I never hear directly from presidential candidates. Or I hear them, but only because I know how to unwrap the layers of bows and wrappings that politicians put on their ideas to make them look pretty to the conventional wisdom.

Prosperity for everybody. All candidates, left and right, seem to agree that the major economic issue America faces is the shrinking of the middle class and the dismal prospects faced by our young adults. Rand Paul, for example, said:

I’ve been able to enjoy the American Dream. I worry, though, that the opportunity and hope are slipping away for our sons and daughters.

And Ted Cruz:

For so many Americans the promise of America seems more and more distant. … So many fear that that promise is today unattainable.

And Marco Rubio:

My parents achieved what came to be known as the American Dream. But now, too many Americans are starting to doubt whether achieving that dream is still possible.

If the 2016 race is about issues — always a question in this era of trumped-up pseudo-scandals and 30-second attack ads — the issue it should be about is why the middle class is shrinking and what can be done about it. Paul explains that our economy is “collaps[ing] under mounting [government] spending and debt.” Rubio blames leaders whose “ideas are stuck in the 20th century” and says we need to “reform our tax code, reduce regulations, control spending, modernize our immigration laws and repeal and replace ObamaCare”. Cruz talks more vaguely about “liberty”, mentions policies like a flat tax, and implies that the real secret to success in all areas is for our nation to get right with God.

Sanders points in a different direction: The middle class is endangered because the very wealthy have taken control of our political system and shaped our economy so that virtually all economic growth flows to them.

The major issue is how do we create an economy that works for all of our people rather than a small number of billionaires, and the second issue, directly related, is the fact that as a result of the disastrous Supreme Court decision on Citizens United, we now have a political situation where billionaires are literally able to buy themselves elections and candidates.

Class warfare and socialism. Conservatives have wasted no time calling this “class warfare“. Ben Stein expressed his upper-class let-them-eat-cakism like this:

There has never been a case in history where a poor person who’s a slovenly, uneducated, lazy, undisciplined drug addict got to be rich because of some wealthy person being taxed.

But a lot of progressives aren’t afraid of the class-warfare meme any more, and respond: “It’s about time somebody started fighting back.” As Warren Buffett said in an interview in 2010:

There has been class warfare waged, and my class has won. I mean, it’s been a rout. You have seen a period where American workers generally have gone no place, and where the really super-rich have (as a group) increased their income five for one.

Sanders has been turning around the “class warfare” rhetoric for a while now. When Goldman Sachs CEO Lloyd Blankenship (with an annual salary of $16 million) came to Congress in 2012 to call for cuts to Social Security, Medicaid, and Medicare, Sanders’ web page called him “the face of class warfare“.

Likewise, Sanders doesn’t run away from the word socialism. They have socialism in Scandinavia, and those countries are pretty nice places to live. Let’s talk about how kids are going to afford college, not about labels like socialist.

Proposals. Sanders alluded to a number of proposals he has fleshed out elsewhere. All of them take a step beyond anything the Obama administration has proposed.

Reverse Citizens United. Sanders has proposed a constitutional amendment.

Nothing in this Constitution shall be construed to restrict the power of Congress and the States to protect the integrity and fairness of the electoral process, limit the corrupting influence of private wealth in public elections, and guarantee the dependence of elected officials on the people alone by taking actions which may include the establishment of systems of public financing for elections, the imposition of requirements to ensure the disclosure of contributions and expenditures made to influence the outcome of a public election by candidates, individuals, and associations of individuals, and the imposition of content neutral limitations on all such contributions and expenditures.

Make College Free. He has proposed legislation he describes like this:

$70 billion a year in assistance – two-thirds from the federal government and one-third from states – would replace what public colleges and universities now charge in tuition and fees. The federal share of the cost would be offset by imposing a tax on Wall Street transactions by investment houses, hedge funds and other speculators.

That tax, the so-called Robin Hood tax, is interesting in its own right. The theory is that introducing friction into the financial markets would make them less volatile.

Transition from fossil fuels to renewable energy. Sanders is a long-time champion of solar energy, and a leading opponent of the Keystone XL pipeline.

Create jobs by rebuilding infrastructure. He has proposed spending $1 trillion over five years on infrastructure, and claims this would create 13 million jobs. (I don’t know what that’s based on.) He has not specified how to pay for this (though the next item might play a role). He has pointed out that this plan would be cheaper than the Iraq War, which also had no funding mechanism.

Tax corporate profits that are hidden overseas. Again, he has a bill proposed:

Under current law, U.S. corporations are allowed to defer or delay U.S. income taxes on overseas profits until the money is brought back into the United States.  U.S. corporations are also provided foreign tax credits to offset the amount of taxes paid to other countries. Under the legislation, corporations would pay U.S. taxes on their offshore profits as they are earned.  The legislation would take away the tax incentives for corporations to move jobs offshore or to shift profits offshore because the U.S. would tax their profits no matter where they are generated.

He quotes an estimate by the Joint Committee on Taxation that this would bring in $590 billion over ten years.

Can he win? Should he? I understand the point Hillary Clinton supporters make: The difference between the two parties is so vast now that our entire focus should be on winning in the general election. (Justice Ginsburg will be nearly 88 by the time the next president leaves office; 92 if there’s a second term. Imagine any of the Republican candidates appointing her replacement.) The best way to do that is to get behind our strongest general-election candidate early, and avoid any fratricidal strife that will hurt the party.

I see two problems with that. First, since Republicans show no signs of returning to the moderate ways of Dwight Eisenhower and Jerry Ford, we might be in this position for decades. So the upshot of this argument is that the liberal wing of the party should never make its case to the primary electorate. If that’s how things are, then I have a hard time arguing against the progressives who want to abandon the Democratic Party completely. If you want to prevent another Nader-style candidacy by Sanders (who has already rejected the idea) or somebody else, you have to be able to argue that the Left had a shot at the nomination and just lost it fair and square.

So I think it’s way too early to make the unite-behind-a-winner argument. There has to be some point in the electoral process where people express their consciences and vote their ideals. Otherwise, the horse-race mentality because self-stoking: People won’t support a candidate they agree with because he can’t win, and he can’t win because the people who agree with him won’t support him.

Second, there are large sections of the electorate who never hear a strong progressive message. Compare to the Republicans. No matter who gets nominated, they always make a pitch for their overall brand identity: small government, low taxes, strong defense, so-called “family values”, and so forth. It would be unthinkable to go through an election cycle without somebody preaching that gospel in its purest form.

The Democrats don’t do that, and in the long run it hurts us. Obama-Clinton in 2008 was a debate between two flavors of moderate. Dean and Kucinich were out of the picture early in 2004, and so was Bradley in 2000.

The result is that right-wing alternatives to the status quo are part of the national debate, but left-wing alternatives aren’t. So voters who could tell you about the conservative Ryan Budget have never heard of the progressive People’s Budget. Every hint of a conservative alternative to ObamaCare gets massive coverage, but a liberal alternative well tested in other countries — single payer — is off the table.

So when it comes time to compromise, the compromise that seems reasonable in the media is between an already-moderate Democratic plan and a far-right Republican plan. Should we cut Social Security little by little, or make a big slash in it? Should we invade any country that gets in our way, or just hit them with a few drone strikes? Hold the line on the estate tax or eliminate it?

In short, even if we end up nominating Hillary, I want the public to know she’s not the extreme edge of the liberal spectrum.

I’ll get more pragmatic as Election Day gets closer. (I was totally against voting for Ralph Nader in the 2000 general election, for example, and I stand by that. The Nader voters in my own state of New Hampshire — forget Florida — had it in their power to swing the election from Bush to Gore, and decided not to.) If, late in the primary season, after Sanders’ message has been aired around the country, polls show him running behind the Republican front-runner while Hillary runs ahead, then Democrats should think about doing the pragmatic thing.

But this far out, that’s not the only possible scenario. Sanders is claiming that a full-throated defense of the middle class will resonate with voters who don’t get inspired by baby-step proposals like bumping the minimum wage up a little, or not cutting Social Security as much as Republicans want to. That case needs to be tested every few cycles, and it has been a while.

Fact-checking. Sanders made a number of checkable claims.

For most Americans, their reality is that they are working longer hours for lower wages. In inflation-adjusted income, they are earning less money than they used to, years ago, in spite a huge increase in technology and productivity.

There are a lot of ways to measure wages. But in terms of take-home pay adjusted for inflation, Sanders is right.

The wild card in this discussion is how you account for health-care costs, which have ballooned over the last several decades. So pro-business groups will show you graphs of total cost of employment, which includes everything a company spends on a worker, including health insurance premiums. That looks less depressing.

Even so, a 2013 Brookings Institute report began:

Over the past quarter century, labor’s share of income in the United States has trended downward, reaching its lowest level in the postwar period after the Great Recession.

99% of all new income being generated in this country is going to the top 1 percent

The transcript I linked to has this quote wrong. (It says “99 percent of the income”, which would be a laughable statement.) Watch the video to get it right.

PolitiFact rated this claim “mostly true“. The more complete story is that Sanders’ claim is based on what the economy does prior to any government interference: before taxes on the rich or government benefits paid to the rest of the country.

the top 1 percent owns almost as much wealth as the bottom 90 percent

This is wrong, but not in the way you think: Sanders should have said the top tenth of a percent. Economists Emmanuel Saez and Gabriel Zucman provide the following graphs:

we have the highest rate of childhood poverty of any major nation on Earth

Like so many claims, this one depends on how you define your terms. In sheer size, India is a “major nation”, and in absolute terms, a lot of Indian children have less than American children who are considered poor.

Most studies that get results like Sanders is stating are measuring relative poverty, i.e., the number of children who live in households whose income is less than some percentage (typically 50%) of the national median. Also, they are comparing the U.S. to other developed nations — a group that includes Canada, Japan, and the European Union nations, but not India or Indonesia.

Miles Corak does a creditable job of explaining why relative poverty is the right thing to measure. (Summarizing: A household receiving less than 50% of the median income has a hard time participating in normal society. So these children are growing up so far outside the mainstream that it will be hard for them to present themselves as normal adults when they go looking for work.) And if contemplating America’s superiority to Ethiopia or Bangladesh gives you a chest-thumping satisfaction, don’t let me stop you.

the Koch Brothers and other billionaire families who are prepared to spend hundreds and hundreds of millions of dollars in elections to buy the candidates of their choice

According to the NYT:

The political network overseen by the conservative billionaires Charles G. and David H. Koch plans to spend close to $900 million on the 2016 campaign.

It’s not immediately obvious how much of that $889 million is from the Kochs themselves. Sheldon Adelson spent around $100 million of his own money on 2012 campaign (including $20 million for Newt Gingrich), and is expected to be a major donor in 2016 as well.

There’s no way to quantify to what extent the candidates who receive this money will be “bought”. In the 1950s, Speaker of the House Sam Rayburn is supposed to have told a young congressman, “Son, if you can’t take their money, drink their whiskey, screw their women, and then vote against ’em, you don’t deserve to be here.”

Real unemployment in America is not five and a half percent, if you include those people who have given up looking for work, and people who are working part time when they want to work full time. Real unemployment is 11 percent.

The Bureau of Labor Statistics calculates something it poetically refers to as “U-6″: a measure of unemployment that includes the people usually classified as “unemployed”, but also people who are underemployed (i.e., the engineer who’s flipping burgers) or who want a job but aren’t currently looking for one (i.e., “discouraged workers”). (The unemployment rate you usually hear about is U-3.)

U-6 is running at about 11%, — 10.9% in the most recent stats available when Sanders spoke — so that might be what he was talking about.

It’s fine to quote U-6 or any of the other U’s, as long as you’re consistent about it. Watch out for anybody who compares some measure of “real” unemployment today to what the official unemployment rate was when Obama took office, or claims that the gap between the two represents some kind of statistical shenanigans. Since discouraged workers tend to be the last people to start working again, you’d expect U-6 to lag behind the official unemployment rate. So even though the official unemployment rate is back below where it was when Lehman Brothers collapsed in 2008, U-6 hasn’t completely recovered yet. That’s not some sleight-of-hand by the Obama administration, it’s how these statistics run.

One thing is undeniable: All the measures of unemployment have been coming down over the last few years, as shown in this graph:

In Germany, countries around the world, they understand that you tap the intellectual capabilities of young people, and you make college tuition in public colleges and universities free.


Bernie Sanders has never run a negative ad.

“Never” is hard to check, and “negative” is a judgment call, but in his 2012 Senate race (as an incumbant Independent) Sanders didn’t run TV ads at all. He got 71% of the vote. People say, “Well, that’s Vermont for you.” But Sanders counters:

It wasn’t that long ago that Vermont was one of the most Republican states in the country. Until two years ago, the governor was a Republican; the lieutenant governor is a Republican. This is a significantly rural state. This is a state with some very conservative regions.

Since April 30, Sanders has been living up to his word and running a positive campaign. On CNN’s State of the Union he said:

I’ve known Hillary Clinton for 25 years. Maybe I shouldn’t say this: I like Hillary Clinton. I respect Hillary Clinton.

That doesn’t sound much like the fratricidal strife Clinton supporters are worried about.

Turning the Theocracy Against Itself

What happens when atheists claim the new kind of “religious freedom”?

Ever since the Tea Party sweep of 2010, conservative Christians have been on offense in state legislatures, pushing a variety of laws that distort religious freedom — a fine principle that goes back to the foundation of our country — into something the Founders would not recognize at all: the power (not freedom) to shape society so that it doesn’t rub Christians the wrong way.

The hole in this “religious freedom” rhetoric is that in practice only Christians (and only certain kinds of them) can wield such power. The people who push these laws are shocked whenever someone wants to extend the same kind of consideration to, say, Muslims or atheists. (Muslims, after all, can’t even take for granted the original meaning of religious freedom, which included the ability to build a house of worship.) Justice Alito’s majority opinion in the Hobby Lobby case more-or-less just laughed off the idea that employers with less mainstream religious views — Christian Scientists, say, who reject virtually all modern medicine — might claim the right to control their employees’ health insurance too.

In recent months progressives have been playing whack-a-mole with anti-gay “religious freedom” laws in various states, threatening boycotts and mostly succeeding in avoiding the worst.

But the way the new “religious freedom” will ultimately be brought down is to force courts to consider its laws in the light of the 14th Amendment’s guarantee of “equal protection under the law”. If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

In other words, non-Christians need to insist — in court — that society shouldn’t rub them the wrong way either. There will often be an aspect of the ridiculous in these cases, like the statue Satanists want to install on the grounds of the Oklahoma statehouse, now that religious statues are allowed.

A very interesting legal argument is being put forward by atheist Michael Newdow, who is famous for taking the case against the “under God” part of the Pledge of Allegiance to the Supreme Court, which denied his standing to sue. This time Newdow is targeting the “in God we trust” motto on the currency. (Like “under God” the motto does not go back to the Founders, who would have been horrified. It appeared on some bills during the Civil War, but wasn’t established as the national motto until 1956.)

Newdow has failed to banish “in God we trust” before, but this time he’s basing his argument not just on the Establishment Clause of the First Amendment, but on Justice Alito’s interpretation of the Religious Freedom Restoration Act.

The RFRA says:

Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The Hobby Lobby decision put forward a very expansive notion of what it means to “burden a person’s exercise of religion”. It used to just mean things like forcing Jews to work on Saturday or lose their jobs. But the Hobby Lobby decision extended it to forcing a corporation to fund health insurance that its employees might choose to use in ways that the offend the corporate owners.

Newdow argues that under this expansive interpretation, the government burdens atheists’ exercise of religion when it forces them to choose between

  • carrying around and distributing pieces of paper saying they trust in God,
  • forgoing the convenience of using the public currency.

And since putting “In God we trust” on the currency accomplishes no useful purpose whatsoever, this burden does not further any compelling governmental interest.

In case anybody out there wants to volunteer, Newdow is seeking plaintiffs from legal jurisdictions where no existing ruling supports “In God we trust”, especially Alabama, Florida, Georgia, Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

The time commitment will be minimal (as you help write the prose relevant to your particular circumstances) and there will be no obligation to provide any financial contribution … What we need mostly are families with minor children since the Supreme Court has indicated that it is more likely to uphold constitutional (and, presumably, statutory) principles when children are involved. Please be advised that the identities of any families with children will be kept “under seal” in order to protect the children from any harms.

I don’t have children, and my published opinions on God are sufficiently ambiguous that I’d make a lousy plaintiff anyway. But I’m sure there are Sift readers out there who are just perfect for the job. One of my friends was a plaintiff in one of the important religious-freedom cases of the 1960s (when religious freedom still had its original meaning). His family’s experience was more difficult than what Newdow pictures (because their name was public) but half a century later, I think he still looks back on it with pride.

Civics For Dummies: Judicial Review

Or: Why Mike Huckabee should have flunked 9th grade.

The possibility that the Supreme Court might soon rule in favor of same-sex marriage, resulting in its legality in all 50 states, is causing a certain amount of panic on the Religious Right. In response, presidential candidates whose campaigns hope to exploit that panic have been spreading dangerously ignorant ideas about the Constitution and the judicial branch of government. And, as ignorant people often do, they’ve been claiming that everyone else is ignorant, while they alone grasp the true nature of the Founders’ vision.

For example, when NewsMax asked Dr. Ben Carson about same-sex marriage, he responded:

First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch. So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.

And Mike Huckabee presented a similar perspective in more detail:

Getting a decision from the Court is not tantamount to saying, “That settles it. It’s the law of the land.” And when I hear people say that I just cringe, and I’m thinking: “How many people passed 9th-grade civics?” This is not that complicated.

There are three branches of government, not one. We don’t like it if the executive branch overreaches, and pretends that it can act in indifference to the other two. And neither can we sit back and allow the Court — one branch of government — to overrule the other two.

And so when a court rules that same-sex marriage is OK, it doesn’t mean that the next day marriage licenses should be issued for same-sex couples. It simply means that if the legislature agrees with that court decision, and the representatives of the people, the elected officials, if they then put this into legislation, and it is signed and enforced by the executive branch, then you have same-sex marriage. But until those other two branches act, what you have is a court opinion and nothing else.

Clearly, Governor Huckabee’s 9th-grade civics teacher has a lot to answer for, because he seriously misunderstands how our system of government works. So let’s back up and answer a simple civics question: How does the Supreme Court come to have the power to say what laws mean and even to determine that some of them are unconstitutional?

Where judicial review comes from. People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact the Founders foresaw judicial review and approved.

If you want to know what the Founders thought the Constitution meant, one of the best places to look is in The Federalist, a series of essays Alexander Hamilton, James Madison, and John Jay wrote to explain the new Constitution and encourage states to ratify it. In Federalist #78, dated June 14, 1788, Hamilton wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

So where does the power of judicial review come from? From the Founders. It goes all the way back.

Without judicial review, our constitutional rights are meaningless. This idea is easiest to explain through a hypothetical: Imagine that a Clinton landslide in 2016 sweeps in large Democratic majorities in both houses of Congress. When the new Congress takes office in January, 2017, it passes this one-sentence law:

Whereas Ben Carson and Mike Huckabee are pernicious individuals whose continued liberty is detrimental to well-informed public discourse, they shall be imprisoned in the federal penitentiary in Leavenworth, Kansas for a period of ten years.

President Hillary Clinton signs the law. Federal agents arrest Carson and Huckabee and drag them to Leavenworth. What happens next?

First, notice that even though the Carson-Huckabee Imprisonment Act of 2017 went through the process the Constitution lays out for passing a law, it is still blatantly unconstitutional. In technical terms it’s a bill of attainder, which the Constitution specifically forbids in Article I, Section 9:

No Bill of Attainder or ex post facto Law shall be passed.

But how does that fact do Carson and Huckabee any good? They can complain to the agents who arrest them. They can complain to their Leavenworth guards and cell mates. But so what? “Yeah, yeah, join the club,” they’ll be told. “Everybody in here is innocent.”

Short of counting on friends with guns to break them out, there is only one effective thing they can do: file a writ of habeas corpus, (another Article I right). In other words, Carson and Huckabee can make their jailers justify themselves before a judge. That judge then has the power to say that the Carson-Huckabee Imprisonment Act is unconstitutional. And the very instant that decision comes down, they have to be released.

Notice what doesn’t happen here: There is no “judicial law”, no Carson-Huckabee Release Act that the judge has to pass. And the judge’s ruling is not a suggestion that the other two branches might want to revise or repeal the Carson-Huckabee Imprisonment Act. Carson and Huckabee don’t have “a court opinion and nothing else”. They have their freedom.

If they didn’t, then the Constitution’s protection against bills of attainder would be meaningless. Congress could just refuse to pass a Release Act, or President Clinton could veto it, or just not get around to enforcing it. And Ben and Mike would sit in jail, no matter what rights they had in theory.

All our rights are like that. If you can’t bring your case before a judge who has the power to tell the other branches “Stop doing that right now!”, then in practical terms you don’t have any rights.

Interpretation. I intentionally made that last example simple: a one-line law that stood on its own and did something obviously wrong. But lawmakers with bad intentions are usually sneakier than that.

A much more likely scenario is that Carson-Huckabee imprisonment would be a page of legalese somewhere in the middle of a 300-page bill that built a dam and changed food-stamp requirements and made Al Sharpton’s birthday a national holiday. It wouldn’t mention Carson or Huckabee by name; it would just give the administration power to imprison people who fit some abstract description. Of the people described, only Carson and Huckabee would be worth bothering to arrest. Or maybe 100 people would get arrested, of whom 98 really would be dangerous to the public.

However it shook out, the effect would be the same: Ben and Mike would find themselves in Leavenworth without a trial. But now their habeas corpus case is more complicated, because it isn’t obvious that the Omnibus Reconciliation Act of 2017 — which contains that one significant page — is a bill of attainder. Somebody has to interpret it, and weigh its effects against the abstract definition of a bill of attainder, or against the 14th Amendment’s abstract guarantee of “due process of law”. Exactly how much “process of law” were Carson and Huckabee “due”, and did they receive it? Lawyers from the Clinton Justice Department might concoct some very slick arguments saying that they did.

And that brings us back to Hamilton: “The interpretation of the laws is the proper and peculiar province of the courts.” If the courts are prevented from doing that job, then a clever lawmaker or a hostile administration can take away your rights.

Change. Another way my example is simple is that “bill of attainder” means pretty much the same thing today as it did when the Constitution was written in 1787: a law that sends people to prison without a trial. But it’s reasonably certain that the Constitutional Convention of 1787 had no idea it might be creating a right for same-sex couples to marry, and neither did the people who drafted and passed and ratified the 14th Amendment after the Civil War.

So how can a judge “find” that right in the Constitution today? Did the Founders and subsequent amendment-drafters not understand what they were writing? Were all previous judges stupid not to see this right that judges see today? Or if you don’t believe those absurd things, how is marriage equality not a total abuse of the power of judicial review?

The answer is that even when the text of a law doesn’t change, the practical meaning of that law can change as the world changes around it. Today we have lots of “constitutional” rights that the Founders could not have imagined. When they wrote the Second Amendment, they weren’t picturing AR-15s. When they guaranteed “freedom of the press”, they weren’t thinking about blogs. The Fourth Amendment protection against “unreasonable searches and seizures” didn’t originally have anything to do with the pictures on your smart phone, or the possibility that police might see through your walls with infrared devices.

Today, those kinds of issues come up all the time, along with examples of extended rights we probably shouldn’t have. (If a nuclear weapon can be shrunk down to a suitcase that I can carry, should I have a right to “bear” those “arms”?) In a perfect world, maybe we’d be constantly updating the Constitution to make this stuff clear. But judges don’t get to live in that perfect world; they have to decide the cases that come before them on the basis of the laws on the books.

One solution would be for a court to throw up its hands whenever a case involved something lawmakers hadn’t foreseen. (“How should I know what to do with bazookas?”) In an era with fast technological change and a dysfunctional Congress, increasingly large parts of life would move outside the law. So you’d have the right to bear the same kind of ball-and-powder weapons the Minutemen used, or to print whatever you wanted on a press like Ben Franklin’s. Beyond that, though, your rights would start to evaporate.

Instead, in the American legal tradition, judges read the laws as embodiments of principles, which can then be abstracted and applied to new situations. You really wouldn’t want it the other way.

Marriage equality. In the case of same-sex marriage, the main thing that has changed since the Founding era isn’t the Supreme Court, it’s opposite-sex marriage. In 1789, any gay or lesbian couple claiming they had a right to marry would have been laughed out of John Jay’s Supreme Court, and rightfully so.

That’s because in a truly “traditional” marriage husband and wife are legally distinct roles that can only be filled by people of the appropriate gender. As Blackstone’s authoritative Commentaries on the Laws of England put it in 1765:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. … The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.

Only the husband could own property or sign contracts. No wife could enter into employment without her husband’s approval. There was also no concept of marital rape; for all practical purposes, a wife’s body was her husband’s property, so if he chose to use that property in the ways that husbands typically did, the law saw no issue.

(BTW: Anybody who uses the phrase “traditional marriage” and doesn’t mean what I just described is playing games with words. A marriage of spouses equal under the law is not at all “traditional”, even if the spouses are of opposite genders.)

In that legal environment, a same-sex couple trying to marry would be doing something absurd. Who would be the husband and who the wife? Whose contractual agreements would be valid? Which spouse could discipline the other? And in an era when only men could vote, wouldn’t democracy be undermined if some households had two votes and others none? Nonsense!

But all those circumstances changed. As Justice Ginsburg framed the issue last month:

Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that states should [still] be allowed to have? To cling to marriage the way it once was?

In current law, the roles of husband and wife are virtually interchangeable. There continue to be social and cultural differences, and many religions still encourage husbands and wives to take on distinct roles. But nothing in the law forces them to do so.

So under the law as it currently exists, same-sex marriage is not absurd, and it exists without causing any apparent problems in about half the country, as well as in several other countries.

Equal protection. In addition to “due process”, the 14th Amendment guarantees each American “the equal protection of the laws”. In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination. Salon summarized Justice Breyer‘s analysis like this:

When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it,” observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”

So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

That’s a use of judicial power I think Alexander Hamilton would understand.

2016’s Mission Impossible: Support Jeb While Forgetting George

Republicans won’t repent the Bush/Cheney mistakes, so they have to keep pushing them out of mind.

The aura of inevitability around Jeb Bush’s nomination started to flicker this week, as he gave four different answers about Iraq in four days.

  • Monday, he responded to Fox News’ Megan Kelly’s question: “On the subject of Iraq, knowing what we know now, would you have authorized the invasion?” With “I would have, and so would have Hillary Clinton, just to remind everybody.” (In her 2014 book Hard Choices, Clinton addressed the topic like this: “I wasn’t alone in getting it wrong. But I still got it wrong. Plain and simple.”)
  • Tuesday, he told Sean Hannity that he had misinterpreted Kelly’s question, but still avoided answering: “I don’t know what that decision would have been, that’s a hypothetical. But the simple fact is that mistakes were made.”
  • Wednesday, at a town hall meeting in Nevada, he defended Tuesday’s non-answer, citing the feelings of the families of the soldiers who died in Iraq: “Going back in time and talking about hypothetical, ‘what would have happened, what could have happened,’ I think does a disservice for them.”
  • Thursday in Arizona, he finally gave the opposite of Monday’s answer: “Knowing what we now know, what would you have done? I would not have engaged. I would not have gone into Iraq.”

While this clumsy performance does raise doubts about Bush’s ability to run a smooth campaign — how could have he not have foreseen that question and prepared a better answer? — it was just a bad week, and he has a lot of weeks to get back on track before any votes are cast. But Jeb’s Iraq misfortunes underline a larger handicap for Republicans in general in Jeb in particular: In response to the horrible shape President Bush left the country in — and the corresponding electoral disaster of 2008 — the Republican Party still has not developed any better strategy than pretending George W. Bush never existed.

For comparison, Bill Clinton came back from his impeachment to be one of the most valued campaigners in the Democratic Party, with prime-time speaking slots at every Democratic Convention since he left office. (Bill has in fact spoken at every convention since he gave a widely-panned nomination speech for Mike Dukakis in 1988. I wonder if seven in a row is a record.) But W has been a no-show at Republican conventions, and his political appearances in general have been limited to closed-door fund-raisers in front of audiences known to be friendly. As for the other major players in his administration: Dick Cheney was not even in the country during the 2012 GOP convention, where the only speaker with a major Bush-administration role was Condoleeza Rice, who Romney’s people needed for racial and gender diversity.

During this time that they’ve kept W himself locked in the basement, though, Republicans have never rejected his policies or philosophy. Again, compare to the Democrats: Bill Clinton’s centrist “New Democrats” turned away from classic liberalism after bad losses in 1980, 1984, and 1988; and recent Democrats have changed their minds about specific Clinton administration policies while continuing to cite the successes — relative peace, low inflation, low unemployment, and budget surpluses — of the Clinton era in general. For example, many Democrats cheered when the Supreme Court rejected the Defense of Marriage Act, and Hillary’s recent speech against “mass incarceration” implicitly rejected Bill’s 1994 crime bill.

But in spite of all the “revolutionary” noise the Tea Party has made since Bush left office, their candidates’ proposals (with the exception of Rand Paul’s isolationism and several candidates’ anti-immigrant positions) are to do more of what Bush did: cut taxes on the rich, cut regulations on corporations and the big banks, boost fossil fuel production, deny global warming, hold the line against gay rights, keep chipping at abortion rights, and don’t shy away from new wars in the Middle East.

You can’t ask for forgiveness if you won’t repent, so Republicans’ only option is to keep pushing out of mind the mess left behind the last time a president implemented these policies.

Like all people trying to forget a traumatic past, Republicans are full of impatience and even anger when Democrats bring it up: Why can’t Obama stand on his own record rather than keep blaming things on the disaster he inherited from his predecessor? The rare occasions when they speak the forbidden name usually are coupled with some major memory lapse, as when Rudy Giuliani edited 9/11 out of history: “We had no domestic attacks under Bush.”

I’m reminded of a quote in Patrick Smith’s Somebody Else’s Century, from a Chinese man reflecting on the horrors of the Cultural Revolution: “The official forgetting we are supposed to do will not produce the desired result. [Eventually] people forget why they are supposed to forget, and then they start to remember.”

It’s still too soon for Republicans to remember the Bush administration, because the American people still haven’t forgotten why we’re supposed to forget. So any successful 2016 Republican general-election campaign will have to continue making the Bush/Cheney years disappear. And, as we saw this week, the candidate least likely to pull off that trick is Jeb Bush.

Rating This Week’s Craziness

What should we do when debunking just isn’t enough?

Sometimes inaccurate news stories or false factoids get widely distributed and need to be corrected, like “Obama was born in Kenya” or “Saddam was behind 9-11.” Other times, claims about economics or history need correcting, like “Tax cuts raise revenue.” or “The Civil War wasn’t about slavery.” Debunking such popular misconceptions may not get the attention it deserves in the national media, but it does get covered if you know where to look: specializes in it, newspapers have fact-checking columns, and some news-and-opinion TV shows include regular features like Rachel Maddow’s “Debunction Junction” or Lawrence O’Donnell’s “Rewrite”.

But then there’s stuff that isn’t just wrong, it’s crazy, like the myths about  FEMA concentration camps a few years ago. Debunking the alleged “facts” just doesn’t seem adequate, because people who assess things rationally … well, they wouldn’t have believed the story to begin with, would they? For a story like that, the question that needs an answer isn’t “Is X true?”, but “Are there are really people out there crazy enough to believe X?”

And if there are, what should we do about them? If you’ve ever met such a person and tried to argue, no mere fact-checking column can help you, because the storehouse of pseudo-facts that support the crazy idea is bigger than you can possibly imagine. Each of those then needs its own debunking, and the whole thing goes fractal in a hurry.

So when crazy things ricochet around on my Facebook news feed, it’s often hard to decide what level of attention they deserve. It’s tempting not to take them seriously, but if all the sensible people do that, maybe the insanity will metastasize into delusions popular enough to have real influence on our political process, like the ObamaCare death panels. Maybe by ignoring them, I allow irresponsible politicians to dog-whistle; i.e., to say things that sound innocuous to the general public, but send another message entirely to the part of the population crazy enough to think they’re “in the know” about this. Worse yet, the wider these things spread, the more likely they are to reach the ears of some unstable person who will take violent action, like the guy police apprehended on his way to shoot up the Tides Foundation, a well-meaning organization that Glenn Beck thrust into the center of some big conspiracy theory.

On the other hand, maybe the whole point of craziness is to distract the public from discussing genuine issues, and if I respond I’m just playing along. Craziness has been running high lately — I’ll get into that below — and it’s probably not a coincidence that the news-for-rational-people has been very upsetting to the right-wing fringe lately: The protests in Baltimore — and the sporadic violence that spun out that situation — have emphasized that the police-killing-black-young-men issue is not going away; the black community is justifiably mad as hell and they’re not going to take it any more. The Supreme Court might be on the brink of recognizing marriage equality for gays and lesbians. There might be a peace agreement with Iran. And the second consecutive year of record temperatures makes global warming much harder to deny.

Given all that, how comforting it must be for extremists to create scenarios where the righteousness of their cause is obvious, like if Obama declares martial law in Texas and starts confiscating guns. Insane scenarios like this are the comfort food of far-right politics: They’re not going to happen, but imagining that they could underlines how important your movement must be — the Tyrant will have to bring down the Republic to try to stop us! — and lets you live in a heroic Red Dawn fantasy rather than in the real world, where you’re probably just an ignorant bigot.

With those considerations in mind, I’ve decided that — instead of fact-checking or satirizing —  craziness calls for something more along the lines of the Fire Danger scales you see in the national parks. Here’s the scale that makes sense to me:

  • Green. The only danger is to your blood pressure if you let yourself pay attention.
  • Blue. Laugh. You should probably have heard of this, but if it starts bothering you, let it go.
  • Yellow. Somebody you know probably takes this seriously, but it’s not going anywhere. Bookmark a debunking article, and if Cousin Bob tries to get you interested, invite him back into the sane world by sending him the link. (If he replies with a 10-page de-debunking, ignore him. Life is too short.)
  • Orange. This has the potential to get out of hand. It’s starting to infiltrate mainstream political discourse, and if the wrong people take it seriously, bad things could happen. Learn the key phrases that indicate someone is infected with this meme. When you hear them, you have a decision to make: Either quietly back away, or draw the topic into the foreground: “Are you really claiming …?” This is the level where it makes sense to start psycho-analyzing: What anxiety is really at the root of this?
  • Red. Bad things are already happening, and you hear the craziness from people who are not even crazy, they’re just poorly informed enough to be susceptible. You need to educate yourself and start actively inoculating the people you care about. Extra credit: Is there some way you can take action on the actual anxiety-causing issue?

Given that scale, let’s start evaluating the unusual run of craziness we’ve been having these last few weeks.

1. Jade Helm 15. Wikipedia describes Jade Helm 15 as “a planned United States military training exercise that is scheduled to take place over multiple states in the US from July 15 through September 15, 2015. It will involve U.S. Army Special Operations Command (SOC) with other U.S Armed Forces units in a multi-state exercise that includes Texas, Arizona, New Mexico, Utah and Colorado.

But if you look at it through the eyes of paranoia … well, that’s what makes it such a great crazy theory: It’s hard to argue with because it’s hard for reasonable people to grasp exactly what the threat is supposed to be. Maybe it’s a dry run for the imposition of martial law, or maybe it’s not even a drill, it’s martial law itself, or something else that involves confiscating guns (and secret tunnels under abandoned WalMarts). Because if President Obama were about to launch a coup against his own government, the place he would absolutely have to get under control first is Bastrop, Texas. I mean, if the Red Dawn patriots are anywhere, everybody knows that’s where they’d be.

The New Republic‘s Brian Beutler supplies the needed psychological analysis:

There’s a good amount of mythical and self-important thinking going on here, but there is also a very real sense in which these conservatives conceive of themselves as beleaguered, bent over a barrel by the federal government, living every day at the breaking point. It helps explain why [Senator Ted] Cruz believed a missive about using the Second Amendment as an “ultimate check against government tyranny” would make for a winning fundraising pitch, and why South Carolina Senator Lindsey Graham (also running for president) had to remind him that armed insurrection didn’t work out so well for his state a while back.

But this reasoning collapses without a foil. The secessionist impulse can’t be attributable to the ebbs and flows of social policy alone. If we live our lives on the razor’s edge of rebellion, there must be an equally reactionary adversary somewhere in the middle distance threatening our autonomy. That’s what gives rise to a projection of the kind we’re seeing in Texas today. Without an enemy, real or imagined, threatening our autonomy, we’re not patriots. We’re merely zealots.

Rating: Yellow/orange. It’s tempting to call this one blue, because liberals have gotten a lot of laughs out of it. But numerous Republican officials have responded as if the upset members of their party’s base had a legitimate concern, so it has definitely crossed the line into the mainstream. We can only hope that no wackos are taking this so seriously that they start shooting at our troops this summer. That plan probably wouldn’t work out well for them.

2. Kids posing with the Confederate flag. This one is true: The craziness isn’t in believing the rumor, but in why anybody would do this to begin with. Apparently egged on by some of their parents, eight teens dressed for the prom at Chaparral High in Parker, Colorado took a few minutes to pose for this picture and upload it to the internet. (Media versions of the photo have blurred the teens’ faces to protect them from their own foolishness.)

Denver’s Fox31 quoted a University of Colorado-Denver history professor identifying the flag as “first the Tennessee flag and more importantly the army of Virginia’s battle flag” before becoming the symbol of the KKK after the Civil War.

One of the parents speculated that there was no racist intent involved, but that “in their immaturity they kind of think it’s a sort of a cowboy type of thing.” Other commenters have suggested admiration for a “Southern lifestyle” a la Duck Dynasty.

CNN’s debate between Marc LaMont Hill and Ben Ferguson is instructive. Ferguson (a white conservative) accepts that the kids were probably not trying to offend blacks, and sees this very lack of race-consciousness as a sign of progress.

It may not be race as much as you’re trying to make it into race. It could actually be that there are younger people in America today that are not obsessed about racial issues or being bigoted or racist as you’re implying there are.

And Hill (black) replies, “Yeah, they’re called white people.” His point is that the ability to live without consciousness of race is itself part of white privilege. Blacks are never able to forget that there is a racial divide, or to ignore the possibility that whites might read something offensive into what they do. (I’m trying to picture how this story would play in the media with the races reversed: black kids with guns surrounding a Black Panther or Nation of Islam banner. I find it hard to imagine that pundits would accept a claim of innocent intent or see it as a sign of racial progress.)

Rating: Green, but orange if you have any connection to Chaparral High: If kids are coming out of your school without understanding what that flag really means — particularly when surrounded by whites with guns — you’ve got a problem.

3. Christianity is in danger of being “criminalized”. As unbelievable as it might be to outsiders (who see the Religious Right throwing its weight around all over our society), conservative Christians honestly believe both that they are persecuted and that their persecution is about to take sudden turn towards something truly dark and tyrannical.

This bizarre notion has been around for many years. In 2005, Janet Fogler published The Criminalization of Christianity: Read this book before it becomes illegal! (If it has become illegal in the subsequent decade, no one has told Amazon.) She in turn attributed the phrase to a speech she heard in 1997: “The ultimate goal of the homosexual movement is the criminalization of Christianity.”

A number of Republican presidential candidates are dog whistling about this idea, as when Ted Cruz said “Religious liberty … has never been more in peril than it is right now.” But Mike Huckabee is explicitly making this looming criminalization one of the themes of his presidential campaign. In a conference call recorded by Right Wing Watch, Huckabee laid it out:

Christian convictions are under attack as never before. Not just in our lifetime, but ever before in the history of this great nation. We are moving rapidly towards the criminalization of Christianity, where it’s not simply going to be that a church’s tax-exempt status is threatened, but more importantly, where [there are] criminal charges for a person who defies the new government norm. … We would be in essence criminals for preaching the scriptural truth about holy marriage.

He justified this fear by citing “numerous cases” across the country of “chaplains in the military being told to put their Bibles away, no longer pray in Jesus name”. (Air Force Chaplain James Bradfield explains the origins of this canard: When soldiers have been ordered to attend a meeting, regulations say the invocation of that meeting — if any — should be non-sectarian. So it is inappropriate to pray in Jesus’s name, or in Allah’s or Buddha’s. In short, the regulation is against forced devotion, not devotion in general or Christian devotion in particular.)

To me, this a classic example of what I have elsewhere called privileged distress: as a favored group loses some of its privileges and is treated more like everyone else, its members imagine that they are being persecuted.

The sad thing is that Huckabee and his ilk are blind to the sense in which Christianity really is being criminalized — by Christians who believe their higher righteousness justifies them in ignoring the laws and Constitutional principles the rest of us have to live by. Scott Roeder, for example, criminalized Christianity when he killed abortionist Dr. George Tiller. Governor Jindal is criminalizing Christianity when he conspires to misappropriate public funds to promote his religious views in the Louisiana public schools. And Huckabee himself is advocating the criminalization of Christianity later in this same conference call, when he urges local government officials to defy court orders to issue marriage licenses to same-sex couples.

Rating: Red. Bad things are already happening. The proponents so-called “religious liberty” bills in the state legislatures often take as given that Christian belief and practice is in some kind of legal danger.

4. Obama is bringing on the Apocalypse. This story, in my opinion, got blown out of proportion. In an interview on a religious-right radio program, Michele Bachmann accused President Obama of helping Iran get nuclear weapons, which spins the world toward disaster. But then she segued into a common Christian belief: that the worse things get, the closer we are to the Second Coming.

To my mind, this is comparable to a point Communists often make: that the worse things get, the closer we are to the Revolution. And Bachmann never completely boiled it down to “Obama is causing the Apocalypse”, as you might assume from the headlines.

I find another clip from this interview more interesting, because it illustrates how the conservative mind uses theories of dark magic to deal with the cognitive dissonance caused by the increasing evidence for climate change: Since President Obama has “in effect, declared war on Israel”, he has invoked the curse in Genesis 12:3 against the United States. The interviewer (Jan Markell) sums up the consequences: “As we speak, they’re severe, from economic issues to some of the weather-related issues: drought on the west coast, unparalleled, unprecedented snowstorms on the east coast.” And Bachmann responds: “It’s my opinion that that is only the very threshold or down payment.”

Rating: Green.

5. Two guys die trying to shoot their way into a Muhammad cartoon contest. Like #2, this one really happened. The American Freedom Defense Initiative — an anti-Muslim group whose president is Pamela Geller — attempted to recreate the Charlie Hebdo situation in Garland, Texas.

They succeeded. Two extremely foolish Muslim extremists took the bait and wounded a security guard. They were gunned down by police and died.

The incident reminds me of high school, where a big guy might start talking trash about a little guy’s Mom or girl friend, hoping he’ll attack and provide an excuse to beat the crap out of him. Yeah, the little guy is wrong to react, but that doesn’t make me root for the big guy either. Larry Wilmore nailed it:

Make no mistake, it is absolutely, unequivocally wrong to shoot people who do things that offend you, but two things can be wrong at the exact same time. Even if Pamela Geller’s argument about free speech is valid, she can still be a dick.

If somebody has a real point they’re trying to make, and if the best way to get that point across is through a cartoon with Muhammad in it, I totally support the right to draw that cartoon no matter how many Muslims it incidentally pisses off. But if pissing off those Muslims is the whole point, I still agree in a legal sense, but my sympathy is limited.

I know it’s Bill Maher’s job to make the New Rules, but here’s one I’d like to propose: If you portray AFDI as innocent victims, you are absolutely forbidden ever to claim that any victim of any crime was “asking for it”. If supermodels want to walk down inner-city sidewalks by themselves at 3 a.m., naked but for solid-gold jewelry, they’re just exercising their right to free expression.

Rating: Red. Craziness really starts to take off when you can provoke a crazy response from the opposite fringe. Eventually you can get into the center-destroying cycle of reprisals I described a decade ago in Terrorist Strategy 101.

6. Obama is promoting a race war so he can cancel the elections. World Net Daily is the New York Times of conspiracy theorists. On its site you can find columnists like Erik Rush, who will “connect the dots” and explain to you what this Baltimore nonsense is really about.

The common denominator, as we have seen illustrated above, in the streets of Ferguson and Baltimore, in the White House and across America: Marxists and militant Muslims working together in a coordinated effort to precipitate circumstances that will eventually “necessitate” the imposition of martial law. …

The operatives in Baltimore are but one contingent of Obama’s Revolutionary Army; illegal immigration and amnesty activists are another, as are various other entitled and protected class groups the political left has cultivated over many years. Effective manipulation of these demographics will be integral in determining whether or not he can successfully turn us all against one another at the appointed time.

Another WND columnist, Morgan Brittany, says “I completely agree” with that Rush column, and elaborates:

I don’t think the chaos in Baltimore “just happened”; I think it was planned and is the next step in the breakdown of our society.

Another piece of the plan is the “over-charging” of the officers who killed Freddy Gray, because when they are inevitably acquitted, Obama’s Marxist/Muslim allies can incite similar riots across the country.

If the verdict is not what they want, perhaps Obama will have to institute martial law to preserve order, form a national police force and postpone the 2016 elections.

Michael Savage knows who will be in that national police force: Obama’s about to “deputize” the Crips and Bloods to “keep order on the streets”.

You’re going to see more race war right up until the Labor Day of 2016 for an obvious reason. … they’re going to take the street garbage and they’re going to take the illegal immigrants and they’re going to warp the entire election.

Rating: Blue. But only because everything from Savage or WND rates as Blue until it gets picked up elsewhere; I’ll upgrade this bit of craziness to Yellow as soon as I see it on Fox.

The Obama-planned-Baltimore theory has potential. If you take as an axiom that white racism in America is ancient history, then these repeated unnecessary police killings of black men and the deep anger they evoke in the black community are profound mysteries. What better explanation could you find?

The New Clinton Allegations: Fog or Smoke?

This week the pre-publication publicity for the book Clinton Cash began, and at least one of the claims it makes — that a State Department decision made while Hillary Clinton was Secretary might have been influenced by large contributions to the Clinton Foundation — was picked up by the New York Times. And that raised the question: Is this the kind of fog routinely pumped out by political operations to raise an opponent’s FUD factor, or is this smoke that indicates some kind of fire?

Political cartoonists saw it both ways.


Which way is right? If we’re just talking about Clinton Cash, the answer seems clear: It’s a political attack that you shouldn’t take too seriously. But the NYT is harder to write off.

Clinton Cash. The author, Peter Schweizer, is a former Bush speechwriter and the coauthor of Bobby Jindal’s autobiography. He has a history of making sensational claims that don’t pan out. [1] And he doesn’t even claim to have solid evidence of any wrong-doing on the part of either Bill or Hillary Clinton. As ThinkProgress summarizes:

Schweizer makes clear that he does not intend to present a smoking gun, despite the media speculation. The book relies heavily on timing, stitching together the dates of donations to the Clinton Foundation and Bill Clinton’s speaking fees with actions by the State Department.

Even if nothing is wrong, suspicious timing is an easy case to make, because the apex of the power-and-money pyramid is a small world. The kind of people who have money to give to foundations and/or political campaigns are also the kind of people that government regulations are trying to control. So if you cast your net wide enough, you will inevitably find sequences where a gift of some sort is followed by a favorable decision of some sort. The question is whether the two are related. This situation has come up so frequently for so long that both possibilities have Latin names. If they are related, it’s quid pro quo. If they’re not but you assume they are, it’s the post hoc ergo propter hoc fallacy.

And whether it is involved in anything nefarious or not, the Clinton Foundation was always going to be a conservative target. The Clintons can rightfully be proud of the good work done by the Foundation and the Clinton Global Initiative, so Republicans would naturally want to make those political assets unusable. That strategy goes back to Karl Rove: Try to turn your opponents strengths into weaknesses. (Example: the swiftboat attack on John Kerry’s military record.)

So although long-time Clinton-haters will want to distribute Schweizer’s book to all their friends, if you’re a Clinton supporter wondering if you should reconsider, or an uncommitted voter considering Hillary as a possible president, Clinton Cash by itself should not figure in your calculations. This kind of book was bound to be written whether there’s any genuine issue or not.

But the NYT deserves more attention.

The uranium company. The Times looks at one example from Schweizer’s book, concerning a Canadian uranium-mining company that owned properties in both Kazakhstan and the United States. It’s a complicated story that takes place over many years: The Canadian company UrAsia Energy, which was run by a friend of Bill Clinton and a long-time Clinton Foundation supporter, bought mines in Kazakhstan, merged with the South African company Uranium One, and then was bought out by the Russian national mining company Rosatom. The final transaction required the approval of several government agencies in Canada, the U.S., and probably some other countries. One of the needed U.S. approvals came from the State Department, while Hillary Clinton was Secretary of State. All through this period, the Clinton friend was giving large contributions to the Clinton Foundation, and many of his executives and business partners were as well, for a total in the millions of dollars. (See the timeline.)

And there’s another entanglement:

And shortly after the Russians announced their intention to acquire a majority stake in Uranium One, Mr. Clinton received $500,000 for a Moscow speech from a Russian investment bank with links to the Kremlin that was promoting Uranium One stock.

None of this in itself is illegal, and none of the individual pieces are even unusual. Other former presidents have leveraged their fame and connections to raise money for good causes, like the Carter Center or the Ford Institute. Other former presidents get large speaking fees, sometimes in circumstances that an uncharitable observer would see as suspicious. Relatives of other presidents or presidential candidates have had business relationships with people who may have hoped to gain political influence. [2]

Bill Clinton is different from other former presidents in two ways: The Clinton Foundation and the Clinton Global Initiative are far larger than anything established by other presidents, and (through Hillary) Clinton still arguably affected government policy. Corporate money spent on previous presidents had sent a more indirect message to the currently powerful, (“Look how grateful we can be to leaders who are nice to us.”) rather than looking like a quid pro quo transaction.

What makes corruption? The seriousness of this story depends mainly on three questions:

  • Did the Clintons promise the uranium businessmen anything in return for their contributions and the speaking fee?
  • If they did promise something, did they deliver? In other words, is it possible to connect the dots from the businessmen to the foundation to Hillary to the State Department people who recommended approving the deal?
  • Should the State Department have blocked the deal? Does Rosatom owning uranium mines in the U.S. and Canada compromise American security? Or would torpedoing the deal have had negative affects elsewhere in our relations with Russia or other countries? (It’s also worth asking why the other relevant agencies approved the deal, or whether anybody lower in the State Department wanted to veto it.)

The NYT story provides no evidence that any of those question have a Yes answer. Maybe further digging will produce such evidence. But that’s speculative.

Another thing that would give this story legs is if the Clintons personally profit from their foundation in ways that weren’t already widely known. [3] Without such profit, we’ve got a story about trying to influence a politician by giving to her favorite charity. If someone tried to influence a feminist politician by giving a lot of money to the Girl Scouts, that wouldn’t feel like a serious corruption story.

Appearance and reality. The question that’s not speculative is: Why did Hillary let the appearance of corruption get this far? Or, as Amy Davidson put it in The New Yorker:

Are the Clintons correct in saying that there is an attack machine geared up to go after them? Of course. But why have they made it so easy?

Secretary Clinton was asked about precisely these kinds of conflicts-of-interest during her confirmation hearings, and she assured the Senate that she had an extensive full-disclosure agreement with President Obama, one that went far beyond what the law ordinarily requires of either foundations or government officials. (Steve Kornacki runs the tapes.) And yet the bulk of the uranium-related contributions weren’t disclosed.

Davidson goes through the details of the explanation of how this non-disclosure didn’t technically violate the full-disclosure agreement.

I also asked the foundation to explain its reasoning. The picture one is left with is convoluted and, in the end, more troubling than if the lapse had been a simple oversight. … That structural opacity calls the Clintons’ claims about disclosure into question. If the memorandum of understanding indeed allowed for that, it was not as strong a document as the public was led to believe—it is precisely the sort of entanglement one would want to know about.

In short, we’re back to what the meaning of is is. The non-disclosure is certainly a violation of the spirit of Hillary Clinton’s agreement with President Obama — as well as what she told the Senate — even if the letter of the agreement was somehow upheld.

Conclusions. If I had to pick one person as the sharpest talking-head on cable news, I think it would be MSNBC’s Steve Kornacki Here was his conclusion:

There is no smoking gun in anything that we learned today, and the Clintons are adamant that there is no there there. And it really might be as simple as that. But: There is the appearance of a conflict here, the possibility of a conflict. That’s what the reporting shows today. And that’s what Hillary said six years ago there wouldn’t be. There are questions here. There are difficult questions here, murky questions here, but legitimate questions.

And his guest Alex Seitz-Wald chimed in:

It’s hard to believe that these people are giving millions of dollars to the Clinton Foundation without at least some of them thinking that they might curry some favor with the Clintons. Whether that favor was returned or not, we haven’t seen that. But it certainly creates this perception, and that’s a problem.

Legally, I’ll bet there turns out to be no issue: no indictments for bribery, perjury, or obstruction of justice. Politically, I think the outcome will boil down to Amy Davidson’s final question: “Is this cherry-picking or low-hanging fruit?” Or: after all the time and money spent on opposition research, is this the best anti-Hillary story her opponents have? If it is, she’ll be fine. But if this is just the appetizer, there might be a problem.

[1] If you look at the list of previous Schweizer claims, a pattern emerges: He finds something in the public record that makes you go “Hmmm.” And then (if it makes a Democrat look bad) he publishes a conclusion he draws from that finding, without doing even the simplest checking to see if there’s a real issue.

One example is the claim by Schweizer’s Government Accountability Institute that President Obama skips over half of his daily intelligence briefings. This claim became the basis of an attack ad against Obama, which The Washington Post fact-checked and called “bogus”.

The grain of truth at the bottom of the charge was that about half the time Obama prefers to read his daily intelligence briefing rather than have a face-to-face meeting. The GAI report was based on analyzing the president’s published schedules, which showed all the face-to-face meetings. On days without a scheduled meeting, Obama was “skipping” the briefing.

But every president does this differently, the WaPo said, concluding that “Under the standards of this ad, Republican icon Ronald Reagan skipped his intelligence briefings 99 percent of the time.”

Similarly, Schweizer used the president’s public schedules to claim that Obama had never met with HHS Secretary Kathleen Sebelius during the three years prior to the ObamaCare rollout. This claim also turned out to be bogus, for reasons anybody who watched The West Wing would easily understand: High officials go in and out of the Oval Office all the time without being on the schedule published in the morning.

[2] The earliest example I remember is Ronald Reagan taking $2 million for a 9-day speaking tour of Japan. Reagan’s free-trade policy and his opposition to protective tariffs had been very beneficial to Japanese corporations, which now had a chance to show future presidents how grateful they could be.

In addition to a few charitable enterprises, Gerald Ford’s post-presidency was occupied by serving on numerous corporate boards, from which he received a nice income for doing not particularly much.

These practices are not uniquely American, either. In 2009 The Guardian reported:

The former prime minister Tony Blair has received millions of pounds through an unusual mixture of commercial, charitable and religious income streams. Since he stepped down from office in 2007, his financial affairs have been described by observers as “Byzantine” and “opaque”.

As for the appearance of gaining influence through business dealings with a relative, George W. Bush’s business career was repeatedly saved from disaster by rich people who were politically connected to his father, and several of Tagg Romney‘s clients and partners also had political connections to Mitt. Whether or not these were attempts to curry favor through other means is in the eye of the beholder.

Or favors can appear to flow through a relative in the other direction. The International Business Times reports:

While Jeb Bush was governor of Florida, state pension officials committed at least $1.7 billion to financial firms whose executives were “Pioneer” fundraisers for his brother’s presidential campaigns. To achieve Pioneer status, the fundraisers had to amass at least $100,000 worth of bundled contributions to one of George W. Bush’s campaigns.

That could be corruption, or it could just be the small-world phenomenon: Lots of financial executives were Bush fund-raisers; if you distributed pension funds by throwing darts at the Yellow Pages, you’d probably hit some of their firms.

None of this excuses whatever the Clintons might or might not do. But we should not imagine that there is some unique “Clinton problem”.

[3] None of the articles I’ve seen mentioned whether any of the Clintons draw a salary for the foundation work they do, or if that compensation is reasonable. I suspect they don’t, but if you know, leave a comment.

The 2016 Stump Speeches: Marco Rubio

[This is part of a series of articles on the speeches of 2016 presidential candidates. The overall vision of the series and links to the other articles can be found here.]

When I described my model for analyzing the Republican presidential campaign a few weeks ago, I began with the cautionary tale of Tim Pawlenty, the candidate Jonathan Chait picked as the most likely Republican nominee in the 2012 cycle. Pawlenty had the virtue of being broadly acceptable to all four Republican factions, but none of them considered him to be their guy. Consequently, even though he made a much more plausible president than Herman Cain or Michele Bachmann, Pawlenty was the first man out.

To me, Marco Rubio looks like the Tim Pawlenty of 2016. (538‘s Harry Enten disagrees with me.) There’s no obvious reason he couldn’t be the Republican nominee: He’s well liked by the Corporatist donors. He’s religious enough to be acceptable to the Theocrats, bellicose enough for the NeoCons, and can preach the low-tax small-government gospel well enough for the GOP’s Libertarian wing (which is not to be confused the far more doctrinaire Libertarian Party). He’s young and good-looking, he’s from an important swing state, and he’s got that successful-son-of-immigrants thing going. If you’re a Republican, what’s not to like?

His problem is that none of the factions looks at him and thinks: “That’s my guy.” Jeb Bush is the heir to the Corporatist dynasty and Rand Paul is the Libertarian crown prince. If you’re so anti-Obama you’re ready to burn the country to the ground, Ted Cruz has been leading your crusade. If you’re holding out for a full-fledged minister of the Religious Right, Mike Huckabee is in the wings. Scott Walker seems like the Corporatists’ first alternate if Bush stumbles. So where does Rubio fit in?

The speech. Listening to Rubio’s announcement speech, (See the Time transcript.) I was expecting a serious answer to the question “Why me?” I was disappointed. His answer, when I insert the names he leaves to the listeners’ imagination, is that nobody wants another Bush vs. Clinton election.

Like Cruz and (to a lesser extent) Paul, Rubio casts his own story as a fulfillment of the American Dream. His mother and father came from Cuba in 1956. They found basic working-class jobs, but because America is the land of opportunity, they could hope for more.

My father was grateful for the work he had, but that was not the life he wanted for his children. He wanted all the dreams he once had for himself to come true for us. He wanted all the doors that closed for him to be open for me.

In what could be interpreted as a backhanded slap at Jeb Bush, Rubio said:

I live in an exceptional country where even the son of a bartender and a maid can have the same dreams and the same future as those who come from power and privilege.

He pivots from his personal story to public policy in the same way that Cruz and Paul did, and I suspect nearly every candidate will:

My parents achieved what came to be known as the American Dream. But now, too many Americans are starting to doubt whether achieving that dream is still possible.

This is becoming the question of 2016, and appropriately so — if we take it seriously and don’t use it as just a jumping-off point for promoting whatever policies we favored anyway: Economic mobility in America is not what it was. Unskilled labor is no longer easy to find and no longer pays well enough to buy a home and raise children in it and launch them into a better life. College and other forms of training for skilled jobs has become prohibitively expensive for those who weren’t born at least part-way up the ladder of success. New small businesses — small shops, small farms, small restaurants — do not so easily thrive without capital outlays beyond the dreams of struggling families. What — if anything — can be done about this?

The shrinking of the middle class and the increasing slipperiness of the ladder to success have been issues since the mid-1970s, through administrations of both parties. Carter, Clinton, and Obama didn’t fix it, but neither did Reagan or the two Bushes. So it’s long past the point where either party can just say, “All you need to do is elect us.” Rubio is exactly right when he says:

While our people and economy are pushing the boundaries of the 21st century, too many of our leaders and their ideas are stuck in the twentieth century. … This election is not just about what laws we will pass. It is a generational choice about what kind of country we will be.

And his claim that we need a new generation of leaders rings true.

Just yesterday, a leader from yesterday [i.e., Hillary Clinton] began a campaign for President by promising to take us back to yesterday. But yesterday is over, and we are never going back. We Americans are proud of our history, but our country has always been about the future. Before us now is the opportunity to author the greatest chapter yet in the amazing story of America. We can’t do that by going back to the leaders and ideas of the past.

But then we get to Walter Mondale’s challenge to Gary Hart’s new-ideas candidacy of 1984: “Where’s the beef?” What are these new ideas that Rubio’s new generation of leaders will implement to bring the American Dream into the 21st century?

Now, the time has come for our generation to lead the way toward a new American Century.

If we reform our tax code, reduce regulations, control spending, modernize our immigration laws and repeal and replace ObamaCare, the American people will create millions of better-paying modern jobs.

If we create a 21st century system of higher education that provides working Americans the chance to acquire the skills they need, that no longer graduates students with mountains of debt and degrees that do not lead to jobs, and that graduates more students from high school ready to work, then our people will be prepared to seize their opportunities in the new economy.

If we remember that family – not government – is the most important institution in society, that all life deserves protection, and that all parents deserve to choose the education that’s right for their children, then we will have a strong people and a strong nation.

And if America accepts the mantle of global leadership, by abandoning this administration’s dangerous concessions to Iran, and its hostility to Israel; by reversing the hollowing out of our military; by giving our men and women in uniform the resources, care and gratitude they deserve; by no longer being passive in the face of Chinese and Russian aggression; and by ending the near total disregard for the erosion of democracy and human rights around the world; then our nation will be safer, the world more stable, and our people more prosperous.

What in that plan does he think Jeb Bush will disagree with? Less regulation, lower taxes on corporations and the rich, less government spending, traditional family values, strong defense, aggressive American leadership in the world. How is that different from what every Republican has been saying since Ronald Reagan?

Republicans can and do argue that those ideas are good, and that previous Republican presidents just didn’t push them hard enough or stick with them long enough. But no one can argue that they’re new, or that they constitute an answer to the unsolved problems of the last 40 years.

In Rubio’s defense, it’s early in the 2016 cycle. It is a time for themes and visions, not 12-point programs. But if the theme of his campaign is going to be that he represents a new generation of leaders for a new century, then at some point he’s going to have to point in a different direction than the old leaders. At some point he’s got to have some new ideas, not just announce the need for them.

Otherwise he’s just making a claim about demography and identity: He’s young, Hispanic, and unburdened by the name “Bush” or “Clinton”. That’s all fine, but I don’t see how it’s going to solve his Tim Pawlenty problem.

Death, Taxes, and the American Dream

As executor of my father’s estate, I learned that the #1 argument against “the Death Tax” is completely false.

It is a truth universally acknowledged, that a great fortune seeking to pass from one generation of aristocrats to the next must be in need of tax relief. To this end, Thursday the House voted (mostly on party lines) to repeal the federal estate tax, a.k.a. the Death Tax.

Now, you might wonder why House Republicans would do that, given (1) Obama is sure to veto it if it gets that far, and (2) Republicans now claim they want to do something about income inequality. (They used to say it wasn’t a problem; now suddenly it is.)

So far in the 2016 cycle, the announcement speeches of all the Republican presidential candidates have centered on the next generation’s loss of hope in the American Dream. Typically they say something like this: “For me [or my parents or grandparents — I can’t wait to hear how far back Jeb Bush has to go before he finds someone who struggled] America was a place where you could come with nothing and achieve anything. I want that to continue to be true for future generations of Americans.”

None of them are talking about the old European Dream of establishing a dynasty that hands a huge fortune down through the centuries. But actions speak louder than words, and that’s the tax plan their party has united behind.

Who pays the Death Tax? As it currently stands, the federal estate tax only applies to estates larger than $5.43 million, so it is literally a multi-millionaires’ tax. The whole point of the Death-Tax framing is to fudge that fact. Everybody dies, so something called a “Death Tax” sounds like it ought to affect everyone.

But, sadly, not everybody leaves a multi-million-dollar estate. According to WaPo’s Plum Line, only 1 out of every 553 estates owes any estate tax at all. And that one gets to skim $5.43 million off the top ($10.86 million if the heir is a surviving spouse), so even if you’re fortunate enough to die with $6 million or $7 million, your estate is still not going to pay much.

So repealing the tax has nothing to do with passing a small family farm from father to son, or letting a Mom-and-Pop business continue as a Brother-Sister-and-Two-Cousins business. The real issue is the American equivalent of keeping Pemberley in the Darcy family or saving Downton Abbey for the Crawleys. Repealing the estate tax is all about the plutocracy maintaining itself.

The fairness argument. Even after Citizens United, we still have enough of a democracy that politicians can’t just admit they’re serving the hereditary aristocracy. So what do they say?

The usual argument against the estate tax is that it’s unjust, because the money is being taxed twice. I’m not sure exactly why double-taxation would be unjust — that’s a different discussion — but for now let’s just go with it: As the money came in, it was trimmed by the income tax, so taxing it again at death is unfair. The Patriot Post begins its ringing denunciation of the Death Tax like this:

There are lots of persuasive reasons to kill this odious tax. The money in a person’s estate has already been taxed over the lifetime that it was earned.

Persuasive? Maybe. It’s also false.

Dad’s farm. I’ve been hearing that double-taxation argument for years, but I didn’t realize how wrong it was until I became executor of my father’s will. One of the things Dad left behind was the family farm: a 160-acre square whose abstract of title includes documents going back to the Homestead Act.

My parents bought the farm from my grandparents in 1950 for $30,000, and I sold it to a cousin in 2013 for … well, considerably more than that. (It’s good Illinois topsoil, and Dad took care not to let it erode.) Because of the way the tax laws work, no one ever paid tax on that capital gain: not my parents while they were alive (because they didn’t realize the capital gain by selling), not the estate (which was under the $5 million limit), and not me or my sister (because of a nifty little loophole called stepped-up basis).

That’s not some special arrangement for farms; it applied to the rest of the estate as well. Mom and Dad were conservative investors who didn’t buy or sell that often, so the non-farm portion of their holdings consisted of a house and some stocks they had held for many years (and usually bought for a lot less than the current value). As a result, the great majority of what my sister and I inherited is money that, to this day, has never been taxed.

That’s not unusual. According to the Center on Budget and Policy Priorities:

Estimates recently made by economists James Poterba and Scott Weisbenner, based on data from the Survey of Consumer Finances, suggest that unrealized capital gains make up about 37 percent of the value of estates worth more than $1 million and about 56 percent of estates worth more than $10 million.

I’ll take a wild guess and say that the percentage keeps getting higher and higher as the estates get larger.

Heirs and entrepreneurs. If you look at the top of a list of the richest Americans, you might think we’re still an entrepreneurial society: Bill Gates, Warren Buffett, Larry Ellison — all founders of major corporate empires. That case gets only slightly dicier with the next two names: Charles and David Koch, who inherited Koch Industries from their Dad, but did manage it aggressively and multiplied its value. Dad’s company wasn’t a household name, but Charles and David’s company is. That’s why they’re on the list.

Four of the next five, though, are the heirs of Sam Walton, founder of WalMart. The singular virtue that makes the Waltons multi-billionaires is that they were born in the right place. Most of what they inherited was WalMart stock that Sam had owned since the founding, when it was worth virtually nothing. When he died, that vast capital gain disappeared for tax purposes, just like the gain on Dad’s farm. So the federal estate tax was the only tax that money ever faced.

Now imagine the “Death Tax” gone. The Gates, Buffett, Ellison, and Koch fortunes are in Microsoft, Berkshire Hathaway, Oracle and Koch stock. The vast capital gains on those holdings have never been taxed. Without an estate tax, that stock is just handed off directly to the heirs, who can hand it off to their heirs.

It never gets taxed. Ever.

That’s how you build a hereditary aristocracy.

But the rich have foundations. Another excuse for getting rid of the Death Tax is that the very rich find ways around it anyway. Look at Gates and Buffett: They’ve put billions into the Gates Foundation, money that the tax man will never see.

That continues a long American tradition, going back to the Rockefeller Foundation and the Ford Foundation. Andrew Carnegie’s money wound up in countless libraries, museums, and universities, rather than in the federal treasury.

I’m not sure why that’s supposed to be a criticism of the estate tax. If Bill Gates wants his money to fight malaria in Africa rather than lower the federal deficit, I’m OK with that. John D. Rockefeller decided to found the University of Chicago rather than hand his money over to the government. I got my graduate degrees there, so it worked out fine as far as I’m concerned.

Without the Death Tax. You know what would be worse than that? If the richest-Americans list were still dominated by Rockefellers and Fords and Carnegies. That would make us a fundamentally different kind of country.

It could have worked out that way. I’m not sure I buy Celebrity Net Worth’s estimate that Rockefeller, Carnegie, and Henry Ford put together were worth about $800 billion in today’s dollars — that would be about ten times Bill Gates — but I don’t doubt that those fortunes would still be competitive if the heirs could have held them together and invested them well.

Without the “Death Tax” either collecting taxes or pressuring billionaires to find other ways to dispose of their money, a century from now we could be that kind of country — the kind where the wealthiest people aren’t entrepreneurs, they’re heirs. The richest-Americans list of 2115 might consist almost entirely of Waltons and Ellisons and Kochs. The way to get on that list would be to marry into one of those empires, not try to start one of your own.

If thing work out that way, I’m sure the politicians of 2115 will still give inspiring speeches about the American Dream. But it will be the old European Dream of the Medicis and the Rothschilds that has won out. Don’t waste your time trying to invent the Next Big Thing, just hope your daughter finds her Darcy. Then keep handing the money down your family line forever.

The 2016 Stump Speeches: Rand Paul

[This is part of a series of articles on the speeches of 2016 presidential candidates. The overall vision of the series and links to the other articles can be found here.]

Paul and his candidacy. Rand Paul is in many ways the most interesting of the potential Republican candidates, the one whose positions are most idiosyncratic and least in step with GOP groupthink. He usually tries to sound like an Ayn Rand libertarian — which already sets him apart on some issues — but occasionally a bit of Occupy Wall Street anarchy gets into his rhetoric as well.

Most other Republicans argue that the Republican Party just hasn’t been Republican enough. It needs to double down on its principles, not move to the center or compromise with Democrats to get things done. Good stuff will happen only after the last Democrat has been driven into the hills.

Paul, on the other hand, is arguing that both parties are the problem: Both are part of a culture of corruption that makes government spending and government power constantly increase.

If he could quit there, he’d have an attractive message. Paul’s “Stop the Washington Machine” slogan sounds really good to people with a wide range of views. Consequently, like Barack Obama in 2008, Paul has a chance to expand the electorate by attracting people otherwise too alienated to vote. But it leaves his campaign with two problems:

  1. He’s running for the nomination of one of the parties he’s attacking. So he somehow has to get Republicans to vote for a candidate who says that Republicans are part of what’s wrong with America. But Republicans view acknowledging mistakes as weakness; they don’t want their candidate to go on an apology tour for the sins of George W. Bush.
  2. Once he stops the Washington machine, what is he going to put in its place? Other candidates are in a position to be vague and hopeful, but Paul’s record includes a lot of white papers and proposed bills whose details (if they become common knowledge) will turn off a lot of the people his slogan attracts.

The speech’s theme. [All unattributed quotes are from Time‘s transcript of the speech Paul gave Tuesday in Louisville. Watch out for The Independent‘s “full transcript”; parts of the speech are missing.]

A typical announcement speech is a blend of autobiography and political vision. Sometimes (as in Ted Cruz’s speech), those are two separate segments. But Paul’s speech is organized by issue, and biographical details are sprinkled in as they seem relevant. That structure sends a message in itself: Who I am is not important compared to what I want to do. Where Cruz frames himself as a prophet raised up to do God’s work, Paul frames himself as Cincinnatus temporarily putting aside his farming (or, in Paul’s case, his practice as an eye doctor) to save the Republic.

Paul begins his speech saying: “We have come to take our country back.” This is a common trope for any party out of power, and (depending on your vision of what America used to be) can mean anything from restoring white Christian supremacy to redistributing wealth. To Paul it means:

The Washington machine that gobbles up our freedoms and invades every nook and cranny of our lives must be stopped. … I want to be part of a return to prosperity, a true economic boom that lists all Americans, a return to a government restrained by the Constitution. A return to privacy, opportunity, liberty. [1]

Debt and spending. Paul’s primary symbol and symptom of too-big government is the $18 trillion federal debt.

I’ve been fortunate. I’ve been able to enjoy the American Dream. I worry, though, that the opportunity and hope are slipping away for our sons and daughters. As I watch our once-great economy collapse under mounting spending and debt, I think, “What kind of America will our grandchildren see”?

It seems to me that both parties and the entire political system are to blame. Big government and debt doubled under a Republican administration. And it’s now tripling under Barack Obama’s watch. President Obama is on course to add more debt than all of the previous presidents combined. We borrow a million dollars a minute.

This mixes some truth with some falsehood: A million dollars a minute is a little high, but in the ballpark. George W. Bush did double the national debt, but Obama didn’t triple it, and isn’t on course to add more debt than all previous presidents combined. (Details in endnote [2].)

The more abstract idea that big government and debt are collapsing the American economy is less easily fact-checked, but shouldn’t be accepted as obvious. Other rich countries (Sweden and Germany, for example) have much higher per-capita government spending than we do, and Japan’s per-capita government debt is almost double ours. The fastest-growing of the world’s large economies is China, which has a far more intrusive government. [3]

Fixing the budget. Paul proposes that we balance the budget entirely with spending cuts.

Currently some $3 trillion comes into the U.S. Treasury. Couldn’t the country just survive on $3 trillion?

The way he wants to make that happen is through a constitutional amendment:

Congress will never balance the budget unless you force them to do so. Congress has an abysmal record with balancing anything. [4] Our only recourse is to force Congress to balance the budget with a constitutional amendment.

Usually, conservatives wave a balanced-budget amendment like a magic wand: It will balance the budget without forcing us to spell out the harsh spending cuts that are required once tax increases are off the table.

Paul can’t be criticized for that. In 2011 he put out a proposal to strip $500 billion out of the budget (almost exactly the current deficit). That proposal demonstrates how draconian a balanced-budget-with-no-new taxes is. As I observed at the time: it cut 28% from the Center for Disease Control, and made similar cuts in the agencies that monitor food safety. The National Park Service got cut 42%. And so on.

When people think “The government spends too much money”, I’ll bet they’re not thinking about Yellowstone, or planning to cut corners on the next Ebola outbreak. But Paul is.

This is the problem when you get specific: The American people dislike “big government” and “spending” in its trillion-dollar abstraction, but the big things that the government spends money on — defense, Social Security, Medicare — are popular. In the rest of the budget, nearly all the easy cuts were made long ago. And when you’re sitting on your rooftop in New Orleans wondering whether the helicopters or the flood waters will reach you first, “big government” sounds pretty good.

Inequality. For a long time, conservatives refused to recognize growing economic inequality as a problem. (Talented ambitious people are out-performing inept lazy people. What’s the problem?) But recently that has turned around. At least rhetorically, conservatives are now addressing inequality.

Trillion-dollar government stimulus packages has only widened the income gap. Politically connected cronies get taxpayer dollars by the hundreds of millions [5] and poor families across America continue to suffer. I have a different vision, … a vision that will offer opportunity to all Americans, especially those who have been left behind.

My plan includes economic freedom zones to allow impoverished areas like Detroit, West Louisville, Eastern Kentucky to prosper by leaving more money in the pockets of the people who live there.

This “economic freedom zone” idea has been kicking around for a while under various names. Jack Kemp first called them “enterprise zones” and later “opportunity zones of prosperity“. (I call them “hellholes”, for reasons that will become apparent. But I’ll try to be nice and use Paul’s terminology.)

The idea is that if you lower taxes and cut regulations in some impoverished region, businesses will sprout there like mushrooms, providing jobs for all the previously unemployed residents. If you just stop there, it sounds like it might work. But Paul put out a 6-page outline of his plan in 2013, so we know a lot more of the disturbing details.

Reducing taxes in economically depressed areas is a stimulus that will work because the money is returned to businesses and individuals who have already proven that they can succeed.

i.e., to rich people.

These “Economic Freedom Zones” allow blighted and bankrupt areas to remove the shackles of big government by reducing taxes, regulations, and burdensome union work requirements. These zones give parents and students the flexibility to find better schools, allow talented immigrants to pursue entrepreneurial and job-creating endeavors, and will provide additional incentives for philanthropy to help those in need.

So how does that work? Let’s start with the tax part. When an impoverished area like Detroit or West Louisville is declared a hellhole — sorry, an Economic Freedom Zone — both the individual and the corporate tax rates go down to 5%. Payroll taxes (Social Security and Medicare) are reduced for both the employer and the employee. And the capital gains tax goes away for “stock or tangible assets that are located within the area”.

This is supposed to encourage new businesses. I know immediately the new business I would want to be in: turning abandoned buildings into tiny cheap condos that rich people could buy to establish residency, even though they would never be caught dead there. With all the zoning regulations suspended, I could probably build them for $20,000 each easy. Then I sell them for $100,000, and a guy with a billion-dollar income saves hundreds of millions in taxes by buying one. Everybody wins!

Mailboxes Etc would also do well, as corporations move their “headquarters” to mailboxes inside the Zone. Now they pay low taxes, and capital gains on their stock become tax free!

You think this kind of stuff wouldn’t happen? Again and again, we’ve been sold the idea that cutting taxes will give rich people lots of money to create jobs with. But why should they? Why not just pocket the extra money and do as little as possible to help anybody? And if you start writing rules to prevent this chicanery, not only would the tax-avoiders always be one step ahead of you, you’d end up creating yet another complex set of bureaucratic rules.

If actual people or businesses did move into the Zones, their enclaves would look like Israeli settlements on the West Bank. They’d be as isolated as possible from the impoverished residents. They wouldn’t, for example, lift a finger to improve the local public schools, because part of the program is that everybody gets private-school vouchers.

But one kind of business would be attracted to the Zones: businesses that pollute a lot. That’s because EPA non-attainment designations would be suspended. The Zones would also be exempted from regulations on municipal storm-sewer run-off, and they could waive land use restrictions like “Wilderness Areas, National Heritage Sites, or Wild & Scenic Rivers”. Also, construction permits under the National Environmental Policy Act would be “streamlined”.

So, if a real-estate corporation wanted to take over a Zone’s wilderness areas and heritage sites, the local government could sell to them. And it might be motivated to sell, because the program specifically forbids any government bailouts if the municipality gets into financial trouble. (But they would be authorized to renege on their pensions.)

So there you have it: Polluted districts populated mainly by phony residences and fake corporate headquarters, with abandoned public schools, pensionless local residents, and all the beautiful or historic areas privatized. Hellholes.

Meanwhile, enormous tax loopholes have been created that require even more massive spending cuts than the ones Paul has already laid out.

Infrastructure. But wait, there’s more:

I want to see millions of Americans back at work. In my vision for America, we’ll bring back manufacturing jobs that pay well. How? We’ll dramatically lower the tax on American companies that wish to bring their profits home.

More than $2 trillion in American profit currently sits overseas. In my vision for America, new highways and bridges will be built across the country, not by raising your taxes, but by lowering the tax to bring this American profit home.

This is the overseas profits tax holiday he co-sponsored with Democrat Barbara Boxer. Multinational corporations like Apple and Google (both headquartered in Boxer’s state) juggle their books to make most of their profits appear overseas, so that they can avoid the 35% corporate income tax. The Paul-Boxer bill would let them bring those profits home and pay just 6.5%. It would create an immediate one-time slug of revenue, but, as Bloomberg Business explains:

It’s not clear that the Paul-Boxer plan would actually raise revenue. The nonpartisan Joint Committee on Taxation, the official scorekeeper for tax bills, said last year that a similar proposal would raise money in the first few years and then cost the government a net total of $95.8 billion over a decade.

That’s because companies would interpret a repeat of a tax holiday enacted in 2004 as a sign that they should shift even more profits outside the U.S. in anticipation of another holiday.

Criminal justice reform. After Ferguson, Paul wrote an op-ed in Time calling for demilitarization of the police. He wrote:

Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention. Our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences for non-violent mistakes in their youth.

He mentioned the issue in Tuesday’s speech without elaborating:

I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed.

Most other Republicans don’t believe that race is a factor in our criminal justice system, so in the debates I expect Paul to be challenged to name some law that should be repealed because of its unfairness to blacks. It will be interesting to see what he says.

Defense and foreign policy. Historically, Libertarians have been isolationists. For good reasons: War inevitably increases government power, both economically and in terms of civil liberties. In wartime, ordinary political dissent turns into disloyalty or even treason.

For years, this reluctance to involve the United States in foreign conflicts has distanced both Rand and Ron Paul from the Republican mainstream. (In the 2011 Republican debates, Ron Paul said about the prospect of Iranian nuclear weapon “What’s so terribly bad about this?” and opposed even trade sanctions. Just a year ago, Rand Paul told ABC’s Jonathan Karl “The people who say ‘by golly, we will never stand for that,’ they are voting for war.”)

Since he began moving towards his own presidential run, though, Rand has tried to walk that back and sound more bellicose, even supporting higher defense spending. In his announcement speech, he proclaimed “radical Islam” as “the enemy”.

And not only will I name the enemy, I will do whatever it takes to defend America from these haters of mankind.

And he tried to walk narrow line supporting negotiations with Iran without siding with President Obama.

I see an America strong enough to deter foreign aggression, yet wise enough to avoid unnecessary intervention.

which sounds a lot like what Obama sees. So what’s the difference?

The difference between President Obama and myself, he seems to think you can negotiate from a position of weakness. Yet everyone needs to realize that negotiations are not inherently bad.

But it’s not clear what would make a President Paul “stronger” than President Obama, other than simply being a Republican. I’m sure he’ll be pressed on this during the campaign.

Civil liberties. One place Paul is not backing down is on limiting government spying on American citizens who have committed no crime.

The president created this vast dragnet by executive order. And as president on day one, I will immediately end this unconstitutional surveillance. … We must defend ourselves, but we must never give up who we are as a people. We must never diminish the Bill of Rights as we fight this long war against evil. We must believe in our founding documents. We must protect economic and personal liberty again.

This is one issue where his difference with other Republican candidate might be popular even among the Republican electorate. I hope he’ll challenge other candidates to match his day-one pledge.

Summary. To appeal to the Republican primary electorate, Paul will be tempted to shift his positions towards the Republican mainstream and away from this Libertarian roots. To an extent he already has. But his hope of winning also has to depend on drawing alienated voters to the polls. To do that, he’ll have to maintain an image as a different kind of Republican.

That will require a lot of political skill, which Paul has never shown in the past. (He has a tendency to get testy when questioned, as he did this week.) There is a place in American politics waiting for the candidate who can run a pox-on-both-your-houses campaign. But I personally don’t believe Rand Paul is skillful enough to be that candidate.

More of a problem is his record of specific proposals. It’s hard to run an Obama-style hope-and-change campaign when your opponents can so easily pull you into unpopular details you have laid out in your own words.

Addendum. It’s been pointed out in the comments that I said nothing about Paul’s position on social issues like abortion. That’s because Paul said nothing. My take is that he wishes he could avoid talking about these issues. One of the times he got testy with a reporter was when he was asked whether an abortion ban should have a rape exception.

The fact that he doesn’t want to answer that question tells you where he is on abortion in general: He’s against it to the point that he’s willing to consider forcing a woman to have her rapist’s child. That’s where the question starts getting difficult for him.

He has also said that same-sex marriage “offends myself and a lot of other people“, but supports letting same-sex couples have “contracts” with each other, whatever that means.

[1] Paul puts forward a zero-sum view of government and the people: any expansion of government necessarily diminishes individuals. This clearly makes sense with regard to privacy: As the government snoops more, our sphere of privacy shrinks. But it’s less obvious with opportunity and liberty: Liberals would argue that programs like government-subsidized state universities and community colleges can increase opportunity for people born into poverty, and regulations that restrain the power of big business (net neutrality, for example) can increase liberty for individuals. Libertarians have arguments against these points, but Paul usually doesn’t go there: He frames these objections out of the discussion rather than address them.

[2] Kimberley Amadeo does the analysis of debt-added-per-president through Obama’s first five budgets. Paul’s statement about President He-Who-Must-Not-Be-Named (i.e., George W. Bush; the word “Bush” does not appear in the transcript) is accurate: The debt was $5.8 trillion at the end of Bill Clinton’s last budget, and (excluding the FY 2009 spending of Obama’s stimulus plan, which was added to the FY 2009 budget after Bush left office) he added another $5.849 trillion. So yeah: doubled.

In Amadeo’s analysis, President Obama added $6.167 trillion in his first five years, including the FY 2009 spending taken out of Bush’s total. The current CBO projection of the FY 2015 deficit is $486 billion. FY 2016 and FY 2017 come in at $455 billion each. Total: $7.563 trillion.

So “tripled” is only accurate if you mean that the debt has (more than) tripled since Bush took office, which is a generous way to read Paul’s statement — certainly not the way the typical voter hears it. Obama himself is nowhere near tripling the debt; he hasn’t even doubled it. (And if you want to spin the numbers Obama’s way, he inherited a $1.6 billion annual deficit and has whittled it down to under $500 billion.)

The bit about “more debt than all of the previous presidents combined” is simply false. If you add up just the last three Republican presidents — Bush II at $5.849, Bush I at $1.554, and Reagan at $1.86 trillion — you get $9.263 trillion of debt, which is considerably more than Obama is projected to add by the time he leaves office. (In inflation-adjusted numbers, the comparison is even worse for the Republicans.)

If you want try juggling numbers to make Paul’s statement accurate, you can charge Obama with the full FY 2009 deficit (including the part already run up before Inauguration Day), and give the next president credit for the FY 2017 projection. That adds $1.177 trillion and brings Obama up to $8.74 trillion, which is still less than half the projected national debt at the end of FY 2016. (Also, giving Obama the full blame for FY 2009 ruins Paul’s claim that Bush doubled the debt.) So no, you just can’t make Paul’s claim work no matter what you do. It’s a lie.

And a million dollars a minute? Close enough for this kind of analogy. There are 60 x 24 x 365 = 525,600 minutes in a year. Times a million is $525.6 billion. The projected deficit for this year is $486 billion.

[3] The major disagreement between the parties is over why the middle class is vanishing, and I hope the campaign centers on that debate. Republicans largely back Paul’s view, that the problem is the growth of government. Liberals blame the effects of the Reagan Revolution: By lowering taxes on the wealthy, freeing corporations from anti-trust regulations, and making it nearly impossible for workers to unionize — policies that Clinton and Obama never managed to reverse — government has allowed the 1% to squeeze all the juice out of the economy.

Liberals have timing in their favor: wage growth stopped tracking productivity growth with the jump in oil prices in 1973, but the gap really started opening up during the Reagan administration and has not closed since.

Conservatives have to explain why the explosive growth of government that began with FDR went together with the growth of the economy and the middle class until the mid-1970s.

For a completely different view of the meaning of the national debt, see Warren Mosler’s Seven Deadly Innocent Frauds of Economic Policy.

[4] In Republican circles, the Clinton surplus just never happened. What’s more, the way it happened — a combination of controlled spending and increased taxes — is a theoretical impossibility.

[5] This popular conservative talking point seems to refer to the sustainable-energy part of stimulus, which made the famous failed loan to Solyndra. But in spite of extension congressional investigations, no big corruption scandal ever emerged. According to The Hill, the House Energy and Commerce Committee’s final report “does not provide specific evidence to back up GOP allegations aired over past months that administration officials provided the Solyndra loan as payback for campaign donations.”

Religious Freedom: Colorado’s sensible middle way

There have been a lot of painful back-and-forths about what the proposed state “religious freedom” laws allow. Like this one, where ABC’s Jake Trapper tries to get the sponsor of Arkansas’ original RFRA bill (which has since been watered down a little) to admit that it allows “discrimination” against a same-sex couple getting married, while the legislator will admit only that it allows bakers, florists, et al to refuse to “participate in the message”.

There actually is a sensible in-between position, and I doubt a new law was necessary to allow it, because it was already embedded in the judge’s decision in the 2013 Colorado bakery case, as I noted last week.

There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. … [The baker] was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. [my emphasis]

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Colorado followed that principle again this week when it upheld the right of a baker not to make an anti-gay cake:

The complaint against Marjorie Silva, owner of Azucar Bakery, was filed by Castle Rock, Colo., resident Bill Jack, who claimed Silva discriminated against his religious beliefs when she refused to decorate a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin.

Silva said she would make the cake, but declined to write his suggested messages on the cake, telling him she would give him icing and a pastry bag so he could write the words himself. Silva said the customer didn’t want that.

If conservative Christian bakers would offer gay and lesbian couples a similar compromise — “I’ll make the cake and sell you two groom figures, but you’ll have to put them on the cake yourself.” — I suspect they’d have no problems with the courts. Certainly not in Colorado, and probably not anywhere.

The loophole the Arkansas legislator is trying to wiggle through is that the Supreme Court has extended First Amendment protection to “symbolic speech” — wordless actions that make a statement, like burning an American flag. He wants to claim that providing any of the services involved in a same-sex wedding can be construed as a symbolic statement that the provider approves of same-sex marriage. So a florist’s or photographer’s right to free speech is violated if s/he is forced to make such a statement.

That’s ridiculous. It’s the kind of passive aggression I’ve pointed out before: exaggerating your sensitivity in order to control others by claiming offense. Society could not function if we allowed everyone to claim this degree of moral sensitivity. (“If you force me to hire beef-eaters in my widget factory, then you’re making me say I approve of eating beef, which violates my Hindu faith.”) So it’s an implicit claim that conservative Christians have special rights that other people don’t have.

What this situation cries out for is a “reasonable person” interpretation: Would reasonable people look at the flowers at a same-sex wedding and see the florist making a political/religious statement? (“Those must come from Belle’s Flowers. I didn’t know Belle endorsed same-sex marriage. I thought she was a Christian.”) Or would they just think “nice flowers”?

This interpretation separates actual religious-freedom issues from the bogus ones that fundamentalists are putting forward. A reasonable person would assume that the officiating minister approves of the ceremony, so the minister’s presence makes a statement that the law can’t force. But florists? photographers? bakers? caterers? No.


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