Subtext in the State of the Union (and its responses)

You can learn a lot about how our leaders (in both parties) view us by observing how they try to manipulate us.

Once upon a time, state of the union addresses contained major policy initiatives, like when President Johnson announced the War on Poverty in 1964. But nobody does that any more, especially not in a gridlocked era where nothing is going to get through Congress anyway. 21st-century state of the union speeches (and opposing-party responses) are about politics rather than policy. They’re about moving public opinion, not moving the country.

So you might ask, “Why watch?” And there’s an answer: You can learn a lot about how our leaders (in both parties) view us by observing how they try to manipulate us. When they try to scare us, they reveal what they think we’re afraid of. When they reassure us, they reveal what they think we’re insecure about. When they try to be likeable, they reveal what they think we like. They emphasize issues where they feel strong and avoid issues they have no answers for.

They have spent months polling and testing in front of focus groups. Each has carefully crafted the message it believes will best appeal to its part of the public. Listen hard, and you can tell what part of the public they see as their own.

President Obama. The best way to watch the SOTU is via the White House’s enhanced video. (Here’s their transcript.) You get the same video everyone else uses, plus elucidating slides.

President Obama focused on two themes: inequality (which I explore in “Occupying the State of the Union“) and the dysfunctionality of Congress. Clearly he thinks Congress’ unpopularity works to his advantage:

For several years now, this town has been consumed by a rancorous argument over the proper size of the federal government. It’s an important debate – one that dates back to our very founding. But when that debate prevents us from carrying out even the most basic functions of our democracy – when our differences shut down government or threaten the full faith and credit of the United States – then we are not doing right by the American people.

I know Ted Cruz comes from an alternate timeline in which Obama and Harry Reid shut down the government and provoked the debt-ceiling crisis, but here’s all you need to know about that: Democrats applauded the President at this point, while Republicans sat on their hands. They all knew who he was calling to account.

The two themes came together in Obama’s executive order to raise the minimum wage for federal contractors, something he can do as federal CEO without congressional action. I hadn’t realized the full political import of this until Rachel Maddow pointed it out: Obama has put every executive in the country on the spot. Are governors going to raise the minimum wage for state contractors? Mayors for city contractors? (Yes in St. Louis.) I’ll bet the sound bite (at the 33-minute mark) tested really well:

No one who works full time should ever have to raise a family in poverty.

Any time the words Obama and executive order appear in the same news story, Republicans start yelling “tyranny”, as if no previous president issued executive orders. (Sunday Paul Ryan described the Obama administration as “increasingly lawless“.)

Clearly, they have identified a set of voters ready to believe this. In reality, though, Obama has been relatively hesitant about executive orders, issuing fewer of them than other recent presidents. He also has put forward no new theories of executive power, such as President Bush’s sweeping notion of the unitary executive.

Republican response. Rep. Cathy McMorris Rodgers of Washington gave the official Republican SOTU response (text & video).

I thought Rodgers’ put forward a likeable image. (The conservative American Spectator protested that her “real message” was “PLEASE LIKE ME”.)  She expressed admirable sympathies, but presented little of substance to back up her good intentions. She talked about working to “empower people … to close the gap between where you are and where you want to be”, but the policies behind those words implement the same old Republican wealth-trickles-down-from-the-rich ideas.

A larger question was: Why her? She’s not a major player in the Republican leadership. She’s not a rising star they’re grooming for bigger things. Nothing about her record in Congress picks her out as the ideal person to speak to these particular issues. But she’s a woman and Republicans want to put a token female face on camera to counter the war-on-women meme.

As Ian Haney Lopez says in Dog Whistle Politics:

The right slams affirmative action for making distinctions on the basis of race, even as it has developed its own perverse form of affirmative action, consciously selecting nonwhite faces to front its agenda.

Rodgers is the female version of Bobby Jindal or Marco Rubio, but without the presidential speculation: Republicans can’t possibly be sexist. Look! They have a woman speaking for them.

But the war on women rages on, no matter who’s in front of the camera. The House Republican majority passed the No Taxpayer Funding for Abortion Act, whose purpose is to get private health insurance plans to drop abortion coverage. Last week I pointed to its draconian limitations on rape exceptions.

Rodgers’ talk was also noteworthy for invoking yet another bogus ObamaCare horror story. As Paul Krugman put it:

So was this the best story Ms. McMorris Rodgers could come up with? The answer, probably, is yes, since just about every tale of health reform horror the G.O.P. has tried to peddle has similarly fallen apart once the details were revealed.

Tea Party response. Mike Lee (text, video) did a good job countering the Tea Party’s image as the dangerous lunatics who almost pushed the United States into default last October. The over-arching metaphor of his talk was the journey from Boston (the Boston Tea Party in 1773) to Philadelphia (the Constitution in 1787).

Now, as in 1773, Americans have had it with our out-of-touch national government. But if all we do is protest, our Boston Tea Party moment will occupy little more than a footnote in our history. Hopefully our leaders, reformers and citizens will join the journey from Boston to Philadelphia – from protest to progress. Together we can march forward and take the road that leads to the kind of government we do want.

He mentioned several positive Tea Party proposals in Congress without detailing what they would do. But the mere possibility of “the kind of government we do want” is a significant shift in Tea Party rhetoric. I’ll be interested to see if it catches on inside the Tea Party, or if it’s just for export.

Rand Paul’s response. Rand Paul’s talk was mostly a collection of offensive stereotypes and right-wing fantasies. He used the story of black conservative columnist Star Parker to smear welfare recipients:

She was 23 when she quit her job at the L.A. Times so she could go on welfare. By collecting $465 a month, plus Food Stamps, and by getting a part-time that paid cash under the table, she could rent a nice apartment and earn far more money than working an honest 40-hour week. Later, she said, she had no trouble dropping her daughter off at a government-funded day-care center, selling some free medical vouchers to buy drugs, and hanging out at the beach all afternoon.

It’s Ronald Reagan’s Cadillac-driving welfare queen all over again, or Fox News’ lobster-loving Food Stamp surfer. Are those stories supposed to be typical of the people helped by government anti-poverty programs? Paul seems to think so. After putting a happy ending on Parker’s story — she could only get a real job and climb out of poverty after she gave up her “dependence” on government assistance — Paul says:

I want Star Parker’s story to be the rule, not the exception.

But how is that even possible unless her original situation is the rule? Unless welfare recipients in general are lying, cheating, drug-using, child-neglecting blacks who can get honest jobs whenever they want? I’m sure that’s exactly what Paul’s target audience wants to believe, but is it true? Like Reagan, Paul presents no evidence beyond the anecdote.

Another taffy-pull stretching of the truth was Paul’s claim that Obama has “spent more than a trillion dollars on make-work government jobs”. Actually, that number is somewhere close to zero. For example, a big chunk of the $800 billion stimulus was tax cuts. Some of the stimulus’ other big-ticket items sent money to the states so that revenue shortfalls wouldn’t force them to lay off teachers, and paid for repairs to roads and bridges.

So the next time you drop your kid off at public school or drive across an old bridge, remember that Rand Paul thinks teaching or keeping bridges from falling down are “make-work government jobs”.

Thuggery. The weirdest story of the night was New York Republican Rep. Michael Grimm threatening to throw a reporter “off this fucking balcony” (i.e., the Capitol balcony) for asking a question he didn’t want to answer. “I’ll break you in half,” Grimm warned.

Rudeness to the President. Well, at least this year nobody yelled “You lie!” during the speech, as Rep. Joe Wilson of South Carolina did in 2009. However, Texas Congressman Randy Webber tweeted:

On floor of house waitin on “Kommandant-In-Chef”… the Socialistic dictator who’s been feeding US a line or is it “A-Lying?”

Another Texas congressman, Steve Stockman (who is Senator Cornyn’s Tea Party challenger in the upcoming primary) walked out of the speech.

Isn’t it an amazing coincidence how Southern Republican Congressmen lost their sense of decorum and their respect for the office of the presidency at the precise moment when a black man was sworn in? Did a memo go out, or did they just know what to do by intuition?

February 3, 2014 – 11:08 am Categories: Articles | Comments (3)

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Occupying the State of the Union

The conventional wisdom about Occupy Wall Street is that it failed. It made a splash and generated headlines, but ultimately it elected no candidates, passed no laws, and didn’t even leave behind a memorable lost-cause proposal like the Equal Rights Amendment. So it was all a big waste of the activists’ effort and our attention.

By contrast, the Tea Party did elect candidates and has influenced all kinds of laws, especially at the state level. Without the Tea Party, the government wouldn’t have shut down last October. You may not consider that much of an accomplishment, but it is proof of continuing influence. The Tea Party may eventually even displace the Republican establishment and take over half of the two-party system.

What has Occupy done to rival that?

But all along, Occupy visionaries like David Graeber were defining success differently:

For the last quarter millennium or so, revolutions have consisted above all of planetwide transformations of political common sense. … What they really do is transform basic assumptions about what politics is ultimately about. In the wake of a revolution, ideas that had been considered veritably lunatic fringe quickly become the accepted currency of debate.

The French Revolution, for example, failed to hold power, “but afterward, institutions inspired by the French Revolution … were put in place pretty much everywhere.” Suddenly, it was obvious that monarchy was obsolete. Not only did people around the globe believe that, they believed that they had always believed it.

Now consider President Obama’s 2014 State of the Union and the responses from Cathy McMorris Rodgers (for the Republican Party), Mike Lee (for the Tea Party), and Rand Paul (who seems to be a party unto himself). Maybe it’s not surprising that President Obama would talk about inequality and how difficult it is to stay in the middle class:

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have  barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by – let alone get ahead.

But here’s the interesting thing: The responders accepted that framing of the problem, they just tried to shift the blame.*

Bear in mind how conservatives used to respond whenever liberals tried to make inequality an issue: Wealth has nothing to do with poverty. Wealth is conjured out of the aether by creative capitalists, not usurped from the common inheritance or distilled from the blood and sweat of the laboring masses. So talk about poverty if you must, but don’t talk about wealth and poverty in the same paragraph, because they’re totally separate phenomena. This was still the conservative conventional wisdom two weeks ago, when David Brooks argued (in his own italics):

to frame the issue as income inequality is to lump together different issues that are not especially related.

More than just conservative dogma, some version of that argument has been the conventional wisdom of Very Serious People for decades. It has been fine for liberal politicians to talk about the plight of the poor or the struggles of the middle class, but if they combined that downward-looking and sideways-looking compassion with an upward-looking head-shake at the explosion of wealth among the few, mainstream pundits would start lobbing phrases like “class warfare” and “redistribution of wealth” — warning shots that come just before “Why don’t you go back to the Soviet Union, comrade?”.

But post-Occupy, everybody knows about the 99% and the 1%. And it’s no longer anti-American to point out that the 1% (and mostly the .01%) have owned all the productivity growth of recent decades.

Mike Lee’s Tea Party response doesn’t deny any of this, but instead tries to pin it on government and President Obama:

This inequality crisis presents itself in three principal forms: immobility among the poor, who are being trapped in poverty by big-government programs; insecurity in the middle class, where families are struggling just to get by and can’t seem to get ahead; and cronyist privilege at the top, where political and economic insiders twist the immense power of the federal government to profit at the expense of everyone else.** … [W]here does this new inequality come from? From government – every time it takes rights and opportunities away from the American people and gives them instead to politicians, bureaucrats, and special interests.

Rodgers points to the same problems, but calls them by a different names and promises that vague, unnamed Republican “plans” will solve them.

our mission – not only as Republicans, but as Americans, is to once again to ensure that we are not bound by where we come from, but empowered by what we can become. That is the gap Republicans are working to close. It’s the gap we all face: between where you are and where you want to be. The President talks a lot about income inequality. But the real gap we face today is one of opportunity inequality… And with this Administration’s policies, that gap has become far too wide. We see this gap growing every single day.

And this is where the spin becomes obvious, because the metaphor changes: The gap “between where you are and where you want to be” would seem to be in front of you, between you and the people whose examples inspire you to be more successful. Republicans are going to help you bridge that gap, so that you can be rich too.

But as Rodgers gets down to cases, it’s clear she’s talking about a chasm opening up behind middle-class voters, threatening to suck them into poverty as it has already claimed so many of their friends and family:

We see it in our neighbors who are struggling to find job, a husband who’s now working just part-time, a child who drops out of college because she can’t afford tuition, or parents who are outliving their life’s savings. Last month, more Americans stopped looking for a job than found one. Too many people are falling further and further behind because, right now, the President’s policies are making people’s lives harder. Republicans have plans to close the gap.

Even Rand Paul has to recognize the hollowing out of the middle class, though (unlike the others) he sticks to the old-time religion that the rich will save us, if only we let them keep getting richer. (It never worked before, but it will if we give it one more shot.)

Parents worry about their children growing up in a country where good jobs are few and far between. More than ever before, Americans wonder how they’ll afford to send their kids to college, and what will happen if they lose their job. … Prosperity comes when more money is left in the private marketplace. … Economic growth will come when we lower taxes for everyone, especially people who own businesses and create jobs.

Another piece of conservative dogma has been to blame the poor for failing; their laziness, crime, drug addiction, and general irresponsibility is dragging down the rest of us. And if people are falling out of the middle class — losing their jobs, getting their homes foreclosed, failing to send their kids to college — well, that’s their own damn fault. We aren’t failing them; they’re failing us.

Recall the opening shot of the Tea Party’s rebellion, Rick Santelli’s famous rant a few weeks after Obama took office. Backed by a cheering mob of traders on the Chicago Mercantile Exchange, Santelli challenged the new president:

How about this, president and administration: Why don’t you put up a web site to have people vote on the internet to see if we really want to subsidize the losers’ mortgages? Or would we like to at least buy cars and buy houses in foreclosure and give them to people that might have a chance to actually prosper down the road, and reward people that could carry the water instead of drink the water? … [Gesturing to include all the traders***] This is America! How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills? Raise their hands! [boos from the crowd]

Tuesday night no one was blaming the “losers” for falling out of the middle class, or fantasizing about picking the bones of their foreclosures. Instead, everyone sympathized with growing middle-class anxiety: how hard it is to find good jobs, how hard it is to pay for college, how insecure you feel even if you currently have a good job. Everyone acknowledged that Americans are losing faith in the old nostrums: work hard, study hard, say no to drugs, get married, buy a house, pay your bills … it just doesn’t seem like enough any more. You might do all that and still lose out, even as billionaires get ever richer.

Everyone but Rand Paul is acknowledging that some kind of gap needs to be bridged, that some people have more of this vaguely defined “opportunity” that you wish you had. Mike Lee is even denouncing “privilege at the top”, though he blames this privilege on government favors rather than the normal workings of capitalism.

It’s important to realize what we’re seeing: an early stage in the “transformation of political common sense”. People who believed and may still believe that OWS was horribly misguided and failed completely — those same people see the world differently now. The problem isn’t that a few “losers” are dragging the rest of us down. The problem is that there’s a 99% and a 1%. We’re arguing about what caused that and how to fix it, but we all see the problem now.

Thank you, Occupy.

* Ultimately they’ll lose that argument, because the facts are clearly against them. Look at the graphs: This problem didn’t start with Obama. It started in the Carter-Reagan years. If your explanation doesn’t account for that, you’re just spinning.

I explain it by Carter and the Democrats in Congress turning to the right: de-regulation, lower capital gains taxes, free trade deals, and turning a blind eye to union-busting. That all started slowly under Carter and then really took off during the Reagan administration. The long version of this story is in Thomas Edsall’s The New Politics of Inequality from 1985, but William Anderson of the conservative Mises Institute noted the same thing in 2000:

Republicans like to point to the failures of the Carter Administration and then claim that Ronald Reagan brought us into the present era. Alas, while I prefer Reagan to Carter, I cannot say that the above statement is true. Granted, much occurred during the Reagan Administration that was good, but if truth be known, many of the important initiatives that enabled those boundaries to expand came from Carter’s presidency.

I agree completely, if you reverse the value judgments and define “the present era” as the Second Gilded Age.

** Perversely, the purest examples of cronyism are due to a trend conservatives champion: privatizing public services like prisons or public schools.

*** I love the assumption that the well-compensated wheeler-dealers on the CME represent “America” and the people who “carry the water”. I think it’s arguable that American productivity would go up if the Earth swallowed the Chicago Mercantile Exchange whole. The people who really “carry the water” are the ones who grow stuff and build stuff and deliver services. The water-carrier is the single mother who cuts your hair (and who may need Food Stamps to feed her son), not the venture capitalist who conjured up millions by franchising Supercuts.

February 3, 2014 – 8:59 am Categories: Articles | Comments (8)

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The Monday Morning Teaser

The State of the Union and its many responses dominate the Sift this week, as they dominated the news. I find these speeches valuable even when I don’t take them at face value. They are the culmination of much polling and focus-group testing by politicians across the spectrum. So — independent of whether any of the proposals will ever become law — they tell us a lot about how the parties view the public, what part of the public they’re trying to appeal to, and what part of their own image worries them.

One nugget from the speeches taken as a whole: Everybody was talking about inequality as if it were a serious concern. That’s same-old same-old for liberals, but new for conservatives. Which means it’s showing up in their polling and focus groups, even the focus groups representing their targeted voters. Which means a chunk of the Occupy Wall Street message is becoming the new political common sense, in spite of the conventional view that OWS failed. I cover this in the first featured article, “Occupying the State of the Union”, which should be out sometime in the next hour.

There’s a lot more to observe in the SOTUs, and I’m still undecided whether I’ll break that off into a second SOTU article, or just let it dominate the weekly summary.

Other stuff that happened this week: The Bridgegate scandal keeps advancing. Right-wing media supported Tom Perkins in his claim that the rich are persecuted. The women-can’t-be-trusted dog whistle is being blown on Wendy Davis, just as it was blown on Elizabeth Warren in 2012. Woody Allen’s adopted daughter Dylan Farrow went public with child-molestation charges that blew up the Allen/Farrow marriage. And Pete Seeger’s death opened the floodgates on a stream of appreciation for his long and productive life. I plan to close the weekly summary with a YouTube of a Seeger song that seems like an appropriate good-bye.

February 3, 2014 – 7:59 am Categories: Morning tease | Post a comment

Working for the People

Average people in America think government doesn’t work. Think again.
Government actually does work. It works for the people who pay it to work for them.

— Hedrick Smith, NH Rebellion rally
Nashua, NH, 1-24-2014

This week’s featured posts: “The Fall of Governor Ultrasound” and “One Week’s Worth of Crazy”

This week Republicans started talking about another debt ceiling crisis

Because the last one worked out so well, I guess. But you can tell this is an organized effort because they’re using the same words. Both Mitch McConnell and Ted Cruz called a clean debt-ceiling increase “irresponsible”. John Boehner is also hinting at attaching ransom demands.

It’s important to keep in mind exactly what this all means: Congress just passed a two-year budget deal last month. That deal included a budget deficit that will push the national debt over the current debt ceiling. Now Republicans want to take a position against the debt that they just approved. You see, they’re for keeping taxes lower than spending; they’re just against borrowing the difference. Get it?

Treasury Secretary Jacob Lew estimates the disaster deadline is the end of February.

and the Bob McDonnell indictment

which I cover in “The Fall of Governor Ultrasound“. One of the issues that gets raised by this case is “the fine line between what is illegal versus what is unseemly”. Ditto for the latest out of Florida, where Governor Scott’s chief fund-raiser (who has donated over $1 million himself) got billions in Medicaid-management contracts for his companies. Illegal, or just unseemly?

And Bridgegate just keeps percolating along. Subpoenas are out, testimony is being taken. I’m sure the U.S. attorney will let us know when he has something.

and the Republican winter meetings

(Mike Huckabee’s winter-meetings speech is one of many incidents covered in “One Week’s Worth of Crazy“.)

The main news to come out the meetings was that Republicans are shortening their nomination process for 2016: Primaries will start later and end sooner. They want to hold the early primaries in February — in 2012 the Iowa caucuses were January 3, almost a week before the last bowl game — and  to have the convention in late June or early July, rather than late August.

It’s fascinating to compare the Democrats’ nomination process in 2008 to the Republicans’ in 2012. Both were national road shows that seemed to go on forever. But the eternal Obama/Clinton struggle worked in the Democrats’ favor: Each new primary state became the focus of a voter registration drive that helped Obama in the fall. When Republicans tried to raise the Jeremiah Wright/Bill Ayers issues, they seemed like old news because Obama had faced them already in the primaries. In general, Obama gained stature each time he debated the more famous Clinton head-to-head.

By contrast, Republicans came out of 2012 with a never-again attitude. Romney had to fend off a series of flawed boom-candidate-of-the-week challengers: Michele Bachmann, Rick Perry, Herman Cain, Newt Gingrich, and finally Rick Santorum. Each seemed like a joke to the non-Republican electorate, and the fact that each was succeeded by the next just emphasized how little the Republican base wanted to nominate Romney.

The 2004 Democratic nomination process demonstrated that the phrase “too far left” actually meant something: Dennis Kucinich was too far left, and the main debate in the early primaries was whether Howard Dean was too. But in 2012, “too far right” was meaningless to Republicans. In the debates, the candidates competed to be the most conservative, and the audiences seemed even more extreme: They booed a gay soldier in Iraq, cheered letting the uninsured die, cheered waterboarding, and applauded the fact that Rick Perry had executed 234 prisoners.

To be blunt, the Republican base is a freak show, and the longer they are on camera the worse it is for the eventual nominee. The RNC recognized that this week, and acted accordingly. As 2016 gets closer, expect them also to limit the number of debates and put them off as long as possible. If they could hold the primary campaign inside a bell jar, they would.

and you also might be interested in …

Doris Haddock, a.k.a. Granny D

Lawrence Lessig’s frigid 185-mile walk across New Hampshire concluded Friday at an NH Rebellion rally in Nashua, a few blocks from where I live. The rally doubled as a 114th birthday party for the late Granny D, whose 3200-mile walk across America deserves some amount of credit for the McCain-Feingold campaign finance reform of 2002.

At the rally, Lessig said:

Before we started this walk, we did a poll that found that 96% of Americans believe the influence of money in politics must be reduced. … But the reason why the pundits and the politicians don’t talk about it is that 91% of us believe it’s not going to happen. It can’t be done. We want it, but we won’t get it. Now I told those statistics to John Sarbanes, one of the congresspeople who has been most important in pushing the reform. And he said to me, “That’s wonderful. That means we’re the 5%.”

Lessig thinks the movement to reduce the corruption of our democratic system is in at least as good a position as the Civil Rights movement was when Rosa Parks sat down on the bus. He does a very good job of creating a sense of history, and raising the possibility that fighting for a worthy cause at a time when so few people believe it can succeed might be something you’ll tell your grandchildren about.

[BTW: I don’t have a link for either this quote or the one at the top of this post. But I heard it live and I have an audio recording.]

New Hampshire will try again to pass Medicaid expansion. Even the Business and Industry Association of New Hampshire supports it, but we haven’t been able to get it through our Republican-controlled Senate.

The No Taxpayer Funding for Abortion Act is coming up for a vote in the House. An earlier version was passed by the House in 2011, but failed in the Senate. At that time, Mother Jones reported that it could have some nasty results:

In testimony to a House taxation subcommittee on Wednesday, Thomas Barthold, the chief of staff of the nonpartisan Joint Tax Committee, confirmed that one consequence of the Republicans’ “No Taxpayer Funding for Abortion Act” would be to turn IRS agents into abortion cops—that is, during an audit, they’d have to determine, from evidence provided by the taxpayer, whether any tax benefit had been inappropriately used to pay for an abortion. … If an American who used such a benefit were to be audited, Barthold said, the burden of proof would lie with the taxpayer to provide documentation, for example, that her abortion fell under the rape/incest/life-of-the-mother exception, or that the health insurance she had purchased did not cover abortions.

… Under standard audit procedure, a woman would have to provide evidence to corroborate facts about abortions, rapes, and cases of incest, says Marcus Owens, an accountant and former longtime IRS official. If a taxpayer received a deduction or tax credit for abortion costs related to a case of rape or incest, or because her life was endangered, then “on audit [she] would have to demonstrate or prove, ideally by contemporaneous written documentation, that it was incest, or rape, or [her] life was in danger,” Owens says.

So if you get raped, save your receipts.

You really have to wonder what conservatives would come up with if they did want big government to intrude in people’s lives.

Eventually, I’m planning to do a full review of Ian Haney-Lopez’ new book Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class. But for now, Salon has made an article out of the chapter on colorblindness.

Dog whistling cannot be resisted by refusing to talk about race, for this only leaves constant racial insinuations unchallenged, operating in the background to panic many whites. Indeed, dog whistle racism is not only protected by colorblindness, it rests fundamentally on colorblind myth-making.

Slate’s Zack Kopplin explains how Texas’ charter schools are a big loophole through which tax dollars are flowing to teach the most unscientific varieties of Creationism, as well as right-wing Christian views of history and society.

Another mall shooting. Is there a tipping point anywhere?

January 27, 2014 – 11:40 am Categories: Weekly summaries | Comments (5)

The Fall of Governor Ultrasound

The indictment, I now realize, is an under-exploited narrative form. Novels have been written in the form of diaries, case notes, and exchanges of letters, but I can’t remember seeing a novel written as an indictment.

It’s got to be an oversight, because the indictment of former Governor Bob McDonnell and his wife Maureen makes the potential clear: Within the constraints of the genre’s just-the-facts style, it still manages to build a sense of character and theme.

As the story begins, Bob and Maureen have risen to a new level, and can see yet another level beckoning, but don’t realize yet that they’re already in over their heads. Bob is the handsome, articulate new governor of what has recently become a swing state, Virginia. The Republican Party chooses him to respond to the 2010 State of the Union. He’s elected chair of the Republican Governor’s Association. He’s even being talked about as a likely running mate for Mitt Romney, who needs to reach out to the Christian Right without alienating the mainstream. And if Bob performs well on that national stage, who knows? He could be president himself someday. (If only he hadn’t backed that forced-transvaginal-ultrasound bill just as the war-on-women meme was starting to take off. Rick Perry did the same thing a year before, and nobody called him “Governor Ultrasound“. Bad timing!)

The big stage is full of important people to impress. But there’s a problem: money. The McDonnells were never rich, and then Bob bought property at the peak of the housing boom. (Bad timing again!) It’s so hard to cast the right image when your investments cost you more in mortgage interest than they generate in rent, and you can’t sell without revealing a huge loss. Where is Maureen going to get the designer gowns she needs for the Inaugural Ball and future formal events? How is Bob going to sport a Rolex or tool around in a Ferrari? How is the McDonnell daughter going to get the kind of wedding that an up-and-coming governor ought to be able to give her?

Enter the rich founder of a dietary-supplement company that (like Bob) seems right on the verge of bigger things. Bob and Maureen didn’t meet him until after Bob became governor, but he instantly becomes such a good friend to them — so nice, so generous; all they have to do is ask, and he provides whatever they need. And he asks so little: if the First Couple could only lend his company their names and images and the backdrop of the Governor’s Mansion, if they could lean on the state universities to do some legitimizing research.

Once the wrongdoing begins, the McDonnells are such clumsy criminals that you may end up feeling sorry for them. (Sometimes a lie can be so obvious that it’s almost honest.) They conspire in email and text messages. They know their stock holdings look suspicious, so they sell in December, fill out the year-end form, and then buy the shares back in January. Who could possibly see through such clever subterfuge?

But don’t worry, Bob and Maureen, a happy ending is on its way. The indictment ends with 14 reasons you should be admitted to a special federal academy, where experienced criminals can teach you how it’s really done.

Is he the right comparison?

Having looked at the indictment, you should also consider the McDonnell’s defense, which claims this is all politics. Some outside observers also say the case “is no slam dunk” because of “the fine line between what is illegal versus what is unseemly”. The point here is that McDonnell made no specific official action as governor to benefit his “friend”: McDonnell didn’t veto a law or appoint somebody to a state office in direct response to a gift. He sold the trappings and influence of the governorship rather than its constitutional powers.

In MSNBC reports on the case, you’re likely to see comparisons to a Democratic governor in jail: Rob Blagojevich, who famously tried to sell the Senate seat Barack Obama left to become president. But a comparison friendlier to McDonnell would be Don Siegelman, former Democratic governor of Alabama, also now in prison.

Or is he?

Like McDonnell’s defenders, Siegelman’s (including 60 Minutes) point out that some elements of the classic bribery story are missing: Siegelman did take an official action (re-appointing to a state board someone who had already served on that board under previous governors), but received no personal benefit (the appointee made a contribution to a fund campaigning to bring a state lottery to Alabama, a policy Siegelman favored).

In essence, both Siegelman and McDonnell claim that they didn’t cross the line between the man and the governor: Siegelman used his powers as governor to pursue his policies as governor, perhaps in an unseemly way. McDonnell used his prestige as a man (who happened to be governor) to reward someone who gave him personal gifts. In each case, the question is whether the law is being enforced in a politically biased way: How many other politicians could we send to jail under the same standards? And is there a partisan reason why we don’t?

January 27, 2014 – 9:20 am Categories: Articles | Comments (5)

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One Week’s Worth of Crazy

You could get angry, or you could just laugh.

Every week as I put the Sift together, I face the same question: Do any of the outrageous, infuriating, and downright crazy quotes from conservative pundits or office-seeking Republicans or clueless rich people that I ran across this week deserve my readers’ attention?

If this were a pure partisan blog, the answer would always be yes: Outraging your fellow partisans is good. It raises energy. It keeps them focused. And from a blog-traffic point of view, something that gets a reader’s goat is likely to be shared or linked to or commented on.

But I view the Sift as more opinionated than partisan. That may sound like splitting hairs, but here’s what it means to me: I’m liberal but not manipulative. I see myself working for my readers (helping them stay sane while processing the news) not working on them, to keep them wound up. And besides, anyone who’s looking to get wound up — liberal or conservative — has plenty of other options. The Sift should strike a calmer, more contemplative tone.

Well, most of the time. Because there’s another factor at work: the 47% factor, you might say. Conservatives count on their ability to have two messages. They can go to a meeting of their partisans and say totally over-the-top stuff, and then put on their sane face and talk to the general public as if crazy-time never happened. Then I run into low-information voters who tell me, “He sounds pretty reasonable.”

So when the mask does drop and the ranting starts, it’s important that people hear about it.

At least sometimes. I still don’t want to walk around in a constant state of outrage, and I don’t want to do that to my readers either. So rather than pass on each and every crazy thing I see or hear, once in a while I think I’ll just bundle together the ones I ran into that week and try to present them a sense of humor.

So let’s start with a joke. Or rather, with the Iowa Republican Party’s idea of a joke:

Those Iowa Republicans, what a bunch of kidders!

Because, like, racism is so funny! And it doesn’t really exist, it’s just a word to throw at people you don’t like when they do humorous but totally understandable things like shoot innocent black teen-agers or concoct conspiracy theories about the president’s birth certificate.

At least this joke has a punch line: After the post started getting noticed, Iowa Republicans took it down, blamed a contractor, and fired him. I’d love to have heard that conversation. Did they say, “That’s just wrong” or something more like “I know we were laughing about that this afternoon, but those kind of jokes have to stay in-house”?

Most of all I’d like to know: Did the contractor get the flowchart from the guy who fired him?

Next are two examples of what I’ve started to call “guillotine bait”: very rich people displaying cluelessness on a let-them-eat-cake scale.

Tom Perkins is a wealthy venture capitalist who published a letter in The Wall Street Journal.

I would call attention to the parallels of fascist Nazi Germany to its war on its “one percent,” namely its Jews, to the progressive war on the American one percent, namely the “rich.” … Kristallnacht was unthinkable in 1930; is its descendent “progressive” radicalism unthinkable now?

I haven’t plugged The Distress of the Privileged yet this week, but what a great example of privileged distress. The rich — they’re just so persecuted these days! Sucks to be them, don’t you think?

And Kristallnacht? No, I have another historical parallel in mind. As Queen sang on the Highlander soundtrack: “Don’t lose your head.”

More guillotine bait came from Kevin O’Leary, the Canadian businessman who appears on the reality-TV show Shark Tank. Asked for his reaction to the claim by Oxfam that “The bottom half of the world’s population owns the same as the richest 85 people in the world”, O’Leary responded:

It’s fantastic. And this is a great thing because because it inspires everybody, gives them motivation to look up to the 1% and say “I want to become one of those people. I’m going to fight hard to get up to the top.” This is fantastic news, and of course I applaud it.

If I were living on a dollar or two a day, I suspect everybody who’s safe, warm, and well-fed would look the same to me. But perhaps I underestimate the world’s poorest, and the sight of multi-billionaires inspires them in a way that mere millionaires can never manage. If so, though, O’Leary might show more concern about what exactly it inspires them to do.

Next we come to  Congressman Steve Pearce of New Mexico. He recently published a memoir in which he compares the family to the military chain of command: The husband is on top and the role of a wife “is to voluntarily submit”. But her submission isn’t “a matter of superior versus inferior”. Perish the thought.

This kind of stuff is much more convincing when it comes from the people who are submitting rather than the ones suggesting somebody else submit (voluntarily, of course). So Steve, how about this: In Congress, why don’t you voluntarily submit to Nancy Pelosi for a while? Then you can report back on whether it makes you feel inferior.

Virginia State Senator Dick Black (not to be confused with the similarly-named character in Hardcore) has dropped out of the race for Congress after his previous opposition to criminalizing spousal rape became an issue. (He wasn’t opposed per se, he just thought the point was moot because he couldn’t imagine how a husband raping his wife could leave any evidence.) He has also referred to emergency contraception as “baby pesticide“, and he segues smoothly from same-sex marriage to incest and polygamy. Polygamy, he says, “is just more natural” than homosexuality, because “at least it functions biologically.” (Especially if all your wives voluntarily submit, I suppose.)

Congress will be much less interesting without you, Dick.

Mug shot of an improving economy

Presenting the “faces of an improving economy” during his state-of-the-state address, Wisconsin Governor Scott Walker introduced an unemployed-until-recently welder. It turns out he may not have been entirely typical of Wisconsin’s unemployed: He’s a sex offender with two felonies and three drunk-driving convictions on his record.

The scary thought is that this might not be a mistake. Maybe Governor Walker really pictures the unemployed that way.

A candidate in the Republican congressional primary in Illinois’ 9th district has identified the source of our national problems:

“I am a conservative Republican and I believe in God first,” [Susanne] Atanus said. She said she believes God controls the weather and has put tornadoes and diseases such as autism and dementia on earth as punishment for gay rights and legalized abortions.

“God is angry. We are provoking him with abortions and same-sex marriage and civil unions,” she said.

I think it’s more likely God gets angry when complete idiots put their words into His mouth. But that’s just my opinion.

Another one of God’s ventriloquists, Family Research Council’s Tony Perkins, also knows the hidden cause of a social problem. Campus sexual assault (which President Obama announced a task force on Wednesday) is caused by “sexual liberalism” — free birth control, co-ed dorms, decriminalized marijuana, and Sandra Fluke. Because campus rapes never happened in the Happy Days before all that, I suppose.

The implication here is that there is some kind of slippery slope between voluntary sex (which could be enabled by, say, free birth control) and involuntary sex. Can’t say I’ve ever noticed it.

I cheated just a little: This week wasn’t entirely typical because the of the RNC Winter Meetings, where Mike Huckabee said Republicans aren’t fighting a War on Women, they’re fighting a “War for Women“.

Way to turn the spin around, Huck. You see, Republicans want to remove contraceptive coverage from ObamaCare “to empower [women] to be something other than victims of their gender.”

If the Democrats want to insult the women of America by making them believe that they are helpless without Uncle Sugar coming in and providing for them a prescription each month for birth control because they cannot control their libido or their reproductive system without the help of the government, then so be it. Let’s take that discussion all across America, because women are far more than the Democrats have played them to be.

Critics are making unflattering comparisons to Rick Santorum’s bankroller Foster Friess (whose recommended form of birth control was an aspirin held between a woman’s knees) or 2012 Missouri Senate candidate Todd Akin (who denied rape pregnancy is a problem because a woman’s reproductive system shuts down during rape).

The American Prospect‘s Paul Waldman explains “Why Republicans Keep Calling American Women Sluts“:

The morality clearly reflected in these statements is that sex is inherently sinful … and a virtuous woman doesn’t have sex except for those rare occasions when her husband wants to impregnate her. That’s why Huckabee can say—sincerely, I’m sure—that it’s an insult for Democrats to say women should have access to contraception, because that’s the same as saying women lack virtue.

But I think Huckabee is onto something more than just the evil of sex: Refusing to help people empowers them to help themselves. It’s like if Huckabee fell off a cruise ship: Throwing him a life preserver would just cast him as a victim of his mammalian need to breathe air. Better by far to empower him to swim to safety on his own — or, even better, to control his pulmonary system by spontaneously developing gills.

I hope Huckabee doesn’t just take his message across America; I hope he extends it to other situations: Cutting Food Stamps empowers the poor to feed themselves, and shows faith in their (and their children’s) ability to control their appetites. Cutting unemployment empowers people to find jobs, even when there are no jobs. Ending tax breaks for fossil-fuel companies empowers them to find oil without handouts from Uncle Sugar.

Wait, maybe that last one goes too far. Nobody likes an extremist.

Anyway, Huck’s speech made the NYT’s Gail Collins reminisce about 2008, when Huckabee “was a front-runner for a while, because he was the most likable candidate.” Then it was the usual tragic story: He got a talk show on Fox News and started running with a bad crowd.

That’s just what I happened across this week. Next week — nah, I’m not going to do it. Maybe one or two outlandish things will make it into the weekly summary, but an article-length round-up probably shouldn’t happen more than once a quarter.

January 27, 2014 – 8:26 am Categories: Articles | Comments (2)

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The Monday Morning Teaser

For some reason I’ve felt unusually snarky this week, so both of this week’s featured articles will have a high snark quotient.

The first one is pretty much done, so it should appear in just a few minutes. All week, I kept running into over-the-top quotes: Mike Huckabee claiming he was fighting a “war for women” to protect them from the “insult” of insurance-covered contraception, that Shark Tank guy saying it was “fantastic news” that the world’s 85 richest individuals have as much money as the bottom 3.5 billion people do, the Family Research Council guy blaming the campus sexual assault problem on Sandra Fluke, and so on. I was despairing for my gender when I finally found evidence that women are crazy too: A Republican candidate for Congress blamed dementia and autism on same-sex marriage. (“God is angry.”)

Finally I decided you just have to laugh, so I collected it all in “One Week’s Worth of Crazy”. I use two phrases (Google says I didn’t coin them) that I hope catch on: God’s ventriloquists for people who keep putting their ridiculous words into God’s mouth, and guillotine bait for rich people displaying let-them-eat-cake cluelessness.

My second snarky piece is “The Fall of Governor Ultrasound”. I read the 14-count Bob McDonnell indictment, and now believe the federal indictment is a literary form of unappreciated potential.

As usual, I’m going to try to get the weekly summary out by noon.

January 27, 2014 – 7:59 am Categories: Morning tease | Post a comment

Good Intentions

Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

— President Obama, Friday at the Department of Justice

This week everybody was still talking about Bridgegate

or at least MSNBC was. Rachel Maddow has been talking about little else. (It’s been working for her. Fox News usually outdraws MSNBC by a considerable margin, but in recent weeks the Rachel/Megyn Kelly match-up has been noticeably closer.)

In its general form, Bridgegate is a Watergate-type scandal: The story starts with an event that is clearly wrong (a bungled burglary, an engineered traffic jam), but not all that consequential for most people. The event is only interesting because it is so incongruous with a civics-textbook view of government: If this happened, and if officials reacted so automatically to cover it up, then the (Nixon, Christie) administration clearly views itself and its mission very differently from the vision of government the public believes in. And if that is the case, what else has been going on?

If the answer is “nothing”, then the story will largely die out, unless there’s clear proof Christie himself committed a crime. (So far there isn’t.) But we now enter the Chinese-water-torture part of the narrative, where thematically (but not directly) related charges drip-drip-drip down on Christie’s head.

The first drip came Saturday, when Mayor Dawn Zimmer of Hoboken charged that

Two senior members of Gov. Chris Christie’s administration warned [her] earlier this year that her town would be starved of hurricane relief money unless she approved a lucrative redevelopment plan favored by the governor.

Probably there will be more drips. And rather than defend, I expect Republicans to counter-attack. In the same way that Republican congressmen’s extra-marital affairs started coming out during the Clinton impeachment, the corruption of New Jersey Democrats is likely to make headlines soon. (I don’t know anything; I’m just reading the signs.)

If Bridgegate does follow the path of Watergate, MSNBC better pace itself. From the Watergate break-in to Nixon’s resignation was two years.

Bridgegate has also been a Rorschach test, in which a pundit’s reaction says as much about him as about the story. For example, the question of whether Governor Christie is a bully evoked this from Britt Hume.

In this sort of feminized atmosphere in which we exist today, guys who are masculine and muscular like that in their private conduct, kind of old-fashioned tough guys, run some risks. … Men today have learned the lesson the hard way that if you act like kind of an old-fashioned guy’s guy, you’re in constant danger of slipping out and saying something that’s going to get you in trouble and make you look like a sexist or make you look like you seem thuggish or whatever.

Let me translate this into 21st-century English: “If you talk the way men used to talk when women either weren’t in the room or had to keep quiet, some woman is bound to point out that you’re being a jerk.”

And you know who the conservative media thinks is the really bully here? Bruce Springsteen. When he went on Jimmy Fallon’s show and sang this song:

he was “mean, small, and petty“. He was “piling on“. Poor Chris Christie. He loves the Boss, but the Boss doesn’t love him back.

and poverty

The 50th anniversary of the War on Poverty (which I mentioned last week) has made a lot of people take a step back and look at the longer view.

Barbara Ehrenreich revisits some of the territory of her book Nickel and Dimed in an Atlantic article “It’s Expensive to be Poor“. The point she’s making is not new, but the wealthy and professional-class folks who monopolize the national political conversation have a way of forgetting it.

We hear again and again how anti-poverty programs just make the poor dependent on government and encourage laziness. But the biggest obstacles to getting out of poverty are the poverty traps: situations where the poor don’t have enough money to live cheaply or look for better jobs. If you can’t afford security-deposit-plus-first-month’s-rent for an apartment with a kitchen; if you don’t have access to a car; if you can’t make appointments in advance because your part-time minimum-wage job has unpredictable hours — then your chances of climbing out of poverty are not very good.

If you happened to see David Brooks’ enough-with-this-talk-about-inequality column, you should read Dean Baker’s answer. To Brooks’ point that the growing income of the rich is a different phenomenon than the shrinking opportunities of the poor and the destruction of the middle class, and that only a “primitive zero-sum mentality” connects them, Baker responded:

Fans of arithmetic everywhere know that if the rich get more, and the economy is not growing faster, then everyone else gets less. (It might be primitive, but it’s true.) And the economy has been growing very slowly for the last thirteen years and actually pretty slowly for the whole period in which inequality has been increasing.

and President Obama’s new tone on the NSA

Friday, President Obama gave a speech at the Justice Department “On Review of Signals Intelligence” (text, video, summary of new directive).

As I’ve admitted before, I’m having a hard time staying on top of this issue. New revelations, new policies, and new rhetoric appear faster than I have been able to process it all. So for now I’ll defer to The New Yorker‘s Ryan Lizza. Lizza is skeptical that the new rules will be more than “cosmetic changes”. But he does believe that a more subtle tipping point has been reached: Up until now, the administration has been dismissive of critics.

Indeed, in my conversations with intelligence officials this past year, their general attitude was that smart, well-meaning, Ivy League-educated lawyers were on the front lines at the intelligence agencies making sure that the privacy rights of Americans were protected, and, therefore, the concerns about abuse were not only unfounded but also bordered on paranoia. … Today, Obama reversed course, acknowledging that all of that wasn’t enough. He has now adopted the language of the reformers.

Lizza concludes that Obama has undercut status-quo supporters in Congress, while empowering those who are more skeptical of current arrangements:

Obama’s cautious, infuriating speech won’t reform the system in all the ways that N.S.A. critics want, but it just might help Congress do so.

but I wrote about court decisions

The Supreme Court has been relatively quiet lately, but lower courts have been busily ruling on same-sex marriage, the NSA’s domestic spying, net neutrality, and many other issues. This week I tried to catch up. I covered net neutrality and same-sex marriage, and I hope to get to the rest next week.

While we’re talking about voting rights (or putting off that talk until next week), it’s worth mentioning that two Democrats and a Republican have agreed on a formula for fixing the part of the Voting Rights Act that the Supreme Court torpedoed last summer.

Where the revised bill goes from here is an open question. Renewing the VRA has been a no-brainer in the past, passing by wide margins. So Congress could just pass it.

On the other hand, the VRA could follow the path of immigration reform: The Senate passes it with a bipartisan majority, and Republicans in the House claim to support it when they talk to minority audiences, but Speaker Boehner keeps it from coming to a vote so as not to offend the extreme right wing. Too soon to tell.

and you also might be interested in …

When my Dad was alive, he was always mystified when I omitted the “Dr.” title that my Ph.D. in mathematics gives me the right to use. My policy is that I’ll call myself “Dr. Muder” when I write about mathematics, because that’s where my credentials are relevant. But on subjects where I’m just another guy with an opinion, those opinions have to stand on their own. I won’t imply that I’m an expert by styling myself as a doctor.

I came to that policy as a graduate student in the 80s, an era when Milton Friedman was using his legitimate prestige as an economist to give heft to his oracular pronouncements about the morality of various political policies. On political and moral issues, Friedman was just a guy with an opinion, and his Nobel prize was as irrelevant as my eventual doctorate would be.

Climate scientists today have a more difficult line to walk, because their scientific prestige is relevant up to a point, but the more politically active they get, the more they’ll be tempted to exaggerate the extent of their expertise. Penn State’s Michael Mann (creator of the “hockey stick” graph and a main target of the Climategate smear) wrote a thoughtful article about this in the NYT’s Sunday Review.

It is not an uncommon view among scientists that we potentially compromise our objectivity if we choose to wade into policy matters or the societal implications of our work. And it would be problematic if our views on policy somehow influenced the way we went about doing our science. But there is nothing inappropriate at all about drawing on our scientific knowledge to speak out about the very real implications of our research.

He sums up the right balance by re-purposing the Homeland Security slogan: “If you see something, say something.”

For the first time, a player on Washington’s NFL team says that the franchise should change its name.

Ya think? Nobody would stand for a team named the Memphis Niggers or the Arizona Wetbacks. As Clem Ironwing of the Sioux put it:

The only way “redskin” was ever used towards my people and myself was in a derogatory manner. It was never, ever, used in a show of respect or kindness. It was only used to let you know that you were dirty and no good, and to this day still is.

Defenders of the NFL franchise have tried a few points. First, they want to lump “redskin” in with other Native-American-related team-names, making common cause with fans across the country. But while there’s also an argument for renaming some other teams, calling someone a “brave” or a “chief” is not inherently derogatory. (Degrading mascots and logos can be a separate issue.) And names that commemorate the pre-European inhabitants of a region — the Florida State Seminoles or the University of Illinois Illini, say — may or may not have been chosen respectfully, but they can honor the local history now, if the schools make a legitimate effort to do so. But what “redskin” mainly commemorates is the genocidal project directed from Washington. Picture the Berlin Jews (or maybe Kikes) wearing a yellow star on their jerseys. Could that ever be acceptable?

Another defense is that a few Native American communities have chosen to name their own high school teams the Redskins. Yeah, right. And it’s OK for whites to say “nigger” now, because black rappers say it. If members of a historically oppressed community want to reclaim the words that were used to put them down, that’s up to them. If they want our “help”, they’ll ask for it.

and let’s end with something fun

To the enlightened, all dances are one. You knew that, didn’t you?

January 20, 2014 – 12:08 pm Categories: Weekly summaries | Comments (4)

Catching Up With the Judges

While the Supreme Court has been relatively quiet lately, a lot has been going on in lower courts. This week I’ll tackle the recent net neutrality and same-sex marriage cases. In future articles I plan to address cases related to the NSA, voting rights, and drug-testing welfare recipients.

Net neutrality. The headlines about this decision said things like “Verizon Wins, Net Neutrality Loses“. But the overall impact of the D. C. Court of Appeals ruling is a little more ambiguous and complicated. Reading it was like watching the tape of a football game where my team gets way ahead, but I’ve already heard that they lost. On its way to ruling in Verizon’s favor, the court trashes one Verizon argument after another. “We lose this?” I kept asking myself.

Net neutrality is one of those important-but-somewhat-technical issues that it’s hard to get the public excited about. The issue will go months at a time without making headlines, so when it comes up again even people who have read about it before are likely to say, “Wait, I know this. What is it again?” Wikipedia defines it pretty well:

Net neutrality (also network neutrality or Internet neutrality) is the principle that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, and modes of communication.

The practical problem is that you don’t have a lot of choices if you want fast broadband internet access in your home. The local cable monopoly may be the only option if you aren’t near a major city. If you are, you might have a choice between Comcast and Verizon FIOS — a Coke/Pepsi choice where competition is tightly confined to battlefields that don’t rock the corporate boat too much.

In short, broadband providers have a lot of market power. And the technology has shaken out in such a way that they have the power not just to impose a bad deal on you, but also on “edge providers” of services like Netflix or Google. Comcast has its own video-on-demand service, for example, so what if it decided to block its users from accessing Netflix? Or maybe Netflix connections could be inexplicably glitchy, unless Netflix paid Comcast a big fee. (Nice service you got there. It’d be a shame if something happened to it.)

Verizon could decide to compete with Comcast by charging smaller fee (or no fee at all) so that its users got Netflix cheaper. But why not just charge the same fee, give your own on-demand service the same advantage, and make money hand-over-fist? If there were five or six broadband providers, one of the smaller ones would probably break ranks. But with two or three, probably not. (BTW: That’s the same logic why none of the larger wireless companies should be allowed to take over T-Mobile.)

Until Tuesday, FCC rules made that illegal. Those are the rules that got thrown out by the D. C. Appeals Court. But along the way, the Court rejected almost all the arguments Verizon made for why it should be allowed to do whatever it wants with its network and charge whatever the market will bear.

The relevant law is Telecommunications Act of 1996, which gave the FCC the mission to promote the spread of broadband internet access. The main argument is over how to do that: Verizon thinks that making things as profitable as possible for broadband providers (like itself) encourages the providers to build out the broadband infrastructure. Net neutrality advocates argue that letting a few big corporations essentially “own the internet” discourages the real creativity in the system, which comes from edge providers trying to create the next gotta-have-it service like Netflix or YouTube. A Verizon-owned internet will be less interesting than a net-neutrality internet, and hence will inspire less consumer demand.

In short, it’s yet another version of the eternal supply-side vs. demand-side argument.

Anyway, the TCA classifies internet companies into two bins: telecommunications carriers and information-services providers. Telecommunications carriers are regulated like the wired phone companies: They have to offer their services to everyone on a more-or-less equal basis. Information-services companies have more leeway.

The gist of the court ruling is that the FCC has classified cable companies as information-services providers, but that its net-neutrality rules regulate them like telecommunications carriers. So the FCC’s net-neutrality rules can’t stand. But — and this is the observation that snatches victory from the jaws of defeat — it’s totally within the FCC’s current powers and mandate to just reclassify the cable companies.

So net neutrality is dead. But if the FCC wants to revive it, all they have to do is issue new rules. Judge Laurence Silberman dissented from the majority opinion that the FCC has this power, but since Verizon technically “won”, they can’t appeal the ruling to the Supreme Court unless and until the FCC tries to use the power that the Court says it has.

In short, this is all a long way from over.

Same-sex marriage. A month ago, if I had to guess which two states would be the last ones to legalize same-sex marriage, I might have picked Utah and Oklahoma. Since then, though, federal judges have struck down the amendments to both state constitutions that restrict marriage to opposite-sex couples. Both judges build on the Supreme Court’s Windsor decision that struck down parts of the Defense of Marriage Act last summer, but they do it in somewhat different ways.

You may remember that while I liked the outcome of Windsor, I was no fan of Justice Kennedy’s majority opinion, which I labeled “mush” and lumped together with Chief Justice Roberts’ voting-rights-act decision in a subtle, soft-spoken article I called “This Court Sucks“.

Here’s why Kennedy’s Windsor opinion sucked. Same-sex marriage cases all revolve around these three questions:

  • Does the right to marry (which the Court has often affirmed as a fundamental right protected by the Constitution) apply to same-sex couples?
  • Are laws targeting gays and lesbians (like laws targeting blacks or women) inherently suspicious as vehicles for irrational prejudice, and so subject to some form of heightened scrutiny from the courts?
  • Whatever standard of scrutiny you choose, do the laws serve legitimate purposes that outweigh the limitations they put on the couples’ rights?

Kennedy dodged all that. He waxed eloquent for a while on the plight of same-sex couples and the unreasonable prejudices against them, and then announced that DOMA was struck down.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard?

The victims of Kennedy’s judicial malpractice are lower court judges like Terence Kern and Robert Shelby, who have been left to rule on similar-but-not-identical cases without any clear guidance. In his Oklahoma ruling, Kern avoids technical legal terms like sucks and mush, but makes more-or-less the same point I did:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. … Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test .

So Kern does his best to puzzle out the WWJKD question:

This Court has gleaned and will apply two principles from Windsor.

Ordinarily, a lower-court judge just “applies” principles from a higher-court ruling, rather than having to “glean” them first.

Lacking clear guidance, Kern avoids declaring either a fundamental right to same-sex marriage or that gays and lesbians are a protected class. That means that Oklahoma’s same-sex marriage ban only needs to have “rational relation to some legitimate end”.

Shelby took a somewhat different path to the same destination in the Utah case. He made an insightful observation about what exactly has changed in recent years: not the Constitution, but our understanding of what it means to be gay or lesbian.

The State accepts without contest the Plaintiffs’ testimony that they cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex. … Forty years ago, these assertions would not have been accepted by a court without dispute. In 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-II), and leading experts believed that homosexuality was simply a lifestyle choice. … The State presents no argument or evidence to suggest that the Plaintiffs could change their identity if they desired to do so. Given these undisputed facts, it is clear that if the Plaintiffs are not allowed to marry a partner of the same sex, the Plaintiffs will be forced to remain unmarried. The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights.

So Shelby is in a position to demand a higher standard of the state, that their ban on same-sex marriage is “narrowly tailored to serve a compelling state interest.” But ultimately, both Kern and Shelby end up arguing that the ban does not satisfy even the lowest standard, the rational-basis test.

In each case, the state trotted out the same justifications: that the state has an interest in promoting “responsible procreation” among “naturally procreative” couples, and that opposite-sex couples provide the ideal setting for raising childrent.

Both judges make basically the same counter-argument, but Shelby says it best:

[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest.  No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. … The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. …

Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Both cases are being appealed and will undoubtedly end up before the Supreme Court. But what’s clear from the rulings is that the opponents of same-sex marriage will have to come up with a new set of arguments if they hope to prevail: It’s not enough to argue that opposite-sex marriage is good; they’ll need to argue that same-sex marriage is bad, which they have not done and may not be able to do, particularly when the person they need to convince is the Supreme Court’s swing vote, Justice Kennedy.

January 20, 2014 – 10:24 am Categories: Articles | Comments (7)

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The Monday Morning Teaser

The Supreme Court has been relatively quiet lately. (Like freshmen, they finish most of their assignments at the end of the term in June.) But lower court judges have been issuing important rulings on net neutrality, same-sex marriage, the NSA, voting rights, drug-testing welfare recipients, and a variety of other subjects.

I’ve gotten way behind in covering them, so this week’s featured article will be: “Catching Up With the Judges: Net Neutrality and Marriage”. (I’ll try to catch up with the rest next week.)

The D. C. Circuit Court of Appeals struck down the FCC’s net neutrality rules, but the majority opinion suggests that the FCC could fix the problem without new legislation. So in a weird way, the winners (Verizon) were losers and vice versa.

A month ago, if you’d asked me to guess which two states would be the last to legalize same-sex marriage, I might have picked Utah and Oklahoma. Well, just before Christmas a federal judge struck down Utah’s constitutional amendment limiting marriage to one man and one woman, and this Tuesday Oklahoma’s bit the dust. The cases had nearly identical facts and the states made nearly identical arguments, which the judges destroyed in similar ways, as if the standard anti-marriage-equality arguments have become fat pitches easily hit out of the park.

Both cases will be appealed and undoubtedly the issue will wind up at the Supreme Court, maybe next year. I’m having a hard time imagining what the four conservative justices can possibly say to persuade Justice Kennedy.

The weekly summary will bring you up to date on the Bridgegate scandal and President Obama’s change of rhetoric on the NSA. Michael Mann also wrote an interesting article about how climate scientists should approach the politics of global warming. The 50th anniversary of the War on Poverty is continuing to generate good discussion about inequality. Pressure continues to build on the Washington NFL franchise to change its name. And I’ll end with a great dance video.

Expect the legal article around ten (New Hampshire time) and the weekly summary about noon.

January 20, 2014 – 8:09 am Categories: Morning tease | Post a comment