Wednesday, December 26, 2012

Return of the Ghost?

It's not the type of book that I normally would read, but I spent a few hours (that's all it takes) over the long Holiday weekend reading Eben Alexander's Proof of Heaven. I was struck by the premise - a neurosurgeon with a materialistic view of consciousness and human existence, has a near death experience.

What does he think now?

The story is more striking because Dr. Alexander contracted a relatively rare form of a bacterial meningitis. His prognosis was poor from the onset and became virtually hopeless as he went into a coma and failed to respond to treatment. His subsequent recovery was extraordinary - apparently close to miraculous.

During his coma, he had a vivid NDE that both resembles and departs from what is typical for such events. Alexander, who had always dismissed NDEs as dreams or hallucinations, says the can't do it in his own case because he had lost higher brain functioning while comatose. In other words, his brain could not have produced his experience because it wasn't working.

I can' t really evaluate the scientific arguments. Alexander includes an appendix in which he explains, in quite summary form, why he rejected nine different hypotheses of a material cause for his experience. From what I have read - from Alexander and his critics - explaining what happened is somewhat problematic and turns on whether it is possible to know (based on the tests that we have) that his brain was really "off -line" and whether he might have experienced his NDE after he regained higher brain function.

Alexander's story does not mesh with any particular theological view. (There is apparently a Christian "rebuttal" of his story.) It is, in many respects, a bit hokey and does not quite amount to "proof of heaven." (Alexander did not want to call the book that, preferring the title "An N of 1," referring to the unique nature of his case.)

But it does tee up what brain scientists call the "hard question" - what produces consciousness. While we have managed to correlate brain activity with conscious experience, we haven't established what causes that correlation. Is the brain a source or a filter?

One of the things that I found intriguing - although I know precious little about it - is the implications of a quantum view of reality to consciousness. The standard view of consciousness as mechanistic seems a tad Newtonian to me. Alexander doesn't do more than wave at that, but he does suggest that consciousness is stranger and less linear and contained than we might suppose.

One of the fascinating things about Alexander's NDE is that, unlike most of these experiences, he did not know who he was while he was "up there" (he uses that phrase metaphorically). He did not remember his life. It would be a very different kind of "heaven" if those who inhabit it are dissassociated from who they were in life.

Cross posted at Purple Wisconsin

Monday, December 24, 2012

Peace on blogs

World War I (1914-1918) was unspeakably savage. Worse, even, than the Battle of Wisconsin (2011-2012). Much of the war consisted of opposing lines of entrenched soldiers who inflicted massive casualties on each other yet gained no advantage.

Yet, on Christmas in 1914, some of these opposing lines made their own truce. The Germans decorated their trenches and sang carols. The opposing British and French lines did the same, eventually wandering across no-man's land to exchange gifts. A game of soccer was organized. In some places, the "truce" extended through New Year's Day.

The truce was not universal and not without risk. Some of the men who left their trenches were shot. In all instances, the military commands sternly warned their troops that this must never happen again. Adolf Hitler, then a corporal in the Sixteenth Bavarian Reserve Infantry, is reported to have been adamantly opposed.

So I'm imposing my own Christmas truce in our political wars for a few days. It won't last long. There are important issues on which many of us disagree. I would hope that we can express those disagreements in a way that doesn't presume that the other side is stupid, crazy or venal. Whatever response that you make to a point with which you disagree is not made stronger by stringing together adjectives or personal invective.

I know that's not easy. I have trouble with it myself. So I suspect that we'll continue to have our political battles of Yrpes and Verdun.

But, at least for the next few days, good will abounds here at Shark and Shepherd.

So Happy Hanukkah (although its been over for a while), Stupendous Solstice, Joyous Kwanzaa and Happy Festivus (for the rest of us.)

And Merry Christmas.

Cross posted at Purple Wisconsin

Monday, December 17, 2012

Guns and the limits of law

We really haven't have a mass shooting like the one in Newton. The thought of someone opening fire at small children is beyond horrifying. We don't have a word for it. Having said that, mass shootings have become a depressingly frequent topic

Now that a few days has passed, what does this incident - and other episodes of random gun violence - tell us about the need for stricter gun laws?

There are a few guiding principles for such a conversation. The first is that, however awful, mass shootings probably have little to tell us about what our gun policy should be. They get a great deal of attention but are a small fraction of gun homicides. Placing too much attention on them is likely to create misguided policy.

Second, such a conversation should be tempered by constitutional, political and practical realities. We are not about to ban the private ownership of guns in the United States. It would be unconstitutional and politically impossible. More fundamentally, it would be close to physically impossible. There are, by most accounts, well over 200 million guns in private hands in the United States. Even if we prevented another one from being made or sold, they'd be around for a very long time.

We might prevent sane, law abiding citizens from owning them but they are not the ones that we are worried about. Anyone who would shoot up a school or a shopping center is unlikely to be deterred because it is illegal to oen the gun with which he does it.

Third, the irony seems to be that gun controls laws offer relatively little prevention with respect to situations like this. In most cases, no set of reasonable regulations would have prevented the shooter from purchasing a firearm. The profile for a mass shooter has become almost a cliche. In most cases, he will turn out to be a "quiet guy" who was "strange" but who "no one would have expected" to do what he did. Perhaps people who were close to him knew that something was seriously awry but it's hard to imagine a legal screen that would take into account such amorphous "danger signs." Calls to stop selling guns to people with "mental illness," gloss over the difficulty in determining who those people are.

Fourth, we talk about regulation on the type of weapons that can be sold and the process by which they are purchased.  While it is true that "guns don't kill people,people kill people," it is certainly easier to kill a lot of people with a rifle than a baseball bat. But the list of restrictions that might make a material difference in the mass shooting context is short.

It might be reasonable to limit magazine size, but people who know guns better than I do say that this is not likely to make much difference. One could, I suppose, ban semi-automatic weapons - often misleadingly called "assault" weapons. That might slow a shooter down but how much difference it would make is unclear. Whatever "benefit" there is in such a restriction must be balanced against the cost in reducing the effectiveness of weapons for personal defense. There probably ought to be background checks for private gun sales, but we shouldn't fool ourselves into thinking that would be a momentous reform.

In the end, the desire to make this go away by passing a law is understandable, but misplaced. This type of tragedy cannot be prevented by fiat. It is, in fact, unclear that it can even be made less likely. The problem is not in our laws, but in ourselves.

Cross posted at Purple Wisconsin.

Thursday, December 13, 2012

Goo goos and their limits

I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.

The reason is simple. When a decision has political implications, politics, like water, finds its own level. While the selection of lower court judges is not politically salient, the selection of justices for a state supreme court usually is. These courts are law developing tribunals of last resort. They decide issues that are unsettled.

Many of these issues do not have ideological or political implications, but some - very important - cases do. While it is wrong to think that the justices who decide these politically charged cases simply do whatever they want or vote as partisans, their world view will affect how they approach questions to which the legal answer is unclear. It is natural for liberals and conservatives to seek like-minded justices.

This turns merit selection into a political process. If you don't believe me, consider the case of North Carolina. Out going Democratic Governor Beverly Perdue -she who spoke of suspending elections so that things could get done - posed for holy pictures a while back when she signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
Are the politics back in judicial selection of North Carolina? They never left. It's fine to have a panel of lawyers make recommendations to the Governor. We do that here. But that doesn't make the process of selecting judges - particularly for a state Supreme Court - nonpolitical.
Governor Perdue has just demonstrated the obvious.
At a certain level, I don't blame her. She wants to use what remaining power she has to appoint a justice whose judicial philosophy she supports. So would I. But I would prefer that she not pretend otherwise

Cross posted at Purple Wisconsin

Tuesday, December 11, 2012

Judicial elections and promises

Did Supreme Court candidate Vince Megna violate the Judicial Code of Ethics in saying that he is a Democrat, opposes voter ID and would, if elected to the Court, vote against vote suppression?

There are two issues.

The first is easy. The Code (to which all candidates for judicial office are subject) says that a judge may not be a member of a political party. But this prohibition was declared unconstitutional in a case called Siefert v. Alexander. Megna can say he is a Democrat. Whether he should call attention to his partisan affiliation is another question. Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office.

The second issue is whether Megna's comments on voter ID were improper.The United States Supreme Court has made clear that a candidate for judicial office may express his or her opinion on disputed legal or political issues. But it has left open the possibility that a state may restrict a judicial candidate or judge from promising to rule in a particular way. Wisconsin does prohibit a candidate from making "pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office."

So, while it may be acceptable for a candidate to express a view on, say, the existence or nonexistence of a constitutional right to bargain collectively, it is not acceptable for a candidate to commit to overrule - or uphold - Act 10.

The distinction may seem to be overly fine but it is rooted in reality. It is disingenuous for candidates to pretend they have no opinion about critical questions. If. for example,  I really have no  view on the great legal issues of the day, then I am probably unqualified to be a candidate for the state supreme court.

On the other hand, I ought to be willing to be consider arguments from the other side. I should be open to persuasion.

Megna stretched that distinction. Having all but called voter ID requirements a form of "voter suppression," he then promises to vote to overturn "voter suppression" laws. He may not have crossed the line but he came very close. However, he then backed away noting that "every case comes down to the facts of the case and the arguments and the law."

So, taking his comments in context, I would argue that the rules were not broken. On the other hand, most candidates would not comment so directly on an issue that is almost certain to come before the court in the near future.

 A related - but distinct - question is whether his comments would lead to an obligation to recuse himself in a voter ID case.

Cross posted at Purple Wisconsin.

Tuesday, December 04, 2012

The Fiscal Cliff: It's not a bug, it's a feature.

It might be too much to say that President Obama wants to go over the "fiscal cliff." It seems increasingly clear, however, that he wouldn't mind it much.

And the reason that he wouldn't mind is not so much that he sees it as a price to pay for some other desired policy. The "policy" that he seems to be insisting on - expiration of the Bush era tax cuts for those making over $250,000 and an equivalent amount of additional taxes on the same ground - yields modest deficit reduction and nothing for the additional spending that Obama wants. It is small ball.

When you appreciate that, the going over the fiscal cliff is not a cost of Obaman intransigency, it's a feature.

Here's why. It has been a long time since the Democrats - and many Republicans - had a vision of government restricted to the provision of a limited number of essential services and a social safety net. But the President has an aggressively ambitious view of what the state can do. It can reorder industries and engage in more substantial redistribution of income that it does today.
But you can't have that kind of state without substantial tax increases on the middle class. No European state does it. We can't either. As the President likes to say, "the math tends not to work."
The problem for the Democrats has been that they can't call for middle class tax increases. If they had, they would have lost the election. (This should be a sobering thought for those who believe there is a permanent Progressive majority.)

Thus comes the beauty part of the "fiscal cliff." The Democrats can help themselves to a substantial tax increase by doing nothing. To be sure, they'll have to live with sequestration for a while but it is heavily weighted toward defense and, if there is one thing that Congress has proven itself capable of doing, it is raising spending.

The "fiscal cliff" becomes a down payment on the Obama agenda.

Cross posted at Purple Wisconsin.

Tuesday, November 27, 2012

Politics and pizza at the UW

At least as far as the regional director of the National Labor Relations Board is concerned, the allegations of "union busting" at Palermo's fomented by Voces de La Frontera are unsupported by the evidence.
Voces says it will appeal and,  I suspect, it will lose again. That isn't surprising. Voces is a political, if not partisan, organization with a point of view. I suspect that it will try and push the law in the direction that it thinks it ought to go. I don't fault it for that even as I disagree with the direction in which they want to take it.
I do find offputting the efforts at both the Milwaukee and Madison campuses of the University of Wisconsin to use their allocation of tax dollars to support Voces' position.
I remember what it was like to think I had the world figured out but picking the pizza to be served at Camp Randall Stadium is not a political act. I would rather not have my tax dollars used as a weapon by ideologues. I don't think I'm alone.

Cross posted at Purple Wisconsin

Monday, November 26, 2012

Redistricting reform and its limits

The Journal Sentinel editorial board thinks it has found an  egregious example of bizarre gerrymandering in the recent redrawing of the 21st and 22nd Senate districts. I beg to differ.

First, let's go to the "eye test." The board thinks that the new 21st district is an imaginatively shaped "barrel" that could not be found in a "natural" world of redistricting. But as these things go, the shape of the 21st is not all that unusual. While it is far from the most compact and contiguous district you could draw, there are plenty that are worse. If you really want to see bizarrely shaped legislative districts, look at some of these, .

Beyond that, it is not hard to defend the new 21st and 22nd on  traditional redistricting principles which are are not limited to drawing a contiguous and compact set of districts or respecting existing political boundaries. For example, it is often argued that redistricting should respect "communities of interest," i.e., there should be an effort to draw boundaries in a way that includes citizens with common concerns.

The new 21st and 22d districts may well serve that principle. Voters in the cities of Racine and Kenosha may have more interests in common than they have with the suburban and rural residents of their respective counties.
This is not to say that there is no political consequence of respecting such communities. One man's respect for "community of interest" may be another's deployment of the time honored redistricting device of "packing"  voters.
But splitting up - or "cracking" -  like-minded voters is another way of gerrymandering.

This is why the United States Supreme Court has effectively made court challenges to partisan gerrymanders impossible. There is no such thing as an "ideal" map. There are six or seven common "nonpartisan" redistricting principles. Unfortunately, they often contradict each other. For example, keeping "communities of interest" within the same district may require ignoring municipal boundaries or drawing a map which departs from the state wide partisan balance of power or which maximizes competitive districts.

One solution might be to put the drawing of maps in "non-partisan" hands.
Good luck with that.
The editorial board offers two alternatives. One is to create a nonpartisan commission such as California's - a commission which is now under fire for acting in a partisan fashion (as the paper's op-ed concedes.) "Non-partisan" solutions rarely remain non-partisan and often succeed only in driving the politics underground. It is notoriously difficult to drive the politics out of something that is inherently political.
It is not at all clear that a nonpartisan approach will not have partisan implications. Many people believe that a map which draws districts in a way that maximizes things like the regularity of their shape and adherence to municipal boundaries will tend to benefit Republicans. This is because Democratic voters tend to be "packed" together in a way that Republican voters are not.

If that's true, then we can expect partisan wrangling to continue in a non-partisan context. Indeed, the battle over the redistricting criteria to be used may become partisan.

The other alternative suggested by the board  is to restrict the legislature to alternatives presented by a putatively independent state agency associated with the legislature, such as the Legislative Reference Bureau. But whether such an agency would be free of pro-incumbent bias - or would not be captured by one party -  seems unclear. Again, there is likely to be a partisan fight over which non-partisan interests to employ.
At best, this alternative would certainly moderate the potential for a gerrymandered where one party has both houses of the legislature and the state house. At worst, it would be a recipe for gridlock.
This is not to say that redistricting reform is necessarily a bad idea. It may well deserve consideration. My point is only that the matter is not as simple as it may seem to be.

Cross posted at Purple Wisconsin

Tuesday, November 20, 2012

Social conservatives should remain in the tent

So when I was last here, I suggested that conservatives should not believe that the sky is falling. Since then, I have completed Sean Trende's fascinating book, The Lost Majority. Trende argues that political coalitions are inherently unstable - they require bringing together incompatible groups - and that there are no permanent victories in politics. He does a nice job of illustrating how narrow the Democratic coalition is (you can say the same thing about the GOP) and the closeness of three of our last four elections along with the dramatic swings in the midterms (compare 2006 with 2010) bears that out.

But to say that things are not awful for conservatives is not to say that they are just fine. Reexamination is in order. The Democrats did not turn things around until they addressed their weaknesses. Bill Clinton was a New Democrat - one who learned to adopt his party's traditional commitment to larger government to reflect current political reality. This entailed some substantive changes - ending welfare as we knew it and pursuing a more assertive foreign policy - and some repackaging of what were essentially the same positions - abortion should be safe, legal and rare.

I can think of three things that conservatives need to think hard about. But we should begin with a caveat. The party who loses an election should be loathe to take advice from the partisans of the winners. They don't really wish you well.

So I am not quite ready to get on board with all those well meaning folks on the left who think that the Republicans should throw the social conservatives under the bus. While Republicans cannot abandon their commitment to traditional values, they must understand that many people have a more nuanced view of how those values are lived and that too much of GOP rhetoric seems to ignore that. I don't believe that the GOP should cease being a pro-life party but it cannot appear to be censorious or extreme. One of the most effective things that the pro-life movement ever did was run the ads of women explaining how they came to be opposed to abortion. The ads treated women as moral agents and not subjects to be controlled.

There is a sense in which the Republicans got a raw deal this election cycle. Rick Santorum, Richard Mourdock and Todd Akin were not nominees for national office. But the Democrats did a masterful - if nasty and misleading - job of using them to taint the GOP brand. This didn't move a lot of votes but it moved some. In close elections, every vote matters.
The Democrats strove mightily to create issues that did not exist. Republicans were not proposing to outlaw contraceptions and the notion that they would become "unaffordable" unless religious dissenters were forced to pay for them was a nifty bit of distortion.
Yet Republicans let them get away with it. They have, I think, spent so much time talking to social conservatives that many have forgotten how to talk about social issues in a way that doesn't assume the conclusion. Too many conservatives have forgotten how to address these issues with persuasion and not condemnation and condescension. They have forgotten the humility and kindness which is also a religious value.
There is a great irony here. Republicans are castigated by the left for insisting on tradiitonal values but, as Charles Murray demonstrated in his recent book, Coming Apart, the upper middle class members on the left recognize how important those values are to well being and live their lives accordingly.

Cross posted at Purple Wisconsin

Tuesday, November 13, 2012

Republicans should get a grip

After any Presidential election, there is a danger for both the winning and losing sides. The loser sorely disappointed, will be tempted to despair and overreaction. The winners may forget that there are no permanent victories and politics and gloss over their own weaknesses coming into the next war.

What should conservatives take from Tuesday's results?

First, they should not make into more than what it is. Incumbent Presidents are hard to dislodge. In two man races since 1900, the incumbent has won 15 of 17. Depending on the final total, Romney came the closest of any of the 15 unsuccessful challenges. Obama's re-election performance was historically weak.

It is hard, moreover, to see the election as a mandate for any particular set of polices. The President did not run that kind of campaign. He could have said that he supports a larger welfare state and is willing to advocate for the taxes necessary to pay for it. Had he done so, he would have almost certainly lost.

Instead, he ran on a fuzzy platform of incremental state "investments" that could be financed solely by asking the rich to pay a "bit more." This is, of course, fantastical. You can't even make much of a dent in the deficit by allowing the Bush tax cuts expire for those earning more than $ 250,000. The Buffett rule - as even Buffett admits - would raise very little money.

But it is, significantly, the most he would say. His major focus was to trash Romney as a Big Rich Meanie. He did it masterfully, driving down the GOP vote in swing states. There are three telling facts from this election. First, turn out was down. Second, Obama's drop off in voter percentage was markedly less in swing states than in the nation generally. Third, Romney garnered less votes than John McCain. If he could have found a way to counter Obama's negative ad blitz in the swing states over the summer and turned out the McCain voters who stayed home, the outcome might have been different.

Ironically, given the attack on him a plutocrat supported by other plutocrats, he didn't have the money - having spent it on a lengthy primary fight.

So Obama's victory is significant for what it was not. It was not a mandate for the welfare state that he did not call for and will not pay for. It is also significant for what it was. A very close win in which brilliant tactics and execution played a large role.

So conservatives can get a grip. Still there are some things that must be faced. More to come.

Cross posted at Purple Wisconsin

Tuesday, November 06, 2012

Prognostication whithers

I have a piece in Front Page Magazine reporting on the state of the race in Wisconsin. My sense is that the race is very close.

The conundrum, of course, is this. The national polls are dead even. The coin, as it were, is still spinning on its edge.

But the state polls seem to favor Obama. Let's look at RCP's analysis. It has 201 electoral votes for the Democrats and 191 for Romney. States with 146 electoral votes are called "toss-ups." But, RCP says, the poll averages in states with 102 of these 146 votes favor the President.
How likely is this to happen? Are almost all of the states on the knife's edge likely to fall off in the same direction?

One argument for that to happen is that the Obama campaign has played the swing states well - "poisoning" each of them with its early surge of negative ads.

Another would be to look for some campaign dynamic moving the vote in the same way. Sandy is the logical candidate, although a dismaying one. Anyone who decided to vote for President Obama because he did what any other President would "do" - really there is very little for a President to "do" - in such situations, i.e., turn on the money spigot and pose for holy pictures probably shouldn't vote.

But Sandy may have run its course, now that the relief efforts are - as they often will be - far from perfect.

We see predictions of electoral totals of over 300 for both Romney and Obama. Both are plausible. I think that Romney's edge in enthusiasm will carry the day. But no one knows.
But, now about this for an outcome, Romney's 191 electoral votes are augmented by Florida and North Carolina bringing him to 235. He takes Virginia to reach 248. He then wins Wisconsin, New Hampshire and Iowa (or loses these but wins Pennsylvania) and is at 268. He carries Maine's second district (not expected but we're playing here) and the election is ... an electoral tie and goes to the House.

Cross posted at Purple Wisconsin

Friday, November 02, 2012

Job report means little

What will today's job numbers mean for the election? I don't know but I suspect not too much.
What should they mean? Absolutely nothing.
The way in which we await these estimates during election cycles would be amusing were it not so wrongheaded. We act as if some oracle is about to give us the one missing bit of information that will permit the "independent-minded' to pass judgment on the performance of the incumbent.
We'll hear the normal spin today. There are new jobs but the unemployment rate is up. The unemployment rate is up but more people are in the work force. More people are in the work force but labor force participation rates remain down and the "real" rate of unemployment is still much higher than the official rate.
Here is what we know. We've known it for a long time. The recovery has been awful - historically awful. It is one of the worst in our history. There is no room to argue about that.
What we do differ on is why this is so. The President's supporters say it is because the recession was so deep. His critics point to evidence that this is a mistaken assumption - deep recessions tend to be followed by more robust recoveries. They argue that the President has spent mightily - turning the federal government into a fiscal basket case - with no discernible effect.
I believe that the critics have the far better case. You may differ. One month's job report is unlikely to - and really should not - cause either of us to change our minds.

Cross posted at Purple Wisconsin

Monday, October 29, 2012

The First Amendment applies to employees

A few years ago, I decided that I wanted to devote the rest of my professional life to full time work on law and public policy. It was a great decision but, as is so often the case, it did not come without a cost. One of them was that I eventually had to resign as General Counsel of Rite Hite Holding Corporation - a company that I had the privilege to serve on a full time basis from 1997 -2007 and, on a more limited basis, until last year.
 I am not going to comment directly on the e-mail that the company's owner, Mike White, sent to his employees other than to say that I know Mike sincerely believes that it is in the best interest of his employees to understand the potential impact of federal policies on the company they work for. 

But I am going to weigh in on the notion that sending such an e-mail should be regarded as illegal. I would write the post had any other company been involved.

Let’s go to the law. Sec. 12.07(3) of the statutes provides:

No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees. (Emphasis supplied)

By its own terms, the statute does not apply to the Rite Hite e-mail. The law is expressly limited to unqualified commitments (statements that something "will" happen) and comparable statements ("other threats"). The e-mail did not say that the anything "will" happen or make any other "threat." It outlined the ways in which potential Obama policies might affect the company and how those impacts could harm its employees. In fact, the e-mail made clear that no employee would be prejudiced by the way in which he or she voted.

I appreciate that some will argue that the statute should be read broadly to "implied" threats or statements of probability. That won't happen. Criminal statutes are to be narrowly construed and, as we have seen, the this law simply doesn't apply here.
But even the law could be stretched to cover the mere communication of political opinion, it would be unconstitutional.

In our country, we have a very strong presumption against punishing speech. We allow for very few - and quite limited - exceptions. Courts are especially protective of core political speech, i.e., statements about issues and candidates. They are rigorously suspicious of any restrictions based on the content of speech. Restrictions on the content of core political speech are almost never upheld and, if they are to survive, must be narrowly tailored to serve the most compelling of state interests.
A statement of opinion from an employer to an employee where the employer will have no way of knowing how any employee voted doesn’t even come close to the type of thing that would justify the suppression of political speech.

I cannot imagine that the DA would bring charges in this case. He certainly knows that they would be dismissed by return mail. We still believe in free speech here.
Cross posted at Purple Wisconsin

Friday, October 19, 2012

Binders of nothing

I teach Election Law. One of the things that I tell my students is that a not inconsiderable portion of our political discourse - and much of our political advertising - is undertaken in bad faith. The unspeakably silly attack on Mitt Romney for saying that he had his staff assemble binders containing information on women that he might appoint to high political office in Massachusetts is an example. There have been, I suppose, political attacks even more stupid, but this has to be on the Irrationality Hit Parade.

Normally, our friends on the left would be telling us that it's wrong to hire through an "old boy's network." They would say that we must make a special effort to include members of historically excluded groups. Indeed, they might even say that we must intentionally hire so that the percentage of certain groups is proportional to the population at large.

Romney didn't go to quotas, but he did make a special effort to ensure that women were included in in his administration. That's where the binder come in. Let me explain for those who are unable or, more accurately, unwilling to understand.

You see, binders, in this context, are a notebook cover with rings or clamps for holding pieces of paper. Persons will often make up binders to contain documents that are important to them and that they want to keep together for further reference and review. When I am arguing a case,for example,  I will often have binders put together with the parties' briefs, important prior decisions and other critical information.

When I am hiring someone - and I am now - I like to have binders put together with those resumes that warrant further consideration. Sound familiar?

Governor Romney was concerned that the names that were initially brought to his attention had failed to include qualified women. So he instructed his staff to work harder to find qualified female candidates and to place the information pertaining to them in binders to ensure that this information would get further reference and review and the women would get the consideration they deserved.

See, it's not so hard.

Oh, I know its the atmospherics of the matter - the sub-rational signifying - which is another way of saying that there is no point at all. Or its supposed to be funny. I get the joke. "He had "binders of women" - like a little black book!" "Did he have photos?" Grow up.

After the first debate, the Democrats thought the issue was Big Bird. After the second, they think it was binders. Pretty thin gruel.

Cross posted at Purple Wisconsin

Wednesday, October 17, 2012

A draw may be a Romney win

The consensus on last night's Presidential debate seems to be that it was a draw. To be sure, supporters of each candidate will think that their man did a better job, but its hard to see that viewers without an a priori perspective would see an advantage for one candidate over the other. But there are two dangers for the President.

First, while he was not as bad as Joe Biden, he apparently thought it his prerogative to interrupt Governor Romney whenever he did not like what he was hearing - even to the point of complaining about Romney's decision to respond to an earlier question before answering the one put to him. As one tweeter put it, "Stop Romney before he says something true."

That may have been a problem. The incumbent has a great advantage in these things in that he wears the dignity of the office. A challenger has a tough challenge in attacking someone who he must address as "Mr. President."

But there is a burden that goes with this. The incumbent must act "Presidential." Interrupting your opponent and complaining about time - even when you are clearly getting the advantage on the clock - is diminishing.

Second, once again, the Obama-Biden ticket stepped in it on Libya. The President twisted his own remarks immediately following the attack in Benghazi to imply that he immediately recognized that it was a terror attack. The implication is that he acknowledged that this was an organized operation undertaken by an organized terror group and not a grassroots response to a video denigrating Islam.

No, he didn't.

Mickey Kaus includes the transcript here. The President denounced the attack and the made references to denigration of religion (an obvious reference  to the video) and claimed that such denigration does not justify violence. This expressly links the video to the attack. He went on to  mentioned 9-11 and then said that the US wouldn't be deterred by acts of terror. That final reference is, as Kaus points out,  ambiguous and perhaps intentionally so. In the days that followed, the President, Secretary of State and Ambassador of the UN, among others, kept suggesting that the attack was a reaction to the video as opposed to organized terrorist activity.

They did so, it can be argued, for political purposes. The President intended to campaign for re-election on the theme that "Osama bin-Laden is dead." While this was a well deserved bit of retribution, it did not end the war on terror and may not, given bin Laden's diminished capacity, have been more than a symbolic victory in that war.

But the President wanted to claim that it was much more. That al-Qaeda or groups associated with it were able to kill a US Ambassador on the anniversary of 9-11 undercuts his preferred narrative. This is why the administration preferred to suggest that the attack was the product of a grass roots uprising in response to a "shocking" video. Can't be blamed for that.
So, whether intentionally or from confirmation bias, they pushed the video story even though they knew or should have known it was false. For the President to suggest otherwise, flies in the face of the facts.

Candy Crowley was wrong, both on the facts and in her role as moderator, to come to his support. Indeed, she seemed to almost immediately recognize that she had made a mistake - at least in judgment. Because that was such a jarring moment in the debate, her intervention may, ironically, give the story of the President's misrepresentation more legs.

But Governor Romney disappointed here too. His exchange with the President was fine, in and of itself, but the should have been prepared to directly address his remarks and tick off a litany of the administrations post attacks distortions - distortions that went on for  a week - in much the same way that he earlier delivered a devastating precis of the Obaman economic record.
Up to that, my scorecard, doing the best I could to put aside my own perspective, was that Romney had a touchdown lead. I think the missed opportunity brought the contest to even.

There is something in a draw for the President. It may stop the bleeding associated with his last performance and the narrative surrounding it. But there may have been in it for Governor Romney.

If undecided voters are prepared to break against the President, the most important thing they need to see is a reason to vote for Romney. They need to see that he is Presidential and not the ogre that Obama's campaign has tried to portray him to be. In Denver, he clearly bested the President. In Hempstead, he appeared to be, at worst, "just as good." For voters ready to punish the President for a bad economy, the latter may be all it takes.

Cross posted at Purple Wisconsin

Friday, October 12, 2012

A question on Ryan and the stimulus

Joe Biden thought he had Paul Ryan when he pointed out that Ryan helped two constituents apply for stimulus funding. Ryan, of course, opposed the stimulus. Purple Wisconsin blogger, Jim Rowen, takes up the cudgel on this, adding that Ryan opposed the stimulus on "ideological grounds" which, actually, is just another way of saying that he thought it was a very bad idea -  as, indeed, it proved to be.
But here's my question for Joe Biden.
Mr. Vice President, you opposed the across the board reduction in income tax rates proposed by President George W. Bush and enacted in 2001 and 2003. Those reductions passed over over your objection, as the stimulus package passed over those of Congressman Ryan.
Have you paid taxes at the lower rates that you opposed? Have you refused to take advantage of those lower rates by calculating your taxes using the higher rates that you preferred to remain in place?
Just wondering.

Cross posted at Purple Wisconsin

Thursday, October 11, 2012

Did you like the class president or the class blowhard?

I have heard no spin. Seen no polls regarding tonight's vice presidential debate. I have three reactions.
First, both candidates debated well. although neither was great. Biden was much stronger than Obama. The Biden and Ryan styles were contrasting. Biden was aggressive and hyperbolic. Ryan was calm and understated and, I think, overly deferential. At one point, he needed to say "Mr. Vice President, here's how it is supposed to work. I get to talk with out interruption and then its your turn. Can we try that?"
Different people will react differently. My guess is that both bases will like think their guy won.
Second, as someone who participates in this type of forum on a regular basis, Biden's behavior was shocking. He interrupted and behaved like a smart ass teenager. His smirking and mugging for the camera was the stuff of bad actors and third rate personal injury injury lawyers. (Good personal injury lawyers are much better than that.) It was rude and unprofessional. It was condescending and disrespectful.
But was it ineffective?  Biden adopted the tactics of a cheap trial lawyer. Mostly it doesn't work. But sometimes - with certain audiences (or certain juries)- it does. It tends to work best not when you want to convince the undecided (people aren't that stupid). but when you want to inflame people who are already with you.
Third, without regard to which candidate won, Martha Raddatz was the loser. She  let the debate get out of control and she allowed Biden, in particular, to run all over her. I don't know much about her work as a journalist although I take it she has a good reputation. She was clearly not up to this.
Vice presidential debates tend not to matter and I suspect that this one won't. If you're a Democrat, you have to hope that Biden somehow made up for the President's abysmal performance. If you're a Republican, you have to hope that Biden's oafish behavior underscored the theme of an administration that has no case to make. I'm not sure that either side will get its wish.

Cross posted at Purple Wisconsin

Wednesday, October 10, 2012

The Incredible Shrinking Middle Class Tax "Increase"

We should be all skeptical of the appeal to non-partisan authority; to the argument that some "Center" or "Institute" or "Foundation" - or even college professor - has done a study that has come to a conclusion that we all should accept on its face because the people who did it are smart. 

A case in point is the study by the Tax Policy Center purporting to show that Mitt Romney's across the board reduction in tax rates "must" result in tax increases on the middle class. The claim is being trumpeted by the Obama campaign in speeches by the President and Vice President and ads running in Wisconsin and elsewhere. 
The study is interesting but this claim - which to its discredit, the Tax Policy Center encouraged – is, at best highly misleading and, at worst, an outright lie. 

Here's what the Tax Policy Center did. It calculated the revenue that would be lost by an across the board rate increase by using "static scoring," i.e., the reduction in rates is assumed to have no impact on economic growth. That is generally a bad assumption. One might be able to make a stronger case for it here because Romney wants his plan to be revenue neutral, i.e., it should not result in a loss of tax revenue. But reducing rates and eliminating so called tax expenditures is likely to result in a more efficient allocation of capital and, it is reasonable to suppose, result in some increase in economic growth and tax yield. 

In addition, in calculating the “baseline” from which the "shortfall" in revenue is calculated, the Tax Policy Center takes into account revenue that would be raised by the various taxes imposed by ObamaCare. Romney proposes to repeal these along with much of the spending proposed by the health care plan. These ought to be considered separately.  

So the revenue shortfall – the money to be lost by Romney’s proposed across the board rate reduction – is overstated. 

But even Romney admits that these cuts will still have to be "paid for," i.e, revenue from additional growth will not completely "pay for" the reductions. So he proposes eliminating deductions and credits. The weakness of his position is that he hasn't said which ones these will be. 

And that left him open for what seems like a bit of hackery by the generally respectable Tax Policy Center. It looked at the various deductions, credits and exclusions of income and unilaterally decided which ones were "off the table." In other words, it made up a Romney plan and then proceeded to analyze it. 

The deductions, credits and exclusions that it "took off the table" were presumably selected because  Romney has said that he does not want to raise taxes on savings and investments. There are two problems with this. First, if you to hold Romney to his promise not to raise taxes on savings and investment such that you assume he will never depart from it, you must also hold him to his promise to raise taxes on the middle class such that you assume he will never depart from it. That would make the criticism of the plan focus on its claim to be revenue neutral – which is not the criticism that the Tax Policy Center and Obama campaign have advanced. 

More fundamentally, saying that one will not raise taxes on savings and investment, does not remove from the table all of the deductions, credits and exclusions that the Tax Policy Center assumed. As economists at the American Enterprise Institute have pointed out, one could eliminate the shortfall by eliminating the exclusion of interest on government bonds and interest earned by life insurance policies – preferences for one kind of “investment” or “saving” over others. One could eliminate more by repealing the "stepped up basis" for capital gains taxes imposed on the sale of inherited assets – something that makes no sense if we repeal the estate tax – as Romney proposes to do. All of these predominately benefit wealthier taxpayers. 

AEI points out – and the Tax Policy Center does not say otherwise – that when you make these adjustments and put these exclusions, deductions and credits back on the table, the supposed "need" for a middle class tax increase is eliminated by a very small increase in the rate of growth. In other words, what the Tax Policy Center initially said “must happen” need not happen at all. 

The point is not that the Tax Policy Center got the math wrong - it doesn't appear that there is much disagreement about the math. It's that it approached the issue in a tendentious way - making assumptions that advanced its preferred narrative and that played into the hands of one of the campaigns. It would have done a better study had it played it straight.

It would be fair to ask Romney to be more specific about his plan - a question that might also be asked of the President about his. It's fair to say that its tough to design an across the board rate decrease that would be revenue neutral without raising rates on capital gains and dividends - although neither would raise much more money. But saying that Romney proposes a middle class tax increase is wrong. So wrong, I think, as to be perilously close to a lie.

Cross posted at Purple Wisconsin.

Tuesday, September 25, 2012

Madison and Romney

At the risk of giving it more attention than it deserves, I want to go back to Mitt Romney's remarks about "47%" of the people being unwilling to vote for him. Part of the problem with these remarks is that, as Rich Lowry points out, they confuse three distinct groups.
Lowry goes on the characterize the remarks as a bad idea poorly stated. To the extent that Romney was suggesting that people who pay no income tax will not vote for him, he's wrong.

Nor would it be fair to say that everyone who does not pay income tax or receives governmental assistance does not take personal responsibility for themselves.
But given that Romney doesn't call for raising taxes on low income people or abolishing social welfare programs, I don't think he meant to say that. I think he was trying to stay - in a cobbed up way - that there are voters that he has no chance to win over and that a substantial reason for that is that they benefti from and do not pay for an ever increasing web of entitlements. Because of this, they have little interest in controlling the growth of the social welfare state. This, I think he meant to say, is a bad thing.
And that was a good point poorly stated.
Having large percentages of the public who don’t pay taxes and receive government aid is probably not healthy for democracy. As Madison wrote in Federalist No. 10, permitting a majority to exact money from a minority is a dangerous thing:

“The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.”

This doesn’t mean that there ought not be a social safety net or provision of public services. No one who followed Romney’s record in Massachusetts or the positions that he has taken in the campaign can make the case that he disagrees (even if they want more government than he does.) Madison’s observation does suggest that there is a “tipping point” – a stage at which the disconnect between the receipt of benefits and the obligation to pay towards them becomes problematic.
Cross posted at Purple Wisconsin

Clueless in Seattle

I have been watching the NFL for a long time. The first game I can remember was between the Packers and the Los Angeles Rams in November of 1965. I've been hooked ever since.

I have never seen anything like last night.

It's not just that there was a spectacularly bad blown call at the end of the game. That happens. It was not even that there was a series of blown calls - all of which were necessary to put the Packers in a position to lose that game. I've seen that.

It's not even that these replacement officials are spectacularly incompetent. It is becoming quite clear that officiating an NFL game is a very difficult thing to do.

The thing about last night is the clinging stupidity on display. It is the utterly brain dead obstinence.

The refusal to reverse the call was extraordinary. I don't see how any sentient human being with a basic understanding of the rules of the game could watch the replay and fail to understand what had really happened.  It is as if the referee, not satisfied with being incompetent, doubled down and went for feckless.

For this, the replacements can be cut no slack. I can understand why they were unable to officiate the game properly. I cannot understand they lacked the courage to clean up their mess.

But the obstinence that is most stunning may be that of Roger Goodell and the NFL owners. This was not some one-off, incredibly bad performance by the officials. It is the culmination of three weeks of games being spoiled because they are being officiated by people who are not up to the task.

I get the thinking. The NFL believes, with reason, that it is so popular that its fans will tolerate an adulterated product for as long as it takes to resolve its dispute with the referees.

I wouldn't be so sure.

It is, as I said, not unheard of for a game to be decided by a bad call. It is rare that an officiating mistake is as gobsmackingly wrong as this one, but that is a matter of degree and not kind. What may catch up to the league is that this appears to be happening as a result of a deliberate decision by league management. It’s hard not to think that the NFL is being penny wise and pound foolish.

Cross posted at

Friday, September 14, 2012

Politics and 9-11-12

I often read things that seem to beg for a response only to find that I just can't get to it - maybe for several days and maybe not at all.
James Causey's column in last Sunday's Journal Sentinel had a passage that I found to be stunning. In a column on why, in his view, we are better off than we were four years ago, he wrote:
He ended the war in Iraq. He brought thousands of troops home. He killed the No. 1 terrorist in the world. He restored America's standing with its long-term allies in Europe.

To channel Joe Biden, this literally made me stop reading. It struck me last Sunday as wildly implausible to suggest that the country is more secure and the world is a safer place than it was four years thanks to the leadership of President Obama.
The war in Iraq ended because it's military objectives were achieved. They were achieved largely because President Bush (belatedly) adopted a "surge" strategy that Senator Obama had opposed. You can't claim credit for what you did not do and would not have done.
The fact that the US military finally caugnht up with Osama bin Laden when Barack Obama was in office was undoubtedly an act of justice. But his richly deserved demise was hardy a significant victory in the war on terror. Bin Laden had long ago been driven to irrelevancy.
To say that we are "respected" is another way of saying that we have moved toward a very different view of America's role in the world - one that deemphasizes assertiveness and exceptionalism and emphasizes multilateralism and acceptance of a greater degree of limitation on American power.
Had I written on Sunday, I would have questioned whether this is a good thing and emphasized the simultaneous - and related - deterioration in our relationship with Israel and Iran's nascent emergence as an pre-modern fundamentalist state with nuclear weapons. The President has fomented the former and doesn't seem to have much of an answer for the latter.
I might have written about the dangers - as well as the hopes -  presented by the Arab Spring.
Today, the events of 9-11-12 would seem to further undermine the notion that the Obama Presidency has improved our lot in the Middle East or rolled back the threat posed by radical Islamicist movements - movements which, I hasten to add, should not be confused with Islam in general.
Indeed, the astonishing events in Libya, Egypt and elsewhere seem to be precisely the things that happen when our willingness to step back is seen as feckless by those who understand strength and not reason.
This is not to say that the President doesn't "care" about what happened or that he really "supports" Islamicist objectives. He does care and he doesn't support the goals of terrorist organizations. But it does fairly raise questions about how this threat is best resisted. It does prompt a debate about how American interests are best protected.
The argument about whether the statement condemning the obscure video that supposedly "set off" these protests was released before or after the Embassy in Cairo was actually besieged is beside the point. The larger question is whether the struggle against fundamentalist Islamicists can be won by failing to robustly acknowledge the values of western society. On that, the statement - which was clearly issued in anticipation of violence - struck the wrong note.
People have a right to do and say offensive things. Freedom of expression is one of the pillars on which our society is built and falling over ourselves to condemn an offensive movie that hardly anyone has seen is not the right message to send. (It is also fundamentally different from the Bush administration's response to the Danish cartoons.)
Beyond that, these attacks have nothing to do with this silly little movie. They were premeditated and coordinated acts of aggression that used the video as a pretext. Now is not the time to say that we "understand" the irrational or to suggest that we will work with the Libyan and Eygptian governments in the same way that a crime victim works with law enforcement.
What happened this week is intolerable and the unqualified message should be that it will not be tolerated.
What's happening in Iran is intolerable and it is fair to ask whether we should have a more robust plan to end it.
As Iran goes nuclear and our embassies are besieged, it is fair to ask whether the President might not find time to meet with our most important ally in the Middle East? It is fair tp wonder whether this was the time for another Las Vegas fundraiser.
The answer to those questions may depend on just what we want America's role in the world to be.The answer to that one may help us decide whether, in this area, we are better off than we were four years ago.

Cross posted at Purple Wisconsin.

Tuesday, September 11, 2012

The "recovery" should have been stronger

In his speech at the Democratic National Convention, Bill Clinton - in that hectoring, finger wagging way of his ("listen to me") - told us that no President could have "fixed" the economy in one term.

Why, not even he could have done it.

History suggests he's wrong. We have a relatively recent example of a strong recovery from a very deep recession in one Presidential term. There may well have been at least one President who could have "fixed" this in four years.

Ronald Reagan.

The economic downturn of 1981-1982 may not have been quite as bad as that of 2007-2009 (although by some measures it was worse), but it was very deep. Unemployment reached 11%. The recovery was far more - and I mean far more - robust than what we have seen during the past three years. The growth rate was over twice what it has been over the past three years and the percentage of persons participating in the labor force rose sharply. Since the downturn of 2008-09, it has remained flat. In other words, measured by the percentage of people working, there has been no recovery at all.

But there's more. It turns out that the central premise of the Clinton/Obama defense of the administration's poor economic record may he ahistorical and wrong.

The story is told graphically by Stanford economist John Taylor in a "chartcast" produced with George Mason economist Russ Roberts (who is also a research fellow at Stanford's Hoover Institute). The central point being made by the Democrats is that the recovery has been so weak because the recession was so deep. The worse things get, they say, the more slowly they get better.

Taylor and Roberts show that this is not necesssarily so. It is simply not true that deep economic downturns are followed by slower recoveries.

In fact, just the opposite seems to be the case. Taylor and Roberts point out that the deeper the recession, the stronger the recovery may be. They refer to Nobel laureate Milton Friedman's  "plucking" model for the business cycle. Friedman used a guitar string as a metaphor. The harder you pull on it, the harder it reverberates and "bounces back."

There is some practical wisdom behind this. A deeper downturn will result in lower inventories, more deferred consumption, heavier reductions in employment such that, when a recovery begins, there is far more upside.

Of course, we can think of reasons why a recovery may not proceed in this way. Indeed, it would be overly simplistic to suggest that a hard fall is always going to be followed by a rapid rise. The point is that Clinton's argment - while superficially logical - may not hold water. Taylor and Roberts show, American recoveries often proceed in a very different way and, in our more recent years, milder recessions have been followed by milder recoveries.

There are two implications for the President's re-election bid. First, this illustrates the weakness of the Presidents'  "well, I stopped the recession" argument. Recessions end quite apart from governmental intervention. In fact, they tend to create the conditions for their own end. Inventories get drawn done and need to be replaced. Work forces can be reduced no more. While I suppose things could get worse in perpetuity, that tends not to be what happens.

So the real questions are, not whether there has been a recovery, but what kind of recovery it has been and how have the administration's policies helped or hindered it. The answer to the first question is easy.  The recovery of the past several years has been the worst of the post war era.

The answer to the second question will be a matter of dispute but we can say this. The President has spent an awful lot of money and left the country in materially worsened fiscal shape. We have little to show for it. To say "well, it could have been worse" and "no one could have done better' is unfalsifiable. It is also implausible.

Second, Taylor and Roberts blow apart the "it's not my fault" theme on which the President is running for relectioon. When Bill Clinton says that even he could not have done better and that "no President" could have, he's - at best - half right.  The so-called "Clinton recovery" actually began when George H.W. Bush was still in office. As I blogged last week, much of what Clinton did right - spending restraint and the absence of grandiose policies - was forced on him by a GOP Congress. He didn't have the votes to do otherwise. As a result, the policies that were actually implemented were nothing like what President Obama wants to do. It may well be that "even he" could not have done better.

But someone else might have. The deep recession of 1981-1982 was followed by an extremely robust recovery.

The President, as I said before, was Ronald Reagan.

Cross posted at Purple Wisconsin

Wednesday, September 05, 2012

Barack Obama is no Bill Clinton

Tonight at the Democratic Convention is, as I understand it, Bill Clinton Night. Despite persistent reports that the two men are not much enamored of each other, former President Clinton has decided to go Full Bubba in support of President Obama's re-election. That's not surprising. I rather doubt that Mitt Romney is a personal favorite of Newt Gingrich or Rick Santorum either. Parties pull together.

The Clintonian move is to claim that Obama is doing - or will do - the same things that Clinton did. These things supposedly led to a strong economy in the mid to late 90s – at least until the tech bubble burst. We've seen the commercials in which Clinton argues that we need to adhere to some unspecified Obama policies that are supposedly just like his own.

Details are not provided.So I guess we'll have to figure it out.  Let's pull up some Nirvana from Paul Ryan's playlist and review federal economic policies in the 90s.

Tax rates were a little higher and, to be sure, President Obama says he wants to return to Clinton era rates for high earners.  But actually, as Michael Tanner of the Cato Institute points out, Obama wants these rates to be significantly higher - about a point higher on ordinary income and a staggering 40% higher on investment income. 

Is that the answer? We know that these rates won't put a ding in the federal deficit.They may, in an economy as weak as ours, be counterproductive. That's about the range of possibility - meaningless to harmful.

In fact, after Clinton raised taxes in 1993, he cut them in 1997. Not only did he cut them - he cut them on rich people. He reduced the capital gains rate by almost 50%. Revenues rose sharply.
So - no - that's not the Clinton magic that Obama has or will or might bring back.
We did have balanced budgets back in the 90s. These were largely a product of the "peace dividend" following the end of the Cold War, the tech boom and, note this carefully, divided government. But maybe it is the Clinton record of fiscal restraint that our current President has sought to emulate - or might seek to emulate - or is thinking about.

No, that's not it either. If there is anything that we can be sure that President Obama is about - it's a larger federal government that does more things. Clinton said that the era of Big Government is over. For our current President, it's just getting started.

As Tanner points out, during the Clinton years, the federal govenment spent an average of 19.8% of GDP. During Obama's Presidency, it's been 24.4%. While government spending as a percentage of GDP will tend to be higher during a poor economy, the President's proposed budgets - his "plan" - never brings it below 22%. On this issue, Paul Ryan may be closer to Clinton than Obama.

Maybe it's the relative position of the middle class. Maybe Clinton's Presidency brought about greater income equality. Although it's a complicated picture, the "decline of the middle class" story has been oversold. The average American family is much better off today than it was 30 years ago. But we have seen a long term increase in the share of income going to the very wealthy. I question how much government policy has to do with it, but, whatever the cause, rising inequality was a fact of life during the Clinton years In fact, by one commonly used measure, inequality - as measured by income - went up during the Clinton years and not during the George W. Bush presidency

Of course, you can slice the numbers any which way to get the result you want. And, as I have written before, I don't think one can assume that the state of the economy is caused by Presidential policies. The point is that we can't point to anything in the Clinton administration and say “this is what we need to do now.” And, to the extent, that we could - say fiscal restraint - the current President is not on board.

There is one huge similarity between Bill Clinton and Barack Obama. After putting both in office, voters came down with a violent case of buyer's remorse and swept Democrats out of Congress in the off year election.

Ironically, it is that similarity that shows how different they are. Clinton's response was to make the best of it and move to the right. He declared the Era of Big Government to be over and signed welfare reform into law. Growth in federal spending was, at least, tempered. He even flirted with entitlement reform and the partial privatization of social security - an effort that fell apart when he was caught perjuring himself in the Lewinsky affair. Again, Bill Clinton even cut taxes on rich people.

It may well be that Clinton did not want to do any of this. I suspect he didn't. But it's what happened.

Obama's response is almost the polar opposite. After his own massive losses, he has doubled down on his commitment to traditional liberalism. In a number of areas - emission regulation, immigration policy, labor policy - he has attempted to do administratively what he cannot do legislatively. Indeed, he has attempted to substantially modify - I'd say abandon - the core of Clinton's signal legislative accomplishment, the work requirements embedded in welfare reform.

For President Obama, the era of big government it not over. It's on hold.

Cross posted at Purple Wisconsin

Friday, August 31, 2012

Ryan did not "lie" about Janesville GM plant

The argument that Paul Ryan "lied' or "misrepresented" the closing of the Janesville GM plant is not even colorable.

Here is what the President said:
"And I believe that if our government is there to support you, and give you the assistance you need to re-tool and make this transition, that this plant will be here for another hundred years. The question is not whether a clean energy economy is in our future, it’s where it will thrive. I want it to thrive right here in the United States of America; right here in Wisconsin; and that’s the future I’ll fight for as your president." (emphasis supplied.)

Here is what Ryan said:

"My home state voted for President Obama. When he talked about change, many people liked the sound of it, especially in Janesville, where we were about to lose a major factory.
"A lot of guys I went to high school with worked at that GM plant. Right there at that plant, candidate Obama said: 'I believe that if our government is there to support you … this plant will be here for another hundred years.' That’s what he said in 2008. Well, as it turned out, that plant didn’t last another year. It is locked up and empty to this day. And that’s how it is in so many towns today, where the recovery that was promised is nowhere in sight." (emphasis supplied.)
Let's make a few observations that seem to have eluded Ryan's critics.

First, Ryan does not "characterize" or "insinuate" anything about what the President said. He quoted him.

Second, while Ryan did not say that this constituted a "promise" to keep the plant open, the workers in Janesville might have reasonably understood it that way. The clear implication of Obama's words is that he would bring the government's resources to bear to retool plants like Janesville and that this would keep such plants - including this particular one - open.

Ryan's critics want to argue that the workers should have understand a jesuitical distinction. The President, they argue, only said that "if the government provided resources to the plant, then it would be open for a hundred years.'" He never said that he actually would do what he said he could do.

It was just a law professor's hypothetical, you see, an academic discussion with a group of people about to lost their jobs. Obama was saying that "we can help you" but bot that "you can expect that we will."

If that's what candidate Obama meant, then he is the one who misrepresented his intentions and mislead the Janesville workers. To suggest that Obama did not intend to imply anything about the Janesville plant beggars reality. That he has now been hoisted on his own petard is a product of his own doing.

But let's give him the benefit of what seems to be a rather infinitesimal doubt. Ryan did not say that Obama "promised" to keep the plant open, but only that he told voters that the resources of government could be used to keep plants like Janesville and keep them open. In Ryan's view (and he's got the numbers), that hasn't happened. The President has not brought those resources to bear or, if he has, it hasn't worked. The Janesville plant is closed as are many similarly situated plants across the country.

But what about the fact that this plant closure was announced before Obama took office? That is not relevant to Ryan's critique. Obama was arguing that government could retool plants and keep them operational. That didn't happen.

Beyond that, this criticism of Ryan's remarks is cynical and deceptive. Obama knew - everyone knew - the the Janesville plant was on the chopping block. That's why Obama made his remarks. If he thought it was too late to save this plant and keep it open for "a hundred years," why say anything at all?

The plant closed in April 2009. When that happened and for 18 months thereafter, the President of the United States, not only had strong majorities in the Congress. Not only that,  the federal govenment run by the President, also soon came to own a controlling interest in GM. Couldn't the government have retooled the shuttered plant that it now owned as the candidate told the people of Janesville it could do?

Maybe not. Maybe it is unreasonable to think that the President should have worried about a GM plant in little Janesville, Wisconsin or recall the hope he tried to give its embattled workers. After all, someone who is causing the waters to recede and the sick to heal can't be bothered with the pedestrian problems of a small town in Wisconsin.

But even if you believe that, it doesn't undercut Ryan's argument. It was fair for him to use Janesville as a metaphor for a promise that unequivocally was made (the President did promise - many time and in many places - that he could use government resources to turn the economy around) and not kept.

Of course, you can argue that the President ought to be excused from the consequences of presiding over the weakest recovery in the post-WWII era. You can join him in what seems to be the theme of his campaign: It's not my fault, America. You can even believe that the only problem with the President's policies is that we haven't had enough of them.

But the fact that you disagree with the implications of Ryan's remarks - theat the President's policies have failed - doesn't make them false.

Cross posted at Purple Wisconsin.