Tuesday, September 29, 2009

Shark in Mizzou

We spent the weekend in Missouri visiting our niece Monica who is a freshman at the University of Missouri in Columbia and watching the Packers play the Rams. Mizzou has a very nice campus and probably the best student rec center that I have ever seen. The Edward R. Jones Dome is nice enough (and I am a huge proponent of downtown stadiums) but football should not be played indoors. I am not sure how it looked on TV but the place was full of Packer fans. In our section, it was about 90% green and gold.

The Packers did not play well, but the offensive line seemed to improve as the game continued. If that improvement is replicable against someone other than St. Louis, I think we saw what the Packers can do in the deep game.

On the other hand, I don't see them maintaining a 9:1 takeaway ratio for the rest of the year.

Wednesday, September 23, 2009

Real man of financial genius?

It's just too easy to point out the hypocrisy and silliness in the story line about conservative rage and racism. If you want to see expressions of simple outrage over public policy (be it the war in Iraq or the President's health care plan), go to a public meeting. They're pep rallies. If you want considered arguments about these things, read the New Republic or National Review. (What you read won't always be well considered, but you'll get the reasons for the outrage.)

What's more interesting is whether this is a good strategy for the left. I understand that bloggers enjoy all the snickering about "tea bagging" (itself reinforcing the popular image of liberals as sexual libertines) and their posture of superiority. But none of this is particularly appealing to the unconverted. The President increasingly seems pedantic and his party comes across as petulant and arrogant. You can pretend that significant expansions in the size and role of government do not raise profound and troubling questions, but you won't convince a majority in that way.

So why do it? The answer is suggested by Democratic Party leader Mike Tate, recently castigated by Charlie Sykes for his intemperate rhetoric. Charlie sarcastically calls Tate a "real man of political genius."

But maybe, in a way, he is. Of course, he sounds like a bit like an automaton filling in the blanks about how awful the other side is.

But doesn't that raise money?

Thursday, September 17, 2009

Prognostication About a Judicial Ethics Complaint

Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides "[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent." This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that "[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system."

The difference between "shall" and "should" is significant. The preamble to the Judicial Code states that "[t]he use of "should" or "should not" in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined." (emphasis supplied)

Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says "Butler found a loophole. Mitchell went on to molest another child." Someone hearing the ad would likely conclude that it means "Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again."

But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue - and Gableman does - that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.

I don't see that happening.

But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.

The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.

Why would the panel do this? Don't I think - shouldn't they think - that the ad is false? I do and they probably do too, but I am - and, by the questions put at oral argument, they are - concerned about the state taking on the responsibility to determine whether political speech - something which is at the core of first amendment protection - would be understood to convey a false message.

This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.

For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would "tax your health care benefits." That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain's plan.

But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether "you" could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is "no."

This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions - suspension or removal - raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren't going to happen.

But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)

Cross posted at Prawfsblawg and Marquette University Law School Faculty Blog.

Thursday, September 10, 2009

Obama promises what can't be true: Good politics or strategic blunder?

Does candor work in politics? By any measure, the President's speech on health care last night was chock full of misleading statements, misrepresentations and dubious speculation. We won't require you to change your existing policy even though millions of you will lose it. Mandating preventive care will save money even though studies show that it won't. I somehow won't cut medicare even as I reduce spending on medicare dramatically.

Now before you go all pot and kettle on me, I am fully aware that it wouldn't take long for someone to find a speech by a GOP leader that is similarly misleading. Health Savings Accounts are a a good idea but they are not the panacea that some on my side of the debate seem to think they are. I also understand that some people will believe that, even after you sort out what the facts really are, something like what Obama wants to do remains a good idea.

The problem is that politicians want to prevent that major changes can be painless. Think about this. Jim Geraghty sums up what the President wants to do:

keep everything the same for those who have health insurance through their jobs, Medicare, Medicaid, or the VA; mandate coverage of pre-existing conditions; ban caps on coverage; mandate coverage of routine checkups and preventive care, like mammograms and colonoscopies; offer health insurance to 30 million uninsured; provide tax credits for small businesses; painlessly mandate coverage for the young healthy uninsured; provide hardship waivers; provide choice and competition; keep insurance companies honest; avoid taxpayer subsidies for public option plans; keep out illegal immigrants; not pay for abortions; and not deny care to the elderly because of cost-benefit analyses, all while not adding one dime to our deficits – either now or in the future.

This will supposedly cost only $ 900 billion over ten years. I don't believe that. In fact, I don't see how you can even cover 45 million Americans for that. Even if all the money were dedicated to that single purpose, this would mean that those folks can be covered for $2000/year. The type of coverage that the President wants to provide will cost several times that.

I understand that this figure is net of new taxes but that is misleading. New taxes are part of the cost.

But we'll have cost savings! Cost savings that won't cause anyone to give up anything that they want except those nasty old excess profits earned by insurance companies, drug companies and health care providers.

It is implausible to the point of being ridiculous. People don't believe it because they shouldn't. But its seen as essential to the passage of a massive new entitlement. In a moment of candor, Robert Reich, argues that misleading the public as to its cost is essential. Reviewing a book on the politics of health care, he notes:

Blumenthal and Morone’s most provocative finding is that presidents who have been most successful in moving the country toward universal health coverage have disregarded or overruled their economic advisers. Plans to expand coverage have consistently drawn cautions or condemnations from economic teams in every administration, from Harry Truman’s down to George W. Bush’s. An exasperated Lyndon Johnson groused to Ted Kennedy that “the fools had to go to projecting” Medicare costs “down the road five or six years.” Such long-term projections meant political headaches. “The first thing, Senator Dick Russell comes running in, says, ‘My God, you’ve got a one billion dollar [estimate] for next year on health. Therefore I’m against any of it now.” Johnson rejected his advisers’ estimates and intentionally lowballed the cost. “I’ll spend the goddamn money.” An honest economic forecast would most likely have sunk Medicare.

Reich is not bothered by this. He notes that Johnson's economic advisors were right about Medicare, conceding that it "is well on its way to bankrupting the nation." But the economists must still be kept "at bay."

Is this good strategy? It may be the conventional wisdom, but I wonder if it works here. By making claims that are so blatantly false, Obama provides the GOP with a target rich environment.

Sunday, September 06, 2009

Nasty debate is easy

This month I am guesting at Prawfsblawg, a national lawprof blog. I posted yesterday on President Obama's speech to schoolchildren. I don't have a problem with a speech, but there is an etiquette that should be followed when a President presumes to speak apolitically in his capacity as head of state. The speech should not be about his agenda, disputed matters of policy or him. That his political opponents are suspect that this etiquette will not be followed and that the speech will be used to gain political advantage is not unprecedented (Democrats objected to a similar speech by Bush 41) and not surprising.

Perhaps the reaction is more vociferous today than it was then. I don't know, although it seems to me that we are increasingly less cordial and willing to engage what our opponents say. Mostly I think this is a function of the ability of people to live, if they choose, in an echo chamber. If Keith Olberman and Glen Beck repeatedly tell you that "we" are morally and intellectually superior, you might come to believe it.

But maybe there's more to it than that. It is absolutely incorrect to say that George W. Bush represented some sort of apogee of conservatism. On economic issues, in particular, he routinely betrayed conservative principles.

But he did outrage liberals with what they saw as an extreme reaction to the 9-ll attacks. They were concerned - with some justification - about the implications of preemptive war and what they saw as suspension of essential civil liberties. Even I, who believe that much of what the administration did was justified, recognized that the war on terror raised some very difficult questions and potentially dangerous precedents. Many on the left became overwrought in their concern and took leave of their senses (Bush was not a theocrat, fascist or war criminal)and this sullied our public discourse.

So it is with Obama. He has stunned conservatives with his commitment to statism and proposed expansion of the federal government. The type of centralized corporatism that he seems to favor is potentially a radical change in our society. Many on the right have become overwrought (he is not a communist or a nazi) and this has sullied our public discourse. Some liberals have, in my view, been complicit in this further degradation of debate by attempting to paint conservatives as the sum of their most objectionable elements. (Yes, some conservatives did that to liberals as well.)

I don't expect this to change. But I would suggest to my friends on the left and the right that if you have shown that the latest from Michael Savage or Markos Moulitas is intemperate and foolish (a worthwhile service), you've still got work to do.

Wednesday, September 02, 2009

Public option and larger purposes

In response to my last post on health care, one commenter wonders why I am not reassured by the fact that public education hasn't eliminated private education. Doesn't this show that a public option won't crowd out private coverage?

I think this compares apples and oranges. A better comparison would be public v. private hospitals. A public coverage option to the extent that it becomes pervasive will affect the incentives for technological progress because it will tend to affect the market generally. It will tend to drive down the reimbursements to private health care providers (not insurers) in a way that stifles the incentives for innovation and that rations care through indirect means (wait times and reimbursements based on some centralized notion of "quality").

There could be, I suppose, clinics and hospitals that refuse to accept government insurance or to conform to its limitations. To the extent that the public option - because it is artificially cheaper - becomes pervasive, most people won't have access to it. That is consistent with the experience in many "universal care" systems and, indeed, is not entirely different than what happens with education (at least in the absence of vouchers.)

But the problem is deeper than that. There cannot be innovation for a private sector of the market that is too small to support it. Education seems different in that regard. One of the constant themes in the left critique of market economics is a failure to see what will not happen when the market is constrained. That's happening here as well.

Another commenter, TosaVoter, asks the following question:

I’d like to ask him a question. It’s a false choice, but then Shark himself asked a similar question so I think it’s fair: If God himself appeared before you and said, before you get into Heaven, you must answer this question: which would be your greater priority – the private market system and the health of private insurance companies, or patients?

That's easy to answer. It would be the patients. The test of the market is whether it produces a better outcome than a nonmarket system would. But that question can't be answered by finding market outcomes we don't like and then demanding that the government fix it by fiat without hurting anything else. Economic reality has a tendency to get it the way.

This whole debate has been about whether to throw out the baby with the bathwater. I say no.