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How Republican National Committee members could put him over the top for the nomination.
Imagine the scenario that keeps Mitt Romney’s top strategists up at night: The polls close in the final primary state, Utah, on June 26, and Romney gets every one of the state’s 40 winner-take-all delegates — yet still falls short of the 1,144 he needs to secure the Republican presidential nomination at the party’s August convention in Tampa.
It’s not out of the realm of possibility. Now that Louisiana’s primary is over, the process that will result in the elections of more than half the total number of delegates to the national convention has begun. A series of primaries in Southern states such as Arkansas, Kentucky, Texas, and North Carolina could provide Rick Santorum or Newt Gingrich with enough delegates to deny Romney an outright win.
And yet, if Romney falls just short of the necessary votes, he can turn to an unlikely, if somewhat ironic, source of untapped delegates: The members of the Republican National Committee — the closest thing the party has to super delegates.
The GOP has always been stingier about awarding convention votes than Democrats. In the 2008 contest, Barack Obama and Hillary Rodham Clinton battled over 4,233 delegates, nearly one in five of whom were unelected delegates. That included every Democratic member of Congress, every Democratic governor, the 432 members of the Democratic National Committee, and the two dozen so-called Distinguished Party Leaders, a list that took in everyone from former presidents to former House speakers and former DNC chairmen.
By contrast, Republicans don’t give their elected officials an automatic convention vote. If House Speaker John Boehner or Senate Minority Leader Mitch McConnell wish to vote at this year’s convention, they will have to run to become a delegate just like anyone else. By party rule, only the 168 members of the RNC — a state party chairman and two national committee members in each of the 50 states, five territories, and the District of Columbia — get automatic votes, accounting for about 7 percent of the total convention votes.
Not all of those votes are up for grabs. Rules vary by state, and RNC members in 11 states — Delaware, Georgia, Idaho, Kansas, Maryland, Nevada, New Jersey, Texas, Utah, Vermont, and Wisconsin — must vote for the winners of their respective primary or caucus. And representatives from states that held nominating contests before party rules allowed are disqualified from voting, meaning that RNC members from Arizona, Florida, Michigan, New Hampshire, and South Carolina won’t have a voice at this year’s convention.
With those 48 delegates from 16 states out of the picture, that leaves 120 uncommitted super delegates who may vote for any candidate they wish at the national convention in Tampa. And that means Romney has a path to victory that’s wider than it may initially appear.
Start counting at 153, the number of RNC members who have a vote at the convention, whether bound or unbound. So far, Romney’s team has done a better job than any other campaign in attracting those delegates. He has support from 41 RNC members — nine of whom must vote for him and another 32 who have endorsed him but, technically speaking, remain unbound. That includes entire delegations from nine states and territories and prominent RNC members like Indiana’s Jim Bopp, Illinois’s Pat Brady, Maine’s Jan Staples, and Puerto Rico Gov. Luis Fortuño.
Massachusetts national committee member Ron Kaufman, a top Romney adviser who frequently travels with the candidate, is leading the campaign’s effort to win over RNC members. He has help from Michigan national committee member Saul Anuzis, Mississippi committeeman Henry Barbour, and Utah’s Bruce Hough.
The 41 on Romney’s side amount to more than three times the support that Romney’s three remaining rivals have attracted, combined. Gingrich has support from seven RNC members, including the three Georgia members bound to vote for him. Santorum has backing from five, including the bound Kansas delegation and Iowa’s Kim Lehman, who is influential in the social conservative community. Rep. Ron Paul has the support of just one RNC member, newly elected Iowa Republican Party Chairman A.J. Spiker.
Romney’s surrogates have been the “most aggressive,” said Alabama Republican Party Chairman Bill Armistead. The other candidates aren’t putting in the same effort. Paul’s campaign is having staff members call through the RNC roster. Former RNC member Chuck Yob of Michigan, is calling on behalf of Santorum – and Santorum himself called Armistead after the former senator from Pennsylvania won Alabama earlier this month.
Of the 99 remaining unaligned RNC members, 18 come from states that bind their RNC members to a specific candidate. Once the delegate-election process concludes in Delaware, Maryland, New Jersey, Texas, Utah, and Wisconsin, those 18 members will be locked in, at least on the first ballot.
All of that leaves 81 RNC members who have not yet said how they will vote when the gavel comes down in Tampa. Among the undecided: the entire delegations of Arkansas, California, Colorado, Connecticut, Hawaii, Kentucky, Louisiana, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Virginia, and Washington state.
If they remain on the sidelines, they will become the targets of intense lobbying from all sides: Establishment Republicans, intent on ending the primary bloodshed and crowning a winner, will push the remaining members to come out publicly for Romney.
“Calls are going very well. Members are concerned about electability and uniting the party,” said Anuzis, one of Romney’s RNC whips. “Most [members] do not see a contested convention as a good thing.”
Santorum and Gingrich supporters, furious that unelected delegates could end the nominating process, will push those members to abstain or to back their candidates, denying Romney a first-ballot win. (Toward the end of the 2008 Democratic fight, some members of the DNC who hadn’t committed to a candidate reported receiving hundreds of e-mails and dozens of phone calls a day, almost all from members of the public on Obama’s or Clinton’s side.)
By remaining on the sidelines, these Republican super delegates ensure that Romney has a path to victory even if he comes up short of the 1,144 delegates an eventual nominee needs to win. His true magic number, that is, is something smaller than what it might initially appear. He has to get close — at the very minimum, to 1,063 pledged delegates — if he is to rely on RNC members to get him over the top. That would be a last-ditch, ugly, and controversial move; in 2008, the Obama campaign stopped rolling out super delegates just before it clinched the nomination, in hopes of avoiding the appearance that super delegates had delivered Obama the nomination.
But if Romney falls just short, winning with RNC members remains the proverbial nuclear option. It wouldn’t be pretty, but those 81 uncommitted members could be Romney’s only path to the 1,144 votes he needs to win on the first ballot.
Florida, which is expected to be a vital swing state once again in this year’s presidential election, is enrolling fewer new voters than it did four years ago, as prominent civic organizations have suspended their voter registration drives because of what they describe as onerous restrictions imposed last year by Republican state officials.
The state’s new elections law — which requires groups that register voters to turn in completed forms within 48 hours or risk fines, among other things — has led the League of Women Voters, which has been registering voters in Florida since 1939, to put its efforts on hold this year. Rock the Vote, a national organization that encourages young people to vote, began an effort last week to register high school students around the nation — but not in Florida, where the new law would put teachers at risk of fines for any errors with the forms. And on college campuses around the state, the once-ubiquitous folding tables piled high with voter registration forms are now a rarer sight.
Florida, which taught the nation the importance of every vote in the disputed presidential election in 2000 when it reported that George W. Bush had won by 537 votes, is now seeing a significant drop-off in new voter registrations. In the months since its new law took effect in July, 81,471 fewer Floridians have registered to vote than during the same period four years ago, in the last run-up to a presidential election, according to an analysis of registration data by The New York Times.
It is difficult to say just how much of the decrease is due to therestrictions in the law, and how much to demographic changes, a lack of enthusiasm about politics or other circumstances, including the fact that there was no competitive Democratic presidential primary this year. But new registrations dropped sharply in some areas where the voting-age population has been growing, the analysis found, including Miami-Dade County, where they fell by 39 percent, and Orange County, in the Orlando area, where they fell by a little more than a fifth. Some local elections officials said that the lack of registration drives by outside groups has been a factor in the decline.
In Volusia County, where new registrations dropped by nearly a fifth compared with the same period four years ago, the supervisor of elections, Ann McFall said that she attributed much of the change to the new law. “The drop-off is our League of Women Voters, our five universities in Volusia County, none of which are making a concentrated effort this year,” Ms. McFall said.
Florida’s law — which is being challenged in court by civic groups and, in counties covered by the Voting Rights Act, the Justice Department — is one of more than a dozen that states have passed in recent years making it harder to vote by requiring voters to show photo identification at polls, reducing early voting periods, or making it more difficult to register.
This month Pennsylvania became the latest state to pass a law requiring voters to present photo identification at the polls, even as the Justice Department moved to block similar laws in South Carolinaand Texas on the grounds that they would disproportionately affect black and Hispanic voters. Republicans, who have passed nearly all of the new voting laws, say the restrictions are needed to prevent fraud. Democrats note that such fraud almost never happens, and say that the laws will make harder for young people and members of minority groups, who tend to support Democrats, to vote.
Chris Cate, the communications director for Florida’s Department of State, which oversees the state’s elections division, questioned how much of the decline in registrations should be attributed to the new law, noting that four years ago Floridians were registering to vote in both Democratic and Republican presidential primaries, and gearing up for a constitutional amendment about property taxes, which generated interest and enthusiasm. “To suggest the new elections law had a greater impact on voter registration than the election ballot itself is a leap of logic,” Mr. Cate said.
The law in Florida, which was passed by a Republican-controlled legislature and signed into law by Gov. Rick Scott, a Republican, also reduces the number of early voting days in the state. While the affects of those changes may not be seen until the fall, the new restrictions on voter registrations are already being felt — as Sabu L. Williams, the president of the Okaloosa County Branch of the N.A.A.C.P., discovered this year when he registered some voters during the three-day Martin Luther King Day weekend.
Mr. Williams’s group registered two voters on the Sunday of the three-day weekend, and noted the time, as required by the law: 2:15 p.m. and 2:20 p.m. When the local elections office reopened on Tuesday, Jan. 17, the group handed the forms in. They were stamped as received at 3:53 p.m.
This resulted in a warning letter from Florida’s Secretary of State, Kurt S. Browning, who noted that the state can levy fines of $50 for each late application, with an annual cap of $1,000 in fines per group. “In your case, although the supervisor’s office was closed on Monday, Jan. 16, the 48-hour period ended for the two applications on Jan. 17 at 2:15 p.m. and 2:20 p.m.; therefore, the applications were untimely under the law,” Mr. Browning wrote. The letter said that “any future violation of the third-party voter registration law may result in my referral of the matter to the attorney general for an enforcement action.”
Mr. Williams said he could not believe it. “We’re out here trying to register voters, and I’m being threatened for doing it because we missed the time limit by around an hour — and we’re doing it on the first business day they were open!” he said. But he vowed to continue registering voters.
Mr. Cate, the spokesman for the Department of State, noted that the letter was meant to inform Mr. Williams of the law, which he said was a typical response when the state believed that someone had been unaware of the law and violated it unintentionally. “We send letters providing information about the law much more often than we recommend fines,” he said.
Other groups have stopped registering voters, saying that the new restrictions are too onerous. Deirdre Macnab, the president of the League of Women Voters of Florida, has filed suit with other civic groups to overturn the law. “Basically our volunteers, after 72 years of registering voters problem-free, would now need an attorney on one hand and a secretary on the other to even attempt to navigate these new laws,” Ms. Macnab said, noting that her organization had been in court with the state over previous laws that tightened the restrictions on voter registrations.
A number of states have placed restrictions on third-party groups that register voters. The law in Florida, which is among the strictest in the nation, is similar to one that New Mexico passed in 2005, which also imposed penalties for failing to meet a 48-hour deadline for handing in completed forms. Civic groups challenged the New Mexico law in court and lost. While the number of registered voters in the state has risen since it passed, Census data shows that the percentage of New Mexico citizens who are registered has fallen to its lowest level in decades.
Lee Rowland, a lawyer at the Brennan Center for Justice, which is one of the groups handling the lawsuit for the civic groups, said that they were challenging the Florida law in part on First Amendment grounds, arguing that speaking to voters and registering them is core protected speech. The state took issue with what it called the “pervasive sky-is-falling hyperbole” of the civic groups, saying that the new law does not impinge on their free speech rights. The state said that the law was designed to make sure voters had their registrations handed in quickly and that outside groups did not overwhelm local elections officials by hoarding their registration forms and delivering them all at once near the deadlines.
Last Friday, on the anniversary of the passage of the 26th Amendment, which gave 18-year-olds the right to vote, Rock the Vote kicked off its national program to educate and register high school students, though not in Florida. “It’s a real shame,” said Heather Smith, the president ofRock the Vote, which joined the lawsuit. “We just cannot put those high school teachers at risk.”
Mitt Romney’s small cottage in La Jolla is in the process of renovation, and the aggrandizing of this piece of real estate is such an important issue for the future of this nation that there is actually a guy assigned to lobby the house to the San Diego government. How do you lobby a house? Perhaps this involves wearing a button with a picture of the house on it? Carrying a model version of the house to show all the government workers how lovely life can be when you start from, well, something, work hard and “earn” every phone call your father ever made to his friends? Anyway, also, the “manse,” as one Romney campaign person once called it, apparently thinking “manse” is a prissy way of saying “very small castle,” (manse: a large stately house; a mansion, for any teens reading), will also have a car elevator, because many of Romney’s friends are elevator company owners, and his only real friends are cars.
The chateau shall be 11,000 square feet. Its basement alone, which is delicately referred to as its “non-living area,” shall be bigger than the original house was (3,000 square feet). WHAT WILL HAPPEN DOWN THERE? We are sorry if this leads to you imagining Mitt Romney sweaty or having fun, but it’s probably for an ice skating rink, olympic-size pool, gym and garage for 93,894 cars. Recall L.A. Dodgers owner Jamie McCourt’s house(seseses). They are kind of the same, these two. Here’s the thing: ramps? What is so wrong with a ramp? True, Batman would never have a ramp.
Anyway, this guy, Matthew Peterson, has been employed by Romney in the position of Castle Lobbyist since 2008, and part of the reason is things like car elevators, and disturbing the peace, and forklifts and possibly moat-building and a full-scale replica of the gardens at Versailles. Peterson’s job is to politely harass four government people: “the project manager responsible for the planned construction, an assistant city attorney and two engineers.” Some people claim this is all quite “normal,” when you are doing a renovation of this scale. See, any time you have a lot of money, you get to waste the government’s time and resources with your personal problems and aspirations. It’s the American Dream. Romney is living it. What are you doing?
And what is “this scale,” you ask? Why, here is a baseball field, speaking of baseball, which is a mere 8,100 square feet, so:
The newly released confidential documents from the National Organization for Marriage offer vast insights into the inner workings of the anti-gay group, at least as of 2009. While the race-wedgingand parent-scaring tactics have gotten the most press attention, the memos also reveal an official partnership between NOM and Rick Santorum to campaign for maintaining the Defense of Marriage Act. Apparently, he agreed to be the spokesman for the group’s “Two Million for Marriage” campaign (which now directs to its “Defend DOMA” campaign):
The goal of the Two Million for Marriage effort is to use the Obama administration’s priority of the repeal of DOMA to rally a nationwide donor and activist base, recruiting two million activists and 50,000 donors by the election of 2010. We have already launched a $2 million e-mail, direct mail, and automated call campaign and have gained nearly 500,000 activists and roughly 15,000 new donors in our first few months of this effort. Senator Rick Santorum has served as the face of this effort through e-mail and direct mail. Senator Santorum has recently agreed to use his voice in a nationwide automated call effort to slicit activists and donations.
Santorum’s opposition to the freedom to marry is by no means new. As Elon Green notedearlier, Santorum is one of several Republican presidential candidates who have signed NOM’s presidential pledge to oppose the advancement of marriage equality. Nevertheless, the partnership confirms the extent of Santorum’s commitment to deny same-sex couples the right to marry. Despite his constant discussion about marriage while campaigning in Iowa this past fall, he has recently tried to distance himself from it, claiming he “hasn’t been talking a lot” about gay issues and even downplaying his marriage position by comparing it to President Obama’s.
Given Santorum’s close ties to NOM’s work, one wonders if he also supports fostering the same kind of racial divisions to achieve his goals.
House Democrats on Tuesday afternoon repeatedly criticized House Republicans for trying to approve a 60-day extension of federal highway programs, and one, Rep. Peter DeFazio (D-Ore.) went so far as to say Republicans “hate America” and “hate government.”
“They hate government so much, they will say that investment by the government in building a national transportation system, and maintaining it, and rebuilding it with Made in America requirements,” DeFazio said on the House floor. “Why would they say that? Because they got 80 people on their side of the aisle who do not believe we should have a national transportation plan or policy.”
DeFazio’s “hate America” comment drew a rebuke from Rep. Bill Shuster (R-Pa.), but not a call to have his words stricken from the record. “I do take offense to the fact that he said we hate America,” Shuster said.
House Minority Leader Nancy Pelosi (D-Calif.) was also critical, warning Republicans that they only have until the end of this week before federal highway authorization expires.
“March 31st is the deadline in which all of this will expire unless Congress acts, and Congress is not acting because the Republican majority does not have its act together,” Pelosi said on the House floor.
Members debated a new version of H.R. 4239 that would extend federal highway programs for 60 days. The bill is an alternative to the 90-day extension Republicans tried to move Monday, but pulled back in light of Democratic objections.
The House debated the 60-day extension under a suspension of House rules, which means a two-thirds majority vote is needed for passage. Republicans would have needed about 50 Democrats to pass the bill later Tuesday evening, but Republicans canceled the vote soon after the debate, a sign that Democratic objections will prevent them from approving the bill by suspension vote.
Aside from calling on Republicans to accept the two-year reauthorization passed by the Senate, Democrats argued that the 60-day extension is too long and would not put enough pressure on the House to quickly reach a longer-term authorization. House Transportation and Infrastructure Committee Ranking Member Nick Rahall (D-W.Va.) said the 60-day extension is “lavish,” and complained that Republicans had not consulted with Democrats before moving the bill to the floor.
“This legislation is yet another example of the Republican leadership’s ‘my way or the highway’ approach to legislating,” Rahall said. “There was no consideration, consultation with anyone on this side of the aisle prior to this particular measure being introduced and scheduled for consideration.
“The extension is unduly long, and it ignores the fact that we do have a solution in hand, in the form of a bipartisan Senate surface transportation bill, which passed the other body the week before last,” he added.
Republicans have indicated they want to cut the $109 billion, two-year authorization passed by the Senate, but have been unable to reach a deal that most Republicans can support. Rahall said the original House bill, a five-year authorization, would cut spending and “destroy” 550,000 jobs.
But House Transportation & Infrastructure Committee Chairman John Mica (R-Fla.) argued that Republicans need just a bit more time, and that this extension — Mica’s third as chairman — is nothing like the six extensions that Democrats were forced to approve when they controlled Congress.
“The fact is that the Democrats on the other side of the aisle, when they controlled the entire House of Representatives, the United States Senate, the other body in a huge majority, and the White House, they did six extensions,” Mica said.
In the future, U.S. growth will be slower. Recessions will be deeper. Recoveries will be weaker. And there’s exactly one thing to blame.
That’s the stark conclusion from James Stock and Mark Watson in this fascinating, and occasionally depressing, new paper. In fact, they say, the future is now. For the last few years, we’ve weathered the beginning of what demographers have called the grey tsunami. “Most of the slow recovery [in today's job market] is attributable to a long-term slowdown in trend employment growth,” Stock and Watson write.
The authors blame two demographic demons for our uncertain future: (1) the plateau in the female labor force participation rate, and (2) the aging of the U.S. workforce. Their underlying logic is that without continued growth in female workers or a significant boost in population, employment and GDP growth will slow, leaving us vulnerable to recessions with “steeper declines and slower recoveries.” In such a future, jobless recoveries will be the only recoveries we know.
Demographic Demon #1
WOMEN’S PARTICIPATION RATE
In the first half of the 20th century, female employment wasn’t exactly a high-priority concern for policy makers. For the first 20 years of the century, women didn’t have the right to vote. For the next 30 years, they barely made up a fifth of the labor force. Then everything changed.
The ascendance of women in the workforce was perhaps the singular cultural/economic triumph of the second half of the 20th century. In 1960, just four in ten working-age women were active in the labor force. By 1990, it was more like six in ten (see graph below of female participation rates). By 2010, women made up a majority of the workforce. But that growth appears to have hit a ceiling. The female participation rate in early 2011 was the same as in 1994. In that time, the male participation has fallen. That’s not good news for a country that will require more workers to both grow the national pot of money and provide for an aging population transitioning out of the workplace.
Demographic Demon #2
THE GRAYING OF AMERICA
Famous economic worrywart Thomas Malthus famously predicted that population growth would get in the way of economic growth, because we wouldn’t be able to make enough stuff to keep everybody healthy and happy. What’s fascinating about the threat of a gray society is that it turns Malthusian pessimism on its head. In fact, the more reasonable threat we face is that an aging population will require more resources that can be — and must be — provided by more people.
Let’s take the long view. In 1950, there were more Americans under 25 than over 45. By 2050, the share of seniors will nearly treble while the country’s portion of twentysomethings will decline. Here’s a look at 100 years of America aging, from a National Journal/Atlantic special report:
“People [used to take] dynamism and economic growth for granted and saw population growth as a problem,” David Brooks wrote last week. “Now we’ve gone to the other extreme, and it’s clear that young people are the scarce resource. In the 21st century, the U.S. could be the slowly aging leader of a rapidly aging world.”
Here’s another way to see what Brooks, Stock, and Watson are concerned about. In the late 1990s, a remarkable 67% of the country (16 and over) was working or seeking work. That number has fallen steadily in the last decade for two reasons. First, there’s the Great Recession, which pushed people out of the labor force. But as you can see in the graph below, demographers were already expected labor participation to decline due to demographics. As 80 million Boomers move into retirement, a smaller share of our population will be working … and a rising share will be seeking increasingly expensive medical attention from the workforce that is left over. That adds up to a less dynamic economy.
Some of the implications of the Boomers’ retirement are predictable. If medical inflation continues apace, either the government or families (or both) will face rising budget pressures to pay for increasingly expensive treatments. As retirees live longer, Social Security will have to be mildly reformed or else we’ll have to dip into general tax funds to fulfill our promise to seniors. One hopes that the transition to a service economy will allow older people to work longer than they have in the past. But one of the advantage of being old and affluent is that you don’t have to work until the day you die. Sixty- and seventy-somethings who can work desk jobs might choose not to.
The aging of the Baby Boomers could have more unpredictable effects, too. Various studies have attributed stock booms in 1980s and 1990s “to the fact that baby boomers were entering their middle ages, the prime period for accumulating financial assets,” the San Francisco Federal Reserve reported. If those studies are right — and if demographic changes aren’t already priced into the stock market — it implies that we could see worse equity performance coinciding with an unfavorable worker-retiree ratio and slower economic growth. Not a good formula for the future.
DON’T WORRY, BE … PROACTIVE
The fact that the United States is getting older is good news. Longer lives are good news. Healthier people are good news. Declining child mortality rates and a modern post-industrial service economy requires smaller families and fewer children are also good news. But this kind of affluence has a price.
Two centuries ago, Malthus predicted that growing populations would act as a tax on growing economies. In fact, the opposite might be true. Stagnating populations are taxing economic growth in rich economies , and we’re only beginning to feel the implication of a historic graying of affluent nations. The United States got rich off young workers. Transfers to the old and sick might be the necessary price of a wealthy modern society. But too many of those transfers from the pockets of too few workers isn’t a smart plan for growth.
If the most significant barrier to growth is our supply of workers, there are low-hanging solutions to creating more working Americans. One solution would be to reform immigration laws to let smart foreigners stay here after they graduate from college. Another would be to reform housing policy in our most high-productivity metros to encourage more people to cluster around our most successful industries. Another would be to allow innovations in K-12 and higher education to bring down the cost of school and the implicit cost of having children. Another might be to reform our corporate income tax laws to encourage more foreigners to start businesses here. Another would be to cure medical inflation to reduce the financial burden of caring for older Americans. This is all much easier typed than done. The upshot is that demographics can be dangerous, but they aren’t destiny.
On Tuesday, the Environmental Protection Agency unveiled its first-ever rules on carbon-dioxide emissions from new power plants. These rules are part of the EPA’s program to tackle global-warming pollution. But what sort of impact will they actually have? Not a whole lot — at least for the foreseeable future.
First, a quick refresher: These latest carbon rules are the third step in the EPA’s ongoing effort to regulate greenhouse gases under the Clean Air Act. The first two phases involved setting stricter fuel-economy standards for cars and light trucks. Today’s rule, which falls under the New Source Performance Standard portion of the law, sets rules for power plants that haven’t been built yet.
The rule, in short, is this: Any new plant built in the United States will have to emit no more than1,000 pounds of carbon-dioxide per megawatt-hour. The vast majority of modern natural-gas plants meet that standard, so they should be fine. Conventional coal plants, however, average upward of 1,800 pounds per megawatt-hour. They’re not so fine.
This effectively means, analysts agree, that it will be impossible to build any new coal-fired power plant in the United States that can’t capture and store its own carbon emissions. Right now, there are two carbon-capture projects in development, one out in West Virginia and one in Texas, but the technology is still costly and unproven. For the time being, then, this is a moratorium on all new coal plants.
Practically, though, that might not have a huge impact in the short term. The rule won’t affect existing power plants, and it won’t affect any coal-fired plants that are already permitted or set to begin construction within a year. According to a Department of Energy report (pdf), there are 24 such plants in the works. This rule would affect any future coal-fired plants — but right now there are hardly any such plants being planned in the United States. In recent years, utilities have been shifting away from coal on their own, largely due to other pollution regulations and the influx of cheap natural gas. The Energy Information Adminstration was already projecting that no coal plants would come online between 2017 and 2035.
So this latest rule might be mostly symbolic — a way of recognizing that global warming is a problem but not taking dramatic steps to cut emissions further. Conventional coal-fired plants were looking increasingly uneconomical anyway, and the EPA’s rules mostly codify that trend. (On the other hand, as Grist’s Dave Roberts notes in his excellent primer, these rules might matter if natural gas prices were to ever spike again. In that case, these EPA rules would require utilities to seek out either renewables, nuclear power, or coal with carbon-capture as alternatives.)
Meanwhile, this rule is only an initial step. The EPA is still mulling over how to deal with existing power plants under a different section of the New Source Performance Standards program, section 111(d), that governs otherwise-unregulated pollutants.
Details on these latter regulations are still murky. It’s not clear when they’ll ever emerge. In theory, the EPA has a lot of flexibility under section 111(d) and could even give states the authority to set up a cap-and-trade system for existing plants. Yet many analysts think that option is unlikely. “The EPA has had a series of listening sessions on this topic,” said William Bumpers, a lawyer with Baker Botts, in a recent interview. “But it’s still struggling to develop these rules.”
Beyond that, the EPA is also crafting rules for oil refineries and other stationary pollution sources, though it’s unclear these will emerge before the November election. All of these future rules could matter a fair bit: A 2010 report from the World Resources Institute found that the EPA’s carbon-dioxide regulations, if fully deployed, could cover about three-quarters of the country’s greenhouse-gas sources and reduce U.S. carbon emissions anywhere from 5 percent to 12 percent below 2005 levels by 2020. For reference, the Obama administration pledged a 17 percent cut at the Copenhagen climate change conference.
But that’s only if the rules are used to their fullest extent. For the time being, the EPA is just a tiny bit of the way there.
Update: In a conference call with reporters this afternoon, EPA administrator Lisa Jackson said, “We have no plans to address greenhouse-gas emissions from existing plants.” That doesn’t rule anything out future regulations, but, for now, the agency seems content to reinforce the status quo, rather than pushing for new carbon cuts.
WHILE POLICY considerations will infuse the Supreme Court arguments Tuesday about the health-care mandate, the session will focus on this legal question: Does the Constitution give Congress the power to order all individuals above a certain income level to buy health insurance? This is the topic of the Supreme Court’s second of three days of consideration of the health-care reform act.
Twenty-six states, the National Federation of Independent Business and several individuals argue that Congress has overreached. To them, the mandate represents a top-down, big-government imperative that threatens liberty. They acknowledge that the Constitution gives Congress robust powers to regulate interstate commerce and the individuals and companies involved in such commerce. But they argue that Congress cannot force individuals to make a purchase from a private company in the marketplace.
“[I]f Congress has the power not just to regulate commercial suppliers and those who voluntarily enter the market, but to compel demand as well, then we have truly entered a brave new world,” the states argue in a court filing. And if the Supreme Court blesses such a move, they say, there will be nothing to stop Congress from mandating purchases of everything from automobiles to vegetables. The mandate, they conclude, is “as unbounded as it is unprecedented.”
These are serious arguments. But we believe the government has the better of the policy and legal case for why the individual mandate is necessary and constitutional.
Health-care services account for some 17 percent of the country’s gross domestic product; today, the average family pays an additional $1,000 annually in the form of higher premiums to subsidize the costs incurred by those who receive care but do not carry insurance. The mandate is an indispensable tool for achieving the government’s compelling goals of universal coverage and lower costs. Insurance companies would be unable to offer affordable coverage to those with preexisting conditions, for example, unless they also were guaranteed enrollment of the young and healthy customers who are less likely to consume health-care services.
In the recent past, the Supreme Court has struck down attempts by Congress to use the Constitution’s Commerce Clause to promulgate laws that had no connection to commercial activity, including those involving guns near schools and violence against women. Yet it has upheld Congress’s Commerce Clause power to reach individuals who were not obviously involved in commercial activity — most famously, the Depression-era farmer who grew wheat for his own consumption. The court concluded that his decision to grow — rather than purchase — wheat interfered with the government’s ability to regulate wheat prices.
The same logic should hold true for individuals able but unwilling to buy health insurance: Their absence has a significant impact on the market, especially because it is virtually inevitable that they will need health-care services at some point in their lives.
In a major blow to the federal case against members of the extremist Hutaree militia, a federal judge has thrown out conspiracy charges against all of the members, leaving five members of the group off the hook completely.
Two defendants — accused ringleader David Stone Sr. and his son Joshua Stone, are still facing weapons charges, the Detroit Free Press reports.
U.S. District Judge Victoria Roberts wrote in a 28-page ruling (embedded below) that the evidence against members of the Michigan-based group may provide “circumstantial proof that some of the Defendants planned to do something unlawful” but said the indictment “sets forth a specific plot to draw law enforcement to Michigan from around the country by killing a member of local law enforcement” that the government couldn’t prove.
Roberts wrote that the government’s strongest case was against David Stone, Sr. but that “even the evidence against Stone is not enough to sustain the seditious conspiracy charge.”
Stones’ statements and exercises, Roberts wrote, “do not evince a concrete agreement to forcibly resist the authority of the United States Government. His diatribes evince nothing more than his own hatred for — perhaps even desire to fight or kill — law enforcement; this is not thesame as seditious conspiracy.”
Roberts was even more harsh on the case against other members, calling the evidence against Joshua Stone “woefully lacking” and the evidence against Tina Stone “minuscule.”
“It is telling that in an investigation that spanned nearly two years, there were only two brief instances in which the alleged plan to kill a member of local law enforcement and attack the ensuing funeral procession was mentioned. Furthermore, the evidence of the necessary next step — a retreat to rally points from where the larger uprising would occur — is wholly lacking,” Roberts wrote.
“The Government’s case is built largely of circumstantial evidence,” Roberts wrote. “While this evidence could certainly lead a rational fact finder to conclude that ‘something fishy’ was going on, it does not prove beyond a reasonable doubt that Defendants reached a concrete agreement to forcibly oppose the United States Government.”
Federal prosecutors rested their case before the jury just a few days ago, according to the Free Press.
The lead homicide investigator on the Trayvon Martin case recommended that George Zimmerman be charged with manslaughter only to be denied, according to ABC News.
Chris Serino, the Sanford, Florida investigator, filed an affidavit on the night of crime saying he was unconvinced of Zimmerman’s account. However, the state attorney’s office Norman Wolfinger told Serino not to press charges against Zimmerman after he said there wasn’t enough evidence against him.
Police later accepted Zimmerman’s claim that he shot the 17-year-old Martin out of self-defense.
The state attorney’s office said “no comment” when asked about Serino’s affidavit.
Has there been any public controversy in recent memory as disheartening as the Trayvon Martin case? I don’t mean the killing of Martin itself, though. That’s certainly disheartening, but it’s hardly unique. I mean the political reaction to it.
A week ago, the worst I could say about right-wing reaction to the Martin case was that conservatives were studiously ignoring it. But that was a week ago. Since then, conservatives have entered the arena with a vengeance.
But why? At first glance, there’s no obvious conservative agenda here. They might, in the abstract, want to defend the “Stand Your Ground” laws that have suddenly drawn the public’s attention since the Martin shooting. But the shooting itself? There’s no special conservative principle at stake that says neighborhood watch captains should be able to shoot anyone who looks suspicious. There’s no special conservative principle at stake that says local police forces should barely even pretend to investigate the circumstances of a shooting. There’s no special conservative principle at stake that says young black men shouldn’t wear hoodies.
But as Dave Weigel points out today, the conservative media is now defending the shooter, George Zimmerman, with an almost messianic zeal. There’s a fake photo of Trayvon Martin making the rounds, and even after it was debunked it’s still making the rounds:
Why is the fake photo so popular? It’s part of a new cottage industry of “truth about Trayvon” content, calibrated to convince people that they really shouldn’t worry about the implications of this killing. Why, the kid wasn’t even a saint! He might have been shot after brawling with the man who creeply followed him around the gated community? The Drudge Report has become a one-stop shop for Trayvon contrarianism.
Unfortunately, it’s not really a cottage industry at this point. More like a mammoth, smoke-belching factory. When I opened my LA Times this morning, for example, I found Jonah Goldberg staring back at me, explaining that we shouldn’t really care about Trayvon Martin because:
Martin’s tragic death is a statistical outlier. More whites are killed by blacks than blacks killed by whites (or “white Hispanics”). And far, far more blacks are killed by other blacks. Indeed, if we’re going to use the prism of race to analyze murder rates, then the real epidemic is that of black murderers.
Quite so. And that, it turns out, is the conservative principle that’s actually at stake here: convincing us all that traditional racism no longer really exists (just in “pockets,” says Goldberg) and that it’s whites who are the real racial victims in today’s America. Heh indeedy.
It would be hard to look at the swath the GOP is trying to cut through the decades of culturally identifiable social legislation without using descriptions evoking a particular past. In fact, the party’s overall personality is starting to take on the characteristics of a grimacing antebellum puritan, bible in one hand and red-hot poker in the other, ready to administer God’s wrath to all its enemies.
Add the element of barely concealed racist undertones (denied to comic excess by the rampaging right-wing reapers) and you have a political movement that indeed resembles the one which tore the country in two nearly a hundred and fifty years ago.
From the draconian approach towards women’s health issues and the virtual elimination of social safety nets, from the aggressive attack on workers’ wages and the eradication of their rights, the path being taken by the modern GOP would ultimately lead to so wide a chasm between the few rich and the many poor that a de facto (not to mention sly) reboot of what amounts to slavery would be subtly inculcated into a population already manipulated into toiling to its own disadvantage, thus recreating a shrewder, camouflaged version of its infamous predecessor The Confederate States of America.
As it stands today, the Party of Lincoln would never admit Lincoln in its party.
Obviously, we’ve come a long way from slaves toiling in the fields (though we seem to tolerate the outsourced and/or underage workers toiling in sweatshops to produce our precious cellphones and sneakers). But the rattling of sabers and the teary oaths of loyalty to preserve the purity of conspicuously Caucasoid ideologies feels only inches away from the political movement that produced rebel yells on bloody battlefields across 35 states.
Cries of secession by southern governors, cartoons and jokes portraying Obama in the most egregiously racist and hateful caricatures being circulated at the GOP’s highest levels; characterizations of their democratic/liberal opponents as godless traitors, appeasers, lily-livered apologists; declaring that God is on their side and their side alone—all of this is more or less standard fringe bile. That bile, however, has overflowed into the mainstream of thought and deed.
But what conjures up ghostly strains of “Dixie” most is the constant assertion by the GOP (and its rightwing corporate media masters) that it in fact embraces or condones none of these overtly contemptible things. Like its CSA predecessors invoking state’s rights as the main cause of the Civil War—and not Lincoln’s opposition to slavery—the GOP cloaks its intentions in language that assuages the patriot’s ear and swells the Christian’s heart. It is a poison pill that relies upon deceit to carry its true message of instilling fear, causing division and ultimately obtaining power.
Just watching Fox News cunningly spin events to fit its patently anti-Obama theme is like listening to Axis Sally smugly disseminating morale-crushing propaganda to war-weary American troops; the passing of legislation proffered by the rightwing members of the senate and the house which seeks to marginalize the poor and the infirm by denying them access to services and benefits, to inculcate religion into public education and into the public commons, to grant corporations equal status with private citizens and give big business license to pollute the land and water unmolested by regulations, to characterize its ideological opponents as irreligious and amoral liberals—all these feel like efforts to restore what the CSA felt it lost in an “unlawful attack against its sovereignty”, regardless of the war’s outcome and the nation’s slow and sometimes painful maturation into a unified democratic republic.
This is a second civil war being waged but with far more artfulness and patience than the first. Instead of pitched battles turning meadows and fields red with spilled blood, it is the fabric of our society being stained with greed and disinformation; instead of preserving the peculiar institution of African-American slavery, it is the cruel pursuit of policies which deny access to education and strip citizens of their dignity, thus giving rise to a “slave” class.
By launching a premeditated attack on citizens’ rights by stacking the courts, highjacking the media, obstructing government and otherwise sabotaging the health and functionality of the nation, there should be little doubt: we are in the midst of our second civil war.
Republic Report has obtained financial audits showing that the billionaire Koch brothers supported at least $3.9 million in unreported election-related activity in 2010. The documents, reported here for the first time, provide a window into an otherwise secret campaign infrastructure that will likely be reactivated this year.
But the petrochemical plutocrats spent way more than what has been previously disclosed. Documents obtained by Republic Report shed light on the 2010 midterm election strategies of the Koch political machine, including secret money used to harness Tea Party activists into defeating Democrats. [...]
[T]he brothers prefer nonprofit 501(c) organizations to hide their donations and their political spending. By evading the spirit of campaign disclosure laws, the attacks go on with little accountability from the public.
They influenced the elections then, and they’ll influence them now, all without disclosure, all to defeat President Obama, all right under our noses, and all hardly noticed by the press.
When I warn Obama supporters against being too complacent, this is what I mean. We’re up against this kind of thing, right along with voter suppression and the intense hatred of the president that will drive right wing voters to the polls, even to cast a ballot for someone as unpopular as Willard M. Romney.
Who is running Americans Elect, the 501c4 corporation that aims to nominate its own presidential candidate in 2012? Today, another little piece of information has leaked out.
William Busa shares the basic information that Americans Elect has neglected to disclose: the identity of the people who are co-chairs of its own presidential election’s Rules Committee:
In this letter to the editor in Sept. 16th’s Washington Post, Americans Elect has for the first time revealed the names of the co-chairs of AE’s all-important Rules Committee. Meet your new overlords!…
I believe this is the first we, the rank-and-file members of AE, have heard of the appointment (by the self-appointed Board of Directors) of co-chairs for the Rules Committee. Like them or not, we’re stuck with these political insiders, since these chairs are not answerable to nor chosen by the membership of AE.According to AE’s Bylaws, they “serve at the pleasure of the Board,” and the Board serves at the pleasure of itself (and, of course, its top-secret anonymous mega-donors).
Who are the Chairs of the Americans Elect Rules Committee? Meet Thomas L. Sansonetti and F. Christopher Arterton.
Tom Sansonetti is currently Partner at Holland and Hart LLC, a major corporate law firm, representing “business entities of all sizes, including more than 100 of the Fortune 500 companies.” Tom Sansonetti is head of Holland and Hart’s Energy, Environment and Natural Resources Practice. He is a major contributor to the Holland and Hart Political Action Committee.
A search of the House Lobbying Disclosure database reveals that over the last election cycle of 2009-2010, Tom Sansonetti has been active as a lobbyist for Peabody Energy Corporation, which is the largest private coal corporation in the world and a chief participantin ALEC, a consortium of corporations that writes pro-business legislation that are introduced and passed by corporate-sponsored state legislators and members of Congress.
Thomas Sansonetti has also been active as a lobbyist for the Oneida Indian Nation recently,nominally as it pertains to the Oneida Nation’s efforts to have 17,000 acres in New York put into national trust. That may sound like an obscure issue, but it turns out that according to the Oneidas the issue had to do with whether the Oneida Nation and those operating on Oneida land would pay taxes in their enterprises. The enterprises on that land include the Turning Stone Resort and Casino. The Oneida Nation, represented in their efforts by Sansonetti, specifically sought to exempt Turning Stone Resort and Casino proceeds from taxation. The Peabody Energy and Oneida Indian Nation lobbying activities have been the top two lobbying activities carried out by Holland and Hart in recent years.
Sansonetti has also been active as a lobbyist for the gambling megacorporation Harrah’s Casinos, on “matters pertaining generally to Indian gaming.”
When he’s not lobbying on behalf of casino interests and the world’s largest coal corporation, Thomas Sansonetti has been active in the leadership of the Republican Party, serving in the past as Wyoming’s Republican National Committeeman, as General Counsel for the Republican National Committee and as Chair of the Wyoming Republican Party. Sansonetti was a contributor to the presidential campaign of Mitt Romney in the 2008 elections.
F. Christopher Arterton
Chris Arterton is an academic, a Director of the Institute for Politics, Democracy and the Internet at George Washington University. He is also a contributor to the Reuniting Our Country PAC, a Joseph Lieberman “leadership” fundraising committee, and to Friends of Joe Lieberman.
These are the two Chairs of the Americans Elect Rules Committee.
Are they financial contributors to Americans Elect? If so, in what amount? We do not know and cannot know. This kind information is not disclosed by Americans Elect to the public.
The Lede followed the second of three days of Supreme Court hearings on the health care law. As our colleague, Adam Liptak reports, the justices asked skeptical questions about the individual mandate provision of the health care law during Tuesday’s hearing. In a news analysis, David Leonhardt, Washington Bureau Chief, notes that many court experts expressed surprise at the apparent agreement among the conservatives, including Justice Anthony M. Kennedy, the likeliest swing vote. Updates below include a mix of breaking news alerts from journalists who leave the courtroom, reports from our colleagues in Washington on demonstrations outside the court and reactions from scholars, advocates and experts.
[Please see original for links.]
The justices asked some harsh questions this morning. But when it comes time to make a decision, most of the issues they raised won’t matter.
The United States Supreme Court may (or may not) follow the election returns, as Finley Peter Dunne’s immortal character Mr. Dooley pronounced over a hundred years ago. But whatever else the justices do, let’s hope that just this one time they flatly ignore the latest polling numbers about the Patient Protection and Affordable Care Act. While just 26 percent of those surveyed in a CBS News/New York Times poll released Monday evening revealed that they support the federal health care law, no fewer than 48 percent of respondents confessed they are “confused” about what the law means. Stupid is as stupid does.
Naturally, the pundits and tribunes and lobbyists and zealots focused upon the first figure while practically ignoring the second. But what’s the point of giving meaning to national poll figures where half of the respondents acknowledge they don’t know what they are talking about? Garbage in, garbage out, right? Credit the law’s opponents for a masterful job of obfuscating the details of the measure — and blame the Obama Administration and the law’s other supporters for failing miserably to adequately explain, on a basic level, what the law does and does not do.
Two years after it was passed, the level of ignorance surrounding the law is palpable. You can hear it in the voices of television and radio talk show hosts as they ask their silly questions. You can read it in the online comments posted from readers. That’s not to say there aren’t legitimate arguments for or against the Care Act — it’s just that those arguments have mostly been drowned out by the cacaphony of political and legal rhetoric. There has been so much spin here, and it has been spun for so long, that it has left millions of Americans simply dizzy.
That’s the sorry backdrop for today’s landmark oral argument over the “individual mandate” contained in the Care Act — the requirement that people under pain of penalty have health insurance by 2014. It is the most significant legal and political day at the Supreme Court since December 12, 2000, the day the justices announced their decision in Bush v. Gore. It’s not just the future of the health care law that is at stake. There are political lives in the balance, too, not to mention the continuing credibility of the Court itself as an institution designed to stay above political storms like the one now blowing through Washington.
(Here is the Link to Tuesday’s audio and transcript)
It’s the world turned upside down. Today, the conservative justices, who are supported by those who often decry so-called “judicial activism,” were the ones seeking out reasons to judicially countermand the majority will as expressed in the federal legislation. And it was the liberal justices, who are often pilloried for their so-called “judicial activism,” who were carefully constructing their questions to suggest deference toward federal lawmakers — the ones whose policy choices in the Care Act were designed to help even out the inequities (and some of the costs) of the nation’s roiling health care system. Go figure.
This meant that the conservative justices (save for Clarence Thomas, who was as mute as ever) came out firing against U.S. Solicitor General Donald Verrilli. Justice Antonin Scalia cheekily asked, “Why not mandate health club membership?” If Congress can do this, the Reagan appointee added, what can’t it do? The justice even raised the silly “broccoli mandate” issue — the idea that the feds will soon be requiring people to eat their veggies. Justice Samuel Alito, a sure vote against the law, asked what the difference would be in regulating health care as opposed to regulating “burial services.” Justice Alito said:
I don’t see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?
There are big differences, Verrilli responded:
In this situation, one of the economic effects Congress is adding is that the many billions of dollars of uncompensated costs are transferred directly to other market participants. It’s transferred directly to other market participants because health care providers charge higher rates in order to cover the costs of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health care costs.
Meanwhile, Justice Anthony Kennedy, the swing vote, ominously asked the federal lawyer to “assume” that the Affordable Care Act is “unprecedented.” He wondered if the law changes the relationship between individuals and the government in a “fundamental” way. “Can you create commerce to regulate it?” he asked. That can’t be happy talk to supporters of the statute. If Justice Kennedy sees that Affordable Care Act as an order of magnitude different from what has come before, he’s far less likely to consider it a valid successor to federal laws that have formed the basis of Commerce Clause jurisprudence for the past 75 years.
On the other hand, Justice Kennedy pressed Michael Carvin, an attorney representing opponents of the law, about the unequal market impact inherent in health care. Late in the argument, Justice Kennedy said:
And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both market — stipuate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That is my concern in the case.
Chief Justice John Roberts? He was identified recently as another possible vote in favor of the Act. I’m not so sure. Exploring the limits of the scope of the law, his first question of the Solicitor General was this: “So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?” To which Verrilli tepidly replied:
No, Mr. Chief Justice. That’s different…. I don’t know think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be be able to control what they need when they enter.
The chief justice pressed on with his hypothetical but got the same answer from Verrilli. So it was left to Justice Ruth Bader Ginsburg, who is a sure vote in favor of the law, to express what the solicitor general was struggling to say about the reasons why Congress enacted the law in the first place. Emphasizing the concept of fundamental fairness, Justice Ginsburg said:
And tell me if I’m wrong about this, but I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them and that the result is that everyone else’s premiums get raised. So you’re not — it’s not your — your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.
It says something about the quality of the solicitor general’s argument Tuesday that one of the justices was so much more eloquent than he in expressing the government’s view. But remember that the justices don’t decide cases by grading the quality of the lawyering before them. They decide cases by what the law says (or at least what they think it says). Verrilli got his hat handed to him by Paul Clement, one of his predecessors, and that impressed some court watchers. But it won’t likely make a difference at all to the justices when it comes time for them to decide the law’s fate. Substance does sometimes trump style.
The American public may be largely “confused” by the Care Act, but the justices aren’t. When Justice Scalia asked, for example, if there are any limits to Congressional power under the Commerce Clause, he already knew that the answer to his question would be yes. Similarly, when Justice Kennedy asked the solicitor general to assume that the law is “unprecedented,” he knew that there are plenty of federal statutes on the books, constitutionally permissible, that interject broad congressional policies and priorities (and, yes, even mandates) into the everyday lives of people.
The Court’s conservatives (five) were more pointed with their questions for the solicitor general than the Court’s liberals (four) were toward Clement. Some veteran court observers, including the venerable Thomas Goldstein over at Scotusblog, immediately interpreted that as a sign that the individual mandate is in trouble. Jeffrey Toobin, the author of one fine book about the Supreme Court who is just about finished with another, called the argument a “train wreck” for the administration. Maybe yes and maybe no. The justices don’t have to love the law to save it. The Constitution doesn’t require affection; it merely requires a reasonable measure of fealty.
I sometimes see the justices in these high profile cases as dogs on a leash (stick with me here for just a moment). They bark a lot during oral argument — sometimes to publicly express a sense of their own perspective or frustration, sometimes to push the attorneys to define the contours of an argument, sometimes because they want to make a point to one of their colleagues on the bench. But at all times, they are supposed to be tethered by the leash — restrained by the language of the law, by their own precedent, and by the cases their predecessors have handed down to them.
Sometimes the leash holds. Sometimes it breaks. Sometimes the barking is just for show. Sometimes the barking is a warning that change is about to come. The challenge for court observers, especially in cases like this, is to determine which is which. The initial wisdom from the commetariat coming out of Tuesday’s argument, after all the barking by Court conservatives, is that the insurance mandate is in trouble. I’m not so sure. The transcript reads better for the feds than the argument sounded. And sometimes dogs bark because they know they can’t or won’t be unleashed. Sometimes, even, they bark just because they can.
Today’s arguments hit the core of the Affordable Care Act: the mandate that requires just about everyone to have health insurance starting in 2014.
And the U.S. Supreme Court’s justices appeared split on whether the federal government can force people to buy health insurance. The court’s conservatives appeared skeptical and unmoved by the government’s arguments in favor of the mandate.
“Three of the conservatives are clearly going to vote to strike it down — that would be justices Scalia, Alito and Thomas,” NPR’s Nina Totenberg reports from outside the court.
Overall, “the government had a hard time, and if they win, they win narrowly,” Totenberg says. “I don’t think you can call this.”
The law says that if you’re not covered by Medicare, Medicaid or insurance provided by your employer, then you’ll have to pony up for coverage on your own or pay a fine.
Those challenging the law say the federal government is going way too far with the mandate. This, they say, is the first time the government is making people buy a commercial product they may not want. That’s a huge overreach, they contend.
“The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.”
After Clement finished his arguments along those lines, SCOTUSblog’s Tom Goldstein left the courtroom to file an update saying, “The individual mandate is in trouble — significant trouble. It’s too early to tell whether it will be struck down.”
Still, it’s clear that the court’s conservative justices are “quite skeptical.” And Goldstein said, “Paul Clement gave the best argument of any kind that I’ve ever heard.”
In Tuesday’s arguments, Solicitor General Donald B. Verrilli Jr. was first up, and he got his fill of tough questions.
Justice Anthony Kennedy, often a swing vote, pressed Verrilli with questions about the mandate and what limits there might be on the federal government’s power to compel people to do certain things, such as buy particular foods.
Kennedy said the government faces a “very heavy burden of justification” for the mandate, The Wall Street Journal‘s Louise Radnofsky reported during the arguments.
Verrilli says that with the overhaul, Congress is regulating people’s participation in the existing market for health care, not treading in brand-new territory. Liberal justices Ruth Bader Ginsburg and Stephen Breyer appeared to back him up on that.
But conservative justices remained skeptical. If the court lets the mandate stand, it may be difficult to limit what Congress can do on other fronts, Chief Justice John Roberts said, according to the Journal‘s Brent Kendall. “All bets are off,” Roberts reportedly said.
At one point, according to the Journal, Justice Samuel Alito asked Verrilli, “Could you express your limiting principle as succinctly as you possibly can?”
As things stand now, about 26 million uninsured people in the U.S. could be subject to the mandate, according to an analysis by the Urban Institute released Monday. But about 8 million of them would be eligible for Medicaid or health insurance programs for kids that wouldn’t cost them much, if anything. Nearly 11 million would be eligible for subsidies under the law. And only about 7 million people would be subject to the mandate and not get some help paying for coverage.
The so-called individual mandate aims to make health insurance nearly universal. With just about everyone in the health insurance pool, the financial risks would spread out among a lot more people.
Supporters of the mandate say those economics are essential to making other changes under the health law, such as a ban on insurers discriminating against people with pre-existing medical conditions. Near-universal coverage would also help make possible a requirement that insurance companies generally charge about the same amount for people who are about the same age.
In briefs and during Tuesday’s arguments, the government has countered that health care represents a unique market. Everyone at some point will get health care. The real questions are when they will get it, and who pays for it?
The mandate, say the supporters, is the best way to make sure that everyone pays his or her fair share. As former Clinton administration Solicitor General Walter Dellinger put it to Totenberg before the arguments:
“Look, if I don’t buy a flat-screen television, and my team is playing for the national championship, I don’t get to run into Best Buy and say, ‘You gotta give me a flat screen television.’ But I do get to go to a hospital when I’m sick and have people provide me with services.”
What’s more, the federal government has argued that the law falls well within its constitutional powers to regulate commerce and to levy taxes. While lower courts have split, one conservative appeals court judge wrote last year in an opinion that went the administration’s way:
“Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law.”
In a few months we’ll learn how many — or how few — of the justices see it that way.
Obamacare Supreme Court Case is a Bad Joke
Forgive me if a wry tone eludes me when it comes to today’s proceedings in the Supreme Court. As far as I am concerned the whole thing is absurd—yet another example of how America’s antiquated system of government, and its determined refusal to accept the economic realities of the modern world, is undermining its future.
Early on in this morning’s session, Justice Anthony Kennedy, the swing vote on the court, said that the U. S. government had a “very heavy burden of justification” to show that an individual mandate to purchase health-care insurance was constitutional. Really? Only if Kennedy and his Republican-appointed colleagues are willing to throw out economic logic as well as seventy years of legal precedent, which, judging by their harsh questioning of Solicitor General Donald Verrilli, Jr., they may well be.
The economics isn’t very complicated. The health-care industry, which makes up about a sixth of the economy, is rife with inefficiency, waste, and coverage gaps. In seeking to remedy some of these problems, the Obama Administration made a deal with the private-insurance industry—the same deal Mitt Romney made when he was governor of Massachusetts. On the one hand, the federal government barred the insurers from discriminating against the sick and the elderly, thereby raising the industry’s costs. On the other hand, the feds obliged uninsured individuals to purchase coverage, thereby expanding the insurers’ revenues. We can argue whether this was the best way to proceed. (At the time the bill was passed, I raised some doubts about how much it would cost.) But it was a straightforward instance of the central government seeking to redress the failures of the private market—something akin to imposing fuel standards on auto manufacturers, providing state pensions, and forcing banks to hold adequate capital reserves.
In a modern, interconnected economy, activist government policies to remedy market failures are essential. Rather than confronting this argument head-on, which would involve publicly defending the actions of the banks, the insurers, and the industrial polluters, the right has settled on a strategy of trying to undermine the government through the courts, where its pro-corporate agenda can be repackaged as a defense of ancient freedoms.
Thus the bogus constitutional challenge to Obamacare, and, in particular, the individual mandate. As my colleague Jeffrey Toobin pointed out in an excellent post this morning, the issue resolves around the Commerce Clause of the Constitution, which gives the federal government the power to “regulate Commerce … among the several States.” Where does this power begin and end? In the famous 1942 case of Wickard v. Filburn, the Court said that the federal government’s authority extends to any activity that “exerts a substantial economic effect” on commerce crossing state lines.
The case involved Roscoe Filburn, an Ohio farmer who wanted to grow more wheat than he had been allotted under quotas introduced during the Great Depression to drive up prices. In deciding against Filburn and in favor of the Department of Agriculture, the justices pointed out that the actions of individual wheat farmers, taken together, affect the price of wheat across many states. That is what gives the federal government the power to limit their actions.
Under the Wickard v. Filburn standard, the individual mandate is clearly constitutional. If ever there was an industry that crosses state lines, it is health care. As the Solicitor General’s office noted in its brief to the Court on the merits of the case, health-care spending “accounts for 17.6 percent of the nation’s economy.” From a legal perspective, that is where the matter should rest.
But, of course, this case isn’t ultimately about the law—it is about politics. The four ultra-conservative justices on the court—Alito, Roberts, Scalia, and Thomas—are in the vanguard of a movement to roll back the federal government and undermine its authority to tackle market failures. The movement began in the nineteen-eighties, when the Federalist Society got its start and Ronald Reagan appointed one of its members, Scalia, to the court—and for thirty years it has been gathering strength.
Thus the creation of a new legal theory to sink Obamacare: the idea that while the federal government might well have the authority to regulate economic activity, it doesn’t have the right to regulate inactivity—such as sitting around and refusing to buy health insurance. Now, it is as plain as the spectacles on Antonin Scalia’s nose that opting out of the health-care market is about as realistic as opting out of dying. But necessity is the mother of invention. And, judging by his questions this morning, it is this invention that Kennedy has fastened on.
As I said at the beginning, it’s a bad joke—upon us all.
In Stephen Colbert’s ongoing spoof of conservative punditry, he often insists that he cannot see color. As if to prove that he’s a spot on satirist, Rush Limbaugh has titled a Monday web item about the Trayvon Martin case, “The Left’s Obsession with Race,” wherein he explains to his audience:
This is one of those things I can’t relate to. I don’t look at people and see a race or a sexual orientation or whatever… I don’t see black-versus-white or anything. The left is the ones who do this.
A lot of conservatives honestly believe this — that the left is obsessed with race, while the right is assiduously colorblind, and wouldn’t think about the subject, let alone discuss it in public, if its adherents were in charge. It’s time that someone explain to them why the rest of America isn’t buying it.
The right’s race problem is a lot bigger than its most popular talk radio host, but he’s a good place to begin. Remember when he briefly got a gig as an NFL commentator? If you watch Monday Night Football or Sports Center, you don’t see much critical race theory creeping into the analysis. But bring in Rush Limbaugh and suddenly a conversation about Donovan McNabb’s performance turned into what, if it were submitted as a term paper in a black studies class, might be titled, “How Racial Expectations Affect The Post-Civil Rights-Era Treatment of Black Quarterbacks In Mass Media.” Whatever you think about Limbaugh’s comments, he is the one who deliberately and needlessly brought McNabb’s race into the conversation. He’s also the man who won the 2009 award for accusing more people than anyone else of racism. And the man who responded to an obscure news item about awhite kid getting beat up by a black kid on a school bus by saying that sort of black-on-white violence is perfectly kosher in Barack Obama’s America. And who can forget his mocking mimicry of the way that Chinese people speak? If a black talk show host treated whites like Limbaugh treats minorities, conservatives would go ballistic.
But as I said, it isn’t just about talk radio. It’s also about politicians like Newt Gingrich. In his latest foray into racial commentary, he took President Obama to task for his comments about the Trayvon Martin case.
Here’s what Obama said:
I’ve got to be careful about my statements to make sure we’re not impairing any investigation… But obviously this is a tragedy. I can only imagine what these parents are going through. And when I think about this boy, I think about my own kids. I think that every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together, federal, state and local to figure out exactly how this tragedy happened…
My main message is to the parents of Trayvon Martin. If I had a son, he would look like Trayvon. I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves.
To me, that’s as pitch perfect as an off-the-cuff statement gets.
Here’s how Gingrich reacted to it:
What the president said in a sense is disgraceful. It is not a question of who that young man looked like. Any young American of any ethnic background should be safe. Period. And trying to turn it into a racial issue is fundamentally wrong. I find it appalling.
See what he did there? In the course of criticizing Obama for engaging in supposed racial demagoguery, Gingrich implies that the president cares less when white kids are shot by strangers, despite the fact that reading his statement that way is the sort of mistake only an overly literal idiot (or poorly programmed computer) would actually make. Gingrich is no idiot. And he is far too undisciplined to be a computer. Given his insistence that invoking identity is needlessly divisive, he’s certainly a hypocrite. This is a guy who says the best way to understand Obama is through the prism of his alleged Kenyan anti-colonialism; a guy who says that American Muslims shouldn’t be able to build mosques in Manhattan until Saudi Arabia permits churches on its territory; someone who thinks the widespread conservative belief that Obama is a Muslim is both something Obama ought to be embarrassed about (apparently he thinks there’s something wrong with being a Muslim) and that the rumor is Obama’s fault!
It would be one thing if Limbaugh and Gingrich were jeered by fellow conservatives for their long-running forays into racial demagoguery. Instead the prevailing attitude is something like “turnabout is fair play.” Ask a conservative why they don’t call these guys out. The answer is often, “but Al Sharpton is worse.” Even if that were true, the fact that somewhere a liberal is behaving badly hardly justifies the behavior of their conservative analogues; but the uncomfortable truth conservatives refuse to face is that Sharpton’s low point happened two decades ago. Look at the past decade. Limbaugh and Gingrich are the bigger racial demagogues today.
Writing at Forbes, Josh Barro explains what’s wrong with the insistence of some conservatives that Obama’s comments in the Martin case were objectionable:
The claim running through these objections is that black Americans cannot have any special concerns in need of airing. Many of the issues raised in the Trayvon Martin case–was Trayvon Martin singled out for suspicion because he was black? Did race influence the Sanford police’s handling of the case? What is the burden of profiling on young black men?–are therefore off limits.
Barro goes on to say something the right must confront if its ever going to change its reputation on racial matters:
Conservatives, almost universally, feel like they get a bad rap on race. They catch heat when they point out improvements over the last several decades in race relations and in the material well being of minorities in America, even though those phenomena are real. They catch heat when they contend that government programs intended to help the poor have led to problems with dependency in minority communities, even though those critiques are sometimes correct. They catch heat when they criticize Affirmative Action, even when in some cases (as at the University of California) Affirmative Action was clearly dis-serving minority communities.
Why do conservatives catch such heat? It’s probably because there is still so much racism on the Right to go alongside valid arguments on issues relating to race and ethnicity. Conservatives so often get unfairly pounded on race because, so often, conservatives get fairly pounded on race. And this is the Right’s own fault, because conservatives are not serious about draining the swamp… There has been a clear strategic calculation here among Republican elites. Better to leverage or at least accept the racism of much of the Republican base than try to clean it up.
His post, complete with examples and lots more analysis, is worth reading in full. And the conclusion is spot on:
My challenge to conservatives who feel they get a bum rap on race is this. Stand up for yourself and your colleagues when you feel that a criticism is unfair. At the same time, criticize other conservatives who say racist things, cynically tolerate racism in the Republican base, or deny the mere existence of racial issues in America today. The conservative movement desperately needs self-policing on racial issues, if it ever hopes to have credibility on them.
Quite right. It is in fact the case that conservatives are sometimes attacked unfairly on racial matters, and that some conservatives are attacked because they’re obvious racial demagogues. The best “strategy” for grappling with this situation is to just call ‘em how you see ‘em.
[Take with a grain of salt—he's smart but no Constitutional authority.]
The quick read is that today went very badly for supporters of the individual mandate. As one of the experienced Supreme Court watchers who runs SCOTUSblog tweeted, “Paul Clement” — the attorney arguing against the health-care law — “gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.”
As Lyle Denniston writes, this still looks like Justice Anthony Kennedy’s case to decide. But however he decides it, it’s worth keeping in mind what an oddly narrow principle is actually being debated.
According to tax economists, there’s no economic difference between the individual mandate and the policies leading Republicans support to give large tax credits to Americans who purchase health-care insurance and deny them to those who don’t. But while the mandate might get overturned, everyone agrees that discriminatory tax credits are constitutional.
By now, you should know how the individual mandate works: Starting in 2016, those who don’t carry insurance will be assessed a $695 fine, per year, or 2.5 percent of their income, whichever is higher. There are exemptions for those who can’t afford health-care insurance, but that’s the basic gist of it.
Here’s how Paul Ryan’s health-care plan works: Individuals who purchase insurance will get a $2,300 tax credit. Individuals who don’t purchase insurance forgo the tax credit. There’s no affordability clause such that, say, someone who can’t afford health insurance nevertheless gets the tax credit.
If anything, Ryan’s plan might be a little harsher on those who choose to go without insurance. There’s no actual enforcement mechanism behind the individual mandate. The IRS can’t dock your pay or throw you in jail. If you choose not to pay it and you simply ignore the letters the government sends your way, nothing actually happens.
Conversely, under Ryan’s plan, if you don’t buy insurance, you really don’t get the tax credit, and so you do, in effect, pay a large tax penalty compared to a world in which you did buy insurance — larger, in fact, than the penalty under the individual mandate.
To an economist, there’s no difference between these two policies. Just to be sure, I asked William Gale, director of the Tax Policy Center, just to be sure. “It’s the same,” he shrugged. “The economics of saying you get a credit if you buy insurance and you don’t if you don’t are not different than the economics of saying you pay a penalty if you don’t buy insurance and you don’t if you do.”
Now, various conservative legal minds have argued that there is a profound difference between these two policies: One is penalizing a particular form of economic inactivity, while the other is encouraging a particular form economic activity. And perhaps that’s so. But it’s not a difference very many Americans would notice when it came time to pay their taxes.
QUOTE OF THE DAY:
“If you tell the truth, you don’t have to remember anything.”
― Mark Twain