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Everything Is Like Slavery, Except Slavery

[ 111 ] January 14, 2014 |

How’s that Republican outreach to racial minorities going these days?

North Carolina Republican Senate candidate Greg Brannon has an interesting argument for eliminating food stamps: “slavery.” In a videotaped interview with the North Carolina Tea Party in October, Brannon, a Rand Paul-endorsed doctor who is top contender for the GOP nomination to take on Democratic Sen. Kay Hagan, cited James Madison in making the case for abolishing the Department of Agriculture—and with it, the $76 billion-a-year Supplemental Nutrition Assistance Program, also known as food stamps. Brannon has a real chance of winning: A December poll from Public Policy Polling found the GOP primary field split but showed him leading Hagan, 45-43.

“We’re taking our plunder, that’s taken from us as individuals, [giving] it to the government, and the government is now keeping itself in power by giving these goodies away,” Brannon said in the interview. “The answer is the Department of Agriculture should go away at the federal level. And now 80 percent of the Farm Bill was food stamps. That enslaves people. What you want to do, it’s crazy but it’s true, teach people to fish instead of giving them fish. When you’re at the behest of somebody else, you are actually a slavery to them [sic]. That kind of charity does not make people freer.”

Also, Medicaid is like the Gulag, and unemployment benefits are like concentration camps. Subsidies to tobacco farmers are like the Emancipation Proclamation. Surely, we can all come together to agree on these points.

And now, to Serwer with the punchline:

I Regret Comparing the A-Rod Arbitration Ruling to Bush v. Gore — It Was Too Kind

[ 77 ] January 14, 2014 |

As I’ve been saying from the beginning, the obvious problem with the theory that Alex Rodriguez merited an extraordinary punishment is that the collective bargaining agreement specifies a penalty for a first offense: 50 games.  Section 7(A) of Joint Drug Agreement reads as follows:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.  [My emphasis]

This should be dispositive. Players who test positive — whether they’ve used the same PED on many occasions or multiple different PEDs or both — get 50 games for first offense. This is A-Rod’s first offense. He should have gotten 50 games, or 62 if you grant the commissioner wide discretion over enforcement of the “materially detrimental or materially prejudicial to the best interests of baseball” clause so long as the penalty isn’t so draconian as to be an end-run around the JDA. (The other theory justifying something like the 211-game penalty initially given A-Rod — that his “obstruction” of an investigation he had no obligation to cooperate with merited a punishment 2 or 3 times the underlying offense — is so absurd even an arbitrator deeply buried in MLB’s back pocket refused to take it seriously.)

As we saw yesterday, however, based on Horowitz’s characterization of the facts this created a puzzle. Allegedly, both the MLBPA and A-Rod’s defense conceded that the penalties set out in 7(A) didn’t apply. If true, this would be bizarre if not malpractice — why on earth would A-Rod’s defense concede this point when the plain language of the contract compels a rejection of MLB’s position?

The problem, however, is that the complaint filed by A-Rod’s defense is inconsistent with the assertion that they conceded the 7(A) claim. And now, according to Wendy Thrum, it appears that the MLBPA didn’t concede it either:

In other words, it appears that the Players Association backed off Michael Weiner’s statements in July that the 50-100-lifetime regime in Section 7.A didn’t apply. On that score, Selig threatened that application of Section 7.A. would result in a lifetime ban, as there was ample evidence that Rodriguez had used PEDs at least three times.

For reasons already noted, Selig’s argument is simply wrong — every first offender has of course almost certainly used PEDs multiple times — and even Horowitz didn’t really buy it. But Horowitz doesn’t have anything resembling a decent argument for pulling a separate standard of punishment out his own rectum:

Wait a second. The Players Association argued that the maximum penalty was 50 games as a first violation, but that Section 7.G.2 provided the “governing framework”? And that Section 7.A. — which does contain the 50-100-lifetime penalty scheme — doesn’t apply when there has been “continuous use or possession of multiple substances”? Frankly, that doesn’t make a lot of sense, and it makes me wonder if the Players Association didn’t clearly articulate its view of the governing agreements or the arbitrator misconstrued the union’s position.

Moreover, the arbitrator’s interpretation of Section 7.A. omits a key portion of the language. He points to the first part of the section that talks about a player “who tests positive for a Performance Enhancing Substance” (his emphasis) and concludes that the section couldn’t apply to a situation involving evidence of multiples uses of a PED. But he completely ignores the second part of the section: a player who otherwise violates the Program through the possession or use of a Performance Enhancing Substance will be subject to the 50-100-lifetime regime (my emphasis). What does that language mean if it doesn’t apply to players found to have used or possessed PEDs absent a positive drug test?

Whether he willfully distorted the position of the defense or his characterization was a matter of some form of incompetence from either Horowitz and A-Rod and/or the MLBPA, I don’t see anyway his illogical punishment stacking scheme can be reconciled with the plain language of the JDA. And his only decent argument on behalf of his arbitrary punishment — that all parties stipulated that 7(A) didn’t apply seems to be false. My understanding is that Horowitz misconstruing he language like this probably still won’t give A-Rod much of a case in federal court to vacate the opinion — but I’m far from sure that this level of deference is a good thing.

Look, you probably hate A-Rod. I’m not much of a fan myself. But drug war hysteria is bad and running roughshod over the rights of employees is also bad, and even though A-Rod is far more privileged than the typical victim of either his being singled out for extraordinary punishment on the basis of nothing is still indefensible.

The Civil War Was About Slavery

[ 45 ] January 14, 2014 |

Just ask the Confederate states!

In fairness, Matthews fails to account for the many denunciations of the Fugitive Slave Act as an unconscionable federal overreach.  I’m sure they’re in the Declarations of Causes somewhere in the back.

We Have the ARod Opinion, And It’s Really Bad

[ 87 ] January 13, 2014 |

Craig Calcaterra has read the opinion in the A-Rod arbitration. And the bottom line is that the apologists who thought there would be some kind of defensible logic to it, or that it would show that Rodriguez was involved in some kind of stunningly unprecedented bad behavior that would justify a suspension more than 3 times what his violations properly merited, were definitely wrong.

The best thing I can say about Horowitz’s opinion is that the (as it turns out) vastly exaggerated “obstruction” charges carried little weight, earning Rodriguez only 12 games. It still seems to be that the appropriate amount of suspension for “obstruction,” given that Rodriguez was not under any actual obligation to comply, would be nothing. But a relatively short suspension under XII(B) does not amount to a de facto circumvention of the JDA, and it also avoids the absurd result of punishing obstruction with a penalty more than twice the underlying defense.  I don’t agree with the judgment but it’s not entirely unreasonable.

But the argument that Horowitz settles on isn’t any better. The standard he does use is a transparently illogical one: Rodriguez was found to have committed multiple violations of PED use. The problem is that since virtually every first offender is guilty of multiple actual uses of PEDs, this amounts to throwing the penalties agreed to in the JDA out the window. In dispensing with the penalties agreed to in collective bargaining agreement, he doesn’t use a standard of his own that makes any sense:

But even the arbitrator seems uncomfortable with giving Selig a blank slate. He tries to look at the “guideposts” of the 50/100/life matrix in section 7(A) and sort of retrofit A-Rod’s drug use on to it. It’s a long passage, but it’s AMAZING. He says 7(A) doesn’t apply, so we go elsewhere, but if 7(A) DID apply, we’d be able to stack up 50-game penalties against A-Rod because he used three things…


Never mind that the Neifi Perez case did not involve HGH or testosterone, it involved stimulants, which are treated quite differently. Never mind that other Biogenesis players — specifically Bartolo Colon and Melky Cabrera — were not given multiple levels of discipline because, according to baseball, they already did their time, as it were. This seems remarkably shaky to me. It is a new way of approaching drug discipline that just so happens to achieve Major League Baseball’s desired result of a lengthy suspension.

Major League Baseball actually argued for a lifetime ban here, saying that if A-Rod had three distinct offenses he’d get a 50, a 100 and a lifetime stacked on top of each other. That actually makes more sense to me. After all, if a player who got a 50 game test suspension last year tested positive for a different substance tomorrow, he’d get 100 games. There would not a be a 50 game suspension because it is a different substance, which is what the arbitrator is basically doing here. In essence, the arbitrator is going lighter on A-Rod than the logic he actually subscribes to would have him do. It would at least be intellectually consistent for him to ban Rodriguez for life. The arbitrator was obviously loathe to do that. But if the logic train he followed drove him off a cliff, maybe he shouldn’t have followed that logic train in the first place. Maybe he shouldn’t have tried to invent his own standard.

The best solution, given the untrammeled discretion afforded by 7(G), would still have been to act consistently with the spirit of the agreement and apply the penalty set by 7(A), which is 50 games, 62 if we want to throw in the penny-ante obstruction charge. He didn’t do that, and he didn’t quite not do it. It’s illogical on its face and subversive of the JDA. It singles out Rodriguez for extraordinary punishment based on characteristics he shares with every other player found to have used PED. (Awful as the argument was, at least the obstruction argument applied to behavior that was more unique to A-Rod.)

Like Calcaterra, I’m baffled that the MLBPA,  whose recent actions seem increasingly inept, as well as A-Rod’s legal team would stipulate that the penalties set by section 7(A) don’t apply although it’s the most natural reading of the contract.* I know that the MLBPA has an interest in strongly defending the arbitration process that transcends any one result, but Rodriguez did not get the MLBPA’s best defense.  I suspect that both this concession and its relatively tepid reaction to the excessive suspension are based in some measure on the belief that both Selig’s arbitrary suspension and Horowitz’s arbitrary and incoherent opinion largely upholding it reflect a belief that the the arbitrator’s consideration is limited to the present circumstances because problem of PED use by particularly disliked and highly paid symbols of the PED era generally presents many complexities.  And so, this level of excessive punishment will only be meted out to A-Rod even though it would logically apply to many other players and give the MLB a clear path to avoiding the JDA and doling out arbitrary punishment to any player it doesn’t like. The fact that with the minor exception of Braun the other Biogenesis players were properly given the punishment specified by 7(A) even though they were also all presumably guilty of multiple offenses of using PEDs according to the logic of this case may even mean that they’re right. But this is an extremely dangerous precedent, and Rodriguez — like him or not — has been treated very unfairly.

*As Sherm notes in comments, #82-3 of the complaint filed by Rodriguez’s legal team would seem to be inconsistent with the assertion that they conceded the 7(A) argument.  If Horowitz inferred from Rodriguez arguing that no violation of 7(A) occurred a stipulation that the 7(A) punishments wouldn’t apply even if a finding of PED use was found that would be hacktacular.

Arizona’s Arbitrary Abortion Ban Thwarted

[ 4 ] January 13, 2014 |

As I always say when this Supreme Court declines to hear an appeal to a favorable abortion ruling, this is excellent news:

The Supreme Court has declined to take up the state of Arizona’s ban on abortion at 20 weeks, continuing a recent streak of reluctance to revisit the core of the abortion issue.

That’s good news for pro-choice advocates, who had successfully argued at the Ninth Circuit Court of Appeals that the law violated the standard set by Roe v. Wade by banning abortion well before viability. Attorneys for abortion providers had told the court the appeals court decision “faithfully follows this Court’s precedents, is in conflict with the decision of no other court, and thus merits no further review.” They added, “Two generations of American women and families have come of age, depending on constitutional protection for their reproductive decisions.”

The Court’s choice to let that decision stand means that Arizona’s ban, which drew the line two weeks earlier than other states with such bans did, won’t be enforced, nor will a similar one in Idaho, which also falls in the Ninth Circuit.

The 20-week bans are particularly dangerous, since bans on pre-viability abortion are one of the few things that Casey clearly forbids. I’d just as soon not have Anthony “No reliable data” Kennedy be put in a position to decide if he wants to water ‘er down some more be given the chance to make things worse.

The Twisted Roots of the War On (Some Classes of People Who Use Some) Drugs

[ 104 ] January 13, 2014 |

Maia Szalavitz has a terrific piece pointing out that the racist enforcement of marijuana laws is no accident:

Both Brooks and Marcus told stories of their own youthful pot smoking—neither of which seems to have led to any lasting negative consequences as is the case for the overwhelming majority of marijuana users. Yet both claimed—without apparently understanding that relying on a single study that has been questioned in a follow up by the same journal is not accurately reporting “fact”—that marijuana definitively lowers IQ.

And neither mentioned the elephant in the room: the fact that marijuana laws are mainly enforced against black people and that arresting millions and saddling them with criminal records hasn’t prevented around half of the adult population (white and black) from trying weed. It has, however, meant that black people have reduced opportunities to get jobs with organizations like the Times or the Post while Brooks and Marcus never faced arrest.


The truth is that our perceptions of marijuana—and in fact all of our drug laws—are based on early 20th century racism and “science” circa the Jim Crow era. In the early decades of the 20th century, the drug was linked to Mexican immigrants and black jazzmen, who were seen as potentially dangerous.

Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics (an early predecessor of the DEA), was one of the driving forces behind pot prohibition. He pushed it for explicitly racist reasons, saying, “Reefer makes darkies think they’re as good as white men,” and:

“There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”

The main reason to prohibit marijuana, he said was “its effect on the degenerate races.” (And god forbid women should sleep with entertainers!)

In fairness, I’m sure Brooks will write a column where he shows evidence of the thinking he’s done on these issues in secret any day now.

Today In The Biased Liberal Media

[ 69 ] January 13, 2014 |

The unofficial leader of the opposition, everybody:

For more than a year, Fox News has waged an intense campaign to discredit Gabriel Sherman’s forthcoming biography of network CEO Roger Ailes. A review of the book, which Media Matters obtained in advance of its Tuesday release, reveals that the network was right to be worried.

Among other revelations, Sherman reports that Ailes agreed with Glenn Beck’s infamous remark that President Obama has “a deep-seated hatred for white people”; Ailes thinks Navy SEALs should “have to personally kill an illegal immigrant” as part of their certification; Ailes allegedly offered an employee a salary increase if she would have sex with him on demand; and Ailes once called a rival executive “a little fucking Jew prick.”

The first details from Sherman’s The Loudest Voice in the Room generated serious press attention this week, including the news that Ailes tried to gear Fox’s 2012 coverage to “elect the next president.”

Ailes’s lickspittles are gathering to attack Sherman for a reason, apparently.

…New York has an excerpt from Sherman’s book, which can be found here.

No, Seriously

[ 81 ] January 13, 2014 |

What the hell is wrong with Bill Keller?

..see also.

These Things I Believe

[ 126 ] January 13, 2014 |

Very, very true:

I wonder if this will start to become an advertising trend — perhaps Safeway will start running ads encouraging customers to use the self check-out because its workers are too dumb to operate the cash registers. All scored to a particularly irritating Train song, of course, because this is apparently some sort of federal mandate. I blame expansive readings of the commerce clause and the inherent conservatism of the Affordable Care Act.

Baseball’s Bush v. Gore

[ 101 ] January 12, 2014 |

Well, say this for the Supreme Court of the United States: when they make a lawless decision, they at least have to make it public. Since Frederic Horowitz’s decision isn’t made public, I suppose we don’t know to an absolute certainty that the hearing didn’t uncover evidence that transcends its facial indefensibility.

But as I’ve said before, the full-season suspension of A-Rod is almost certainly an outrage. Let’s assume arguendo that MLB had sufficient evidence that Rodriguez used PEDs. The collective bargaining agreement specifies a punishment for that: 50 games. The full-season suspension of Rodriguez would seem to be based on one or both of these factors:

  • Rodriguez was guilty of “multiple offenses.”  Given that virtually nobody who fails a drug test only used PEDs once, this is ridiculous, and would essentially render the specified punishments meaningless.
  • Rodriguez obstructing an investigation he was under no contractual obligation to comply with merits a punishment more than twice the underlying offense.

I’m not sure which of these arguments is more absurd, but they’re certainly both absurd.  Wendy Thurm has more.

You would think that the MLBPA would react strongly to the commissioner having been given arbitrary powers that violate at least the spirit of the collective bargaining agreement.  But things are likely to get worse before they get better.

Divisional Round Open Thread

[ 294 ] January 11, 2014 |

Saints (+9) over SEAHAWKS Between mild optimism and pure terror, I can’t really objectively analyze this game; I should just turn it over to Barnwell. This much seems clear: the Seahawks are the better team playing at home, and the difference between them is much less than the beatdown earlier this year would indicate. I certainly think Seattle is likely to win, but 9 points seems like an awful lot for game with two good teams that will apparently be played in a near-monsoon. I will feel a lot better about Seattle both today and going forward if Harvin seems at least vaguely healthy!

Colts (+7 1/2) over PATRIOTS I’d still take Brady over Luck, although it’s getting close. On the other hand, the Patriot defense is pretty much like what the Chiefs had to field in the second half. Admittedly, Belichick with two weeks to prepare is unlikely to let Hilton run free the way the Chiefs did, but it’s still hard to imagine Luck being unable to move the ball. Brady will too, but in what could well be a last-team-with-the-ball-wins shoutout, I like the points. And let us not forget the game’s secret weapon: for the price of a mere first-rounder,* the Colts were able to acquire the 45th best running back to get 100 carries in the NFL this year! Alas, he’s been so terrible that he’s unlikely to be the boost for New England by soaking up plays that might otherwise be used productively than he otherwise might have been.

PANTHERS (+1) over 49ers. Instinctively, I like the Niners too, and I think Crabtree coming back helps a lot. But there isn’t a lot to choose between these times — San Fransisco has a better offense, but Carolina actually had the better defense — so it’s hard for me not to pick the home underdog. Although games like this underline why I bet blog posts nobody remembers a week later rather than actual money on NFL games…

Chargers (+9 1/2) over Broncos Since Rivers was almost as good as Manning this year, the key question is whether the performance of the San Diego’s defense last week shows some real improvement or was an product of the Bengals’s ineptitude. My guess is that it’s mostly the latter — and isn’t hiring the person responsible for Cincinatti’s offense very Dan Snyder of Dan Snyder — but it does suggest that the Charger pass defense isn’t quite as horrible as it was in the first half. So, again, this looks like a shootout, and while you have to prefer Manning at home, it’s hard to pass up nearly ten points, especially since San Diego isn’t overmatched.

*The Richardson heist would seem reason for Browns fans to be optimistic about the new management, just as trading up to draft Richardson was a definitive example of the ineptitude of the old one. But I’m not sure what’s more pathetic — giving serious consideration to hiring Josh “I traded up for Tim Tebow and that probably wasn’t the worst move of my comically disastrous tenure” McDaniels, or being turned down by Josh McDaniels. It seems worth noting again that off all of the Belichick assistants to get head coaching jobs, Eric Mangini remains the best one.

The Arkansas Medicaid Expansion and the Circular Firing Squad

[ 76 ] January 10, 2014 |

In this discussion thread, I’ve been having an extensive back-and-forth with Weldon Berger about whether the Affordable Care Act is “conservative.” For the most part, I’m happy to stand by my arguments as stated there — it’s silly to call a statute “conservative” when 1)it advanced longstanding progressive goals to the maximum extent that was politically viable at the time is was enacted, and 2)both before and after the fact actually existing American conservatives (unless you foolishly count some massively unrepresentative New England Republicans*) have never supported anything like it. But there is one point I want to make here.

One obvious contradiction in Berger’s arguments is that he considers the original Medicaid an example of genuinely progressive reform, which makes it hard to explain why a statute that makes Medicaid far more generous can be “conservative.” His answer is that the way in which a single state has been permitted to expand Medicaid renders the Medicaid expansion non-progressive. Combining two comments:

In fact, the administration recently granted Arkansas a waiver to steer newly eligible Medicaid recipients into subsidized private insurance plans offered on the exchange there, thereby treating them exactly as the Nixon and Chafee plans proposed to do. One can expect that the states which rejected the expansion will be looking to the Arkansas model when they finally accept it, and that some states which accepted the expansion will follow suit as well.

You can argue, then, that the Medicaid expansion is more progressive than the Republican plan of simply subsidizing private insurance for low-income people ineligible for Medicaid — as Arkansas is now doing with Medicaid funds courtesy of that waiver from the administration — but you can’t seriously argue that it is a great leap forward in single-payer. Or at least you can’t expect to be taken seriously when you do argue it.


I said that it’s not the progressive triumph you think it is, and I explained why. The issue with the Arkansas waiver is — again — that it transmogrifies the Medicaid expansion into exactly the policy in the Chafee plan that you regard as laughably inferior to the Medicaid expansion.

The problems with this argument only start with the fact that Medicaid certainly represents a major expansion of single-payer on net. The bigger issue is with the assertion that the Arkansas Medicaid expansion is identical to the Medicaid changes in the Potemkin Chafee proposal of 1993. This is egregiously false, and reflects the persistent problem of collapsing major differences between various regulatory regimes. The Chafee plan sought to encourage states to put Medicaid recipients on the exchanges without expanding coverage. The Arkansas plan approved by the Obama administration, conversely, requires the state to provide coverage to everyone within 138% of the federal poverty line, not just a relatively small subset of the poor. This is not at all the same as the Chafee plan. In my view, all things being equal public helath insurance is better than private insurance, and my guess is that the Arkansas expansion will prove to be less efficient. But it doesn’t follow from that that covering far more people through private insurance required to provide the same benefits as Medicaid is therefore less “progressive” than covering many fewer people through a public insurance program.

The Arkansas medicaid expansion has to be viewed in context. With a legislature dominated by Tea Party Republicans, the choice was not “Medicaid expansion through public insurance” and “Medicaid expansion through heavily regulated private insurance.” The choice was the latter or no Medicaid expansion at all. Now, maybe had the administration denied the waiver Arkansas would have eventually relented, although it wasn’t going to happen in the short term. (The pot of federal money does covert some powerful actors who are normally barriers to reform into potential allies.) But refusing to take that gamble strikes me as sensible. And I’m certainly don’t agree that letting 200,000 poor people go without insurance in the hope that wingnuts will consent to a single-payer expansion is the “progressive” alternative.

But wait — Berger’s argument is worse than that. While it’s true that there are many contexts in which Democrats have been awfully slow to recognize that John Chafee is not, in fact, representative of the Republican Party, this wasn’t one of them. The architects of the ACA anticipated the dilemma that might be posed by red-state Republican governments, and created a funding mechanism that would compel the states to take the Medicaid expansion on federal terms. Only, of course, this mechanism was thrown out by the Supreme Court, leaving a choice between a suboptimal expansion and no expansion in many states. You would think that an allegedly tough-minded progressive critique of health care policy would direct the ire where it’s appropriate — at the unprecedented actions of a reactionary Supreme Court, not at Democratic politicians at various levels doing as well as they can within institutional constraints. But this is a problem with the “ACA is conservative plan” set we’ve observed before — among other problems, they always let the actual villains get off scot-free while training their fire at the wrong targets.

*Several commenters have fairly observed that my characterization of the Massachusetts health care reform as passing over 8 Romney vetoes is misleading. My purpose in this admittedly snarky phrasing was to counter the highly misleading after-the-fact definition of the reform bill as “Romneycare.” I’m not pedantic enough to object to legislation being identified with the executive who signed it when she leads the majority coalition, but a case where the executive was in a subordinate position facing supermajorities of the other party in both houses of the legislature is a different story. But it’s true that Romney was not a steadfast opponent of the legislation — he did act fairly responsibly in a way in which Republicans virtually never do anymore, and he deserves some credit for that, credit my formulation indeed denies him. Still, Romney agreeing to go along with the legislation doesn’t make it a “conservative” or “Republican” proposal any more than Everett Dirksen’s crucial support for the Civil Rights Act made it a “Republican proposal.” If you had to identify the legislation with one faction it would be the legislative Democrats, although the legislation was a collaboration between the branches.

…Relatedly, see Krugman on the importance of Medicaid.

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